Exhibit 3.3
ARTICLES OF INCORPORATION
OF
BLACK HILLS HOLDING CORPORATION
Executed by the undersigned for the purpose of forming a South Dakota
business corporation under Chapter 47 of SDCL.
ARTICLE I.
The name of the Corporation is Black Hills Holding Corporation.
ARTICLE II.
The period of existence is perpetual.
ARTICLE III.
The purposes for which this Corporation is organized include, without
limitation, to acquire, hold, purchase, sell, assign, transfer, exchange,
mortgage, pledge, or otherwise dispose of shares of the capital stock of, or any
bonds, securities or evidences of indebtedness created by, any other corporation
of the state of South Dakota, or any other state, and, while the owner of such
stock, to exercise all the rights, powers and privileges of ownership, including
the right to vote thereon; to enter into plans of merger, consolidation, or
exchange with any other corporation of the state of South Dakota or any other
state; to aid in any manner any corporation or association, any shares of stock
of which, or any bonds, debentures, notes, securities, evidences of
indebtedness, contracts, or obligations of which, are held by or for the
Corporation, or in which, or in the welfare of which, the Corporation shall have
any interest; to do any acts designed to protect, preserve, improve or enhance
the value of any property at any time held or controlled by the Corporation, or
in which it may be at any time interested; to organize, promote, or facilitate
the organization of subsidiary companies; to purchase, hold, sell and transfer
shares of its own capital stock in the manner and to the extent provided by any
law, rule or regulation; and to generally engage in any lawful act or activity
and to enjoy and exercise all the rights, powers and privileges which are now or
may hereafter be conferred upon corporations organized under the laws of the
state of South Dakota. The foregoing clauses shall be construed both as objects
and powers, and it is hereby expressly provided that the above enumeration of
specific purposes and powers shall not be held to limit or restrict in any
manner the purposes and powers of the Corporation, but is in furtherance of and
in addition to the general powers conferred by the laws of the state of South
Dakota.
ARTICLE IV.
The amount of total authorized capital stock of the Corporation is
125,000,000 shares consisting of:
A. 100,000,000 shares of Common Stock, having a par value of $1
per share; and
B. 25,000,000 shares of Preferred Stock, without par value.
ARTICLE V
A. Each holder of Common Stock shall at every meeting of the shareholders
be entitled to one vote for each share of Common Stock held by him.
B. The Board of Directors of the Corporation is authorized, subject to
limitations prescribed by law, to provide for the issuance of shares of
Preferred Stock in series, and by filing a statement pursuant to the applicable
law of the state of South Dakota, to establish from time to time the number of
shares to be included in such series, and to fix the designations, powers,
preferences and rights of the shares of each such series and the qualifications,
limitations, and restrictions thereof.
The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
1) The number of shares constituting that series and the distinctive
designation of that series;
2) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on the
shares of that series;
3) Whether that series shall have voting rights, in addition to any
voting rights provided by law, and if so, the terms of such voting
rights, including, but not limited to, rights to elect a specified
number of Directors in the event that dividends, if any, on Preferred
Stock, remain unpaid for a specified period of time;
4) Whether that series shall have conversion privileges, and, if so, the
terms and conditions of such conversion, including provisions for
adjustment of the conversion rate in such events as the Board of
Directors shall determine;
5) Whether or not the shares of that series will be redeemable, and, if
so, the terms and conditions of such redemption, including the date or
date upon or after which they shall be redeemable, and the amount per
share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
6) Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of
such sinking fund;
7) The rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution, or winding up of the
corporation, and the relative rights of priority, if any, of payment
of shares of that series;
8) Any other relative rights, preferences, and limitations of that
series.
Dividends on outstanding shares of Preferred Stock shall be paid or
declared and set apart for payment before any dividends shall be paid or
declared and set apart for payment on the Common Stock with respect to the same
dividend period.
If upon any voluntary or involuntary liquidation, dissolution, or
winding up of the Corporation, the assets available for distribution to holders
of shares of Preferred Stock of all series shall be insufficient to pay such
holders the full preferential amount to which they are entitled, then such
assets shall be distributed ratably among the shares of all series of Preferred
Stock in accordance with the respective preferential amounts (including unpaid
cumulative dividends, if any) payable with respect thereto.
