e424b2
Filed Pursuant to Rule 424(b)(5)
Registration
No. 333-159137-99
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Amount of
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Aggregate Offering
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Registration
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Title of each class of securities to be registered
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Price
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Fee(1)(2)
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Notes
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$100,000,000
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$5,580
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(1)
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The registration fee was calculated in accordance with
Rule 457(o) and 457(r) of the Securities Act of 1933, as
amended (the Securities Act) and is being paid in
accordance with Rule 456(b) of the Securities Act.
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(2)
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Pursuant to Rule 457(p) of the Securities Act, the
registrant is applying $12,858 of unutilized filing fees, which
were included on Registration Statement
No. 333-159137
(the Registration Statement) in accordance with
Rules 456(b) and 457(r) of the Securities Act, to the full
payment of the registration fee. $7,278 of unutilized filing
fees remain available and shall be applied to the next $7,278 of
filing fess payable pursuant to the Registration Statement. Any
additional registration fees will be paid subsequently on a
pay-as-you-go basis.
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PROSPECTUS SUPPLEMENT
(To prospectus dated July 1, 2009)
$100,000,000
9.00% Notes due 2016
We are offering $100 million aggregate principal amount of
9.00% Notes due 2016. We will pay interest on the notes on
June 15 and December 15 of each year, beginning
June 15, 2010. The notes will mature on December 15,
2016. We may redeem some or all of the notes at any time or from
time to time at the redemption price described in this
prospectus supplement under the heading Description of the
Notes Optional Redemption. If a change of
control triggering event as described in this prospectus
supplement under the heading Description of the
Notes Change of Control Offer occurs, we may
be required to offer to purchase the notes from the holders.
The notes will be general unsecured obligations and will rank
equally with our other unsecured senior indebtedness from time
to time outstanding. The notes will be issued only in registered
form in minimum denominations of $1,000 and integral multiples
of $1,000 in excess thereof.
Investing in the notes involves risks that are described in
the Risk Factors section beginning on
page S-6
of this prospectus supplement.
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Per Note
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Total
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Public offering price(1)
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99.994
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%
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$
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99,994,000
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Underwriting discount
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1.250
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%
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$
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1,250,000
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Proceeds, before expenses, to us(1)
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98.744
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%
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$
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98,744,000
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(1) |
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Plus accrued interest from December 4, 2009, if settlement
occurs after that date. |
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus supplement or the
accompanying prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The notes will be ready for delivery in book-entry form only
through the facilities of The Depository Trust Company for
the accounts of its participants on or about December 4,
2009.
Joint Book-Running Managers
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BofA
Merrill Lynch |
J.P. Morgan |
Lead Manager
U.S. Bancorp Investments,
Inc.
Co-Managers
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BNP PARIBAS
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KeyBanc Capital Markets
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Wells Fargo Securities
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The date of this prospectus supplement is December 1, 2009.
TABLE OF
CONTENTS
Prospectus
Supplement
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S-ii
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S-ii
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S-1
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S-6
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S-15
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S-15
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S-16
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S-22
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S-26
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S-27
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S-28
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S-28
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Prospectus
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About this Prospectus
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1
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Risk Factors
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2
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Cautionary Statement Regarding Forward-Looking Statements
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10
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Otter Tail Corporation
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11
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Use of Proceeds
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12
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Ratio of Earnings to Fixed Charges and to Fixed Charges and
Preferred Dividend Requirements
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12
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Description of Common Shares
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12
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Description of Cumulative Preferred Shares
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16
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Description of Depositary Shares
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20
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Description of Debt Securities
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24
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Description of Securities Warrants
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35
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Description of Units
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36
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Plan of Distribution
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37
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Validity of Securities
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38
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Experts
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38
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Where You Can Find More Information
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38
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S-i
ABOUT
THIS PROSPECTUS SUPPLEMENT
This prospectus supplement and the accompanying prospectus are
part of a registration statement that we filed with the
Securities and Exchange Commission (SEC) using a
shelf registration process. Under the shelf
registration process, from time to time, we may sell any
combination of the securities described in the accompanying
prospectus in one or more offerings, subject in certain cases to
the receipt of regulatory approval. This document is in two
parts. The first part is this prospectus supplement, which
describes the specific terms of the offering of the notes and
also adds to and updates information contained in the
accompanying prospectus and the documents incorporated by
reference in this prospectus supplement and the accompanying
prospectus. The second part is the accompanying prospectus,
which gives more general information, some of which does not
apply to the notes. If the description of the offering of the
notes varies between this prospectus supplement and the
accompanying prospectus, you should rely on the information in
this prospectus supplement.
You should rely only on the information contained or
incorporated by reference in this prospectus supplement, in the
accompanying prospectus and in any related free writing
prospectus issued by us. We have not, and the underwriters have
not, authorized any other person to provide you with different
information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not,
and the underwriters are not, making an offer of the notes in
any state where the offer or sale is not permitted. You should
assume that the information appearing in this prospectus
supplement, the accompanying prospectus and any such free
writing prospectus is accurate only as of the date on their
respective covers and that the information contained in
documents incorporated by reference is accurate only as of the
respective dates of those documents. Our business, financial
condition, results of operations and prospects may have changed
since that date.
Unless we state otherwise or the context otherwise requires,
references appearing in this prospectus supplement to
we, us and our should be
read to refer to Otter Tail Corporation and its subsidiaries.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement, the accompanying prospectus, the
documents they incorporate by reference and any related free
writing prospectus issued by us 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 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 other factors, the risks and
uncertainties described in this prospectus supplement, including
under Risk Factors, the accompanying prospectus and
the documents incorporated by reference herein. We undertake no
obligation to update publicly or revise any forward-looking
statements for any reason, whether as a result of new
information, future events or otherwise.
S-ii
SUMMARY
INFORMATION
The following information supplements, and should be read
together with, the information contained in the accompanying
prospectus. You should carefully read this prospectus supplement
and the accompanying prospectus, as well as the documents they
incorporate by reference and any related free writing prospectus
issued by us, before making an investment decision.
Otter
Tail Corporation
Otter Tail Corporation and its subsidiaries conduct business in
all 50 states and in international markets. We had
approximately 3,765 full-time employees at
September 30, 2009. 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 by Otter Tail Power Company (the
electric utility). In addition, the electric utility
is an active wholesale participant in the Midwest Independent
Transmission System Operator (MISO) markets. The
electric utility operations have been our primary business since
1907.
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Plastics consists of businesses producing polyvinyl
chloride (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 Idaho Pacific
Holdings, Inc. (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.
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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 by a
separate
wholly-owned
subsidiary of Otter Tail Corporation. All of our other
businesses are owned by our
wholly-owned
subsidiary, Varistar Corporation.
S-1
Our operating platforms are set forth below:
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.
S-2
Consolidated
Short-Term and Long-Term Debt
The following table provides a breakdown of our consolidated
short-term and long-term debt outstanding as of
September 30, 2009.
