POSASR
As filed with the Securities and Exchange Commission on July 1, 2009
Registration No. 333-159137
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Otter Tail Corporation
(Exact name of registrant as specified in its charter)
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Minnesota
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27-0383995 |
(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.) |
215 South Cascade Street, Box 496
Fergus Falls, Minnesota 56538-0496
(866) 410-8780
(Address, including zip code, and telephone number, including area code, of registrants principal
executive offices)
George A. Koeck, Esq.
General Counsel and Corporate Secretary
215 South Cascade Street, Box 496
Fergus Falls, Minnesota 56538-0496
(866) 410-8780
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Gary L. Tygesson, Esq.
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, Minnesota 55402
(612) 340-8753
Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box. þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. þ
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act.
Large accelerated filer þ |
Accelerated filer o |
Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this Amendment) to that certain Registration Statement on
Form S-3 (Reg. No. 333-159137) (the Registration Statement) is being filed pursuant to Rule 414
under the Securities Act of 1933, as amended (the Securities Act) by Otter Tail Corporation, a
Minnesota corporation (Otter Tail Holding), as the successor registrant to Otter Tail
Corporation, a Minnesota corporation (Predecessor Registrant), to reflect a reorganization of the
Predecessor Registrant into a holding company structure.
The new holding company structure was effected on July 1, 2009 pursuant to a merger (the Merger)
implemented pursuant to Section 302A.626 of the Minnesota Business Corporation Act and a Plan of
Merger among the Predecessor Registrant, Otter Tail Holding (formerly Otter Tail Holding Company, a
Minnesota corporation and direct subsidiary of the Predecessor Registrant) and Otter Tail Merger
Sub Inc., a Minnesota corporation and indirect subsidiary of the Predecessor Registrant and direct
subsidiary of Otter Tail Holding (Merger Sub) whereby, among other things, the Predecessor
Registrant was merged with Merger Sub and the Predecessor Registrant was the surviving corporation
under the name Otter Tail Power Company.
As a result of the Merger, the Predecessor Registrant became a direct, wholly owned subsidiary of
Otter Tail Holding and Otter Tail Holding is the successor issuer to the Predecessor Registrant
pursuant to Rule 414 under the Securities Act. Immediately following the Merger, Otter Tail
Holding changed its name to Otter Tail Corporation.
In the Merger, each issued and outstanding common share of the Predecessor Registrant was converted
into one common share of Otter Tail Holding, par value $5 per share, and each issued and
outstanding cumulative preferred share of the Predecessor Registrant was converted into one
cumulative preferred share of Otter Tail Holding having the same designations, rights, powers and
preferences. In connection with the Merger, each person that held rights to purchase, or other
rights to or interests in, common shares of the Predecessor Registrant under any stock option,
stock purchase or compensation plan or arrangement of the Predecessor Registrant immediately prior
to the Merger holds a corresponding number of rights to purchase, and other rights to or interests
in, common shares of Otter Tail Holding, par value $5 per share, immediately following the Merger.
In accordance with paragraph (d) of Rule 414 under the Securities Act, Otter Tail Holding hereby
expressly adopts the Registration Statement, including the Prospectus contained in Part I thereof,
as its own registration statement except as amended by this Amendment, for all purposes of the
Securities Act and the Securities Exchange Act of 1934, as amended.
PROSPECTUS
Common Shares
Cumulative Preferred Shares
Depositary Shares
Debt Securities
Securities Warrants
Units
We may offer for sale, from time to time, either separately or together in any combination,
the securities described in this prospectus. This prospectus provides you with a general
description of the securities we may offer. Each time we sell any of these securities, we will
provide one or more prospectus supplements containing specific information about the terms of that
offering. The prospectus supplements may also add, update or change information contained in this
prospectus. If information in the prospectus supplement is inconsistent with the information in
this prospectus, then the information in the prospectus supplement will apply and will supersede
the information in this prospectus. You should carefully read both this prospectus and any
prospectus supplement together with additional information described under the heading Where You
Can Find More Information before you invest.
We may offer and sell these securities directly or to or through underwriters, agents or
dealers. The supplements to this prospectus will describe the terms of any particular plan of
distribution including names of any underwriters, agents or dealers.
This prospectus may not be used to carry out sales of securities unless accompanied by a
prospectus supplement.
Our common shares are traded on the NASDAQ Global Select Market under the symbol OTTR.
Investing in our securities involves risks. See Risk Factors beginning on page 3.
Neither the Securities and Exchange Commission nor any state securities commission has approved or
disapproved of these securities or determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The date of this prospectus is July 1, 2009.
All references in this prospectus to Otter Tail, we, us, our, our company and the
corporation are to Otter Tail Corporation including our consolidated subsidiaries, unless
otherwise indicated or the context otherwise requires.
All references in this prospectus to $, U.S. Dollars and dollars are to United States
dollars.
ABOUT THIS PROSPECTUS
This prospectus is part of an automatic shelf registration statement on Form S-3 that we filed
with the Securities and Exchange Commission (SEC) as a well-known seasoned issuer as defined in
Rule 405 under the Securities Act of 1933, as amended (Securities Act). Under this shelf
registration, we may sell any of the securities described in this prospectus. The registration
statement that contains this prospectus (including the exhibits to the registration statement)
contains additional information about us and the securities we are offering under this prospectus.
You can read that registration statement at the SEC web site at http://www.sec.gov or at the SEC
office mentioned under the heading Where You Can Find More Information.
This prospectus provides you with a general description of the securities we may offer. Each
time we sell any of these securities, we will provide one or more prospectus supplements containing
specific information about the terms of that offering. The prospectus supplements may also add,
update or change information contained in this prospectus. If information in the prospectus
supplement is inconsistent with the information in this prospectus, then the information in the
prospectus supplement will apply and will supersede the information in this prospectus. You should
carefully read both this prospectus and any prospectus supplement together with additional
information described under the heading Where You Can Find More Information before you invest.
You should rely only on the information contained or incorporated by reference in this
prospectus and any accompanying prospectus supplement. We have not authorized anyone to provide you
with different or additional information. If anyone provides you with different or additional
information, you should not rely on it.
You should not assume that the information in this prospectus, any accompanying prospectus
supplement or any document incorporated by reference is accurate as of any date other than the date
on its front cover.
Neither we nor anyone acting on our behalf is making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted.
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RISK FACTORS
You should carefully consider the risks and uncertainties described below and any risk factors
in any accompanying prospectus supplement and in our reports to the SEC incorporated by reference
into this prospectus, as well as the other information included or incorporated by reference in
this prospectus and any accompanying prospectus supplement, before deciding whether to purchase any
securities we may offer.
Risks Related to our Business
General
Federal and state environmental regulation could require us to incur substantial capital
expenditures and increased operating costs.
We are subject to federal, state and local environmental laws and regulations relating to air
quality, water quality, waste management, natural resources and health safety. These laws and
regulations regulate the modification and operation of existing facilities, the construction and
operation of new facilities and the proper storage, handling, cleanup and disposal of hazardous
waste and toxic substances. Compliance with these legal requirements requires us to commit
significant resources and funds toward environmental monitoring, installation and operation of
pollution control equipment, payment of emission fees and securing environmental permits. Obtaining
environmental permits can entail significant expense and cause substantial construction delays.
Failure to comply with environmental laws and regulations, even if caused by factors beyond our
control, may result in civil or criminal liabilities, penalties and fines.
Existing environmental laws or regulations may be revised and new laws or regulations may be
adopted or become applicable to us. Revised or additional regulations, which result in increased
compliance costs or additional operating restrictions, particularly if those costs are not fully
recoverable from customers, could have a material effect on our results of operations.
Volatile financial markets and changes in our debt ratings could restrict our ability to access
capital and increase borrowing costs and pension plan expenses.
We rely on access to both short- and long-term capital markets as a source of liquidity for
capital requirements not satisfied by cash flows from operations. If we are not able to access
capital at competitive rates, our ability to implement our business plans may be adversely
affected. Market disruptions or a downgrade of our credit ratings may increase the cost of
borrowing or adversely affect our ability to access one or more financial markets.
Disruptions, uncertainty or volatility in the financial markets can also adversely impact our
results of operations, the ability of customers to finance purchases of goods and services, and our
financial condition as well as exert downward pressure on stock prices and/or limit our ability to
sustain our current common stock dividend level.
Changes in the U.S. capital markets could also have significant effects on our pension plan.
Our pension income or expense is affected by factors including the market performance of the assets
in the master pension trust maintained for the pension plan for some of our employees, the weighted
average asset allocation and long-term rate of return of our pension plan assets, the discount rate
used to determine the service and interest cost components of our net periodic pension cost and
assumed rates of increase in our employees future compensation. If our pension plan assets do not
achieve positive rates of return, or if our estimates and assumed rates are not accurate, our
earnings may decrease because net periodic
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pension costs would rise and we could be required to provide additional funds to cover our
obligations to employees under the pension plan.
As of December 31, 2008, our defined benefit pension plan assets had declined significantly
since December 31, 2007. We are not required to make a mandatory contribution to the pension plan
in 2009. However, if the market value of pension plan assets continues to decline and relief under
the Pension Protection Act is no longer granted, we could be required to contribute additional
capital to the pension plan.
Any significant impairment of our goodwill would cause a decrease in our assets and a reduction in
our net operating performance.
We had approximately $106.8 million of goodwill recorded on our consolidated balance sheet as
of December 31, 2008. We have recorded goodwill for businesses in each of our business segments,
except for our electric utility, Otter Tail Power Company (the electric utility). If we make
changes in our business strategy or if market or other conditions adversely affect operations in
any of these businesses, we may be forced to record an impairment charge, which would lead to
decreased assets and a reduction in net operating performance. Goodwill is tested for impairment
annually or whenever events or changes in circumstances indicate impairment may have occurred. If
the testing performed indicates that impairment has occurred, we are required to record an
impairment charge for the difference between the carrying value of the goodwill and the implied
fair value of the goodwill in the period the determination is made. The testing of goodwill for
impairment requires us to make significant estimates about our future performance and cash flows,
as well as other assumptions. These estimates can be affected by numerous factors, including
changes in economic, industry or market conditions, changes in business operations, future business
operating performance, changes in competition or changes in technologies. Any changes in key
assumptions, or actual performance compared with key assumptions, about our business and its future
prospects or other assumptions could affect the fair value of one or more business segments, which
may result in an impairment charge.
We currently have $24.3 million of goodwill and a $3.3 million nonamortizable trade name
recorded on our balance sheet related to the acquisition of Idaho Pacific Holdings, Inc. (IPH) in
2004. If conditions of low sales prices, high energy and raw material costs and a shortage of raw
potato supplies return, as experienced in 2006, or operating margins do not improve according to
our projections, the reductions in anticipated cash flows from this business may indicate that its
fair value is less than its book value resulting in an impairment of some or all of the goodwill
and nonamortizable intangible assets associated with IPH and a corresponding charge against
earnings.
We currently have $12.3 million of goodwill and $4.9 million in nonamortizable trade names
recorded on our balance sheet related to the acquisition of ShoreMaster, Inc. (ShoreMaster) and
its subsidiary companies. If current economic conditions continue to impact the amount of sales of
waterfront products and ShoreMaster is not successful with reorganizing and streamlining its
business to improve operating margins according to our projections, the reductions in anticipated
cash flows from this business may indicate that its fair value is less than its book value
resulting in an impairment of some or all of the goodwill and nonamortizable intangible assets
associated with ShoreMaster and a corresponding charge against earnings.
A sustained decline in our common stock price below book value may result in goodwill
impairments that could adversely affect our results of operations and financial position, as well
as our credit facility covenants.
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Economic conditions could negatively impact our businesses.
Our businesses are affected by local, national and worldwide economic conditions. The current
tightening of credit in financial markets could continue to adversely affect the ability of
customers to finance purchases of our goods and services, resulting in decreased orders, cancelled
or deferred orders, slower payment cycles, and increased bad debt and customer bankruptcies. Our
businesses may also be adversely affected by decreases in the general level of economic activity,
such as decreases in business and consumer spending. A decline in the level of economic activity
and uncertainty regarding energy and commodity prices could adversely affect our results of
operations and our future growth.
If we are unable to achieve the organic growth we expect, our financial performance may be
adversely affected.
We expect much of our growth in the next few years will come from major capital investment at
existing companies. To achieve the organic growth we expect we will have to have access to the
capital markets, be successful with capital expansion programs related to organic growth, develop
new products and services, expand our markets and increase efficiencies in our businesses.
Competitive and economic factors could adversely affect our ability to do this. If we are unable to
achieve and sustain consistent organic growth, we will be less likely to meet our revenue growth
targets, which together with any resulting impact on our net income growth, may adversely affect
the market price of our common shares.
Our plans to grow and diversify through acquisitions may not be successful, which could result in
poor financial performance.
As part of our business strategy, we intend to acquire new businesses. We may not be able to
identify appropriate acquisition candidates or successfully negotiate, finance or integrate
acquisitions. If we are unable to make acquisitions, we may be unable to realize the growth we
anticipate. Future acquisitions could involve numerous risks including: difficulties in integrating
the operations, services, products and personnel of the acquired business; and the potential loss
of key employees, customers and suppliers of the acquired business. If we are unable to
successfully manage these risks of an acquisition, we could face reductions in net income in future
periods.
Our plans to acquire, grow and operate our nonelectric businesses could be limited by state law.
Our plans to acquire, grow and operate our nonelectric businesses could be adversely affected
by legislation in one or more states that may attempt to limit the amount of diversification
permitted in a holding company structure that includes a regulated utility company or affiliated
nonelectric companies.
The terms of some of our contracts could expose us to unforeseen costs and costs not within our
control, which may not be recoverable and could adversely affect our results of operations and
financial condition.
DMI Industries, Inc. and ShoreMaster, two businesses in our manufacturing segment, and our
construction companies frequently provide products and services pursuant to fixed-price contracts.
Revenues recognized on jobs in progress under fixed-price contracts for the year ended December 31,
2008 were $425 million. Under those contracts, we agree to perform the contract for a fixed price
and, as a result, can improve our expected profit by superior contract performance, productivity,
worker safety and other factors resulting in cost savings. However, we could incur cost overruns
above the approved contract price, which may not be recoverable.
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Fixed-price contract prices are established based largely upon estimates and assumptions
relating to project scope and specifications, personnel and material needs. These estimates and
assumptions may prove inaccurate or conditions may change due to factors out of our control,
resulting in cost overruns, which we may be required to absorb and that could have a material
adverse effect on our business, financial condition and results of our operations. In addition, our
profits from these contracts could decrease and we could experience losses if we incur difficulties
in performing the contracts or are unable to secure fixed-pricing commitments from our
manufacturers, suppliers and subcontractors at the time we enter into fixed-price contracts with
our customers.
We are subject to risks associated with energy markets.
Our businesses are subject to the risks associated with energy markets, including market
supply and increasing energy prices. If we are faced with shortages in market supply, we may be
unable to fulfill our contractual obligations to our retail, wholesale and other customers at
previously anticipated costs. This could force us to obtain alternative energy or fuel supplies at
higher costs or suffer increased liability for unfulfilled contractual obligations. Any
significantly higher than expected energy or fuel costs would negatively affect our financial
performance.