C. Neither the holders of the Common Stock nor the holders of any Preferred
Stock shall have any preemptive rights to subscribe to any issue of stock or
other securities of any class of the Corporation.
ARTICLE VI.
The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors, the number of which shall not be
less than nine; provided, (i) the Board of Directors may change the number of
Directors by amendments to its bylaws, and (ii) whenever the holders of any one
or more series of Preferred Stock shall have the right, voting separately as a
class, to elect one or more Directors of the Corporation, the number of
Directors shall be increased to the extent necessary to give effect to such
voting rights.
The Board of Directors shall be and is divided into three classes:
Class I, Class II, and Class III, which shall be as nearly equal in number as
possible, with the term of office of one class expiring each year. At the annual
meeting of shareholders in 2000, Directors of the first class shall be elected
to hold office for a term expiring at the next succeeding annual meeting;
Directors of the second class shall be elected to hold office for a term
expiring at the second succeeding annual meeting; and Directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting.
Any vacancies in the Board of Directors, for any reason, including any
newly created directorships resulting from any increase in the number of
Directors may be filled by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum, and any Director so
chosen shall hold office until the next election of the class for which such
Director shall have been chosen.
The Board of Directors is expressly authorized to determine the rights,
powers, duties, rules and procedures that affect the power of the Board of
Directors to manage and direct the business and affairs of the corporation,
including the power to designate and empower the committees of the Board of
Directors, to elect, appoint and empower the officers and other agents of the
corporation, and to determine the time and place of, and the notice requirements
for, Board meetings as well as quorum and voting requirements for, and the
manner of taking, Board action.
Each Director shall serve for a term continuing until the annual
meeting of shareholders at which the term of the class to which he was elected
expires and until his successor is elected and qualified or until his or her
earlier death, resignation or removal; except a Director may be removed from
office prior to the expiration of his or her term only for cause and by a vote
of the majority of the total number of members of the Board of Directors without
including the Director who is the subject of the removal determination and
without such Director being entitled to vote thereon.
Notwithstanding anything contained in this Articles to the contrary,
the affirmative vote or concurrence of the holders of at least 80 percent of the
Common Stock entitled to vote thereon and 66 percent of the Preferred Stock
entitled to vote thereon shall be required to alter, amend, or repeal this
Article VI.
ARTICLE VII.
A. In addition to any other approvals and voting requirements mandated by
law and other provisions of these Articles of Incorporation, the affirmative
vote of the holders of not less than eighty percent (80%) of the outstanding
shares of "Voting Stock" (as hereinafter defined) of this Corporation (the
"Company") shall be required for the approval or authorization of any "Business
Transaction" (as hereinafter defined) with any "Related Person" (as hereinafter
defined) or any Business Transaction in which a Related Person has an interest
(except proportionately as a shareholder of the Company); provided, the eighty
percent (80%) voting requirement shall not be applicable if either:
1) the "Continuing Directors" (as hereinafter defined) of the
Company by at least a majority vote thereof (a) have expressly
approved in advance the acquisition of the outstanding shares of
Voting Stock that caused such Related Person to become a Related
Person, or (b) have expressly approved such Business Transaction; or
2) all of the following conditions (a), (b) and (c) shall have
been met:
(a) the cash or fair market value (as determined by at least a
majority of the Continuing Directors) of the property,
securities or other consideration to be received per share by
holders of Voting Stock of the Company (other than the Related
Person) in the Business Transaction is not less than the
"Highest Purchase Price" or the "Highest Equivalent Price" (as
those terms are hereinafter defined) paid by the Related
Person involved in the Business Transaction in acquiring any
of its holdings of the Company's Voting Stock;
(b) the ratio of:
(w) the aggregate amount of the cash and the fair
market value or other consideration to be received
per share by holders of Common Stock in such Business
Transaction, to
(x) the market price of the Common Stock immediately
prior to the announcement of such Business
Transaction,
is at least as great as the ratio of:
(y) the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers'
fees) which the Related Person involved in such
Business Transaction has theretofore paid for any
shares of Common Stock acquired by it, to
(z) the market price of the Common Stock immediately
prior to the initial acquisition by such Related
Person of any Common Stock; and
(c) the consideration to be received by holders of each class
of capital stock in such Business Transaction shall be the
same form and of the same kind as the consideration paid by
the Related Person in acquiring the shares of that class of
capital stock already owned by it.