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Otter Tail
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Otter Tail
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Power
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Varistar
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Otter Tail
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Corporation
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Company
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Corporation
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Corporation
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Consolidated
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(In thousands)
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Lines of Credit
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$
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14,500
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$
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108,000
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$
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122,500
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Term Loan, Variable, 3.79% at September 30, 2009, due
May 20, 2011
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$
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75,000
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$
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75,000
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Senior Unsecured Notes 6.63%, due December 1, 2011
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90,000
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90,000
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Pollution Control Refunding Revenue Bonds, Variable, 3.25% at
September 30, 2009, due December 1, 2012
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10,400
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10,400
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Senior Unsecured Notes 5.95%, Series A, due
August 20, 2017
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33,000
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33,000
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Grant County, South Dakota Pollution Control Refunding Revenue
Bonds 4.65%, due September 1, 2017
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5,125
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5,125
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Senior Unsecured Note 8.89%, due November 30, 2017
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$
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50,000
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50,000
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Senior Unsecured Notes 6.15%, Series B, due
August 20, 2022
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30,000
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30,000
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Mercer County, North Dakota Pollution Control Refunding Revenue
Bonds 4.85%, due September 1, 2022
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20,400
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20,400
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Senior Unsecured Notes 6.37%, Series C, due
August 20, 2027
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42,000
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42,000
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Senior Unsecured Notes 6.47%, Series D, due
August 20, 2037
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50,000
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50,000
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Obligations of Varistar Corporation Various up to
8.25% at September 30, 2009
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$
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7,040
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7,040
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Total
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$
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355,925
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$
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7,040
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$
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50,000
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$
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412,965
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Less:
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Current Maturities
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1,275
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1,275
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Unamortized Debt Discount
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381
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381
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Total Long-Term Debt
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$
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355,925
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$
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5,384
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$
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50,000
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$
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411,309
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Total Short-Term and Long-Term Debt (with current Maturities)
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$
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370,425
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$
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6,659
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$
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158,000
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$
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535,084
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S-3
The
Offering
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Issuer |
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Otter Tail Corporation. |
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Securities Offered |
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$100,000,000 aggregate principal amount of 9.00% Notes due
2016. |
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Maturity Date |
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December 15, 2016. |
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Interest Rate |
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9.00% per annum, accruing from December 4, 2009. |
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Interest Payment Dates |
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June 15 and December 15 of each year, beginning
June 15, 2010. |
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Ranking |
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The notes are our general unsecured and unsubordinated
obligations and will rank equally with all of our other
unsecured and unsubordinated debt from time to time outstanding.
The notes will rank junior to any secured indebtedness to the
extent of the assets securing such indebtedness and will be
structurally subordinated to all liabilities of our subsidiaries. |
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Use of Proceeds |
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We expect to receive net proceeds from this offering of
approximately $98.3 million, after expenses and the
underwriting discount. We intend to use the net proceeds from
this offering to repay our revolving credit facility, with any
balance used for general corporate purposes. See Use of
Proceeds. |
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Ratings |
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Standard & Poors: BB+ (stable outlook) |
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Moodys: Ba1 (stable outlook) |
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Fitch: BBB− (stable outlook) |
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A securities rating is not a recommendation to buy, sell or hold
securities and may be subject to revision or withdrawal at any
time. |
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Further Issuances of Notes |
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We may, at any time, create and issue additional notes having
the same terms as the notes. |
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Optional Redemption |
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We may redeem some or all of the notes at any time or from time
to time at the redemption price described in this prospectus
supplement under the heading Description of the
Notes Optional Redemption. |
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Change of Control Offer |
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If a Change of Control Triggering Event as described in this
prospectus supplement under the heading Description of the
Notes Change of Control Offer occurs, each
holder of the notes may require us to purchase all or a portion
of such holders notes at a price equal to 101% of the
principal amount, plus accrued interest, if any, to the date of
purchase. |
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Denomination and Form |
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We will issue the notes in the form of one or more fully
registered global notes registered in the name of The Depository
Trust Company (DTC) or its nominee. Beneficial
interests in the notes will be represented through book-entry
accounts of financial institutions acting on behalf of
beneficial owners as direct and indirect participants in DTC.
Except in limited circumstances described in this prospectus
supplement, owners of beneficial interests in the notes will not
be entitled to have notes registered in their names, will not
receive or be entitled to receive notes in definitive form and
will not be considered holders of notes under |
S-4
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the indenture. The notes will be issued in minimum denominations
of $1,000 and integral multiples of $1,000. |
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Risk Factors |
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See Risk Factors on
page S-6
of this prospectus supplement, in the accompanying prospectus
and the documents incorporated by reference herein or therein
for a discussion of certain risks you should consider in
connection with an investment in the notes. |
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Trustee |
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U.S. Bank National Association. |
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Governing Law |
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State of New York. |
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Conflicts of Interest |
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Affiliates of certain of the underwriters are lenders under our
revolving credit facility and will receive a portion of the net
proceeds from this offering. For more information, see
Conflicts of Interest. |
S-5
RISK
FACTORS
You should carefully consider the risks and uncertainties
described below and any risk factors in our reports to the SEC
incorporated by reference herein, as well as the other
information included or incorporated by reference in this
prospectus supplement and the accompanying prospectus, before
deciding whether to purchase any of the notes offered hereby.
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 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 made a $4 million discretionary contribution to the
pension plan in 2009. If the market value of pension plan assets
declines or does not increase as projected and relief under the
Pension Protection Act is no longer granted, we could be
required to contribute additional capital to the pension plan in
future years.
S-6
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 September 30, 2009. We
have recorded goodwill for businesses in each of our business
segments, except for our 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 $12.2 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.
ShoreMaster produces and markets residential and commercial
waterfront equipment, ranging from boatlifts and docks for
lakefront property to full commercial marina projects. 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, in a
future period, 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.
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.
S-7
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 were $467 million at September 30, 2009 and
$425 million at December 31, 2008. 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.
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.
S-8
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 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.
In September 2009, the electric utility announced its withdrawal
as a participating utility and the lead developer for the
planned construction of a second electric generating unit at the
electric utilitys Big Stone Plant site. As of
September 30, 2009 the electric utility had incurred
$13.6 million in costs related to the project. The electric
utility has deferred recognition of these costs as operating
expenses pending determination of recoverability by the state
and federal regulatory commissions that approve its rates. If
the electric utility is denied recovery of all or any portion of
these deferred costs, such costs would be subject to expense in
the period they are deemed to be unrecoverable. Additionally, if
the electric utility is unable to find alternatives to the
project 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. 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.
The electric utility could be required to absorb a
disproportionate share of costs for investments in transmission
infrastructure required to provide independent power producers
access to the transmission grid. These costs may not be
recoverable through a transmission tariff and could result in
reduced returns on invested capital
and/or
increased rates to the electric utilitys retail electric
customers.
S-9
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 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, could require us to incur
significant new costs, which 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. The
U.S. House of Representatives has passed a comprehensive
greenhouse gas reduction bill, and bills covering similar areas
are under active consideration by committees in the
U.S. Senate at this time. The U.S. Environmental
Protection Agency is also moving forward with proposed
greenhouse gas regulations.
Plastics
Our
plastics operations are highly dependent on a limited number of
vendors for 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 96% of our total purchases of PVC resin for the
nine months ended September 30, 2009 and approximately 94%
of our total purchases of PVC resin in 2008. 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
S-10
distinguish our plastic pipe products from competing products
may adversely affect the financial performance of our plastics
business.
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.
S-11
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 IPH, 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, loss of potato
production acres to other crops 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 15% of IPH sales in the nine
months ended September 30, 2009 and approximately 25% of
IPH sales in 2008 were outside the United States and the
Canadian plant pays its operating expenses in Canadian dollars.
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.
S-12
Risks
Related to the Notes
The
indenture governing the notes does not restrict our ability to
incur future indebtedness or complete other
transactions.