Certain of our operating companies sell products to consumers that could be subject to recall.
Certain of our operating companies sell products to consumers that could be subject to recall
due to product defect or other safety concerns. If such a recall were to occur, it could have a
negative impact on our consolidated results of operations and financial position.
Electric
We may experience fluctuations in revenues and expenses related to our electric operations, which
may cause our financial results to fluctuate and could impair our ability to make distributions to
shareholders or scheduled payments on our debt obligations.
A number of factors, many of which are beyond our control, may contribute to fluctuations in
our revenues and expenses from electric operations, causing our net income to fluctuate from period
to period. These risks include fluctuations in the volume and price of sales of electricity to
customers or other utilities, which may be affected by factors such as mergers and acquisitions of
other utilities, geographic location of other utilities, transmission costs (including increased
costs related to operations of regional transmission organizations), changes in the manner in which
wholesale power is sold and purchased, unplanned interruptions at the electric utilitys generating
plants, the effects of regulation and legislation, demographic changes in the electric utilitys
customer base and changes in the electric utilitys customer demand or load growth. Electric
wholesale margins have been significantly and adversely affected by increased efficiencies in the
Midwest Independent Transmission System Operator (MISO) market. Electric wholesale trading
margins could also be adversely affected by losses due to trading activities. Other risks include
weather conditions or changes in weather patterns (including severe weather that could result in
damage to the electric utilitys assets), fuel and purchased power costs and the rate of economic
growth or decline in the electric utilitys service areas. A decrease in revenues or an increase in
expenses related to our electric operations may reduce the amount of funds available for our
existing and future businesses, which could result in increased financing requirements, impair our
ability to make expected distributions to shareholders or impair our ability to make scheduled
payments on our debt obligations.
As of December 31, 2008 the electric utility had capitalized $11.6 million in costs related to
the planned construction of a second electric generating unit at the electric utilitys Big Stone
Plant site. If the
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project is abandoned for permitting or other reasons, a portion of these capitalized costs and
others incurred in future periods may be subject to expense and may not be recoverable.
Additionally, if the electric utility is unable to complete the construction of Big Stone II and
commence operations or find other alternatives to meet generation needs, it may be forced to
purchase power in order to meet customer needs. There is no guarantee that in such a case the
electric utility would be able to obtain sufficient supplies of power at reasonable costs. If the
electric utility is forced to pay higher than normal prices for power, the increase in costs could
reduce our earnings if the electric utility is not able to recover the increased costs from its
electric customers through the fuel clause adjustment.
Actions by the regulators of our electric operations could result in rate reductions, lower
revenues and earnings or delays in recovering capital expenditures.
We are subject to federal and state legislation, government regulations and regulatory actions
that may have a negative impact on our business and results of operations. The electric rates that
the electric utility is allowed to charge for its electric services are one of the most important
items influencing our financial position, results of operations and liquidity. The rates that the
electric utility charges its electric customers are subject to review and determination by state
public utility commissions in Minnesota, North Dakota and South Dakota. The electric utility is
also regulated by the Federal Energy Regulatory Commission (FERC). An adverse decision by one or
more regulatory commissions concerning the level or method of determining electric utility rates,
the authorized returns on equity, implementation of enforceable federal reliability standards or
other regulatory matters, permitted business activities (such as ownership or operation of
nonelectric businesses) or any prolonged delay in rendering a decision in a rate or other
proceeding (including with respect to the recovery of capital expenditures in rates) could result
in lower revenues and net income.
Future operating results of our electric segment will be impacted by the outcome of a rate
case filed in North Dakota on November 3, 2008 requesting an overall increase in North Dakota
retail rates of 5.14%. The filing included a request for an interim rate increase of 4.07%, which
went into effect on January 1, 2009. Interim rates will remain in effect for all North Dakota
customers until the North Dakota Public Service Commission (NDPSC) makes a final determination on
the electric utilitys request, which is expected by August 1, 2009. If final rates are lower than
interim rates, the electric utility will refund North Dakota customers the difference with
interest.
We may not be able to respond effectively to deregulation initiatives in the electric industry,
which could result in reduced revenues and earnings.
We may not be able to respond in a timely or effective manner to the changes in the electric
industry that may occur as a result of regulatory initiatives to increase wholesale competition.
These regulatory initiatives may include further deregulation of the electric utility industry in
wholesale markets. Although we do not expect retail competition to come to the states of Minnesota,
North Dakota and South Dakota in the foreseeable future, we expect competitive forces in the
electric supply segment of the electric business to continue to increase, which could reduce our
revenues and earnings.
The electric utilitys electric generating facilities are subject to operational risks that could
result in unscheduled plant outages, unanticipated operation and maintenance expenses and increased
power purchase costs.
Operation of electric generating facilities involves risks which can adversely affect energy
output and efficiency levels. Most of the electric utilitys generating capacity is coal-fired. The
electric utility relies on a limited number of suppliers of coal, making it vulnerable to increased
prices for fuel as existing contracts expire or in the event of unanticipated interruptions in fuel
supply. The electric utility is a
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captive rail shipper of the BNSF Railway for shipments of coal to its Big Stone and Hoot Lake
plants, making it vulnerable to increased prices for coal transportation from a sole supplier.
Higher fuel prices result in higher electric rates for the electric utilitys retail customers
through fuel clause adjustments and could make it less competitive in wholesale electric markets.
Operational risks also include facility shutdowns due to breakdown or failure of equipment or
processes, labor disputes, operator error and catastrophic events such as fires, explosions,
floods, intentional acts of destruction or other similar occurrences affecting the electric
utilitys electric generating facilities. The loss of a major generating facility would require the
electric utility to find other sources of supply, if available, and expose it to higher purchased
power costs.
Changes to regulation of generating plant emissions, including but not limited to carbon dioxide
(CO2) emissions, could affect our operating costs and the costs of supplying
electricity to our customers.
Existing or new laws or regulations passed or issued by federal or state authorities
addressing climate change or reductions of greenhouse gas emissions, such as mandated levels of
renewable generation, mandatory reductions in CO2 emission levels, taxes on
CO2 emissions or cap and trade regimes, that result in increases in electric service
costs could negatively impact our net income, financial position and operating cash flows if such
costs cannot be recovered through rates granted by ratemaking authorities in the states where the
electric utility provides service or through increased market prices for electricity.
Plastics
Our plastics operations are highly dependent on a limited number of vendors for polyvinyl chloride
(PVC) resin and a limited supply of PVC resin. The loss of a key vendor, or any interruption or
delay in the supply of PVC resin, could result in reduced sales or increased costs for our plastics
business.
We rely on a limited number of vendors to supply the PVC resin used in our plastics business.
Two vendors accounted for approximately 94% of our total purchases of PVC resin in 2008 and
approximately 95% of our total purchases of PVC resin in 2007. In addition, the supply of PVC resin
may be limited primarily due to manufacturing capacity and the limited availability of raw material
components. A majority of U.S. resin production plants are located in the Gulf Coast region, which
may increase the risk of a shortage of resin in the event of a hurricane or other natural disaster
in that region. The loss of a key vendor or any interruption or delay in the availability or supply
of PVC resin could disrupt our ability to deliver our plastic products, cause customers to cancel
orders or require us to incur additional expenses to obtain PVC resin from alternative sources, if
such sources are available.
We compete against a large number of other manufacturers of PVC pipe and manufacturers of
alternative products. Customers may not distinguish our products from those of our competitors.
The plastic pipe industry is highly fragmented and competitive due to the large number of
producers and the fungible nature of the product. We compete not only against other PVC pipe
manufacturers, but also against ductile iron, steel, concrete and clay pipe manufacturers. Due to
shipping costs, competition is usually regional instead of national in scope, and the principal
areas of competition are a combination of price, service, warranty and product performance. Our
inability to compete effectively in each of these areas and to distinguish our plastic pipe
products from competing products may adversely affect the financial performance of our plastics
business.
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Reductions in PVC resin prices can negatively affect our plastics business.
The PVC pipe industry is highly sensitive to commodity raw material pricing volatility.
Historically, when resin prices are rising or stable, margins and sales volume have been higher and
when resin prices are falling, sales volumes and margins have been lower. Reductions in PVC resin
prices could negatively affect PVC pipe prices, profit margins on PVC pipe sales and the value of
our finished goods inventory.
Manufacturing
Competition from foreign and domestic manufacturers, the price and availability of raw materials,
fluctuations in foreign currency exchange rates and general economic conditions could affect the
revenues and earnings of our manufacturing businesses.
Our manufacturing businesses are subject to intense risks associated with competition from
foreign and domestic manufacturers, many of whom have broader product lines, greater distribution
capabilities, greater capital resources, larger marketing, research and development staffs and
facilities and other capabilities that may place downward pressure on margins and profitability.
The companies in our manufacturing segment use a variety of raw materials in the products they
manufacture, including steel, lumber, concrete, aluminum and resin. Costs for these items have
increased significantly and may continue to increase. If our manufacturing businesses are not able
to pass on cost increases to their customers, it could have a negative effect on profit margins in
our manufacturing segment.
Each of our manufacturing companies has significant customers and concentrated sales to such
customers. If our relationships with significant customers should change materially, it would be
difficult to immediately and profitably replace lost sales. Fluctuations in foreign currency
exchange rates could have a negative impact on the net income and competitive position of our wind
tower manufacturing operations in Ft. Erie, Ontario because the plant pays its operating expenses
in Canadian dollars.
Health Services
Changes in the rates or methods of third-party reimbursements for our diagnostic imaging services
could result in reduced demand for those services or create downward pricing pressure, which would
decrease our revenues and earnings.
Our health services businesses derive significant revenue from direct billings to customers
and third-party payors such as Medicare, Medicaid, managed care and private health insurance
companies for our diagnostic imaging services. Moreover, customers who use our diagnostic imaging
services generally rely on reimbursement from third-party payors. Adverse changes in the rates or
methods of third-party reimbursements could reduce the number of procedures for which we or our
customers can obtain reimbursement or the amounts reimbursed to us or our customers.
Our health services businesses may be unable to continue to maintain agreements with Philips
Medical from which we derive significant revenues from the sale and service of Philips Medical
diagnostic imaging equipment.
Our health services business agreement with Philips Medical expires on December 31, 2013. This
agreement can be terminated on 180 days written notice by either party for any reason. It also
includes other compliance requirements. If this agreement is terminated under the existing
termination provisions or we were not able to comply with the agreement, the financial results of
our health services operations would be adversely affected.
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Technological change in the diagnostic imaging industry could reduce the demand for diagnostic
imaging services and require our health services operations to incur significant costs to upgrade
its equipment.
Although we believe substantially all of our diagnostic imaging systems can be upgraded to
maintain their state-of-the-art character, the development of new technologies or refinements of
existing technologies might make our existing systems technologically or economically obsolete, or
cause a reduction in the value of, or reduce the need for, our systems.
Actions by regulators of our health services operations could result in monetary penalties or
restrictions in our health services operations.
Our health services operations are subject to federal and state regulations relating to
licensure, conduct of operations, ownership of facilities, addition of facilities and services and
payment of services. Our failure to comply with these regulations, including new regulations
released October 30, 2008 by the Center for Medicare & Medical Services, or our inability to obtain
and maintain necessary regulatory approvals, may result in adverse actions by regulators with
respect to our health services operations, which may include civil and criminal penalties, damages,
fines, injunctions, operating restrictions or suspension of operations. Any such action could
adversely affect our financial results. Courts and regulatory authorities have not fully
interpreted a significant number of these laws and regulations, and this uncertainty in
interpretation increases the risk that we may be found to be in violation. Any action brought
against us for violation of these laws or regulations, even if successfully defended, may result in
significant legal expenses and divert managements attention from the operation of our businesses.
Food Ingredient Processing
Our company that processes dehydrated potato flakes, flour and granules, IPH, competes in a highly
competitive market and is dependent on adequate sources of potatoes for processing.
The market for processed, dehydrated potato flakes, flour and granules is highly competitive.
The profitability and success of our potato processing company is dependent on superior product
quality, competitive product pricing, strong customer relationships, raw material costs, fuel
prices and availability and customer demand for finished goods. In most product categories, our
company competes with numerous manufacturers of varying sizes in the United States.
The principal raw material used by our potato processing company is washed process-grade
potatoes from growers. These potatoes are unsuitable for use in other markets due to imperfections.
They are not subject to the United States Department of Agricultures general requirements and
expectations for size, shape or color. While our food ingredient processing company has processing
capabilities in three geographically distinct growing regions, there can be no assurance it will be
able to obtain raw materials due to poor growing conditions, a loss of key growers and other
factors. A loss or shortage of raw materials or the necessity of paying much higher prices for raw
materials or fuel could adversely affect the financial performance of this company. Fluctuations in
foreign currency exchange rates could have a negative impact on our potato processing companys net
income and competitive position because approximately 25% of IPH sales in 2008 were outside the
United States and the Canadian plant pays its operating expenses in Canadian dollars.
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Other Business Operations
Our construction companies may be unable to properly bid and perform on projects.
The profitability and success of our construction companies require us to identify, estimate
and timely bid on profitable projects. The quantity and quality of projects up for bids at any time
is uncertain. Additionally, once a project is awarded, we must be able to perform within cost
estimates that were set when the bid was submitted and accepted. A significant failure or an
inability to properly bid or perform on projects could lead to adverse financial results for our
construction companies.
Financing
Any debt securities that we issue could contain covenants that restrict our ability to obtain
financing, and our noncompliance with one of these restrictive covenants could lead to a default
with respect to those debt securities and any other indebtedness.
Debt securities that we may offer using this prospectus, or any other future indebtedness of
our company or its subsidiaries, may be subject to restrictive covenants, some of which may limit
the way in which we can operate our businesses and significantly restrict our ability to incur
additional indebtedness or to issue cumulative preferred shares. Noncompliance with any covenants
under this indebtedness, unless cured, modified or waived, could lead to a default not only with
respect to that indebtedness, but also under any other indebtedness that we may incur. If this were
to happen, we might not be able to repay or refinance all of our debt.
A downgrade in our credit rating or other adverse actions by rating agencies could increase our
borrowing costs.
If rating agencies were to downgrade our long-term debt ratings, our ability to borrow would
be adversely affected and our future borrowing costs would likely increase with resulting
reductions in net income in future periods.
If we issue a substantial amount of additional debt, it may be more difficult for us to obtain
financing, may increase our total interest expense and may magnify the results of any default under
any of our debt agreements.
The issuance of debt securities could increase our debt-to-total-capitalization ratio or
leverage, which may in turn make it more difficult for us to obtain future financing. In addition,
the issuance of any debt securities will increase the total interest expense we pay on our debt,
except to the extent that the proceeds from the issuance of any new debt securities are used to
repay other outstanding indebtedness. Finally, our level of indebtedness, and in particular any
significant increase in it, may make us more vulnerable if the downturn in our business or
worsening conditions in the global economy continue.