B. For purposes of this Article VII:
1) The term "Business Transaction" shall include, without
limitation, (a) any merger, consolidation or plan of exchange of the
Company, or any entity controlled by or under common control with the
Company, with or into any Related Person, or any entity controlled by
or under common control with such Related Person, (b) any merger,
consolidation or plan of exchange of a Related Person, or any entity
controlled by or under common control with such Related Person, with
or into the Company or any entity controlled by or under common
control with the Company, (c) any sale, lease, exchange, transfer or
other disposition (in one transaction or a series of transactions),
including without limitation a mortgage or any other security device,
of all or any "Substantial Part" (as hereinafter defined) of the
property and assets of the Company, or any entity controlled by or
under common control with the Company, to a Related Person, or any
entity controlled by or under common control with such Related Person,
(d) any purchase, lease, exchange, transfer or other acquisition (in
one transaction or a series of transactions), including, without
limitation, a mortgage or any other security device, of all or any
Substantial Part of the property and assets of a Related Person or any
entity controlled by or under common control with such Related Person,
by the Company or any entity controlled by or under common control
with the Company, (e) any recapitalization of the Company that would
have the effect of increasing the voting power of a Related Person,
(f) the issuance, sale, exchange or other disposition of any
securities of the Company, or of any entity controlled by or under
common control with the Company, by the Company or by any entity
controlled by or under common control with the Company, (g) any
liquidation, spin-off, split-off, split-up or dissolution of the
Company, and (h) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of
Business Transaction.
2) The term "Related Person" shall mean and include (a) any
individual, corporation, association, trust, partnership or other
person or entity (a "Person") which, together with its "Affiliates"
(as hereinafter defined) and "Associates" (as hereinafter defined),
"Beneficially Owns" (as defined in Rule 13d-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934 as in effect at
March 27, 1986) in the aggregate ten percent (10%) or more of the
outstanding Voting Stock of the Company, and (b) any Affiliate or
Associate (other than the Company or a subsidiary of the Company of
which the Company owns, directly or indirectly, more than eighty
percent (80%) of the voting stock) of any such Person. Two or more
Persons acting in concert for the purpose of acquiring, holding or
disposing of Voting Stock of the Company shall be deemed a "Person."
3) Without limitation, any share of Voting Stock of the Company
that any Related Person has the right to acquire at any time
(notwithstanding that Rule 13d-3 deems such shares to be beneficially
owned only if such right may be exercised within 60 days) pursuant to
any agreement, contract, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise,
shall be deemed to be Beneficially Owned by such Related Person and to
be outstanding for purposes of clause B(2) above.
4) For the purposes of subparagraph (2) of paragraph A. of this
Article VII, the term "other consideration to be received" shall
include, without limitation, Common Stock or other capital stock of
the Company retained by its existing stockholders, other than any
Related Person or other Person who is a party to such Business
Transaction, in the event of a Business Transaction in which the
Company is the survivor.
5) The term "Voting Stock" shall mean all of the outstanding
shares of capital stock of the Company entitled to vote generally in
the election of Directors, considered as one class, and each reference
to a proportion of shares of Voting Stock shall refer to such
proportion of the votes entitled to be cast by such shares.
6) The term "Continuing Director" shall mean any member of the
Board of Directors of the Company (the "Board") who is unaffiliated
with, and not a nominee of, the Related Person involved in a Business
Transaction and was a member of the Board prior to the time that the
Related Person became a Related Person and any successor of a
Continuing Director who is unaffiliated with, not a nominee of, the
Related Person and is designated to succeed a Continuing Director by a
majority of Continuing Directors then on the Board.