The notes and the indenture governing the notes do not place any
limitation on the amount of debt that may be incurred by us and
do not contain any financial or operating covenants or
restrictions on the payment of dividends, transactions with
affiliates, the repurchase of securities by us or any of our
subsidiaries or the issuance of securities by us or our
subsidiaries. We therefore may, subject to the restrictions
contained in the other agreements governing our indebtedness,
incur additional debt, including secured indebtedness that would
be effectively senior to the notes to the extent of the value of
the assets securing such debt or indebtedness at the subsidiary
level to which the notes would be structurally subordinated. The
incurrence of additional debt by us may make it more difficult
for us to satisfy our obligations with respect to the notes, a
loss in the trading value of the notes, if any, and a risk that
the credit rating of the notes is lowered or withdrawn.
The
notes will be structurally subordinated to the liabilities of
our subsidiaries. This may affect your ability to receive
payments on the notes.
The notes are obligations exclusively of Otter Tail Corporation.
We are a holding company and conduct all of our operations
through our subsidiaries. The notes will be structurally
subordinated to all existing and future indebtedness and other
liabilities and commitments of our subsidiaries to the extent of
the assets of such subsidiaries, which are distinct legal
entities having no obligation to pay any amounts pursuant to the
notes or to make funds available for such purposes. As of
October 31, 2009, our subsidiaries had approximately
$371 million of indebtedness. In addition, we may conduct
additional operations through our subsidiaries in the future
and, accordingly, our subsidiaries liabilities may
increase. The notes do not restrict us or our subsidiaries from
incurring additional liabilities.
Our subsidiaries are separate and distinct legal entities. The
notes will not be guaranteed by any of our subsidiaries and our
subsidiaries will not be required to guarantee the notes in the
future. In the absence of a subsidiary guarantee, our
subsidiaries have no obligation to pay any amounts due on the
notes or, subject to existing or future contractual obligations
between us and our subsidiaries, to provide us with funds for
our payment obligations, whether by dividends, distributions,
loans or other payments. Thus our ability to meet our
obligations under the notes will be dependent on the earnings
and cash flows of those subsidiaries and the ability of those
subsidiaries to pay dividends or to advance or repay funds to
us. In addition, any payment of dividends, distributions, loans
or advances by our subsidiaries to us may be subject to
statutory or contractual restrictions and taxes on
distributions. Payments to us by our subsidiaries will also be
contingent upon our subsidiaries earnings and business
considerations. Our obligations under our $200 million
revolving credit facility and our $50 million senior note
due November 2017 are guaranteed by our wholly-owned subsidiary,
Varistar Corporation, and certain of its wholly-owned
subsidiaries.
Our right to receive any assets of any of our subsidiaries upon
liquidation or reorganization, and, as a result, the right of
the holders of the notes to participate in those assets, will be
structurally subordinated to the claims of that
subsidiarys creditors, including trade creditors. In
addition, even if we were a creditor of any of our subsidiaries,
our rights as a creditor would be subordinated in right of
payment to any security interest in the assets of our
subsidiaries and any indebtedness of our subsidiaries senior to
indebtedness held by us.
We may
not have sufficient funds to purchase the notes upon a change of
control triggering event and this covenant provides limited
protection to investors.
Holders of the notes may require us to purchase their notes upon
a change of control triggering event as defined
under Description of the Notes Change of
Control Offer. We cannot assure you that we will have
sufficient financial resources, or will be able to arrange
sufficient financing, to pay the purchase price of the notes,
particularly if a change of control event triggers a similar
repurchase requirement for, or results in the acceleration of,
other then existing debt.
The change of control offer covenant is limited to the
transactions specified in Description of the
Notes Change of Control Offer. We have no
present intention to engage in a transaction involving a change
of
S-13
control triggering event, although it is possible that we could
decide to do so in the future. We could, in the future, enter
into certain transactions, including acquisitions, refinancings
or other recapitalizations, that would not constitute a change
of control triggering event under the notes, but that could
increase the amount of indebtedness outstanding at such time or
otherwise materially adversely affect our capital structure or
credit ratings.
A
decline in our credit ratings or changes in the financial and
credit markets may adversely affect the market prices of the
notes.
The future market prices of the notes will be affected by a
number of factors, including:
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our ratings with major credit ratings agencies;
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the prevailing interest rates being paid by companies similar to
us; and
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the overall condition of the financial and credit markets.
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The financial and credit markets have recently experienced
significant turmoil. Additionally, the condition of the
financial and credit markets and prevailing interest rates have
fluctuated in the past and are likely to fluctuate in the
future. Further disruptions in the financial and credit markets
and future fluctuations in these markets and prevailing interest
rates may have an adverse effect on the prices of the notes.
Additionally, the credit ratings assigned to us and the notes
are limited in scope, and do not address all material risks
relating to an investment in the notes, but rather reflect only
the view of each rating agency at the time the rating is issued.
An explanation of the significance of such rating may be
obtained from such rating agency. Credit rating agencies
continually revise their ratings for companies that they follow,
including us. There can be no assurance that the credit ratings
on us or the notes will remain in effect for any given period of
time or that a rating will not be lowered, suspended or
withdrawn entirely by the applicable rating agency, if, in such
rating agencys judgment, circumstances so warrant. Agency
credit ratings are not a recommendation to buy, sell or hold any
security. Each agencys rating should be evaluated
independently of any other agencys rating. Actual or
anticipated changes or downgrades in our credit ratings,
including any announcement that our ratings are under further
review for a downgrade, may affect the market value of the notes
and increase our corporate borrowing costs.
An
active trading market for the notes may not
develop.
Prior to the offering, there was no existing trading market for
the notes. We do not intend to apply for listing of the notes on
any securities exchange or for quotation of the notes in any
dealer quotation system. Although the underwriters have informed
us that they currently intend to make a market in the notes
after we complete the offering, they have no obligation to do so
and may discontinue making a market at any time without notice.
If an active trading market does not develop or is not
maintained, the market price and liquidity of the notes may be
adversely affected. In that case, you may not be able to sell
your notes at a particular time or you may not be able to sell
your notes at a favorable price. The liquidity of any market for
the notes will depend on a number of factors, including:
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the number of holders of the notes;
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our ratings published by major credit rating agencies;
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our financial performance or the perception thereof;
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the market for similar securities;
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the price, and volatility in the price, of our common shares;
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general market conditions;
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the interest of securities dealers in making a market in the
notes; and
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prevailing interest rates.
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We cannot assure you that an active market for the notes will
develop or, if developed, that it will continue.
S-14
USE OF
PROCEEDS
We expect to receive net proceeds from this offering of
approximately $98.3 million, after deducting the
underwriting discount and our estimated offering expenses. We
intend to use the net proceeds from this offering to repay our
revolving credit facility, with any balance used for general
corporate purposes. As of November 23, 2009, approximately
$107 million was outstanding under our revolving credit
facility at an interest rate of approximately 2.6% and maturing
on October 2, 2010. We used approximately
$44.5 million of the borrowings under our revolving credit
facility to fund costs incurred for the expansion of our
subsidiaries manufacturing facilities in 2008 and 2009,
including a portion of DMI Industries, Inc.s wind tower
manufacturing facilities in Tulsa, Oklahoma and West Fargo,
North Dakota, Vinyltech Corporations PVC pipe
manufacturing plant in Phoenix, Arizona and Northern Pipe
Products, Inc.s PVC pipe manufacturing plant in Hampton,
Iowa. We used approximately $23 million to fund BTD
Manufacturing, Inc.s acquisition of Miller
Welding & Ironworks, Inc. in 2008, and approximately
$28.5 million in connection with the capitalization of our
holding company reorganization in 2009. The remainder of the
borrowings were used for working capital and other general
corporate purposes.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed
charges for each of the five years in the period ended
December 31, 2008 and for the nine months ended
September 30, 2009.