Risks Related to our Securities
Our board of directors has the power to issue series of cumulative preferred shares and cumulative
preference shares and to designate the rights and preferences of those series, which could
adversely affect the voting power, dividend, liquidation and other rights of holders of our common
shares.
Under our articles of incorporation, our board of directors has the power to issue series of
cumulative preferred shares and cumulative preference shares and to designate the rights and
preferences of those series. Therefore, our board of directors may designate a new series of
cumulative preferred shares or
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cumulative preference shares with the rights, preferences and privileges that the board of
directors deems appropriate, including special dividend, liquidation and voting rights. The
creation and designation of a new series of cumulative preferred shares or cumulative preference
shares could adversely affect the voting power, dividend, liquidation and other rights of holders
of our common shares and, possibly, any other class or series of stock that is then in existence.
Except for our common shares, there is no public market for the securities that we may offer using
this prospectus.
Except for our common shares, no public market exists for the securities that we may offer
using this prospectus, and we cannot assure the liquidity of any market that may develop, the
ability of the holders of the securities to sell their securities or the price at which the
securities may be sold. Our common shares are traded on the NASDAQ Global Select Market. We do not
intend to apply for listing of any other securities that we may offer using this prospectus on any
securities exchange or for quotation through the NASDAQ system. Future trading prices of the
securities will depend on many factors including, among others, prevailing interests rates, our
operating results and the market for similar securities.
The market price of our common shares may be volatile.
The market price of our common shares may fluctuate significantly in response to a number of
factors, some of which may be beyond our control. These factors include the perceived prospects or
actual operating results of our electric and nonelectric businesses; changes in estimates of our
operating results by analysts, investors or our company; our actual operating results relative to
such estimates or expectations; actions or announcements by us or our competitors; litigation and
judicial decisions; legislative or regulatory actions; and changes in general economic or market
conditions. In addition, the stock market in general has from time to time experienced extreme
price and volume fluctuations. These market fluctuations could reduce the market price of our
common shares for reasons unrelated to our operating performance.
Our charter documents and Minnesota law contain provisions that could delay or prevent an
acquisition of the corporation, which could inhibit your ability to receive a premium on your
investment from a possible sale of the corporation.
Our charter documents contain provisions that may discourage third parties from seeking to
acquire the corporation. These provisions and specific provisions of Minnesota law relating to
business combinations with interested shareholders may have the effect of delaying, deterring or
preventing a merger or change in control of the corporation. Some of these provisions may
discourage a future acquisition of the corporation even if shareholders would receive an attractive
value for their shares or if a significant number of our shareholders believed such a proposed
transaction to be in their best interests. As a result, shareholders who desire to participate in
such a transaction may not have the opportunity to do so.
The payment of future dividends on our common shares will be subject to the discretion of our board
of directors.
We have historically paid quarterly dividends on our common shares. Any determination to pay
dividends in the future will be at the discretion of our board of directors and will depend on our
earnings, financial condition, results of operations, capital requirements, regulatory
restrictions, contractual restrictions and other factors that our board of directors may deem
relevant.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference may contain forward-looking
statements with respect to the financial condition, results of operations, plans, objectives,
future performance and business of Otter Tail Corporation and its subsidiaries. Statements preceded
by, followed by or that include the words such as may, will, expect, anticipate,
continue, estimate, project, believes or similar expressions are intended to identify some
of the forward-looking statements within the meaning of the Private Securities Litigation Reform
Act of 1995 and are included, along with this statement, for purposes of complying with the safe
harbor provisions of that Act. These forward-looking statements involve risks and uncertainties.
Actual results may differ materially from those contemplated by the forward-looking statements due
to, among others, the risks and uncertainties described in this prospectus, including under Risk
Factors, and the documents incorporated by reference in this prospectus. Any forward-looking
statement contained in this prospectus and the documents incorporated by reference speaks only as
of the date on which the statement is made, and Otter Tail Corporation undertakes no obligation to
update any forward-looking statement or statements to reflect events or circumstances that occur
after the date on which the statement is made or to reflect the occurrence of unanticipated events.
New factors emerge from time to time, and it is not possible for Otter Tail Corporation to predict
all of the factors, nor can Otter Tail Corporation assess the effect of each factor on its business
or the extent to which any factor, or combination of factors, may cause actual results to differ
materially from those contained in any forward-looking statement.
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OTTER TAIL CORPORATION
Otter Tail Corporation and its subsidiaries conduct business in all 50 states and in
international markets. We had approximately 4,166 full-time employees at December 31, 2008. Our
businesses have been classified into six segments: Electric, Plastics, Manufacturing, Health
Services, Food Ingredient Processing and Other Business Operations.
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Electric includes the production, transmission, distribution and sale of electric energy
in Minnesota, North Dakota and South Dakota under the name Otter Tail Power Company. In
addition, the electric utility is an active wholesale participant in the MISO markets. The
electric utility operations have been our primary business since 1907. |
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Plastics consists of businesses producing PVC pipe in the Upper Midwest and Southwest
regions of the United States. |
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Manufacturing consists of businesses in the following manufacturing activities:
production of wind towers, contract machining, metal parts stamping and fabrication, and
production of waterfront equipment, material and handling trays and horticultural
containers. These businesses have manufacturing facilities in Florida, Illinois,
Minnesota, Missouri, North Dakota, Oklahoma and Ontario, Canada and sell products primarily
in the United States. |
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Health Services consists of businesses involved in the sale of diagnostic medical
equipment, patient monitoring equipment and related supplies and accessories. These
businesses also provide equipment maintenance, diagnostic imaging services and rental of
diagnostic medical imaging equipment to various medical institutions located throughout the
United States. |
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Food Ingredient Processing consists of IPH, which owns and operates potato dehydration
plants in Ririe, Idaho; Center, Colorado; and Souris, Prince Edward Island, Canada. IPH
produces dehydrated potato products that are sold in the United States, Canada and other
countries. |
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Other Business Operations consists of businesses in residential, commercial and
industrial electric contracting industries, fiber optic and electric distribution systems,
wastewater and HVAC systems construction, transportation and energy services. These
businesses operate primarily in the Central United States, except for the transportation
company which operates in 48 states and four Canadian provinces. |
Our electric operations, including wholesale power sales, are operated by our wholly-owned
subsidiary, Otter Tail Power Company, and our energy services operation is operated as a separate
wholly-owned subsidiary of Otter Tail Corporation. Substantially all of our other businesses are
owned by our wholly-owned subsidiary, Varistar Corporation.
Otter Tail Corporation was incorporated in June 2009 under the laws of the State of Minnesota
in connection with our holding company reorganization on July 1, 2009. As a result of the
reorganization, Otter Tail Power Company, which had previously been operated as a division of Otter
Tail Corporation, became a wholly-owned subsidiary of the new parent holding company named Otter
Tail Corporation. Our executive offices are located at 215 South Cascade Street, P.O. Box 496,
Fergus Falls, Minnesota 56538-0496 and 4334 18th Avenue SW, Suite 200, P.O. Box 9156,
Fargo, North Dakota 58106-9156. Our telephone number is (866) 410-8780.
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USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, we will use the net proceeds we
receive from the sale of the securities for general corporate purposes, which may include, among
other things, working capital, capital expenditures, debt repayment, the financing of possible
acquisitions or stock repurchases. The prospectus supplement relating to a particular offering of
securities by us will identify the use of proceeds for that offering.
RATIOS OF EARNINGS TO FIXED CHARGES AND
TO FIXED CHARGES AND PREFERRED DIVIDEND REQUIREMENTS
Our consolidated ratios of earnings to fixed charges and of earnings to fixed charges and
preferred dividend requirements for the periods indicated are as follows:
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Three Months Ended |
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Year Ended December 31, |
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2008 |
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2009 |
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Ratio of Earnings to Fixed Charges |
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3.39 |
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4.33 |
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3.94 |
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3.53 |
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2.39 |
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1.36 |
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Ratio of Earnings to Fixed
Charges and Preferred Dividend
Requirements |
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3.26 |
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4.15 |
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3.79 |
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3.42 |
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2.33 |
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1.34 |
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For purposes of computing the ratios, earnings consist of consolidated income from continuing
operations before income taxes plus fixed charges. Fixed charges consist of interest on long-term
debt, amortization of debt expense, premium and discount, and the portion of interest expense on
operating leases we believe to be representative of the interest factor. Preferred dividend
requirements represent an amount equal to the consolidated income from continuing operations before
income taxes which would be required to pay the dividends on our outstanding cumulative preferred
shares.
DESCRIPTION OF COMMON SHARES
This section summarizes the general terms of the common shares that we may offer using this
prospectus. The following description is only a summary and does not purport to be complete and is
qualified by reference to our articles of incorporation and bylaws. Our articles of incorporation
and bylaws have been incorporated by reference as exhibits to the registration statement of which
this prospectus is a part. See Where You Can Find More Information for information on how to
obtain copies.
General
Our articles of incorporation currently authorize the issuance of three classes of shares:
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cumulative preferred shares, without par value (1,500,000 shares authorized), |
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cumulative preference shares, without par value (1,000,000 shares authorized), and |
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common shares, par value $5 per share (50,000,000 shares authorized).
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As of March 31, 2009, there were outstanding 155,000 cumulative preferred shares, no
cumulative preference shares and 35,409,133 common shares.
The board of directors is authorized to provide for the issue from time to time of cumulative
preferred shares and cumulative preference shares in series and, as to each series, to fix the
designation, annual dividend rate, quarterly dividend payment dates, redemption price or prices,
voluntary and involuntary liquidation prices, conversion provisions, if any, and sinking fund
provisions, if any, applicable to the shares of such series. As a result, our board of directors
could, without shareholder approval, authorize the issuance of cumulative preferred shares or
cumulative preference shares with dividend, redemption or conversion provisions that could have an
adverse effect on the availability of earnings for distribution to the holders of common shares, or
with voting, conversion or other rights that could proportionately reduce, minimize or otherwise
adversely affect the voting power and other rights of holders of common shares. See Description of
Cumulative Preferred Shares.
The common shares are not entitled to any conversion or redemption rights. Holders of common
shares do not have any preemptive right to subscribe for additional securities we may issue. Our
outstanding common shares are, and any newly issued common shares will be, fully paid and
non-assessable. The transfer agents and registrars for the common shares are the corporation and
Wells Fargo Bank, National Association.
Dividend Rights
Subject to the prior dividend rights of the holders of the cumulative preferred shares and the
cumulative preference shares and the other limitations set forth in the following paragraphs,
dividends may be declared by the board of directors and paid from time to time upon the outstanding
common shares from any funds legally available therefor.
We and our subsidiaries are parties to agreements pursuant to which we borrow money, and
certain covenants in these agreements may limit our ability to pay dividends or other distributions
with respect to the common shares or to repurchase common shares. In addition, we and our
subsidiaries may become parties to future agreements that contain such restrictions. These
covenants will be described in more detail in the prospectus supplement relating to any common
shares that we offer using this prospectus.
So long as any cumulative preferred shares remain outstanding, we shall not, without the
consent of the holders of a majority of the aggregate voting power of the cumulative preferred
shares of all series then outstanding (two-thirds if more than one-fourth vote negatively),
declare, pay or set apart for payment any dividend on or purchase, redeem or otherwise acquire any
common shares unless, after giving effect thereto, Common Share Equity shall equal at least 25% of
Total Capitalization and our earned surplus shall not be less than $831,398.
Common Share Equity is the sum of
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our stated capital applicable to our common shares and to all other shares ranking
junior to the cumulative preferred shares with respect to the payment of dividends or
the distribution of assets (collectively Subordinate Shares), including any shares
proposed to be issued substantially contemporaneously, |
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capital surplus to the extent of premium on our common shares and on all other
Subordinate Shares, including any premium on any shares proposed to be issued
substantially contemporaneously, |
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contributions in aid of construction, and |
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earned surplus, |
all determined in accordance with such system of accounts as may be prescribed by governmental
authorities having jurisdiction in the premises or, in the absence thereof, in accordance with
generally accepted accounting practice.
Total Capitalization means the sum of
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the Common Share Equity, |
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the involuntary liquidation preference of all cumulative preferred shares and all
other shares prior to or on a parity with the cumulative preferred shares to be
outstanding after the proposed event, and |
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the principal amount of all interest bearing debt (including debt to which property
theretofore acquired or to be acquired substantially contemporaneously is or will be
subject) to be outstanding after the proposed event, excluding, however, all
indebtedness maturing by its terms within one year from the time of creation thereof
unless we, without the consent of the lender, have the right to extend the maturity of
such indebtedness for a period or periods which, with the original period of such
indebtedness, aggregates one year or more. |
Moreover, no dividend shall be declared, paid or set apart for payment on the common shares
(other than a dividend or distribution payable solely in common shares) nor shall any common shares
be purchased or acquired by us at any time while there is a default or deficiency with respect to a
sinking or purchase fund established for the benefit of any series of the cumulative preferred
shares or the cumulative preference shares. None of the outstanding series of our cumulative
preferred shares has a sinking or purchase fund.
Voting Rights
Subject to the rights of the holders of the cumulative preferred shares, as described under
Description of Cumulative Preferred Shares Voting Rights, and the cumulative preference
shares, as described below, only the holders of common shares have voting rights and are entitled
to one vote for each share held.
In the event that four full quarterly dividend payments on the cumulative preference shares of
any series shall be in default, the holders of the cumulative preference shares of all series at
the time outstanding, voting as a class, shall thereafter elect two members of an eleven member
board of directors. After any such default shall have been cured, the cumulative preference shares,
as the case may be, shall be divested of such voting rights, subject to being revested in the event
of subsequent such defaults.
The consent of the holders of at least two-thirds of the aggregate voting power of the
cumulative preference shares of all series then outstanding is required to
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create or authorize any shares of any class (other than the cumulative preferred
shares, whether now or hereafter authorized) ranking prior to the cumulative preference
shares as to dividends or assets, or |
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amend our articles of incorporation so as to affect adversely any of the preferences
or other rights of the cumulative preference shares, provided that if less than all
series of cumulative preference shares are so affected, only the consent of the holders
of at least two-thirds of the aggregate voting power of the affected series shall be
required. |
A majority (two-thirds if more than one-fourth vote negatively) of the aggregate voting power
of the cumulative preference shares of all series then outstanding is required to
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increase the number of authorized cumulative preference shares or create or
authorize any shares of any class ranking on a parity with the cumulative preference
shares as to dividends or assets, or |
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consolidate or merge into or with any other corporation or corporations or sell,
lease or exchange all or substantially all of our property and assets unless specified
conditions are met. |
Liquidation Rights
Upon any liquidation, dissolution or winding up of the corporation, the holders of common
shares shall be entitled to receive pro rata all assets of the corporation distributable to
shareholders after the payment of the respective liquidation preferences to the holders of the
cumulative preferred shares and the cumulative preference shares.