7) A Related Person shall be deemed to have acquired a share of
the Voting Stock of the Company at the time when such Related Person
became the Beneficial Owner thereof. With respect to the shares owned
by Affiliates, Associates or other Persons whose ownership is
attributed to a Related Person under the foregoing definition of
Related Person, if the price paid by such Related Person for such
shares is not determinable by a majority of the Continuing Directors,
the price so paid shall be deemed to be the higher of (a) the price
paid upon the acquisition thereof by the Affiliate, Associate or other
Person or (b) the market price of the shares in question at the time
when such Related Person became the Beneficial Owner thereof.
8) The terms "Highest Purchase Price" and "Highest Equivalent
Price" as used in this Article VII shall mean the following: If there
is only one class of capital stock of the Company issued and
outstanding, the Highest Purchase Price shall mean the highest price
that can be determined to have been paid at any time by the Related
Person involved in the Business Transaction for any share or shares of
that class of capital stock. If there is more than one class of
capital stock of the Company issued and outstanding, the Highest
Equivalent Price shall mean, with respect to each class and series of
capital stock of the Company, the amount determined by a majority of
the Continuing Directors, on whatever basis they believe is
appropriate, to be the highest per share price equivalent to the
highest price that can be determined to have been paid at any time by
the Related Person for any share or shares of any class or series of
capital stock of the Company. The Highest Purchase Price and the
Highest Equivalent Price shall include any brokerage commissions,
transfer taxes and soliciting dealers' fees paid by a Related Person
with respect to the shares of capital stock of the Company acquired by
such Related Person. In the case of any Business Transaction with a
Related Person, the Continuing Directors shall determine the Highest
Purchase Price or the Highest Equivalent Price for each class and
series of the capital stock of the Company. The Highest Purchase Price
and Highest Equivalent Price shall be appropriately adjusted to
reflect the occurrence of any reclassification, recapitalization,
stock split, reverse stock split or other readjustment in the number
of outstanding shares of capital stock of the Company, or the
declaration of a stock dividend thereon, between the last date upon
which the Related Party paid the Highest Purchase Price or Highest
Equivalent Price and the effective date of the merger or consolidation
or the date of distribution to stockholders of the Company of the
proceeds from the sale of all or substantially all of the assets of
the Company.
9) The term "Substantial Part" shall mean ten percent (10%) or
more of the fair market value of the total assets of the Person in
question, as reflected on the most recent balance sheet of such Person
existing at the time the stockholders of the Company would be required
to approve or authorize the Business Transaction involving the assets
constituting any such Substantial Part.
10) The term "Affiliate," used to indicate a relationship with a
specified Person, shall mean a Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or
is under common control with, the Person specified.
11) The term "Associate," used to indicate a relationship with a
specified Person, shall mean (a) any entity of which such specified
Person is an officer or partner or is, directly or indirectly, the
beneficial owner of ten percent (10%) or more of any class of equity
securities, (b) any trust or other estate in which such specified
Person has a substantial beneficial interest or as to which such
specified Person serves as trustee or in a similar fiduciary capacity,
(c) any relative or spouse of such specified Person, or any relative
of such spouse, who has the same home as such specified Person or who
is a Director or officer of the Company or any of its subsidiaries,
and (d) any Person who is a Director or officer of such specified
Person or any of its parents or subsidiaries (other than the Company
or an entity controlled by or under common control with the Company).
12) The term "subsidiary," when used to indicate a relationship
with a specified Person, shall mean an Affiliate controlled by such
Person directly, or indirectly through one or more intermediaries.
C. For the purposes of this Article VII, a majority of the Continuing
Directors shall have the power to make a good faith determination, on the basis
of information known to them, of: 1) the number of shares of Voting Stock that
any Person Beneficially Owns, 2) whether a Person is an Affiliate or Associate
of another, 3) whether a Person has an agreement, contract, arrangement or
understanding with another or some other right as to the matters referred to in
subparagraph B(1)(h) or B(3) hereof, 4) whether the assets subject to any
Business Transaction constitute a Substantial Part, 5) whether any Business
Transaction is one in which a Related Person has an interest (except
proportionately as a shareholder of the Company), 6) the date of the initial
acquisition of Common Stock by a Related Person, 7) whether the consideration to
be received is in the same form as to the matter referred to in subparagraph
A(2)(c), and 8) such other matters with respect to which a determination is
required under this Article VII.