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Nine Months
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Ended
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Year Ended December 31,
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September 30,
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2004
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2005
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2006
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2007
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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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1.59
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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
short and 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.
S-15
DESCRIPTION
OF THE NOTES
The following description of the particular terms of the notes
supplements and supersedes, to the extent inconsistent, the
description of the general terms and provisions of the debt
securities set forth under Description of Debt
Securities in the accompanying prospectus, to which
reference is hereby made. You should read the accompanying
prospectus and this prospectus supplement together for a more
complete description of the notes.
General
The notes will be issued as a series of debt securities 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. An
officers certificate will supplement the indenture and
establish the specific terms of the notes. The notes will be
issued only in book-entry form, that is, as one or more global
certificates registered in the name of DTC or its nominee, and
in minimum denominations of $1,000 and integral multiples of
$1,000.
The notes will not be entitled to the benefit of any sinking
fund.
Interest
and Payment
The notes will bear interest at 9.00% per year, payable
semi-annually in arrears on June 15 and December 15 of
each year, beginning June 15, 2010. Interest on the notes
will initially accrue from (and including) the date of original
issuance. The record date for interest payable on any interest
payment date on the notes shall be the close of business on
June 1 and December 1 of each year immediately
preceding the respective interest payment dates.
Interest accrued on the notes that is payable at maturity or
earlier redemption will be payable to the persons entitled to
payment of principal as a result of maturity or redemption, as
the case may be. The amount of interest payable will be computed
on the basis of a
360-day year
consisting of twelve
30-day
months and, for any period shorter than a full calendar month,
on the basis of the actual number of days elapsed. In the event
that any interest payment date is not a business day, then
payment of the interest will be made on the next business day,
without any interest or other payment in respect of the delay.
Maturity
The entire principal amount of the notes, unless previously
redeemed or otherwise repaid, will mature and become due and
payable, together with any unpaid interest accrued to (but
excluding) the maturity date, on December 15, 2016. In the
event that the maturity date or any redemption date is not a
business day, then payment of principal and any interest will be
made on the next business day, without any interest or other
payment in respect of the delay.
Ranking
The notes will be our unsecured and unsubordinated obligations
and will rank equally and ratably with our other unsecured and
unsubordinated debt from time to time outstanding. As of
October 31, 2009, we and our subsidiaries had approximately
$531 million of debt, none of which was outstanding under
the indenture. The notes will be subordinated to all of our
secured debt from time to time outstanding (as to the collateral
pledged to secure this debt). As of October 31, 2009, we
had no secured debt. In addition, the notes will be structurally
subordinated to debt and other obligations at the subsidiary
level because, as the common shareholder of our direct and
indirect subsidiaries, our equity ownership interests in each of
those entities will be subordinate to the claims of creditors of
our subsidiaries. As of October 31, 2009, our subsidiaries
had approximately $371 million of aggregate outstanding
debt. Our obligations under our $200 million revolving
credit facility and our $50 million senior note due
November 2017 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.
S-16
Further
Issuances of Notes
We may, without the consent of the holders of the notes, create
and issue additional notes ranking equally with the notes
offered hereby and otherwise identical in all respects to the
notes offered hereby (except for the issue price, the date from
which interest first accrues and the first interest payment
date). Such additional notes will form a single series with the
notes offered hereby.
Optional
Redemption
We will have the right to redeem the notes, in whole or in part,
at our option, at any time or from time to time prior to their
stated maturity. We will provide written notice of our intent to
redeem the notes not less than 30 days nor more than
60 days prior to the redemption date. If we redeem all or
any part of the notes, we will pay a redemption price equal to
the greater of:
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100% of the principal amount of the notes being
redeemed; and
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the sum of the present values of the remaining scheduled
payments of principal of and interest on the notes being
redeemed (excluding the portion of any such interest accrued to
the redemption date), discounted to the redemption date on a
semi-annual basis (assuming a
360-day year
consisting of twelve
30-day
months) at the Treasury Rate plus 0.50%;
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plus, in each case, any accrued interest on those notes to the
redemption date.
Treasury Rate means, with respect to any
redemption date, the rate per annum equal to the
semi-annual
equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
Comparable Treasury Issue means the United
States Treasury security selected by the Independent Investment
Banker as having a maturity comparable to the remaining term of
the notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the notes.
Comparable Treasury Price means, with respect
to any redemption date, (i) the average of the Reference
Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer
Quotations or (ii) if we obtain fewer than four such
Reference Treasury Dealer Quotations, the average of all such
quotations.
Independent Investment Banker means an
independent investment banking institution of national standing
appointed by us.
Reference Treasury Dealer means a primary
U.S. Government securities dealer in New York City
appointed by us.
Reference Treasury Dealer Quotation means,
with respect to the Reference Treasury Dealer and any redemption
date, the average, as determined by us, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) quoted in writing to us
by the Reference Treasury Dealer at 5:00 p.m. on the third
business day preceding such redemption date.
If, at the time notice of redemption is given, the redemption
moneys are not held by the trustee, the redemption may be made
subject to their receipt on or before the date fixed for
redemption and such notice shall be of no effect unless such
moneys are so received. If the redemption notice is given and
the funds are deposited as required by the indenture, then
interest will cease to accrue on and after the redemption date
on the notes or portions of notes called for redemption. If any
redemption date is not a business day, we will pay the
redemption price on the next business day without any interest
or other payment due to the delay. If we do not deposit
redemption moneys on or before the date fixed for redemption,
the principal amount of the notes called for redemption will
continue to bear interest at the rate indicated on the cover of
this prospectus supplement until paid.
S-17
Change of
Control Offer
If a Change of Control Triggering Event occurs, unless we have
exercised our option to redeem such notes as described above, we
will be required to make an offer (a Change of Control
Offer) to each holder of the notes to repurchase all or
any part (equal to $1,000 or an integral multiple of $1,000 in
excess thereof) of that holders notes on the terms set
forth in such notes. In the Change of Control Offer, we will be
required to offer payment in cash equal to 101% of the aggregate
principal amount of notes repurchased, plus accrued and unpaid
interest, if any, on the notes repurchased to the date of
repurchase (a Change of Control Payment), subject to
the right of holders of record on the applicable record date to
receive interest due on the next interest payment date.
Within 30 days following any Change of Control Triggering
Event or, at our option, prior to any Change of Control, but
after public announcement of the transaction that constitutes or
may constitute the Change of Control, a notice will be mailed to
holders of the notes describing the transaction that constitutes
or may constitute the Change of Control Triggering Event and
offering to repurchase such notes on the date specified in the
applicable notice, which date will be no earlier than
30 days and no later than 60 days from the date such
notice is mailed (a Change of Control Payment Date).
The notice, if mailed prior to the date of consummation of the
Change of Control, will state that the Change of Control Offer
is conditioned on the Change of Control Triggering Event
occurring on or prior to the applicable Change of Control
Payment Date.
Upon the Change of Control Payment Date, we will, to the extent
lawful:
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accept for payment all notes or portions of notes properly
tendered and not withdrawn pursuant to the Change of Control
Offer;
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deposit with the paying agent an amount equal to the Change of
Control Payment in respect of all notes or portions of notes
properly tendered; and
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deliver or cause to be delivered to the trustee the notes
properly accepted together with an officers certificate
stating the aggregate principal amount of notes or portions of
notes being repurchased.