Minnesota Anti-Takeover Laws
We are governed by the provisions of Sections 302A.671, 302A.673 and 302A.675 of the Minnesota
Business Corporation Act. These provisions may discourage a negotiated acquisition or unsolicited
takeover of us and deprive our shareholders of an opportunity to sell their shares at a premium
over the market price.
In general, Section 302A.671 provides that a public Minnesota corporations shares acquired in
a control share acquisition have no voting rights unless voting rights are approved in a prescribed
manner. A control share acquisition is a direct or indirect acquisition of beneficial ownership
of shares that would, when added to all other shares beneficially owned by the acquiring person,
entitle the acquiring person to have voting power of 20% or more in the election of directors.
In general, Section 302A.673 prohibits a public Minnesota corporation from engaging in a
business combination with an interested shareholder for a period of four years after the date of
the transaction in which the person became an interested shareholder, unless the business
combination is approved in a prescribed manner. The term business combination includes mergers,
asset sales and other transactions resulting in a financial benefit to the interested shareholder.
An interested shareholder is a person who is the beneficial owner, directly or indirectly, of 10%
or more of a corporations voting stock, or who is an affiliate or associate of the corporation,
and who, at any time within four years before the date in question, was the beneficial owner,
directly or indirectly, of 10% or more of the corporations voting stock. Section 302A.673 does not
apply if a committee of our board of directors consisting of one or more of our disinterested
directors (excluding directors who are our current and former officers and employees) approves the
proposed transaction or the interested shareholders acquisition of shares before the share
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acquisition date, or on the share acquisition date but before the interested shareholder
becomes an interested shareholder.
If a takeover offer is made for our shares, Section 302A.675 of the Minnesota Business
Corporation Act precludes the offeror from acquiring additional shares of stock (including in
acquisitions pursuant to mergers, consolidations or statutory share exchanges) within two years
following the completion of the takeover offer, unless shareholders selling their shares in the
later acquisition are given the opportunity to sell their shares on terms that are substantially
the same as those contained in the earlier takeover offer. A takeover offer is a tender offer
which results in an offeror who owned ten percent or less of a class of our shares acquiring more
than 10% of that class, or which results in the offeror increasing its beneficial ownership of a
class of our shares by more than 10% of the class, if the offeror owned 10% or more of the class
before the takeover offer. Section 302A.675 does not apply if a committee of our board of directors
approves the proposed acquisition before any shares are acquired pursuant to the earlier tender
offer. The committee must consist solely of directors who were directors or nominees for our board
of directors at the time of the first public announcement of the takeover offer, and who are not
our current or former officers and employees, offerors, affiliates or associates of the offeror or
nominees for our board of directors by the offeror or an affiliate or associate of the offeror.
Certain Provisions of Articles of Incorporation and Bylaws
Except at such times when holders of cumulative preferred shares and/or cumulative preference
shares have special voting rights for the election of directors as described in this prospectus,
our directors are elected for three-year, staggered terms by the holders of the common shares.
Cumulative voting of the common shares in the election of directors is prohibited. In addition, our
bylaws provide that a vote of 75% of the common shares is required to remove directors who have
been elected by the holders of common shares. The affirmative vote of 75% of the common shares is
required to amend provisions of our articles of incorporation and bylaws relating to the staggered
terms and the removal of directors, unless approved by all of the continuing directors as specified
therein.
Our articles of incorporation contain fair price provisions which require the affirmative
vote of 75% of the voting power of the common shares to approve business combinations, including
mergers, consolidations and sales of a substantial part of our assets, with an interested
shareholder or its affiliates or associates, unless specified price criteria and procedural
requirements are met or unless the transaction is approved by the majority of the continuing
directors. Our articles of incorporation also contain anti-greenmail provisions which preclude us
from making certain purchases of common shares at a price per share in excess of the fair market
price from a substantial shareholder unless approved by the affirmative vote of 66 2/3% of the
voting power of the common shares held by the disinterested shareholders. The fair price and
anti-greenmail provisions of our articles of incorporation may not be amended without the
affirmative vote of the holders of at least 75% of the voting power of the common shares, unless
approved by all of the continuing directors as specified therein.
The overall effect of the foregoing provisions of our articles of incorporation and bylaws,
together with the ability of the board of directors to issue additional common shares, cumulative
preferred shares and cumulative preference shares, may be to delay or prevent attempts by other
persons or entities to acquire control of the corporation without negotiations with our board of
directors.
DESCRIPTION OF CUMULATIVE PREFERRED SHARES
This section summarizes the general terms and provisions of the cumulative preferred shares
that we may offer using this prospectus. This section is only a summary and does not purport to be
complete. You must look at our articles of incorporation and the relevant certificate of
designation for a full
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understanding of all the rights and preferences of any series of cumulative preferred shares.
Our articles of incorporation and the certificates of designation have been or will be filed or
incorporated by reference as exhibits to the registration statement of which this prospectus is a
part. See Where You Can Find More Information for information on how to obtain copies.
A prospectus supplement will describe the specific terms of any particular series of
cumulative preferred shares offered under that prospectus supplement, including any of the terms in
this section that will not apply to that series of cumulative preferred shares, and any special
considerations, including tax considerations, applicable to investing in that series of cumulative
preferred shares.
General
As discussed above, our articles of incorporation currently authorize the issuance of three
classes of shares:
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cumulative preferred shares, without par value (1,500,000 shares authorized), |
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cumulative preference shares, without par value (1,000,000 shares authorized), and |
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common shares, par value $5 per share (50,000,000 shares authorized). |
As of March 31, 2009, there were outstanding 155,000 cumulative preferred shares, no
cumulative preference shares and 35,409,133 common shares.
The board of directors is authorized to provide for the issue from time to time of cumulative
preferred shares and cumulative preference shares in series and, as to each series, to fix the
designation, annual dividend rate, quarterly dividend payment dates, redemption price or prices,
voluntary and involuntary liquidation prices, conversion provisions, if any, and sinking fund
provisions, if any, applicable to the shares of such series. The cumulative preferred shares are
senior to the cumulative preference shares and the common shares as to dividend and liquidation
rights.
As of March 31, 2009, four series of cumulative preferred shares were outstanding: 60,000
shares of the $3.60 Series; 25,000 shares of the $4.40 Series; 30,000 shares of the $4.65 Series;
and 40,000 shares of the $6.75 Series. All of such outstanding series had a stated and liquidating
value of $100 per share. None of such outstanding series is subject to mandatory redemption.
Any cumulative preferred shares will, when issued, be fully paid and nonassessable. Holders of
cumulative preferred shares do not have any preemptive right to subscribe for additional securities
we may issue. The transfer agent and registrar for any series of cumulative preferred shares will
be specified in the applicable prospectus supplement.
The prospectus supplement relating to any particular series of cumulative preferred shares
that we offer using this prospectus will describe the following terms of that series, if
applicable:
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the number of shares, their stated value and their designation or title; |
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the initial public offering price of the series; |
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that series rights as to dividends; |
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the rights of holders of shares of that series upon the dissolution or distribution
of our assets; |
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whether and upon what terms the shares of that series will be redeemable; |
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whether and upon what terms a sinking fund will be used to purchase or redeem the
shares of that series; |
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whether and upon what terms the shares of that series may be converted and the
securities that series of cumulative preferred shares may be converted into; |
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the voting rights, if any, that will apply to that series; and |
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any additional rights and preferences of the series. |
We may elect to offer depositary shares evidenced by depositary receipts, each representing a
fractional interest in a share of the particular series of cumulative preferred shares issued and
deposited with a depositary. See Description of Depositary Shares.
Dividend Rights
The holders of cumulative preferred shares of each series are entitled to receive, when and as
declared by the board of directors, on a parity with the other outstanding series of cumulative
preferred shares, cumulative dividends at the annual rate (which may be fixed or variable or both)
for such series, payable quarterly on the dividend payment dates fixed for such series. Each series
of cumulative preferred shares that we offer using this prospectus will be entitled to dividends at
the annual rate set forth in the applicable prospectus supplement, cumulative from the date of
original issue of such share, and payable quarterly on the dates set forth in the applicable
prospectus supplement.
We and our subsidiaries are parties to agreements pursuant to which we borrow money, and
certain covenants in these agreements may limit our ability to pay dividends or other distributions
with respect to the cumulative preferred shares or to redeem or repurchase these shares. In
addition, we and our subsidiaries may become parties to future agreements that contain such
restrictions. These covenants will be described in more detail in the prospectus supplement
relating to any particular series of cumulative preferred shares that we offer using this
prospectus.
So long as any cumulative preferred shares are outstanding, no dividends or other
distributions may be made on the cumulative preference shares, the common shares or any other
shares ranking junior to the cumulative preferred shares with respect to the payment of dividends
or the distribution of assets (collectively Subordinate Shares), nor may any Subordinate Shares
be purchased, redeemed or otherwise acquired (including through the operation of any sinking fund),
if dividends on the cumulative preferred shares are accumulated and unpaid for any period and a sum
sufficient for the payment thereof has not been set apart or we shall in any respect be in default
under any sinking fund for the benefit of cumulative preferred shares. Moreover, so long as any
cumulative preferred shares remain outstanding, we shall not, without the consent of the holders of
a majority of the aggregate voting power of the cumulative preferred shares of all series then
outstanding (two-thirds if more than one-fourth vote negatively), declare, pay or set apart for
payment any dividend on or purchase, redeem or otherwise acquire (including through the operation
of any sinking fund) any Subordinate Shares unless, after giving effect thereto, Common Share
Equity shall equal at least 25% of Total Capitalization and our earned surplus shall be not less
than $831,398.
Common Share Equity is the sum of
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our stated capital applicable to our common shares and to all other Subordinate
Shares, including any shares proposed to be issued substantially contemporaneously, |
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capital surplus to the extent of premium on our common shares and on all other
Subordinate Shares, including any premium on any shares proposed to be issued
substantially contemporaneously, |
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contributions in aid of construction, and |
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earned surplus, |
all determined in accordance with such system of accounts as may be prescribed by governmental
authorities having jurisdiction in the premises or, in the absence thereof, in accordance with
generally accepted accounting practice.
Total Capitalization means the sum of
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the Common Share Equity, |
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the involuntary liquidation preference of all cumulative preferred shares and all
other shares prior to or on a parity with the cumulative preferred shares to be
outstanding after the proposed event, and |
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the principal amount of all interest bearing debt (including debt to which property
theretofore acquired or to be acquired substantially contemporaneously is or will be
subject) to be outstanding after the proposed event, excluding, however, all
indebtedness maturing by its terms within one year from the time of creation thereof
unless we, without the consent of the lender, have the right to extend the maturity of
such indebtedness for a period or periods which, with the original period of such
indebtedness, aggregates one year or more. |
If we shall be in default in the payment of any dividend on the cumulative preferred shares of
any series, we shall not purchase, redeem or otherwise acquire (including through the operation of
any sinking fund) any cumulative preferred shares unless all of the cumulative preferred shares are
redeemed.
Redemption and Repurchase
A series of cumulative preferred shares that we may offer using this prospectus may be
redeemable, in whole or in part, at our option, and may be subject to mandatory redemption pursuant
to a sinking fund or otherwise, or may be subject to repurchase at the option of the holders, as
described in the applicable prospectus supplement, subject to the restriction described in the last
paragraph under the caption Dividend Rights. If a series of cumulative preferred shares is
subject to mandatory redemption, the applicable prospectus supplement will specify the terms of
redemption, the procedure used for redemption, the number of shares that we will redeem each year
and the redemption price. The applicable prospectus supplement will also specify whether the
redemption price will be payable in cash or other property.
Provision may be made whereby, subject to certain conditions, all rights (other than the right
to receive redemption moneys) of the holders of cumulative preferred shares called for redemption,
whether at our option or through a sinking fund, will terminate before the redemption date upon the
deposit with a bank or trust company of the funds necessary for redemption.
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Cumulative preferred shares acquired by us upon redemption or conversion thereof, through
operation of any sinking fund therefor or otherwise may be reissued in the same manner as
authorized but unissued cumulative preferred shares.
Conversion or Exchange
If any series of cumulative preferred shares that we may offer using this prospectus may be
converted or exchanged into common shares, another series cumulative preferred shares or debt
securities, the applicable prospectus supplement will state the terms on which shares of that
series may be converted or exchanged.
Voting Rights
Unless otherwise provided in the prospectus supplement relating to any series of cumulative
preferred shares that we offer using this prospectus, the holders of the cumulative preferred
shares are not entitled to vote at any meetings of our shareholders, except as required by law or
as described below.
In the event that four full quarterly dividend payments on the cumulative preferred shares of
any series shall be in default, the holders of the cumulative preferred shares of all series at the
time outstanding, voting as a class, shall thereafter elect three members of an eleven member board
of directors; and, if such default shall increase to twelve full quarterly divided payments, such
holders shall thereafter elect six members of an eleven member board of directors. After any such
default shall have been cured, the cumulative preferred shares shall be divested of such voting
rights, subject to being revested in the event of subsequent such defaults.
The consent of the holders of at least two-thirds of the aggregate voting power of the
cumulative preferred shares of all series then outstanding is required to
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create, authorize or issue any shares of any class ranking prior to (or any
securities of any kind or class convertible into shares of any class ranking prior to)
the cumulative preferred shares as to dividends or assets, or |
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amend our articles of incorporation so as to affect adversely any of the preferences
or other rights of the holders of the cumulative preferred shares, provided that if
less than all series of cumulative preferred shares are so affected, only the consent
of the holders of at least two-thirds of the aggregate voting power of the affected
series shall be required. |
A majority (two-thirds if more than one-fourth vote negatively) of the aggregate voting power
of the cumulative preferred shares of all series then outstanding is required to
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increase the number of authorized cumulative preferred shares or create, authorize
or issue shares of any class ranking on a parity with the cumulative preferred shares
as to dividends or assets, or any securities of any kind or class convertible into
cumulative preferred shares or shares of any class on a parity with the cumulative
preferred shares; |
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issue any cumulative preferred shares of any series unless, after giving effect
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Adjusted Income Available for Interest shall equal at least 1.5
times Adjusted Interest and Preferred Charges, |
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Adjusted Income Available for Preferred Dividends shall equal at
least 2.5 times Adjusted Preferred Charges, and |
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Common Share Equity shall equal at least 25% of Total
Capitalization; |
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consolidate or merge into or with any other corporation or corporations unless,
after giving effect thereto |
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the cumulative preferred shares outstanding immediately prior to
such transaction shall remain outstanding or be constituted as shares of the
resulting corporation in the same number and with the same relative rights and
preferences as the cumulative preferred shares, with no increase in the
authorized number and no outstanding or authorized shares ranking prior to or on
a parity with the cumulative preferred shares (except our shares outstanding or
authorized immediately prior to such transaction), and the outstanding
indebtedness of the resulting corporation shall not exceed our outstanding
indebtedness immediately preceding such transaction, or |
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each condition enumerated in the immediately preceding bullet point
shall be satisfied with respect to the resulting corporation; and |
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sell, lease or exchange all or substantially all of our property and assets unless,
after giving effect thereto, the fair value of our assets shall at least equal the
preference on voluntary liquidation of all outstanding cumulative preferred shares and
of all other outstanding shares ranking on a parity with the cumulative preferred
shares, after deducting an amount equal to our outstanding indebtedness plus an amount
equal to the preference on voluntary liquidation of all shares ranking prior to the
cumulative preferred shares. |
Adjusted Income Available for Interest is based upon gross income of the corporation or of
the resulting corporation, as the case may be, for a then current 12-month period available for the
payment of interest, after deducting all taxes (including income taxes).
