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U.S. Securities and Exchange Commission

Securities Exchange Act of 1934
Rule 12g-3

December 19, 2008

Response of the Office of Chief Counsel
Division of Corporation Finance


Otter Tail Corporation
Incoming letter dated December 18, 2008

Based on the facts presented, the Division’s views are as follows. Capitalized terms have the same meanings defined in your letter.

  • The reporting history of the Company under the Exchange Act may be taken into account to determine whether OT Holding is eligible to use Forms S-3, S-4 and S-8 under the Securities Act, and to determine whether OT Holding may furnish information in a Form S-4 under the Securities Act in the manner permitted for a company that is eligible to use Form S-3;
  • Without necessarily agreeing with your analysis, the Division will not object if OT Holding, as successor to the Company, does not file new registration statements under the Securities Act for offerings of securities covered by the Company’s currently effective registration statements on Forms S-3 and S-8. Instead, OT Holding may adopt the Company’s registration statements pursuant to Rule 414 under the Securities Act by filing post-effective amendments to those registration statements;
  • The Company’s Exchange Act reporting history may be taken into account when determining OT Holding’s compliance with the current public information requirements of Rule 144(c)(1) under the Securities Act;
  • Average weekly reported trading volume in Otter Tail Common Shares during the time periods specified by Rule 144(e)(1) may be taken into account in determining the limitations on the amount of securities that may be sold pursuant to Rule 144(e);
  • The Reorganization will be a “succession” for purposes of Rule 12g-3(a) under the Exchange Act, and OT Holding will be a “large accelerated filer” for purposes of Rule 12b-2 under the Exchange Act; and
  • Persons who have filed statements on Schedules 13D or 13G under the Exchange Act reporting beneficial ownership of Otter Tail Common Shares will not be required to file additional or amended statements on Schedules 13D or 13G as a result of the Reorganization, provided that they note in their next subsequent filings on Schedules 13D or 13G that OT Holding is the successor to the Company.

These positions are based on the representations made to the Division in your letter. Different facts or conditions might require different conclusions.


Mark F. Vilardo
Special Counsel

Incoming Letter:

The Incoming Letter is in Acrobat format.



Modified: 01/12/2009