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We will not be required to make a Change of Control Offer upon
the occurrence of a Change of Control Triggering Event if a
third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer made
by us and the third party repurchases all notes properly
tendered and not withdrawn under its offer. In addition, we will
not repurchase any notes if there has occurred and is continuing
on the Change of Control Payment Date an event of default under
the indenture, other than a default in the payment of the Change
of Control Payment upon a Change of Control Triggering Event.
We will comply with the applicable requirements of
Rule 14e-1
under the Securities Exchange Act of 1934, as amended (the
Exchange Act) and any other securities laws and
regulations thereunder to the extent those laws and regulations
are applicable in connection with the repurchase of the notes as
a result of a Change of Control Triggering Event. To the extent
that the provisions of any securities laws or regulations
conflict with the Change of Control Offer provisions of the
notes, we will comply with those securities laws and regulations
and will not be deemed to have breached our obligations under
the Change of Control Offer provisions of the notes by virtue of
any such conflict.
For purposes of the Change of Control Offer provisions of the
notes, the following terms will be applicable:
Change of Control means the occurrence of any
of the following:
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the direct or indirect sale, lease, transfer, conveyance or
other disposition (other than by way of merger or
consolidation), in one or more series of related transactions,
of all or substantially all of our assets and the assets of our
subsidiaries, taken as a whole, to any person, other than to us
or one of our subsidiaries;
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the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is
that any person becomes the beneficial owner (as defined
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S-18
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in
Rules 13d-3
and 13d-5
under the Exchange Act), directly or indirectly, of more than
50% of our outstanding Voting Stock or other Voting Stock into
which our Voting Stock is reclassified, consolidated, exchanged
or changed, measured by voting power rather than number of
shares;
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we consolidate with, or merge with or into, any person, or any
person consolidates with, or merges with or into, us, in any
such event pursuant to a transaction in which any of our
outstanding Voting Stock or the Voting Stock of such other
person is converted into or exchanged for cash, securities or
other property, other than any such transaction where the shares
of our Voting Stock outstanding immediately prior to such
transaction constitute, or are converted into or exchanged for,
a majority of the Voting Stock of the surviving person or any
direct or indirect parent company of the surviving person,
measured by voting power rather than number of shares,
immediately after giving effect to such transaction;
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the first day on which a majority of the members of our board of
directors are not Continuing Directors; or
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the adoption of a plan relating to our liquidation or
dissolution.
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The term person, as used in this definition,
has the meaning given thereto in Section 13(d)(3) of the
Exchange Act.
Change of Control Triggering Event means the
occurrence of both a Change of Control and a Rating Event.
Continuing Directors means, as of any date of
determination, any member of our board of directors who
(1) was a member of such board of directors on the date the
notes were issued or (2) was nominated for election,
elected or appointed to such board of directors with the
approval of a majority of the Continuing Directors who were
members of such board of directors at the time of such
nomination, election or appointment (either by a specific vote
or by approval of our proxy statement in which such member was
named as a nominee for election as a director).
Fitch means Fitch Ratings and its successors.
Investment Grade Rating means a rating equal
to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or
the equivalent) by Moodys and BBB- (or the equivalent) by
S&P, and the equivalent investment grade credit rating from
any replacement rating agency or rating agencies selected by us.
Moodys means Moodys Investors
Service, Inc. and its successors.
Rating Agencies means (1) each of Fitch,
Moodys and S&P and (2) if any of Fitch,
Moodys or S&P ceases to rate the notes or fails to
make a rating of the notes publicly available for reasons
outside of our control, a nationally recognized
statistical rating organization within the meaning of
Rule 15c3-1(c)(2)(vi)(F)
under the Exchange Act selected by us (as certified by a
resolution of our board of directors) as a replacement agency
for Fitch, Moodys or S&P, or all of them, as the case
may be.
Rating Event means the rating on the notes is
lowered by at least two of the three Rating Agencies and the
notes are rated below an Investment Grade Rating by at least two
of the three Rating Agencies, in any case on any day during the
period (which period will be extended so long as the rating of
the notes is under publicly announced consideration for a
possible downgrade by any of the Rating Agencies) commencing
60 days prior to the first public notice of the occurrence
of a Change of Control or our intention to effect a Change of
Control and ending 60 days following consummation of such
Change of Control.
S&P means Standard &
Poors Ratings Services, a division of The McGraw-Hill
Companies, Inc., and its successors.
Voting Stock means, with respect to any
specified person (as that term is used in
Section 13(d)(3) of the Exchange Act) as of any date, the
capital stock of such person that is at the time entitled to
vote generally in the election of the board of directors of such
person.
S-19
Unless we default in the Change of Control Payment, on and after
the Change of Control Payment Date, interest will cease to
accrue on the notes or portions of the notes tendered for
repurchase pursuant to the Change of Control Offer.
The definition of Change of Control includes a phrase relating
to the direct or indirect sale, lease, transfer, conveyance or
other disposition of all or substantially all of our
assets and the assets of our subsidiaries taken as a whole.
Although there is a limited body of case law interpreting the
phrase substantially all, there is no precise
established definition of the phrase under applicable law.
Accordingly, the ability of a holder of notes to require us to
repurchase its notes as a result of a sale, lease, transfer,
conveyance or other disposition of less than all of our assets
and those of our subsidiaries taken as a whole to another person
or group may be uncertain.
Book-Entry
System
DTC will act as the initial securities depository for the notes.
The notes will be issued only as fully registered securities
registered in the name of Cede & Co., DTCs
partnership nominee, or such other name as may be requested by
an authorized representative of DTC. One or more fully
registered global note certificates will be issued, representing
in the aggregate the total principal amount of the notes, and
will be deposited with the trustee on behalf of DTC.
The following is based upon information furnished by DTC:
DTC is a limited-purpose trust company organized under the New
York Banking Law, a banking organization within the
meaning of the New York Banking Law, a member of the Federal
Reserve System, a clearing corporation within the
meaning of the New York Uniform Commercial Code and a
clearing agency registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC holds
and provides asset servicing for over 3.5 million issues of
U.S. and
non-U.S. equity
issues, corporate and municipal debt issues and money market
instruments from over 100 countries that DTCs participants
(Direct Participants) deposit with DTC. DTC also
facilitates the post-trade settlement among Direct Participants
of sales and other securities transactions in deposited
securities, through electronic computerized book-entry transfers
and pledges between Direct Participants accounts. This
eliminates the need for physical movement of securities
certificates. Direct Participants include both U.S. and
non-U.S. securities
brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is a
wholly-owned subsidiary of The Depository Trust &
Clearing Corporation (DTCC). DTCC is the holding
company for DTC, National Securities Clearing Corporation and
Fixed Income Clearing Corporation, all of which are registered
clearing agencies. DTCC is owned by the users of its regulated
subsidiaries. Access to the DTC system is also available to
others such as both U.S. and
non-U.S. securities
brokers and dealers, banks, trust companies and clearing
corporations that clear through or maintain a custodial
relationship with a Direct Participant, either directly or
indirectly (Indirect Participants). DTC has
Standard & Poors highest rating: AAA. The DTC
rules applicable to its Direct and Indirect Participants are on
file with the SEC. More information about DTC can be found at
www.dtcc.com and www.dtc.org. The contents of such websites do
not constitute part of this prospectus supplement or the
accompanying prospectus.