Adjusted Income Available for Preferred Dividends equals Adjusted Income Available for
Interest minus interest charges for one year and the dividend requirement for one year on any
shares ranking prior to the cumulative preferred shares.
Adjusted Interest and Preferred Charges means the sum of
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the interest charges for one year on all our interest bearing indebtedness
outstanding at the time of issuance of such cumulative preferred shares or of the
proposed consolidation or merger (including that, if any, proposed to be issued or
assumed substantially contemporaneously, or to which property theretofore acquired or
to be acquired substantially contemporaneously is or will be subject (adjusted for all
amortization of debt discount and expense, or of premium on debt, as the case may be)),
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the dividend requirements for one year on all outstanding cumulative preferred
shares, and on all other shares of a class ranking prior to or on a parity with the
cumulative preferred shares as to dividends or assets, outstanding at the time of
issuance of such additional cumulative preferred shares, or of such consolidation or
merger, including all such shares proposed to be issued, or all such shares of the
resulting corporation, as the case may be. |
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Adjusted Preferred Charges is the Adjusted Interest and Preferred Charges for one year
determined at the time of issuance of such cumulative preferred shares or of the proposed
consolidation or merger, less the interest charges for one year and the dividend requirements for
one year on any shares ranking prior to the cumulative preferred shares, included in determining
the Adjusted Interest and Preferred Charges.
Holders of cumulative preferred shares entitled to vote as described above shall have voting
power in proportion to the involuntary liquidation preference of the cumulative preferred shares so
held and shall be entitled to cumulate votes in the election of directors.
Liquidation Rights
In the event of dissolution, liquidation or winding up of the corporation, the holders of
cumulative preferred shares of each series outstanding shall be entitled to receive out of our
assets, before any payment shall be made to the holders of Subordinate Shares, such amount per
share as shall have been fixed by the board of directors as the voluntary liquidation price or the
involuntary liquidation price, as the case may be, for the shares of such series, together with a
sum, in the case of each share, computed at the annual dividend rate for the series of which the
particular share is a part, from the date on which dividends on such shares became cumulative to
and including the date fixed for such distribution or payment, less the aggregate amount of all
dividends which have theretofore been paid or which have been declared on the share and for which
moneys have been set apart and remain available for payment. If upon any such dissolution,
liquidation or winding up, our assets available for payment to shareholders are not sufficient to
make payment in full to the holders of cumulative preferred shares as above provided, payment shall
be made to such holders ratably in accordance with the respective distributive amounts to which
such holders shall be entitled. A consolidation or merger of the corporation shall not be construed
as a dissolution, liquidation or winding up of the corporation within the meaning of the foregoing
provisions.
The voluntary and involuntary liquidation prices for any series of cumulative preferred shares
that we offer using this prospectus will be set forth in the applicable prospectus supplement. The
involuntary liquidation price for each series of cumulative preferred shares issued after April 1,
1977 must be equal to the gross consideration received by us upon the issuance thereof (without
regard to any premium received, underwriting discount or commission, private placement fee or other
expense of issuance).
Certain Provisions of Articles of Incorporation and Bylaws
For a description of some additional provisions of our articles of incorporation and bylaws,
see Description of Common Shares Certain Provisions of Articles of Incorporation and Bylaws.
DESCRIPTION OF DEPOSITARY SHARES
This section summarizes the general terms and provisions of the depositary shares represented
by depositary receipts that we may offer using this prospectus. This section is only a summary and
does not purport to be complete. You must look at the applicable forms of depositary receipt and
deposit agreement for a full understanding of the specific terms of any depositary shares and
depositary receipts. The forms of the depositary receipts and the deposit agreement will be filed
or incorporated by reference as exhibits to the registration statement to which this prospectus is
a part. See Where You Can Find More Information for information on how to obtain copies.
A prospectus supplement will describe the specific terms of the depositary shares and the
depositary receipts offered under that prospectus supplement, including any of the terms in this
section that will not
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apply to those depositary shares and depositary receipts, and any special considerations,
including tax considerations, applicable to investing in those depositary shares.
General
We may offer fractional interests in cumulative preferred shares, rather than full shares of
cumulative preferred shares. If we do so, we will provide for the issuance to the public by a
depositary of depositary receipts evidencing depositary shares. Each depositary share will
represent a fractional interest in a share of a particular series of cumulative preferred shares.
The shares of any series of cumulative preferred shares underlying the depositary shares will
be deposited under a separate deposit agreement between us and a bank or trust company having its
principal office in the United States and having a combined capital and surplus of at least $50
million. The applicable prospectus supplement will state the name and address of the depositary.
Subject to the terms of the deposit agreement, each owner of a depositary share will have a
fractional interest in all the rights and preferences of the cumulative preferred shares underlying
the depositary share. Those rights include any dividend, voting, redemption, conversion and
liquidation rights.
While the final depositary receipts are being prepared, we may order the depositary to issue
temporary depositary receipts substantially identical to the final depositary receipts, although
not in final form. The holders of temporary depositary receipts will be entitled to the same rights
as if they held the depositary receipts in final form. Holders of temporary depositary receipts can
exchange them for final depositary receipts at our expense.
Withdrawal of Cumulative Preferred Shares
If you surrender depositary receipts at the principal office of the depositary you will be
entitled to receive at that office the number of shares of cumulative preferred shares and any
money or other property then represented by the depositary shares, unless the depositary shares
have been called for redemption. We will not, however, issue any fractional shares of cumulative
preferred shares. Accordingly, if you deliver depositary receipts for a number of depositary shares
that, when added together, represents more than a whole number of shares of cumulative preferred
shares, the depositary will issue to you a new depositary receipt evidencing the excess number of
depositary shares at the same time as you receive your share of cumulative preferred shares. You
will no longer be entitled to deposit the shares of cumulative preferred shares you have withdrawn
under the deposit agreement or to receive depositary shares in exchange for those shares of
cumulative preferred shares. There may be no market for any withdrawn shares of cumulative
preferred shares.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions received with
respect to the deposited cumulative preferred shares, less any taxes required to be withheld, to
the record holders of the depositary receipts in proportion to the number of the depositary shares
owned by each record holder on the relevant date. The depositary will distribute only the amount
that can be distributed without attributing to any holder a fraction of one cent. Any balance will
be added to the next sum to be distributed to holders of depositary receipts.
If there is a distribution other than in cash, the depositary will distribute property to the
holders of depositary receipts, unless the depositary determines that it is not practical to make
the distribution. If this occurs, the depositary may, with our approval, sell the property and
distribute the net proceeds from the sale to the holders.
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The deposit agreement will contain provisions relating to how any subscription or similar
rights offered by us to holders of the cumulative preferred shares will be made available to the
holders of depositary receipts.
Redemption and Repurchase of Deposited Cumulative Preferred Shares
If any series of cumulative preferred shares underlying the depositary shares is subject to
redemption, the depositary shares will be redeemed from the redemption proceeds, in whole or in
part, of the series of cumulative preferred shares held by the depositary. The depositary will mail
a notice of redemption between 30 and 60 days prior to the date fixed for redemption to the record
holders of the depositary receipts to be redeemed at their addresses appearing in the depositarys
records. The redemption price per depositary share will bear the same relationship to the
redemption price per share of cumulative preferred shares that the depositary share bears to the
underlying cumulative preferred shares. Whenever we redeem cumulative preferred shares held by the
depositary, the depositary will redeem, as of the same redemption date, the number of depositary
shares representing the cumulative preferred shares redeemed. If less than all of the depositary
shares are to be redeemed, the depositary shares to be redeemed will be selected by the depositary
by lot or pro rata or other equitable method, as we determine.
After the date fixed for redemption, the depositary shares called for redemption will no
longer be outstanding. If depositary shares are no longer outstanding, the holders will have no
rights with regard to those depositary shares other than the right to receive money or other
property that they were entitled to receive upon redemption. The payments will be made when the
holder surrenders its depositary receipts to the depositary.
Depositary shares are not subject to repurchase at the option of the holders. However, if
shares of cumulative preferred shares underlying the depositary shares become subject to repurchase
at the option of the holders, the holders may surrender their depositary receipts to the depositary
and direct the depositary to instruct us to repurchase the deposited cumulative preferred shares at
the price specified in the applicable prospectus supplement. If we have sufficient funds available,
we will, upon receipt of the instructions, repurchase the requisite whole number of shares of
cumulative preferred shares from the depositary, which will, in turn, repurchase the depositary
receipts. However, holders of depositary receipts will only be entitled to request the repurchase
of a number of depositary shares that represents in total one or more whole shares of the
underlying cumulative preferred shares. The repurchase price per depositary share will equal the
repurchase price per share of the underlying cumulative preferred shares multiplied by the fraction
of that share represented by one depositary share. If the depositary shares evidenced by any
depositary receipt are repurchased in part only, the depositary will issue one or more new
depositary receipts representing the depositary shares not repurchased.
Voting of Deposited Cumulative Preferred Shares
Upon receipt of notice of any meeting at which the holders of the series of cumulative
preferred shares underlying the depositary shares are entitled to vote, the depositary will mail
information about the meeting to the record holders of the related depositary receipts. Each record
holder of depositary receipts on the record date (which will be the same date as the record date
for the holders of the related cumulative preferred shares) will be entitled to instruct the
depositary as to how to vote the cumulative preferred shares underlying the holders depositary
shares. The depositary will try, if practicable, to vote the number of shares of cumulative
preferred shares underlying the depositary shares according to the instructions it receives. We
will agree to take all action requested and considered necessary by the depositary to enable it to
vote the cumulative preferred shares in that manner. The depositary will not vote any shares of
cumulative preferred shares for which it does not receive specific instructions from the holders of
the depositary receipts.
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Conversion and Exchange of Deposited Cumulative Preferred Shares
If we provide for the exchange of the cumulative preferred shares underlying the depositary
shares, the depositary will exchange, as of the same exchange date, that number of depositary
shares representing the cumulative preferred shares to be exchanged, so long as we have issued and
deposited with the depositary the securities for which the cumulative preferred shares are to be
exchanged. The exchange rate per depositary share will equal the exchange rate per share of the
underlying cumulative preferred shares multiplied by the fraction of that share represented by one
depositary share. If less than all of the depositary shares are exchanged, the depositary shares to
be exchanged will be selected by the depositary by lot or pro rata or other equitable method, as we
determine. If the depositary shares evidenced by a depositary receipt are exchanged in part only,
the depositary will issue one or more new depositary receipts representing the depositary shares
not exchanged.
Depositary shares may not be converted or exchanged for other securities or property at the
option of the holders. However, if shares of cumulative preferred shares underlying the depositary
shares are converted into or exchanged for other securities at the option of the holders, the
holders may surrender their depositary receipts to the depositary and direct the depositary to
instruct us to convert or exchange the deposited cumulative preferred shares into the whole number
or principal amount of securities specified in the applicable prospectus supplement. Upon receipt
of instructions, we will cause the conversion or exchange and deliver to the holders the whole
number or principal amount of our securities and cash in lieu of any fractional security. The
exchange or conversion rate per depositary share will equal the exchange or conversion rate per
share of the underlying cumulative preferred shares multiplied by the fraction of that cumulative
preferred shares represented by one depositary share. If the depositary shares evidenced by a
depositary receipt are converted or exchanged in part only, the depositary will issue a new
depositary receipt evidencing any depositary shares not converted or exchanged.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the
deposit agreement may be amended by agreement between us and the depositary. However, any amendment
that materially and adversely alters the rights of the existing holders of depositary receipts will
not be effective unless the amendment has been approved by the record holders of at least a
majority of the depositary receipts. A deposit agreement may be terminated only if all related
outstanding depositary shares have been redeemed or there has been a final distribution on the
underlying cumulative preferred shares in connection with our liquidation, dissolution or winding
up, and the distribution has been distributed to the holders of the related depositary receipts.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. We will pay charges of the depositary for the initial
deposit of the cumulative preferred shares and any redemption of the cumulative preferred shares.
Holders of depositary receipts will pay transfer and other taxes and governmental charges and any
other charges that are stated in the deposit agreement to be their responsibility.
Miscellaneous
The depositary will forward to the holders of depositary receipts all reports and
communications from us that are delivered to the depositary and that we are required to furnish to
the holders of the underlying cumulative preferred shares.
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Neither we nor the depositary will be liable if the depositary is prevented or delayed by law
or any circumstance beyond its control in performing its obligations under the deposit agreement.
Our obligations and the depositarys obligations under the deposit agreement will be limited to the
performance in good faith of our respective duties under the deposit agreement. Neither we nor the
depositary will be obligated to prosecute or defend any legal proceeding connected with any
depositary shares or cumulative preferred shares unless satisfactory indemnity is furnished. We and
the depositary may rely upon written advice of counsel or accountants or upon information provided
by persons presenting cumulative preferred shares for deposit, holders of depositary receipts or
other persons believed to be competent and on documents believed to be genuine.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering notice to us. We also may at any time
remove the depositary. Resignations or removals will take effect upon the appointment of a
successor depositary and its acceptance of the appointment. The successor depositary must be
appointed within 60 days after delivery to us of notice of resignation or removal and must be a
bank or trust company having its principal office in the United States and having a combined
capital and surplus of at least $50 million.
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of the debt securities that we may
offer using this prospectus and the related indenture. This section is only a summary and does not
purport to be complete. You must look to the relevant form of debt security and the related
indenture for a full understanding of all terms of any series of debt securities. The form of debt
security and the related indenture have been or will be filed or incorporated by reference as
exhibits to the registration statement of which this prospectus is a part. See Where You Can Find
More Information for information on how to obtain copies.
A prospectus supplement will describe the specific terms of any particular series of debt
securities offered under that prospectus supplement, including any of the terms in this section
that will not apply to that series, and any special considerations, including tax considerations,
applicable to investing in those debt securities. In some instances, certain of the precise terms
of debt securities you are offered may be described in a further prospectus supplement, known as a
pricing supplement.
General
We will issue the debt securities in one or more series under the indenture dated as of
November 1, 1997, as amended by the First Supplemental Indenture dated as of July 1, 2009, between
us and U.S. Bank National Association (formerly First Trust National Association), as trustee. The
indenture does not limit the amount of debt securities that we may issue under it at any time. We
may issue additional debt securities under the indenture in one or more series from time to time
with terms different from those of other debt securities already issued under the indenture. In
this section, we include references in parentheses to specific sections of the indenture.
