S-8 POS
As filed with the Securities and Exchange Commission on July 1, 2009
Registration No. 333-136841
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
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
(Address of principal executive offices)(Zip code)
1999 STOCK INCENTIVE PLAN, AS AMENDED
1999 EMPLOYEE STOCK PURCHASE PLAN, AS AMENDED
(Full title of the plans)
George A. Koeck, Esq.
General Counsel and Corporate Secretary
215 South Cascade Street, Box 496
Fergus Falls, Minnesota 56538-0496
(Name and address of agent for service)
(866) 410-8780
(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
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-8 (Reg. No. 333-136841) (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 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, as originally filed with the Securities and Exchange Commission (the
Commission) by Otter Tail Corporation (the Registrant) or the Predecessor Registrant are hereby
incorporated herein by reference:
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(a) |
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the Predecessor Registrants Annual Report on Form 10-K for the year ended
December 31, 2008; |
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(b) |
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the Predecessor Registrants Quarterly Report on Form 10-Q for the quarter
ended March 31, 2009; |
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(c) |
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the Predecessor Registrants 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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(d) |
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the description of the Registrants Common Stock contained in any
registration statement or report filed by the Predecessor Registrant under the
Securities Exchange Act of 1934, as amended, including any amendment or report filed
for the purpose of updating such description. |
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, subsequent to the date hereof and prior to the filing
of a post-effective amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the respective dates of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Minnesota Statutes Section 302A.521 contains detailed provisions for indemnification of
directors and officers of domestic or foreign corporations under certain circumstances and subject
to certain limitations.
Article VIII of the Bylaws of the 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 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Number |
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Description |
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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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. |
Item 9. 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) and (a)(1)(ii) 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.
(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.
(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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this 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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* 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 |
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Pro Se and Attorney-in-Fact |
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EXHIBIT INDEX
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Number |
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Description |
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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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. |