Purchases of notes under the DTC system must be made by or
through Direct Participants, which will receive a credit for the
notes on DTCs records. The ownership interest of each
actual purchaser of the notes (Beneficial Owner) is
in turn to be recorded on the Direct and Indirect
Participants records. Beneficial Owners will not receive
written confirmation from DTC of their purchases. Beneficial
Owners are, however, expected to receive written confirmations
providing details of the transactions, as well as periodic
statements of their holdings, from the Direct or Indirect
Participants through which the Beneficial Owners purchased the
notes. Transfers of ownership interests in the notes are to be
accomplished by entries made on the books of Direct and Indirect
Participants acting on behalf of Beneficial Owners. Beneficial
Owners will not receive certificates representing their
ownership interests in the notes, except in the event that use
of the book-entry system for the notes is discontinued.
To facilitate subsequent transfers, all notes deposited by
Direct Participants with DTC are registered in the name of
DTCs partnership nominee, Cede & Co., or such
other name as may be requested by an
S-20
authorized representative of DTC. The deposit of notes with DTC
and their registration in the name of Cede & Co. or
such other DTC nominee do not effect any change in beneficial
ownership. DTC has no knowledge of the actual Beneficial Owners
of the notes. DTCs records reflect only the identity of
the Direct Participants to whose accounts such notes are
credited, which may or may not be the Beneficial Owners. The
Direct and Indirect Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants,
and by Direct Participants and Indirect Participants to
Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in
effect from time to time.
Redemption notices shall be sent to DTC. If less than all of the
notes are being redeemed, DTCs practice is to determine by
lot the amount of interest of each Direct Participant in such
notes to be redeemed.
Although voting with respect to the notes is limited, in those
cases where a vote is required, neither DTC nor Cede &
Co. (nor any other DTC nominee) will consent or vote with
respect to the notes unless authorized by a Direct Participant
in accordance with DTCs procedures. Under its usual
procedures, DTC mails an Omnibus Proxy to us as soon as possible
after the record date. The Omnibus Proxy assigns
Cede & Co.s consenting or voting rights to those
Direct Participants to whose accounts the notes are credited on
the record date (identified in a listing attached to the Omnibus
Proxy).
Payments on the notes will be made to Cede & Co., or
such other nominee as may be requested by an authorized
representative of DTC. DTCs practice is to credit Direct
Participants accounts upon DTCs receipt of funds and
corresponding detail information from us or the trustee on the
relevant payment date in accordance with their respective
holdings shown on DTCs records. Payments by Direct or
Indirect Participants to Beneficial Owners will be governed by
standing instructions and customary practices, as is the case
with securities held for the account of customers registered in
street name, and will be the responsibility of such
Direct or Indirect Participant and not of DTC, Otter Tail
Corporation or the trustee, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Payment to Cede & Co. (or such other nominee as may be
requested by an authorized representative of DTC) is the
responsibility of Otter Tail Corporation or the trustee,
disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursement of such payments to the
Beneficial Owners is the responsibility of Direct and Indirect
Participants.
DTC may discontinue providing its services as securities
depository with respect to the notes at any time by giving
reasonable notice to us or the trustee. Under such
circumstances, in the event that a successor securities
depository is not obtained, certificates for the notes will be
required to be printed and delivered to the holders of record.
We may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository)
with respect to the notes. We understand, however, that under
current industry practices, DTC would notify its Direct and
Indirect Participants of our decision, but will only withdraw
beneficial interests from a global note at the request of each
Direct or Indirect Participant. In that event, certificates for
the notes will be printed and delivered to the applicable Direct
or Indirect Participant.
The information in this section concerning DTC and DTCs
book-entry system has been obtained from sources that we believe
to be reliable, but neither we nor any underwriter takes any
responsibility for the accuracy thereof. We have no
responsibility for the performance by DTC or its Direct or
Indirect Participants of their respective obligations as
described herein or under the rules and procedures governing
their respective operations.
S-21
MATERIAL
UNITED STATES FEDERAL TAX CONSEQUENCES
The following is a summary of the material U.S. federal
income tax consequences of the purchase, ownership and
disposition of the notes, but does not purport to be a complete
analysis of all the potential tax consequences relating thereto.
This summary is based upon the provisions of the Internal
Revenue Code of 1986, as amended (the Code),
Treasury Regulations promulgated thereunder, administrative
rulings and judicial decisions, each as of the date hereof.
Subsequent developments in U.S. federal income tax law,
including changes in law or differing interpretations, which may
be applied retroactively, could result in U.S. federal
income tax consequences different from those set forth below. We
have not sought any ruling from the Internal Revenue Service
(the IRS) or an opinion of counsel with respect to
the statements made and the conclusions reached in the following
summary, and there can be no assurance that the IRS will agree
with these statements and conclusions.
This summary is limited to holders who purchase the notes upon
their initial issuance at their initial issue price (which is
generally the first price at which notes are issued to the
public) pursuant to this offering and who hold the notes as
capital assets. This summary also does not address
U.S. federal estate or gift tax laws or the tax
considerations arising under the laws of any foreign, state or
local jurisdiction. In addition, this discussion does not
address all tax considerations that may be applicable to a
holders particular circumstances or to holders that may be
subject to special tax rules, including, without limitation:
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holders subject to the alternative minimum tax;
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banks, insurance companies or other financial institutions;
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tax-exempt organizations;
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regulated investment companies or real estate investment trusts;
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dealers in securities or commodities;
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traders in securities that elect to use a
mark-to-market
method of accounting for their securities holdings;
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foreign persons or entities (except to the extent specifically
set forth below);
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S-corporations, partnerships or other pass-through entities;
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expatriates and certain former citizens or long-term residents
of the United States;
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U.S. holders (as defined below) whose
functional currency is not the U.S. dollar; or
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persons who hold the notes as a position in a hedging
transaction, straddle, conversion transaction or other risk
reduction transaction.
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If a partnership (or other entity taxable as a partnership for
U.S. federal income tax purposes) holds notes, the tax
treatment of a partner in the partnership generally will depend
upon the status of the partner and the activities of the
partnership. If you are a partner in a partnership holding our
notes, you should consult your tax advisor regarding the tax
consequences of the purchase, ownership and disposition of the
notes.
This summary of the material U.S. federal income tax
consequences is for general information only and is not tax
advice. You are urged to consult your tax advisor with respect
to the application of U.S. federal income tax laws to your
particular situation as well as any tax consequences of the
purchase, ownership and disposition of the notes arising under
U.S. federal estate or gift tax rules or under the laws of
any state, local, foreign or other taxing jurisdiction or under
any applicable tax treaty.
S-22
Consequences
to U.S. Holders
The following is a summary of certain material U.S. federal
income tax consequences that will apply to you if you are a
U.S. holder of the notes. U.S. holder
means a beneficial owner of a note that is:
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an individual who is a citizen or resident of the United States;
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a corporation (or other entity taxable as a corporation for
U.S. federal income tax purposes) created or organized in
or under the laws of the United States or of any state thereof
or the District of Columbia;
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an estate the income of which is subject to U.S. federal
income taxation regardless of its source; or
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a trust that (i) is subject to the primary supervision of a
U.S. court and the control of one or more U.S. persons
or (ii) has a valid election in effect under applicable
Treasury Regulations to be treated as a U.S. person.
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Payments
of Interest
You generally will be required to recognize any stated interest
as ordinary income at the time it is paid or accrued on the
notes in accordance with your method of accounting for
U.S. federal income tax purposes.