Ranking
The debt securities will be our unsecured and unsubordinated obligations and will rank equally
and ratably with our other current and future unsecured and unsubordinated debt. As of July 1,
2009, we and our subsidiaries had approximately $538 million of debt, none of which was
outstanding under the indenture. The debt securities will be subordinated to all of our secured
debt (as to the collateral pledged
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to secure this debt). As of July 1, 2009, we had no secured debt. In addition, except to the
extent we have a priority or equal claim against our subsidiaries as a creditor, the debt
securities will be effectively subordinated to debt and other obligations at the subsidiary level
because, as the common shareholder of our direct and indirect subsidiaries, we will be subject to
the prior claims of creditors of our subsidiaries. As of July 1, 2009, our subsidiaries had
approximately $364 million of aggregate outstanding debt. Our obligations under our $200 million
revolving credit facility and our $50 million of debt issued in December 2007 are guaranteed by our
wholly-owned subsidiary, Varistar Corporation, and certain of its wholly-owned subsidiaries. The
indenture does not restrict the amount of secured or unsecured debt that we or our subsidiaries may
incur.
Terms
The prospectus supplement, including any separate pricing supplement, relating to a series of
debt securities that we offer using this prospectus will describe the following terms of that
series, if applicable:
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the title of the offered debt securities; |
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any limit on the aggregate principal amount of the offered debt securities; |
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the person or persons to whom interest on the offered debt securities will be
payable if other than the persons in whose names the debt securities are registered; |
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the date or dates on which the principal of the offered debt securities will be
payable; |
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the rate or rates, which may be fixed or variable, and/or the method of
determination of the rate or rates at which the offered debt securities will bear
interest, if any; |
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the date or dates from which interest, if any, will accrue, the interest payment
dates on which interest will be payable and the regular record date for any interest
payable on any interest payment date; |
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the place or places where |
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the principal of or any premium or interest on the offered debt
securities will be payable; |
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registration of transfer may be effected; |
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exchanges may be effected; and |
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notices and demands to or upon us may be served; |
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the security registrar for the offered debt securities and, if such is the case,
that the principal of the offered debt securities will be payable without presentment
or surrender thereof; |
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the period or periods within which, or the date or dates on which, the price or
prices at which and the terms and conditions upon which any of the offered debt
securities may be redeemed, in whole or in part, at our option; |
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our obligation or obligations, if any, to redeem or purchase any of the offered debt
securities pursuant to any sinking fund or other mandatory redemption provisions or at
the option of the holder, and the period or periods within which, or the date or dates
on which, the price or |
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prices at which and the terms and conditions upon which any of the offered debt
securities will be redeemed or purchased, in whole or in part, pursuant to that
obligation, and applicable exceptions to the requirements of a notice of redemption in
the case of mandatory redemption or redemption at the option of the holder; |
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the denominations in which the offered debt securities will be issuable, if other
than denominations of $1,000 and any integral multiple thereof; |
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if other than the currency of the United States, the currency or currencies,
including composite currencies, in which payment of the principal of and any premium
and interest on the offered debt securities will be payable; |
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if the principal of or any premium or interest on any of the offered debt securities
will be payable, at the election of us or the holder, in a coin or currency other than
in which the offered debt securities are stated to be payable, the period or periods
within which and the terms and conditions upon which, the election will be made; |
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if the principal of or any premium or interest on the offered debt securities will
be payable, or will be payable at the election of us or a holder, in securities or
other property, the type and amount of securities or other property, or the formula or
other method or other means by which the amount will be determined, and the period or
periods within which, and the terms and conditions upon which, any such election may be
made; |
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if the amount of payment of principal of or any premium or interest on the offered
debt securities may be determined with reference to an index or other fact or event
ascertainable outside the indenture, the manner in which the amounts will be
determined; |
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if other than the principal amount of the offered debt securities, the portion of
the principal amount of the offered debt securities which will be payable upon
declaration of acceleration of the maturity; |
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any addition to the events of default applicable to the offered debt securities and
any addition to our covenants for the benefit of the holders of the offered debt
securities; |
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the terms, if any, pursuant to which the offered debt securities may be converted
into or exchanged for shares of our capital stock or other securities or any other
person; |
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the obligations or instruments, if any, which will be considered to be eligible
obligations for the offered debt securities denominated in a currency other than U.S.
dollars or in a composite currency, and any additional or alternative provisions for
the reinstatement of our indebtedness in respect of the debt securities after the
satisfaction and discharge thereof; |
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if the offered debt securities will be issued in global form, any limitations on the
rights of the holder to transfer or exchange the same or obtain the registration of
transfer and to obtain certificates in definitive form in lieu of temporary form, and
any and all other matters incidental to such debt securities; |
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if the offered debt securities will be issuable as bearer securities; |
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any limitations on the rights of the holders of the offered debt securities to
transfer or exchange the debt securities or to obtain the registration of transfer, and
if a service charge |
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will be made for the registration of transfer or exchange of the offered debt
securities, the amount or terms thereof; |
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any exceptions to the provisions governing payments due on legal holidays or any
variations in the definition of business day with respect to the offered debt
securities; and |
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any other terms of the offered debt securities, or any tranche thereof, not
inconsistent with the provisions of the indenture. (Section 301) |
Although debt securities offered by this prospectus will be issued under the indenture, there
is no requirement that we issue future debt securities under the indenture. Accordingly, we may use
other indentures or documentation containing different provisions in connection with future
issuances of our debt.
We may issue the debt securities as original issue discount securities, which will be offered
and sold at a substantial discount below their stated principal amount. The prospectus supplement
relating to those debt securities will describe the federal income tax consequences and other
special considerations applicable to them. In addition, if we issue any debt securities denominated
in foreign currencies or currency units, the prospectus supplement relating to those debt
securities will also describe any federal income tax consequences and other special considerations
applicable to them.
The indenture does not contain covenants or other provisions designed to afford holders of
debt securities protection in the event of a highly-leveraged transaction or change of control
involving us. If this protection is provided for the offered debt securities, we will describe the
applicable provisions in the prospectus supplement relating to those debt securities.
Form, Exchange and Transfer
Unless the applicable prospectus supplement specifies otherwise, we will issue the debt
securities only in fully registered form without interest coupons and in denominations of $1,000
and integral multiples of $1,000. (Sections 201 and 302)
At the option of the holder, subject to the terms of the indenture and the limitations
applicable to global securities, debt securities of any series will be exchangeable for other debt
securities of the same series, of any authorized denomination and of like tenor and aggregate
principal amount. (Section 305)
Subject to the terms of the indenture and the limitations applicable to global securities,
holders may present debt securities for exchange as provided above and for registration of transfer
at the office of the security registrar or at the office of any transfer agent designated by us for
that purpose. Unless the applicable prospectus supplement indicates otherwise, no service charge
will be made for any registration of transfer or exchange of debt securities, but we may require
payment of a sum sufficient to cover any tax or other governmental charge associated with the
transfer or exchange. Debt securities presented or surrendered for registration of transfer or
exchange must (if so required by us, the trustee or the security registrar) be duly endorsed or
accompanied by an executed written instrument of transfer in form satisfactory to us, the trustee
or the security registrar. (Section 305) Any transfer agent (in addition to the security registrar)
initially designated by us for the offered debt securities will be named in the applicable
prospectus supplement. We may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office through which any transfer
agent acts. We are required to maintain a transfer agent in each place of payment for the debt
securities of a particular series. We may maintain an office that performs the functions of the
transfer agent. (Section
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602) Unless the applicable prospectus supplement specifies otherwise, the trustee will act as
security registrar and transfer agent with respect to each series of debt securities offered by
this prospectus.
We will not be required to execute or register the transfer or exchange of debt securities, or
any tranche thereof, during a period of 15 days preceding the notice to be given identifying the
debt securities called for redemption, or any debt securities so selected for redemption, in whole
or in part, except the unredeemed portion of any debt securities being redeemed in part. (Section
305)
If a debt security is issued as a global security, only the depositary or its nominee as the
sole holder of the debt security will be entitled to transfer and exchange the debt security as
described in this prospectus under Global Securities.
Payment and Paying Agent
Unless the applicable prospectus supplement indicates otherwise, we will pay interest on the
offered debt securities on any interest payment date to the person in whose name the debt security
is registered at the close of business on the regular record date. (Section 307)
Unless the applicable prospectus supplement indicates otherwise, we will pay the principal of
and any premium and interest on the offered debt securities at the office of the paying agent or
paying agents as we may designate for that purpose from time to time. Unless the applicable
prospectus supplement indicates otherwise, the corporate trust office of the trustee in New York,
New York will be our sole paying agent for payment for each series of debt securities. Any other
paying agents initially designated by us for the debt securities of a particular series will be
named in the applicable prospectus supplement. We may at any time designate additional paying
agents or rescind the designation of any paying agent or approve a change in the office through
which any paying agent acts. We are required to maintain a paying agent in each place of payment
for the debt securities of a particular series. (Section 602)
Any moneys deposited by us with the trustee or any paying agent for the payment of the
principal of or any premium or interest on any offered debt securities which remain unclaimed at
the end of two years after the applicable payment has become due and payable will be paid to us.
The holder of that debt security, as an unsecured general creditor and not as a holder, thereafter
may look only to us for the payment. (Section 603)
Redemption
Any terms for the optional or mandatory redemption of the offered debt securities will be set
forth in the applicable prospectus supplement. Except as otherwise provided in the applicable
prospectus supplement with respect to debt securities that are redeemable at the option of the
holder, the offered debt securities will be redeemable only upon notice by mail not less than 30
days nor more than 60 days prior to the redemption date. If less than all the debt securities of a
series, or any tranche thereof, are to be redeemed, the particular debt securities to be redeemed
will be selected by the securities registrar by the method as provided for the particular series,
or in the absence of any such provision, by such method of random selection as the security
registrar deems fair and appropriate. (Sections 403 and 404)
Any notice of redemption at our option may state that the redemption will be conditional upon
receipt by the paying agent or agents, on or prior to the redemption date, of money sufficient to
pay the principal of and any premium and interest on the offered debt securities. If sufficient
money has not been so received, the notice will be of no force and effect and we will not be
required to redeem the debt securities. (Section 404)
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Consolidation, Merger, Conveyance or Other Transfer
Under the terms of the indenture, we may not consolidate with or merge into any other
corporation or convey, transfer or lease our properties and assets substantially as an entirety to
any person, unless:
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the corporation formed by the consolidation or into which we are merged or the
person which acquires by conveyance or transfer, or which leases, our properties and
assets substantially as an entirety is a person organized and existing under the laws
of the United States, any state thereof or the District of Columbia and assumes our
obligations on the debt securities and under the indenture; |
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immediately after giving effect to the transaction, no Event of Default shall have
occurred and be continuing; and |
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we have delivered to the trustee an officers certificate and an opinion of counsel
as provided in the indenture. (Section 1101) |
Events of Default
Each of the following will constitute an Event of Default under the indenture with respect
to any series of debt securities:
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failure to pay any interest on any debt securities of that series within 60 days
after the same becomes due and payable; |
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failure to pay principal of or premium, if any, on any debt securities of that
series within three business days after the same becomes due and payable; |
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failure to perform or breach of any of our other covenants or warranties in the
indenture (other than a covenant or warranty in the indenture solely for the benefit of
a series of debt securities other than that series) for 60 days after written notice to
us by the trustee, or to us and the trustee by the holders of at least 33% in principal
amount of the outstanding debt securities of that series as provided in the indenture; |
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the occurrence of events of bankruptcy, insolvency or reorganization relating to us;
and |
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any other Event of Default specified in the applicable prospectus supplement with
respect to debt securities of a particular series. (Section 801) |
An Event of Default with respect to a series of debt securities may not necessarily constitute
an Event of Default with respect to debt securities of any other series issued under the indenture.
If an Event of Default with respect to any series of debt securities occurs and is continuing,
then either the trustee or the holders of not less than 33% in principal amount of the outstanding
debt securities of that series may declare the principal amount (or if the debt securities of that
series are original issue discount securities, such portion of the principal amount thereof as may
be specified in the applicable prospectus supplement) of all of the debt securities of that series
to be due and payable immediately. However, if an Event of Default occurs and is continuing with
respect to more than one series of debt securities, the trustee or the holders of not less than 33%
in aggregate principal amount of the outstanding securities of all such series, considered as one class, may make the declaration of acceleration and not the
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holders of the debt securities of any one of such series. (Section 802) There is no automatic
acceleration, even in the event of our bankruptcy or insolvency.
Subject to the provisions of the indenture relating to the duties of the trustee in case an
Event of Default shall occur and be continuing, the trustee will be under no obligation to exercise
any of its rights or powers under the indenture at the request or direction of any holder, unless
the holder has offered to the trustee reasonable security or indemnity. (Section 903) Subject to
the provisions of the indemnification of the trustee, the holders of a majority in principal amount
of the outstanding debt securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the trustee, or exercising any trust
or power conferred on the trustee, with respect to the debt securities of that series; provided,
however, that if an Event of Default occurs and is continuing with respect to more than one series
of debt securities, the holders of a majority in aggregate principal amount of the outstanding debt
securities of all those series, considered as one class, will have this right, and not the holders
of any one series of debt securities. (Section 812)
No holder of debt securities of any series will have any right to institute any proceeding
related to the indenture, or for the appointment of a receiver or a trustee, or for any other
remedy thereunder, unless:
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the holder has previously given written notice to the trustee of a continuing Event
of Default with respect to the debt securities of that series; |
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the holders of not less than a majority in aggregate principal amount of the
outstanding debt securities of that series have made written request to the trustee,
and offered reasonable indemnity to the trustee, to institute the proceeding as
trustee; and |
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the trustee has failed to institute the proceeding, and has not received from the
holders of a majority in aggregate principal amount of the outstanding debt securities
of that series a direction inconsistent with such request, within 60 days after the
notice, request and offer. (Section 807) |
Notwithstanding the provisions described in the immediately preceding paragraph or any other
provision of the indenture, the holder of any debt security will have the right, which is absolute
and unconditional, to receive payment of the principal, premium, if any, and interest on that debt
security and to institute suit for enforcement of any payment, and that right will not be impaired
without consent of that holder. (Section 808)
We will be required to furnish to the trustee annually, not later than October in each year, a
statement by an appropriate officer as to the officers knowledge of our compliance with all
conditions and covenants under the indenture, such compliance to be determined without regard to
any period of grace or requirement of notice under the indenture. (Section 606)
Right to Cure
At any time after the declaration of acceleration with respect to a series of debt securities
has been made but before a judgment or decree for payment of the money due has been obtained, the
Event or Events of Default giving rise to the declaration of acceleration will, without further
act, be deemed to have been waived, and the declaration and its consequences will, without further
act, be deemed to have been rescinded and annulled, if:
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we have paid or deposited with the trustee a sum sufficient to pay: |
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all overdue interest, if any, on all debt securities of that
series; |
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the principal of and premium, if any, on any debt securities of
that series which have become due otherwise than by that declaration of
acceleration and interest thereon at the rate or rates prescribed in the debt
securities; |
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interest upon overdue interest, if any, at the rate or rates
prescribed in the debt securities, to the extent payment of that interest is
lawful; and |
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all amounts due to the trustee under the indenture; and |
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any other Event of Default with respect to the debt securities of that series, other
than the non-payment of the principal of the debt securities of that series which has
become due solely by the declaration of acceleration, have been cured or waived as
provided in the indenture. (Section 802) |
Modification and Waiver
Without the consent of any holder of debt securities, we and the trustee may enter into one or
more supplemental indentures to the indenture for any of the following purposes:
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to evidence the assumption by any permitted successor to us of our covenants under
the indenture and the debt securities; |
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to add to our covenants or other provisions for the benefit of the holders of all or
any series of outstanding debt securities or to surrender any right or power conferred
upon us by the indenture; |
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to add any additional Events of Default with respect to all or any series of
outstanding debt securities; |
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to change or eliminate any provision of the indenture or to add any new provision to
the indenture, provided that if the change, elimination or addition will adversely
affect the interests of the holders of any series of debt securities in any material
respect, that change, elimination or addition will become effective with respect to
that series only when the consent of the holders of that series so affected has been
obtained or when there is no outstanding debt security of that series under the
indenture; |
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to provide collateral security for the debt securities; |
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to establish the form or terms of any series of debt securities as permitted by the
indenture; |
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to provide for the authentication and delivery of bearer securities and coupons
appertaining thereto representing interest, if any, thereon and for the procedures for
the registration, exchange and replacement thereof and for giving of notice to, and the
solicitation of the vote or consent of, the holders thereof and for any and all other
matters incidental thereto; |
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to evidence and provide for the acceptance of appointment of a separate or successor
trustee under the indenture with respect to debt securities of one or more series and
to add or to change any of the provisions of the indenture as will be necessary to
provide for or to facilitate the administration of the trusts under the indenture by
more than one trustee; |
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to provide for the procedures required to permit the utilization of a
noncertificated system of registration for any series of debt securities; |
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to change any place where |
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the principal of and any premium and interest on any debt
securities will be payable; |
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any debt securities may be surrendered for registration of transfer
or exchange; or |
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notices and demands to or upon us in respect of the debt securities
and indenture may be served; or |
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to cure any ambiguity, to correct or supplement any defective or inconsistent
provision or to make or change any other provisions with respect to matters and
questions arising under the indenture, provided that action does not adversely affect
the interests of the holders of debt securities of any series in any material respect.
