As filed with the Securities and Exchange Commission on April 16, 1997 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 OTTER TAIL POWER COMPANY (Exact name of registrant as specified in its charter) Minnesota 41-0462685 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 215 South Cascade Street Box 496 Fergus Falls, Minnesota 56538-0496 (218) 739-8200 (Zip Code) (Address, including zip code, and telephone number, of principal executive offices) OTTER TAIL POWER COMPANY EMPLOYEE STOCK OWNERSHIP PLAN (Full Title of the Plan) A. E. ANDERSON Vice President, Finance 215 South Cascade Street Box 496 Fergus Falls, Minnesota 56538-0496 (Name and address of agent for service) (218) 739-8200 (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE Proposed Title of Amount maximum Proposed maximum Amount of securities to be offering price aggregate offering registration to be registered registered per share (1) price (1) fee Common Shares 250,000 shares $32.875 $8,218,750 $2,490.53 ($5 par value) (1) Estimated solely for the purpose of calculating the registration fee. Pursuant to Rule 457(h)(1), the proposed maximum offering price per share and the proposed maximum aggregate offering price are based upon the average of the high and low sales prices of the Common Shares on April 10, 1997, as reported on the NASDAQ National Market System. PART II.
Item 3. Incorporation of Documents by Reference. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT The following documents that have been filed by Otter Tail Power Company (the "Company") with the Securities and Exchange Commission are incorporated by reference in this Registration Statement, as of their respective dates: (a) the Company's Annual Report on Form 10-K for the year ended December 31, 1996; (b) the description of the Company's Common Stock contained in any registration statement or report filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). All documents filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the respective dates of filing of such documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable Item 6. Indemnification of Directors and Officers Minnesota Statutes Section 302A.521 contains detailed provisions for indemnification of directors and officers of domestic or foreign corporations under certain circumstances and subject to certain limitations. Article VIII of the Bylaws of the Company contains provisions for indemnification of its directors and officers consistent with the provisions of Minnesota Statutes, Section 302A.521. Article X of the Company's Restated Articles of Incorporation provides that a director shall not be liable to the Company or its shareholders for monetary damages for a breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Sections 302A.559 or 80A.23 of the Minnesota Statutes, (iv) for any transaction for which the director derived an improper personal benefit, or (v) for any act or omission occurring prior to the date when said Article X became effective. The Company has obtained insurance policies indemnifying the Company and the Company's directors and officers against certain civil liabilities and related expenses. Item 8. Exhibits Previously Filed
Number File No. Exhibit No. Description 4-A 10-K for year ended 3-A Restated Articles of Incorporation, as 12/31/96 amended (including resolutions creating outstanding series of Cumulative Preferred Shares). 4-B 33-46071 4-B Bylaws, as amended through April 11, 1988. 4-C Form 8-A 1 Rights Agreement dated as of January 27, (filed 1/28/97) 1997, between the Company and Norwest Bank Minnesota, National Association, as Rights Agent. 5-A Opinion and consent of Dorsey & Whitney LLP. 23-A-1 23-A-2 Consent of Deloitte & Touche LLP. Consent of Dorsey & Whitney LLP (included in Exhibit 5-A). 24-A Power of Attorney. The Company has submitted or will submit the Plan and any amendments thereto to the Internal Revenue Service ("IRS") in a timely manner and has made or will make all changes required by the IRS in order to qualify the Plan under ERISA. Item 9. Undertakings The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (a) To include any prospectus required by section 10(a)(3) of the Securities Act of 1993; (b) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement. (c) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change in the information set forth in this Registration Statement; provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the information required to be included in a post- effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or other controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fergus Falls, State of Minnesota, on April 14, 1997. OTTER TAIL POWER COMPANY By /s/ A. E. Anderson A. E. Anderson Vice President, Finance and Treasurer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed on April 14, 1997 by the following persons in the capacities indicated: Signature /s/ John C. MacFarlane John C. MacFarlane Title Chairman, President and Chief Executive Officer (principal executive officer) and Director /s/ A. E. Anderson Vice President, Finance and Treasurer A. E. Anderson (principal financial officer) /s/ Jeffrey J. Legge Jeffrey J. Legge Controller (principal accounting officer) * Director Thomas M. Brown * Director Dayle Dietz * Director Dennis R. Emmen Director Maynard D. Helgaas * Director Arvid R. Liebe