Sale,
Exchange, Redemption or Other Taxable Disposition of
Notes
You generally will recognize capital gain or loss upon the sale,
exchange, redemption or other taxable disposition of a note in
an amount equal to the difference between (i) the sum of
cash plus the fair market value of all other property received
on such disposition (except to the extent such cash or property
is attributable to accrued but unpaid interest not previously
included in income, which generally will be taxable as ordinary
income) and (ii) your adjusted tax basis in the note. Your
adjusted tax basis in a note generally will equal the amount you
paid for the note. If at the time of the taxable disposition of
the note you are treated as holding the note for more than one
year, such gain or loss will be a long-term capital gain or
loss. Otherwise, such gain or loss will be a short-term capital
gain or loss. Your ability to deduct capital losses is subject
to significant limitations.
Backup
Withholding and Information Reporting
Payments of interest and principal on notes held by
U.S. holders and the proceeds received upon the sale,
exchange, redemption or other disposition of such notes may be
subject to information reporting and backup withholding.
Payments to certain holders (including, among others,
corporations and certain tax-exempt organizations) are generally
not subject to information reporting or backup withholding. If
you are a U.S. holder and you are not otherwise exempt,
payments to you will be subject to backup withholding if:
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you fail to furnish your taxpayer identification number
(TIN) in the manner required by the Code and
applicable Treasury Regulations;
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we or our agent (or other payor) are notified by the IRS that
the TIN you furnished is incorrect;
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there has been a notified payee underreporting with respect to
interest or dividends paid to you, as described in the
Code; or
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you have failed to certify under penalty of perjury that you
have furnished a correct TIN and that you are not subject to
backup withholding under the Code.
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You should consult your tax advisor regarding your qualification
for an exemption from backup withholding and information
reporting and the procedures for obtaining such an exemption, if
applicable. Backup withholding is not an additional tax, and you
may use amounts withheld under the backup withholding
S-23
rules as a credit against your U.S. federal income tax
liability or may claim a refund as long as you provide the
required information to the IRS in a timely manner.
Consequences
to Non-U.S.
Holders
The following is a summary of certain material U.S. federal
income tax consequences that will apply to you if you are a
non-U.S. holder
of notes. The term
non-U.S. holder
means a beneficial owner of a note that is not a
U.S. holder and does not include any holder that is a
partnership or an entity taxable as a partnership. Special rules
may apply to certain
non-U.S. holders
such as controlled foreign corporations and passive foreign
investment companies. Such entities should consult their tax
advisors to determine the U.S. federal, state, local and
other tax consequences that may be relevant to them.
Payments
of Interest
The 30% U.S. federal withholding tax will not apply to any
payment to you of interest on a note provided that:
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you do not own, actually or constructively, 10% or more of the
total combined voting power of all classes of our stock entitled
to vote;
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you are not a controlled foreign corporation with respect to
which we are, directly or indirectly, a related person;
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you are not a bank receiving interest pursuant to a loan
agreement entered into in the ordinary course of your trade or
business; and
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we do not have actual knowledge or reason to know that you are a
U.S. person and either (a) you provide your name and
address, and certify, under penalties of perjury, that you are
not a U.S. person (which certification may be made on an
IRS
Form W-8BEN
(or successor form)) or (b) if you hold your note through a
securities clearing organization or certain other
intermediaries, you and the intermediaries satisfy the
certification requirements of applicable Treasury Regulations.
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If you cannot satisfy the requirements described above, you will
be subject to the 30% U.S. federal withholding tax with
respect to payments of interest on the notes, unless you provide
us with a properly executed (1) IRS
Form W-8BEN
(or successor form) claiming an exemption from or reduction in
withholding under an applicable U.S. income tax treaty or
(2) IRS
Form W-8ECI
(or successor form) stating that the interest paid on the notes
is not subject to withholding tax because it is effectively
connected with your conduct of a trade or business in the United
States.
If you are engaged in a trade or business in the United States
and interest on the notes is effectively connected with your
conduct of that trade or business (and, if an income tax treaty
applies, such interest is attributable to a permanent
establishment maintained by you in the United States), you will
be subject to U.S. federal income tax on that interest on a
net income basis in the same manner as if you were a
U.S. person as defined under the Code and you will be
exempt from the 30% U.S. federal withholding tax provided
you satisfy the certification requirements described above. In
addition, if you are a foreign corporation, you may be subject
to a branch profits tax equal to 30% (or lower applicable treaty
rate) of your earnings and profits for the taxable year, subject
to adjustments, that are effectively connected with your conduct
of a trade or business in the United States. For this purpose,
interest will be included in the earnings and profits of such
foreign corporation.
S-24
Sale,
Exchange, Redemption or Other Taxable Disposition of
Notes
Any gain realized upon the sale, exchange, redemption or other
taxable disposition of a note (except with respect to accrued
and unpaid interest, which would be taxable as described above)
generally will not be subject to U.S. federal income tax
unless:
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that gain is effectively connected with your conduct of a trade
or business in the United States (and, if an income tax treaty
applies, such gain is attributable to a permanent establishment
maintained by you in the United States); or
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you are an individual who is present in the United States for
183 days or more in the taxable year of that disposition,
and certain other conditions are met.
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If your gain is described in the first bullet point above, you
generally will be subject to U.S. federal income tax on the
net gain derived from the sale, exchange, redemption or other
disposition. If you are a corporation, any such effectively
connected gain received by you may also, under certain
circumstances, be subject to the branch profits tax at a 30%
rate (or such lower rate as may be prescribed under an
applicable U.S. income tax treaty). If you are an
individual described in the second bullet point above, you will
be subject to a 30% U.S. federal income tax on the gain
derived from the sale, exchange, redemption or other
disposition, which may be offset by U.S. source capital
losses, even though you are not considered a resident of the
United States.
Backup
Withholding and Information Reporting
If you are a
non-U.S. holder,
in general, you will not be subject to backup withholding and
information reporting with respect to payments that we make to
you provided that we do not have actual knowledge or reason to
know that you are a U.S. person, as defined under the Code,
and you have given us the statement described in the last bullet
point under Consequences to
Non-U.S. Holders
Payments of Interest. In addition, you will not be subject
to backup withholding or information reporting with respect to
the proceeds of the sale of a note within the United States or
conducted through certain
U.S.-related
financial intermediaries, if the payor receives the statement
described in the last bullet point under
Consequences to
Non-U.S. Holders
Payments of Interest and does not have actual knowledge or
reason to know that you are a U.S. person, as defined under
the Code, or you otherwise establish an exemption. However, we
may be required to report annually to the IRS and to you the
amount of, and the tax withheld with respect to, any interest
paid to you, regardless of whether any tax was actually
withheld. Copies of these information returns may also be made
available under the provisions of a specific treaty or agreement
to the tax authorities of the country in which you reside.
You generally will be entitled to credit any amounts withheld
under the backup withholding rules against your
U.S. federal income tax liability provided that the
required information is furnished to the IRS in a timely manner.
S-25
UNDERWRITING
Banc of America Securities LLC and J.P. Morgan Securities
Inc. are acting as representatives of each of the underwriters
named below. Subject to the terms and conditions set forth in
the underwriting agreement among us and the underwriters, we
have agreed to sell to the underwriters, and each of the
underwriters has agreed, severally and not jointly, to purchase
from us, the principal amount of notes set forth opposite its
name below.
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Principal Amount
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Underwriter
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of Notes
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Banc of America Securities LLC
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$
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40,000,000
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J.P. Morgan Securities Inc.
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40,000,000
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U.S. Bancorp Investments, Inc.
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10,000,000
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KeyBanc Capital Markets Inc.
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4,000,000
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BNP Paribas Securities Corp.