(Section 1201) |
The holders of not less than a majority in aggregate principal amount of the outstanding debt
securities of any series may waive our compliance with some restrictive provisions of the
indenture. (Section 607) The holders of not less than a majority in principal amount of the
outstanding debt securities of any series may waive any past default under the indenture with
respect to that series, except a default
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in the payment of principal, premium or interest; and |
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related to certain covenants and provisions of the indenture that cannot be modified
or be amended without the consent of the holder of each outstanding debt security of
the series affected. (Section 813) |
Without limiting the generality of the foregoing, if the Trust Indenture Act is amended after
the date of the indenture in such a way as to require changes to the indenture or the incorporation
of additional provisions or so as to permit changes to, or the elimination of provisions which, at
the date of the indenture or at any time thereafter, were required by the Trust Indenture Act to be
contained in the indenture, the indenture will be deemed to have been amended so as to conform to
such amendment or to effect such changes or elimination. We and the trustee may, without the
consent of any holders, enter into one or more supplemental indentures to evidence or effect such
amendment. (Section 1201)
Except as provided above, the consent of the holders of not less than a majority in aggregate
principal amount of the debt securities of all series then outstanding, considered as one class, is
required for the purpose of adding any provisions to, or changing in any manner, or eliminating any
of the provisions of the indenture pursuant to one or more supplemental indentures. However, if
less than all of the series of outstanding debt securities are directly affected by a proposed
supplemental indenture, then the consent only of the holders of a majority in aggregate principal
amount of outstanding debt securities of all series so directly affected, considered as one class,
will be required. Further, if the debt securities of any series have been issued in more than one
tranche and if the proposed supplemental indenture directly affects the rights of the holders of
one or more, but less than all, tranches, then the consent only of the holders of a majority in
aggregate principal amount of the outstanding debt securities of all tranches so directly affected,
considered as one class, will be required.
Without the consent of each holder of debt securities affected by the modification, no
supplemental indenture may:
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change the stated maturity of the principal of or any installment of principal of or
interest on, any debt security; |
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reduce the principal amount of the debt security; |
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reduce the rate of interest on the debt security (or the amount of any installment
of interest thereon) or change the method of calculating the rate; |
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reduce any premium payable upon redemption of the debt security; |
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reduce the amount of the principal of any original issue discount security that
would be due and payable upon a declaration of acceleration of maturity; |
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change the coin or currency (or other property) in which any debt security or any
premium or the interest thereon is payable; |
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impair the right to institute suit for the enforcement of any payment on or after
the stated maturity of any debt security (or, in the case of redemption, on or after
the redemption date); |
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reduce the percentage in principal amount of the outstanding debt securities of any
series, or any tranche thereof, the consent of the holders of which is required for any
such supplemental indenture, or the consent of the holders of which is required for any
waiver of compliance with any provision of the indenture or any default thereunder and
its consequences, or reduce the requirements for quorum or voting; or |
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modify certain of the provisions of the indenture relating to supplemental
indentures, waivers of certain covenants and waivers of past defaults with respect to
the debt securities of any series, or any tranche thereof. |
A supplemental indenture which changes or eliminates any covenant or other provision of the
indenture which has expressly been included solely for the benefit of one or more particular series
of debt securities or one or more tranches thereof, or modifies the rights of the holders of debt
securities of that series or tranches with respect to such covenant or other provision, will be
deemed not to affect the rights under the indenture of the holders of the debt securities of any
other series or tranche. (Section 1202)
The indenture provides that in determining whether the holders of the requisite principal
amount of the outstanding debt securities have given any request, demand, authorization, direction,
notice, consent or waiver under the indenture as of any date, or whether or not a quorum is present
at a meeting of holders:
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debt securities owned by us or any other obligor upon the debt securities or any
affiliate of ours or of such other obligor (unless we, the affiliate or the obligor own
all securities outstanding under the indenture, or all outstanding debt securities of
each such series and each such tranche, as the case may be, determined without regard
to this clause) will be disregarded and deemed not to be outstanding; |
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the principal amount of an original issue discount security that will be deemed to
be outstanding for such purposes will be the amount of the principal thereof that would
be due and payable as of the date of such determination upon a declaration of
acceleration of the maturity thereof as provided in the indenture; and |
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the principal amount of a debt security denominated in one or more foreign
currencies or a composite currency that will be deemed to be outstanding will be the
U.S. dollar equivalent, determined as of such date in the manner prescribed for such
debt security, of the principal amount of the debt security (or, in the case of a debt
security described in second bullet above, of the amount described in that clause).
(Section 101) |
If we solicit from holders any request, demand, authorization, direction, notice, consent,
election, waiver or other act, we may, at our option, by board resolution, fix in advance a record
date for the determination of holders entitled to give such request, demand, authorization,
direction, notice, consent, election, waiver or other act. If a record date is fixed, such request,
demand, authorization, direction, notice, consent, election, waiver or other act may be given
before or after that record date, but only the holders of record at the close of business on the
record date will be deemed to be holders for the purposes of determining whether holders of the
requisite proportion of the outstanding debt securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, election, waiver or other act, and
for that purpose the outstanding debt securities will be computed as of the record date. Any
request, demand, authorization, direction, notice, consent, election, waiver or other act of a
holder will bind every future holder of the same debt security and the holder of every debt
security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the trustee or us in
reliance thereon, whether or not notation of that action is made upon the debt security. (Section
104)
Defeasance
Unless the applicable prospectus supplement otherwise indicates, any debt securities, or any
portion of the principal amount thereof, will be deemed to have been paid for purposes of the
indenture, and, at our election, our entire indebtedness in respect of the debt securities will be
deemed to have been satisfied and discharged, if there has been irrevocably deposited with the
trustee or any paying agent (other than us), in trust: (a) money in an amount which will be
sufficient, or (b) eligible obligations (as described below), which do not contain provisions
permitting the redemption or other prepaying at the option of the issuer thereof, the principal of
and the interest on which when due, without any regard to reinvestment thereof, will provide monies
which, together with money, if any, deposited with or held by the trustee or the paying agent, will
be sufficient, or (c) a combination of (a) and (b) which will be sufficient, to pay when due the
principal of and any premium and interest due and to become due on the debt securities or portions
thereof. (Section 701)
For this purpose, unless the applicable prospectus supplement otherwise indicates, eligible
obligations include direct obligations of, or obligations unconditionally guaranteed by, the United
States, entitled to the benefit of the full faith and credit thereof, and certificates, depositary
receipts or other instruments which evidence a direct ownership interest in such obligations or in
any specific interest or principal payments due in respect thereof. (Section 101)
Resignation of Trustee
The trustee may resign at any time by giving written notice to us or may be removed at any
time by act of the holders of a majority in principal amount of the outstanding debt securities of
a series. No resignation or removal of the trustee and no appointment of a successor trustee will
become effective until the acceptance of appointment by a successor trustee in accordance with the
requirements of the indenture. So long as no Event of Default or event which, after notice or lapse
of time, or both, would become an Event of Default has occurred and is continuing and except with
respect to a trustee appointed by act of the holders of a majority in principal amount of the
outstanding debt securities, if we have delivered to the trustee a board resolution appointing a
successor trustee and the successor has accepted
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the appointment in accordance with the terms of the indenture, the trustee will be deemed to
have resigned and the successor will be deemed to have been appointed as trustee in accordance with
the indenture. (Section 910)
Notices
Notices to holders of debt securities will be given by mail to the addresses of the holders as
they appear in the security register. (Section 106)
Title
We, the trustee and any agent of ours or the trustee may treat the person in whose name a debt
security is registered as the absolute owner (whether or not the debt security may be overdue) for
the purpose of making payment and for all other purposes. (Section 308)
Governing Law
The indenture and the debt securities will be governed by, and construed in accordance with,
the laws of the State of New York, except to the extent the law of any other jurisdiction is
mandatorily applicable. (Section 112)
Limitation on Suits
The indenture limits a holders right to institute any proceeding with respect to the
indenture, the appointment of a receiver or trustee, or for any other remedy under the indenture.
(Section 807)
Maintenance of Properties
A provision in the indenture provides that we will cause (or, with respect to property owned
in common with others, make reasonable effort to cause) all our properties used or useful in the
conduct of our business to be maintained and kept in good condition, repair and working order and
will cause (or, with respect to property owned in common with others, make reasonable effort to
cause) to be made all necessary repairs, renewals, replacements, betterments and improvements, all
as, in our judgment, may be necessary so that the business carried on in connection therewith may
be properly conducted. However, nothing in this provision will prevent us from discontinuing, or
causing the discontinuance of the operation and maintenance of any of our properties if the
discontinuance is, in our judgment, desirable in the conduct of our business. (Section 605)
Concerning the Trustee
U.S. Bank National Association, the trustee under the indenture, acts as agent for
participants in our Automatic Dividend Reinvestment and Share Purchase Plan. In the ordinary course
of business, U.S. Bank National Association and its affiliates have engaged, and may in the future
engage, in commercial or investment banking transactions with us and our affiliates.
Global Securities
We may issue a series of debt securities offered by this prospectus, in whole or in part, in
the form of one or more global securities, which will have an aggregate principal amount equal to
that of the debt securities represented thereby.
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Unless it is exchanged in whole or in part for the individual debt securities it represents, a
global security may be transferred only as a whole
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by the applicable depositary to a nominee of the depositary; |
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by any nominee to the depositary itself or another nominee; or |
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by the depositary or any nominee to a successor depositary or any nominee of the
successor. |
We will describe the specific terms of the depositary arrangement related to a series of debt
securities in the applicable prospectus supplement. We anticipate that the following provisions
will generally apply to depositary arrangements.
Each global security will be registered in the name of a depositary or its nominee identified
in the applicable prospectus supplement and will be deposited with the depositary or its nominee or
a custodian. The global security will bear a legend regarding the restrictions on exchanges and
registration of transfer referred to below and any other matters as may be provided in the
indenture.
As long as the depositary, or its nominee, is the registered holder of the global security,
the depositary or nominee, as the case may be, will be considered the sole owner and holder of the
debt securities represented by the global security for all purposes under the indenture. Except in
limited circumstances, owners of beneficial interests in a global security:
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will not be entitled to have the global security or any of the underlying debt
securities registered in their names; |
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will not receive or be entitled to receive physical delivery of any of the
underlying debt securities in definitive form; and |
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will not be considered to be the owners or holders under the indenture relating to
those debt securities. |
All payments of principal of and any premium and interest on a global security will be made to
the depositary or its nominee, as the case may be, as the registered owner of the global security
representing these debt securities. The laws of some states require that some purchasers of
securities take physical delivery of securities in definitive form. These limits and laws may
impair the ability to transfer beneficial interests in a global security.
Ownership of beneficial interests in a global security will be limited to institutions that
have accounts with the depositary or its nominee, which institutions we refer to as the
participants, and to persons that may hold beneficial interests through participants. In connection
with the issuance of any global security, the depositary will credit, on its book-entry
registration and transfer system, the respective principal amounts of debt securities represented
by the global security to the accounts of its participants. Ownership of beneficial interests in a
global security will be shown only on, and the transfer of those ownership interests will be
effective only through, records maintained by the depositary and its participants. Payments,
transfers, exchanges and other matters relating to beneficial interests in a global security may be
subject to various policies and procedures adopted by the depositary from time to time. Neither we,
the trustee nor any of our or the trustees agents will have any responsibility or liability for
any aspect of the depositarys or any participants records relating to, or for payments made on
account of, beneficial interests in a global security, or for maintaining, supervising or reviewing
any records relating to beneficial interests.
41
DESCRIPTION OF SECURITIES WARRANTS
This section summarizes the general terms and provisions of the securities warrants
represented by warrant agreements and warrant certificates that we may offer using this prospectus.
The securities warrants may be issued for the purchase of common shares, cumulative preferred
shares or debt securities. This section is only a summary and does not purport to be complete. You
must look at the applicable forms of warrant agreement and warrant certificate for a full
understanding of the specific terms of any securities warrant. The forms of the warrant agreement
and the warrant certificate will be filed or incorporated by reference as exhibits to the
registration statement to which this prospectus is a part. See Where You Can Find More
Information for information on how to obtain copies.
A prospectus supplement will describe the specific terms of the securities warrants offered
under that prospectus supplement, including any of the terms in this section that will not apply to
those securities warrants, and any special considerations, including tax considerations, applicable
to investing in those securities warrants.
General
We may issue securities warrants alone or together with other securities offered by the
applicable prospectus supplement. Securities warrants may be attached to or separate from those
securities. Each series of securities warrants will be issued under a separate warrant agreement
between us and a bank or trust company, as warrant agent, as described in the applicable prospectus
supplement. The warrant agent will act solely as our agent in connection with the securities
warrants and will not act as an agent or trustee for any holders or beneficial owners of the
securities warrants.