D. The provisions set forth in this Article VII may not be amended, altered,
changed or repealed in any respect unless such action is approved by the
affirmative vote of the holders of not less than eighty percent (80%) of the
outstanding shares of Voting Stock of the Company.
ARTICLE VIII.
The Corporation will not commence business until consideration of the
value of at least $1,000 has been received for issuance of shares.
ARTICLE IX.
The complete address, including the street address of the Corporation's
registered office is 625 Ninth Street, Rapid City, South Dakota 57701, and the
name of its registered agent at such address is Roxann R. Basham.
ARTICLE X.
The number of Directors constituting the initial Board of Directors is
one and the name and address of the persons who is to serve as initial Director:
NAME ADDRESS
Roxann R. Basham 625 Ninth Street, 4th floor
P. O. Box 1400
Rapid City, SD 57709-1400
ARTICLE XI.
The name and address of the incorporator is:
NAME ADDRESS
Roxann R. Basham 625 Ninth Street, 4th floor
P. O. Box 1400
Rapid City, SD 57709-1400
ARTICLE XII.
Except as otherwise expressly provided by the laws of the State of
South Dakota, the following additional provisions are inserted for the
regulation of the business and for the conduct of the affairs of this
Corporation and its Directors and shareholders:
A. No contract or other transaction between this Corporation and any other
corporation shall be void or voidable because of the fact that Directors of this
Corporation are Directors of such other corporation, if such contract or
transaction shall be approved or ratified by the affirmative vote of a majority
of the Directors present at a meeting of the Board of Directors, who are not so
interested. Any Director individually, or any firm of which any Director is a
partner, may be a party to or may be interested in any contract or transaction
of this Corporation provided that such contract or transaction shall be approved
or ratified by the affirmative vote of at least a majority of the Directors
present at a meeting of the Board of Directors, who are not so interested, nor
shall any Director be liable to account to this Corporation for any profit
realized by him from or through any such transaction or contract of this
Corporation, ratified or approved as aforesaid, by reason of his interest in
such transaction or contract. Directors so interested may be counted when
present at meetings of the Board of Directors for the purpose of determining the
existence of a quorum.
B. The Board of Directors, in addition to the powers and authority
expressly conferred upon it hereinbefore and by statute and by the Bylaws, is
hereby empowered to exercise all such powers as may be exercised by the
Corporation; subject, nevertheless, to the provisions of the laws of the State
of South Dakota and of these Articles of Incorporation.
C. To the fullest extent permitted by South Dakota law governing this
Corporation as the same exists or may hereafter be amended, a Director of this
Corporation shall not be personally liable to the Corporation or its
shareholders for monetary damages for breach of fiduciary duty as a Director,
except for liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
any violation of ss.ss. 47-5-15 to 47-5-19, inclusive, of the South Dakota
Codified Laws, or (iv) for any transaction from which the Director derived an
improper personal benefit.
D. The provisions of South Dakota Codified Laws ss.ss. 47-33-8 through
47-33-16, inclusive, do not apply to control share acquisitions (as defined by
South Dakota Codified Laws ss. 47-33-3(l)) of shares of this Corporation.
Dated this ____ day of _____________, 2000.
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ROXANN R. BASHAM
STATE OF SOUTH DAKOTA
COUNTY OF PENNINGTON
On this ____ day of ____________, 2000, before me, the undersigned
officer, appeared Roxann R. Basham, known to me or satisfactorily proven to be
the person whose name is subscribed to the foregoing instrument and she
acknowledged to me that she executed the same for the purposes contained
therein.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
(SEAL)
CONSENT OF REGISTERED AGENT
I, Roxann R. Basham, hereby give my consent to serve as the registered
agent for Black Hills Holding Corporation.
Dated ________________, 2000.
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Roxann R. Basham