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3,000,000
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Wells Fargo Securities, LLC
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3,000,000
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Total
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$
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100,000,000
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Subject to the terms and conditions set forth in the
underwriting agreement, the underwriters have agreed, severally
and not jointly, to purchase all of the notes sold under the
underwriting agreement if any of these notes are purchased. If
an underwriter defaults, the underwriting agreement provides
that the purchase commitments of the non-defaulting underwriters
may be increased or the underwriting agreement may be terminated.
We have agreed to indemnify the underwriters and their
controlling persons against certain liabilities in connection
with this offering, including liabilities under the Securities
Act of 1933, as amended, or to contribute to payments the
underwriters may be required to make in respect of those
liabilities.
The underwriters are offering the notes, subject to prior sale,
when, as and if issued to and accepted by them, subject to
approval of legal matters by their counsel, including the
validity of the notes, and other conditions contained in the
underwriting agreement, such as the receipt by the underwriters
of officers certificates and legal opinions. The
underwriters reserve the right to withdraw, cancel or modify
offers to the public and to reject orders in whole or in part.
Commissions
and Discounts
The representatives have advised us that the underwriters
propose initially to offer the notes to the public at the public
offering price set forth on the cover page of this prospectus
supplement and may offer to certain dealers at such price less a
concession not in excess of 0.75% of the principal amount of the
notes. The underwriters may allow, and such dealers may reallow,
a concession not in excess of 0.50% of the principal amount of
the notes to certain other dealers. After the initial offering,
the public offering price, concession or any other term of the
offering may be changed.
The expenses of the offering, not including the underwriting
discount, are estimated at $440,000 and are payable by us.
New Issue
of Notes
The notes are a new issue of securities with no established
trading market. We do not intend to apply for listing of the
notes on any national securities exchange or for inclusion of
the notes on any automated dealer quotation system. We have been
advised by the underwriters that they presently intend to make a
market in the notes after completion of the offering. However,
they are under no obligation to do so and may discontinue any
market-making activities at any time without any notice. We
cannot assure the liquidity of the trading market for the notes
or that an active public market for the notes will develop. If
an active public trading market for the notes does not develop,
the market price and liquidity of the notes may be adversely
affected. If the notes are traded, they may trade at a discount
from their initial offering price, depending on
S-26
prevailing interest rates, the market for similar securities,
our operating performance and financial condition, general
economic conditions and other factors.
No Sales
of Similar Securities
We have agreed that, during the period commencing on the date
hereof and ending on the closing date, we will not, without the
prior written consent of the representatives, directly or
indirectly, sell, offer, contract or grant any option to sell,
pledge, transfer or otherwise dispose of, any debt securities or
securities exchangeable for or convertible into debt securities,
except for the notes sold to the underwriters pursuant to the
underwriting agreement.
Short
Positions
In connection with the offering, the underwriters may purchase
and sell the notes in the open market. These transactions may
include short sales and purchases on the open market to cover
positions created by short sales. Short sales involve the sale
by the underwriters of a greater principal amount of notes than
they are required to purchase in the offering. The underwriters
must close out any short position by purchasing notes in the
open market. A short position is more likely to be created if
the underwriters are concerned that there may be downward
pressure on the price of the notes in the open market after
pricing that could adversely affect investors who purchase in
the offering.
Similar to other purchase transactions, the underwriters
purchases to cover the syndicate short sales may have the effect
of raising or maintaining the market price of the notes or
preventing or retarding a decline in the market price of the
notes. As a result, the price of the notes may be higher than
the price that might otherwise exist in the open market.
Neither we nor any of the underwriters make any representation
or prediction as to the direction or magnitude of any effect
that the transactions described above may have on the price of
the notes. In addition, neither we nor any of the underwriters
make any representation that the representatives will engage in
these transactions or that these transactions, once commenced,
will not be discontinued without notice.
CONFLICTS
OF INTEREST
Some of the underwriters and their affiliates have engaged in,
and may in the future engage in, investment banking and other
commercial dealings in the ordinary course of business with us
or our affiliates. They have received, or may in the future
receive, customary fees and commissions for these transactions.
Affiliates of Banc of America Securities LLC, J.P. Morgan
Securities Inc., U.S. Bancorp Investments, Inc., BNP
Paribas Securities Corp., KeyBanc Capital Markets Inc. and Wells
Fargo Securities, LLC are lenders under our revolving credit
facility. Affiliates of Banc of America Securities LLC,
J.P. Morgan Securities Inc., U.S. Bancorp Investments,
Inc. and Wells Fargo Securities, LLC are lenders under the
revolving credit facility of Otter Tail Power Company, our
wholly-owned subsidiary. In addition, an affiliate of
U.S. Bancorp Investments, Inc. is the trustee under the
indenture governing the notes. Because at least 5% of the net
proceeds of this offering, not including underwriting
compensation, will be used to repay loans under our revolving
credit facility extended by affiliates of Banc of America
Securities LLC, J.P. Morgan Securities Inc.,
U.S. Bancorp Investments, Inc., BNP Paribas Securities
Corp., KeyBanc Capital Markets Inc. and Wells Fargo Securities,
LLC, such underwriters will be considered to have a
conflict of interest with us in regards to this
offering under NASD Rule 2720 of the Financial Industry
Regulatory Authority. However, no qualified independent
underwriter is needed for this offering because the offering is
in compliance with NASD Rule 2720(a)(1). Banc of America
Securities LLC, J.P. Morgan Securities Inc.,
U.S. Bancorp Investments, Inc., BNP Paribas Securities
Corp., KeyBanc Capital Markets Inc. and Wells Fargo Securities,
LLC will not confirm sales of the notes to any account over
which they exercise discretionary authority without the prior
written consent of the customer.
S-27
LEGAL
MATTERS
The validity of the notes will be passed upon for us by
Dorsey & Whitney LLP. The underwriters in this
offering are being represented by Davis Polk &
Wardwell LLP.
EXPERTS
The consolidated financial statements incorporated in this
prospectus supplement and the accompanying 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.
S-28
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 2.
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.
TABLE OF
CONTENTS
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1
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2
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10
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11
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12
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12
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12
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16
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24
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35
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38
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38
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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.
1
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 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.
2
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.
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
3
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.
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.
4
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 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
5
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 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.
6
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.
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.
7
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.
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.
8
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
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.
9
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.
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
10
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.
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.
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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
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Months
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Ended
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Year Ended December 31,
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March 31,
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2004
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2005
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2006
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2007
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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
12
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,
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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.
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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.
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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.
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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
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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 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
662/3%
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.
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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
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).
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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. 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.
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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,
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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.
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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.
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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.
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.
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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.
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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 thereto
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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.
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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.
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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)), and
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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
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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 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
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occurs, the depositary may, with our approval, sell the property
and distribute the net proceeds from the sale to the holders.
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.
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
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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 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.
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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 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
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)
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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)
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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 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
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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)
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)
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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)
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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 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.
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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)
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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)
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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)
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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)
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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.
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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)
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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)
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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)
32
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 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.
33
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.
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.
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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.
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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.
34
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;
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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.
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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.
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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.
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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, 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.
36
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.
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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.
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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
37
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.
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.
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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.
38
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)
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.
39
$100,000,000
9.00% Notes due
2016
PROSPECTUS SUPPLEMENT
Joint Book-Running Managers
BofA Merrill Lynch
J.P. Morgan
Lead Manager
U.S. Bancorp Investments,
Inc.
Co-Managers
BNP PARIBAS
KeyBanc Capital
Markets
Wells Fargo
Securities
December 1, 2009