The prospectus supplement relating to any securities warrants that we offer using this
prospectus will describe the following terms of those securities warrants, if applicable:
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the offering price; |
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the currencies in which the securities warrants will be offered; |
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the designation, total principal amount, currencies, denominations and terms of the
series of debt securities that may be purchased upon exercise of the securities
warrants; |
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the principal amount of the series of debt securities that may be purchased if a
holder exercises the securities warrants and the price at which and currencies in which
the principal amount may be purchased upon exercise; |
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the total number of shares that may be purchased if all of the holders exercise the
securities warrants and, in the case of securities warrants for the purchase of
cumulative preferred shares, the designation, total number and terms of the series of
cumulative preferred shares that can be purchased upon exercise of the securities
warrants; |
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the number of shares of cumulative preferred shares or common shares that may be
purchased if a holder exercises any one securities warrant and the price at which and
currencies in which the cumulative preferred shares or common shares may be purchased
upon exercise; |
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the designation and terms of any series of securities with which the securities
warrants are being offered, and the number of securities warrants offered with each
security; |
42
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the date on and after which the holder of the securities warrants can transfer them
separately from the related series of securities; |
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the date on which the right to exercise the securities warrants begins and expires; |
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the triggering event and the terms upon which the exercise price and the number of
underlying securities that the securities warrants are exercisable into may be
adjusted; |
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whether the securities warrants will be issued in registered or bearer form; |
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the identity of any warrant agent with respect to the securities warrants and the
terms of the warrant agency agreement with that warrant agent; |
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a discussion of material U.S. federal income tax consequences; and |
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any other terms of the securities warrants. |
A holder of securities warrants may
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exchange them for new securities warrants of different denominations; |
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present them for registration of transfer, if they are in registered form; and |
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exercise them at the corporate trust office of the warrant agent or any other office
indicated in the applicable prospectus supplement. |
Until the securities warrants are exercised, holders of the securities warrants will not have
any of the rights of holders of the underlying securities.
Exercise of Securities Warrants
Each holder of a securities warrant is entitled to purchase the number of common shares or
cumulative preferred shares or the principal amount of debt securities, as the case may be, at the
exercise price described in the applicable prospectus supplement. After the close of business on
the day when the right to exercise terminates (or a later date if we extend the time for exercise),
unexercised securities warrants will become void.
Holders of securities warrants may exercise them by
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delivering to the warrant agent the payment required to purchase the underlying
securities, as stated in the applicable prospectus supplement; |
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properly completing and signing the reverse side of their warrant certificate(s), if
any, or other exercise documentation; and |
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delivering their warrant certificate(s), if any, or other exercise documentation to
the warrant agent within the time specified by the applicable prospectus supplement. |
If you comply with the procedures described above, your securities warrants will be considered
to have been exercised when warrant agent receives payment of the exercise price. As soon as
practicable after you have completed these procedures, we will issue and deliver to you the common
shares,
43
cumulative preferred shares or debt securities, as the case may be, that you purchased upon
exercise. If you exercise fewer than all of the securities warrants represented by a warrant
certificate, we will issue to you a new warrant certificate for the unexercised amount of
securities warrants.
Amendments and Supplements to Warrant Agreements
We may amend or supplement a warrant agreement or warrant certificates without the consent of
the holders of the securities warrants if the changes are not inconsistent with the provisions of
the securities warrants and do not adversely affect the interests of the holders.
DESCRIPTION OF UNITS
We may, from time to time, issue units comprised of one or more of the other securities
described in this prospectus in any combination. A prospectus supplement will describe the specific
terms of the units offered under that prospectus supplement, and any special considerations,
including tax considerations, applicable to investing in those units. You must look at the
applicable prospectus supplement and any applicable unit agreement for a full understanding of the
specific terms of any units. The form of unit agreement will be filed or incorporated by reference
as an exhibit to the registration statement to which this prospectus is a part. See Where You Can
Find More Information for information on how to obtain copies.
PLAN OF DISTRIBUTION
We may offer and sell the securities offered by this prospectus in any of three ways:
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through agents; |
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through underwriters or dealers; or |
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directly to one or more purchasers. |
The securities may be distributed from time to time in one or more transactions at negotiated
prices, at a fixed price (that is subject to change), at market prices prevailing at the time of
sale, at various prices determined at the time of sale or at prices related to the prevailing
market prices.
The applicable prospectus supplement will set forth the specific terms of the offering of
securities, including:
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the securities offered; |
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the price of the securities; |
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the proceeds to us from the sale of the securities; |
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the names of the securities exchanges, if any, on which the securities are listed; |
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the name of the underwriters or agents, if any; |
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any underwriting discounts, agency fees or other compensation to underwriters or
agents; and |
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any discounts or concessions allowed or paid to dealers. |
44
We may authorize underwriters, dealers and agents to solicit offers from specified
institutions to purchase the securities from us at the public offering price listed in the
applicable prospectus supplement. These sales may be made under delayed delivery contracts that
provide for payment and delivery on a specified future date. Any contracts like this will be
subject to the conditions listed in the applicable prospectus supplement. The applicable prospectus
supplement also will state the commission to be paid to underwriters, dealers and agents who
solicit these contracts.
We may make sales of our common shares to or through one or more underwriters or agents in
at-the-market offerings. We will do so pursuant to the terms of a distribution agreement between
us and the underwriters or agents. If we engage in at-the-market sales pursuant to a distribution
agreement, we will issue and sell the common shares to or through one or more underwriters or
agents, which may act on an agency basis or on a principal basis. During the term of any such
distribution agreement, we may sell shares on a daily basis in exchange transactions or otherwise
as we agree with the underwriters or agent. The distribution agreement may provide that any common
shares sold will be sold at prices related to the then prevailing market prices for our securities.
Therefore, exact figures regarding net proceeds to us or commissions to be paid are impossible to
determine and will be described in a prospectus supplement. Pursuant to the terms of the
distribution agreement, we also may agree to sell, and the relevant underwriters or dealers may
agree to solicit offers to purchase, blocks of our common shares. The terms of each such
distribution agreement will be set forth in more detail in a prospectus supplement to this
prospectus. To the extent that any named underwriter or agent acts as principal pursuant to the
terms of a distribution agreement, or if we offer to sell our common shares through another broker
dealer acting as underwriter, then such named underwriter may engage in certain transactions that
stabilize, maintain or otherwise affect the price of our common shares. We will describe any such
activities in the prospectus supplement relating to the transaction. To the extent that any named
broker dealer or agent acts as agent on a best efforts basis pursuant to the terms of a
distribution agreement, such broker dealer or agent will not engage in any such stabilization
transactions.
Any underwriter, dealer or agent who participates in the distribution of an offering of
securities may be considered by the SEC to be an underwriter under the Securities Act. Any
discounts or commissions received by an underwriter, dealer or agent on the sale or resale of
securities may be considered by the SEC to be underwriting discounts and commissions under the
Securities Act. We may agree to indemnify any underwriters, dealers and agents against or
contribute to any payments the underwriters, dealers or agents may be required to make with respect
to, civil liabilities, including liabilities under the Securities Act. Underwriters and agents and
their affiliates are permitted to be customers of, engage in transactions with, or perform services
for us and our affiliates in the ordinary course of business.
Unless otherwise indicated in the applicable prospectus supplement, the obligations of the
underwriters to purchase any offered securities will be subject to conditions precedent and the
underwriters will be obligated to purchase all of the offered securities if any are purchased.
Unless otherwise indicated in the applicable prospectus supplement and other than our common
shares, all securities we offer using this prospectus will be new issues of securities with no
established trading market. Any underwriters to whom we sell securities for public offering and
sale may make a market in the securities, but the underwriters will not be obligated to do so and
may discontinue any market-making at any time without notice. We cannot assure you that a secondary
trading market for any of the securities will ever develop or, if one develops, that it will be
maintained or provide any significant liquidity.
45
VALIDITY OF SECURITIES
The validity of the securities offered by this prospectus will be passed upon for us by Dorsey
& Whitney LLP.
EXPERTS
The consolidated financial statements incorporated in this prospectus by reference from Otter
Tail Corporations Annual Report on Form 10-K and the effectiveness of our internal control over
financial reporting have been audited by Deloitte & Touche LLP, an independent registered public
accounting firm, as stated in their report, which is incorporated herein by reference. Such
consolidated financial statements have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the
SEC. Our SEC filings are available to the public through the Internet at the SECs web site at
http://www.sec.gov. You may also read and copy any document we file with the SEC at the SECs
public reference room at 100 F Street N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information about its public reference facilities and their copy
charges.
The SEC allows us to incorporate by reference the information we file with them. This allows
us to disclose important information to you by referencing those filed documents. We have
previously filed the following documents with the SEC and are incorporating them by reference into
this prospectus:
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Annual Report on Form 10-K for the year ended December 31, 2008; |
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Quarterly Report on Form 10-Q for the quarter ended March 31, 2009; |
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Current Reports on Form 8-K filed on April 24, 2009, May 5, 2009, June 26, 2009 and
July 1, 2009; and |
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the description of our common shares contained in any registration statement on Form
8-A that we have filed, and any amendment or report filed for the purpose of updating
this description. |
We also are incorporating by reference any future filings made by us with the SEC under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act after the date of this prospectus
until we sell all of the securities offered by this prospectus. The most recent information that we
file with the SEC automatically updates and supersedes more dated information.
You can obtain a copy of any documents which are incorporated by reference in this prospectus
or prospectus supplement, except for exhibits which are specifically incorporated by reference into
those documents, at no cost, by writing or telephoning us at:
Otter Tail Corporation
Shareholder Services Department
215 South Cascade Street, Box 496
Fergus Falls, Minnesota 56538-0496
(800) 664-1259 (toll free)
(218) 739-8479 (locally)
46
You should rely only on the information contained or incorporated by reference in this
prospectus or any supplement to this prospectus. We have not authorized anyone to provide you with
different information. We are not offering to sell the securities in any jurisdiction where the
offer or sale is not permitted. You should not assume that the information in this prospectus or
any prospectus supplement is accurate as of any date other than the date on the front cover of
those documents. Our business, financial condition, results of operations and prospects may have
changed since those dates.
47
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 15. 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 Otter Tail Corporation (the Registrant) contains provisions
for indemnification of its directors and officers consistent with the provisions of Minnesota
Statutes, Section 302A.521.
Article X of the Restated Articles of Incorporation of the Registrant provides that a director
shall not be liable to the Registrant or its shareholders for monetary damages for a breach of
fiduciary duty as a director, except for liability (i) for any breach of the directors duty of
loyalty to the Registrant 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 Registrant has obtained insurance policies indemnifying the Registrant and the
Registrants directors and officers against certain civil liabilities and related expenses.
Item 16. Exhibits
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Number |
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Description |
2.1
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Plan of Merger, dated as of June 30, 2009, by and among Otter Tail
Corporation, Otter Tail Holding Company and Otter Tail Merger Sub
Inc. (incorporated by reference to Exhibit 2.1 to the Current
Report on Form 8-K of Otter Tail Corporation, the predecessor
company, filed with the Commission on July 1, 2009). |
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3.1
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Restated Articles of Incorporation of the Registrant (including
resolutions creating outstanding series of Cumulative Preferred
Shares) (incorporated by reference to Exhibit 3.1 of the Current
Report on Form 8-K of the Registrant filed with the Commission on
July 1, 2009). |
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3.2
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Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2
of the Current Report on Form 8-K of the Registrant filed with the
Commission on July 1, 2009). |
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4.1
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First Supplemental Indenture, dated as of July 1, 2009, between the
Registrant and U.S. Bank National Association, as Trustee, to the
Indenture (For Unsecured Debt Securities) dated as of November 1,
1997 between Otter Tail Corporation (now known as Otter Tail Power Company) and U.S. Bank National Association
(formerly First Trust National Association), as Trustee
(incorporated by reference to Exhibit 4.1 of the Current Report on
Form 8-K of the Registrant filed with the Commission on July 1,
2009). |
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5.1*
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Opinion of Dorsey & Whitney LLP. |
II-1
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Number |
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Description |
23.1*
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Consent of Dorsey & Whitney LLP (included in Exhibit 5.1). |
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23.2*
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Consent of Deloitte & Touche LLP. |
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24.1*
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Power of Attorney. |
Item 17. Undertakings
(a) 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:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) 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 the registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered 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
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; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of the 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
II-2
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be
part of the registration statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the date such form of prospectus
is first used after effectiveness or the date of the first contract of sale of securities in
the offering described in the prospectus. As provided in Rule 430B, for liability purposes
of the issuer and any person that is at that date an underwriter, such date shall be deemed
to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date.
(5) That, for the purpose of determining liability of the Registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the undersigned Registrant will
be a seller to the purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Registrants annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the
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.
(c) 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
II-3
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 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.
II-4
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-3 and
has duly caused this Post-Effective Amendment No. 1 to 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 July 1, 2009.
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OTTER TAIL CORPORATION
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By: |
/s/ Kevin G. Moug
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Kevin G. Moug |
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Chief Financial Officer |
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Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment No.
1 to this registration statement has been signed on July 1, 2009 by the following persons in the
capacities indicated.
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Signature |
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Title |
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President and Chief Executive Officer and Director (principal
executive officer) |
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/s/ Kevin G. Moug
Kevin G. Moug
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Chief Financial Officer (principal
financial and accounting officer) |
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Chairman of the Board and Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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*
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By:
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/s/ Kevin G. Moug
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Attorney-in-fact for the persons indicated above with an * |
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Kevin G. Moug
Pro Se and Attorney-in-Fact |
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EXHIBIT INDEX
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Number |
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Description |
2.1
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Plan of Merger, dated as of June 30, 2009, by and among Otter Tail
Corporation, Otter Tail Holding Company and Otter Tail Merger Sub
Inc. (incorporated by reference to Exhibit 2.1 to the Current
Report on Form 8-K of Otter Tail Corporation, the predecessor
company, filed with the Commission on July 1, 2009). |
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3.1
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Restated Articles of Incorporation of the Registrant (including
resolutions creating outstanding series of Cumulative Preferred
Shares) (incorporated by reference to Exhibit 3.1 of the Current
Report on Form 8-K of the Registrant filed with the Commission on
July 1, 2009). |
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3.2
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Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2
of the Current Report on Form 8-K of the Registrant filed with the
Commission on July 1, 2009). |
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4.1
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First Supplemental Indenture, dated as of July 1, 2009, between the
Registrant and U.S. Bank National Association, as Trustee, to the
Indenture (For Unsecured Debt Securities) dated as of November 1,
1997 between Otter Tail Corporation (now known as Otter Tail Power
Company) and U.S. Bank National Association
(formerly First Trust National Association), as Trustee
(incorporated by reference to Exhibit 4.1 of the Current Report on
Form 8-K of the Registrant filed with the Commission on July 1,
2009). |
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5.1*
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Opinion of Dorsey & Whitney LLP. |
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23.1*
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Consent of Dorsey & Whitney LLP (included in Exhibit 5.1). |
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23.2*
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Consent of Deloitte & Touche LLP. |
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24.1*
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Power of Attorney. |