* Director Kenneth L. Nelson * Director Nathan I. Partain * Director Robert N. Spolum *By /s/ A.E. Anderson A. E. Anderson Pro Se and Attorney-in-Fact EXHIBIT INDEX TO FORM S-8 OTTER TAIL POWER COMPANY Exhibit Page No. 4-A Restated Articles of Incorporation, as Previously filed amended (including resolutions creating outstanding series of Cumulative Preferred Shares) 4-B Bylaws, as amended through April 11, 1988 Previously filed 4-C Rights Agreement dated as of January 27, Previously filed 1997, between the Company and Norwest Bank Minnesota, National Association, as Rights Agent 5-A Opinion of Dorsey & Whitney LLP 23-A-1 Consent of Deloitte & Touche LLP 23-A-2 Consent of Dorsey & Whitney LLP (included in Exhibit 5-A) 24 Power of Attorney
Exhibit 5-A [DORSEY & WHITNEY LETTERHEAD] April 14, 1997 Otter Tail Power Company 215 South Cascade Street Box 496 Fergus Falls, Minnesota 56538-0496 Ladies and Gentlemen: Reference is made to the proposed issuance and sale from time to time by Otter Tail Power Company, a Minnesota corporation (the "Company"), of not to exceed 250,000 of its Common Shares, $5 par value (the "Shares"), pursuant to the Company's Employee Stock Ownership Plan (the "Plan"), and the Company's Registration Statement on Form S-8 (the "Registration Statement") with respect to such proposed issuance and sale to be filed with the Securities and Exchange Commission (the "SEC") under the Securities Act of 1933, as amended (the "Securities Act"). We are familiar with the proceedings to date with respect to the proposed issuance and sale of the Shares and have examined such records, documents and matters of law and satisfied ourselves as to such matters of fact as we have considered relevant for the purposes of this opinion. Based upon such examination, we are of the opinion that: (1) The Company is duly incorporated, validly existing and in good standing under the laws of the State of Minnesota. (2) The Company is a public utility, as defined in the statutes of the States of Minnesota, North Dakota and South Dakota, is authorized to conduct its business in the States of Minnesota, North Dakota and South Dakota as a public utility and, as such public utility, is subject to the jurisdiction of the Minnesota Public Utilities Commission with respect to the issuance of its securities and to the jurisdiction of the North Dakota Public Service Commission with respect to the issuance of certain of its securities. (3) The Shares have been duly authorized and will be legally issued, fully paid and non-assessable when: (a) the Registration Statement shall have become effective under the Securities Act; (b) the Shares shall have been duly executed, countersigned and registered and shall have been duly delivered to Mellon Bank, N.A., the trustee under the Plan, upon payment of the consideration therefor; (c) the Shares shall have been issued and sold in accordance with the resolutions of the Board of Directors, the terms of the Plan and the Order or Orders of the Minnesota Public Utilities Commission; and (d) the requirements of the securities laws of the various states in which the Shares are to be offered shall have been satisfied. We hereby consent to the filing of this opinion as Exhibit 5-A to the Registration Statement. Very truly yours, /s/ Dorsey & Whitney LLP Dorsey & Whitney LLP GLT
Exhibit 23-A-1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Otter Tail Power Company on Form S-8 of our report dated January 29, 1997 incorporated in Otter Tail Power Company's Annual Report on Form 10-K for the year ended December 31, 1996. /s/ Deloitte & Touche LLP April 11, 1997 Minneapolis, Minnesota
Exhibit 24-A POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints John C. MacFarlane, Jay D. Myster, Andrew E. Anderson and Charles E. Brunko, and each or any one of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him/her and in his/her name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-8, and any and all amendments (including post-effective amendments) thereto, for the offer and sale of up to 250,000 Common Shares, $5 par value, of Otter Tail Power Company, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, this Power of Attorney has been signed on the 14th day of April, 1997, by the following persons: John C. MacFarlane John C. MacFarlane Maynard D. Helgaas Andrew E. Anderson Andrew E. Anderson Arvid R. Liebe Arvid R. Liebe Jeff Legge Jeff Legge Kenneth L. Nelson Kenneth L. Nelson Thomas M. Brown Thomas M. Brown Nathan I. Partain Nathan I. Partain Dayle Dietz Dayle Dietz Robert N. Spolum Robert N. Spolum Dennis R. Emmen Dennis R. Emmen
End of Filing