Exhibit 4.4
STATEMENT OF DESIGNATIONS, PREFERENCES
AND RELATIVE RIGHTS AND LIMITATIONS
OF
NO PAR PREFERRED STOCK, SERIES 2000-A
OF
BLACK HILLS CORPORATION
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Pursuant to Section 47-3-7
of the South Dakota Codified Laws
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Black Hills Corporation, a corporation organized and existing under the
South Dakota Codified Laws, does hereby certify that pursuant to the provisions
of Section 47-3-7 of the South Dakota Codified Laws, and the provisions of its
Restated Articles of Incorporation, its Board of Directors, at a meeting held on
January 6, 2000, duly adopted the following resolution establishing the rights,
preferences, privileges and restrictions of a series of cumulative preferred
stock, having no par value, of the corporation which resolution remains in full
force and effect as of the date hereof:
"WHEREAS, the Board of Directors of Black Hills Corporation (the
"Corporation") is authorized, within the limitations and restrictions stated in
its Restated Articles of Incorporation (the "Articles of Incorporation"), to fix
from time to time by resolution or resolutions adopted prior to the issuance of
any shares of each particular series of cumulative preferred stock, having no
par value (the "No Par Preferred Stock"), the distinctive serial designations of
such series, the consideration for the No Par Preferred Stock, the annual
dividend rate for the particular series, the redemption prices per share for the
particular series and such other characteristics of, and any restrictive or
other provisions (including the right to convert shares of such series into
shares of common stock of the Corporation) relating to, the shares of the
particular series, not inconsistent with the provisions of Article Second of the
Articles of Incorporation applicable to all series; and
WHEREAS, it is the desire of the Board of Directors of the Corporation,
pursuant to its authority as aforesaid, to authorize the issuance, and to
designate and fix the terms of a series of No Par Preferred Stock and the number
of shares constituting such series;
NOW, THEREFORE, BE IT RESOLVED, that pursuant to Article Second,
Subdivision (K) of the Articles of Incorporation, there is hereby authorized
such series of No Par Preferred Stock on the terms and with the provisions
herein set forth:
1. Certain Definitions.
Unless the context otherwise requires, the terms defined in this Section 1
shall have, for all purposes of this resolution, the meanings specified (with
terms defined in the singular having comparable meanings when used in the
plural). Capitalized terms used herein which are not otherwise defined shall
have the meanings ascribed thereto in the Articles of Incorporation.
Automatic Conversion Date. The term "Automatic Conversion Date" shall have
the meaning set forth in Section 8(a)(ii) below.
Common Stock. The term "Common Stock" shall mean the common stock, par
value $1.00 per share, of the Corporation.
Common Stock Dividend Payment Date. The term "Common Stock Dividend Payment
Date" shall have the meaning set forth in Section 4(a) below.
Conversion Date. The term "Conversion Date" shall have the meaning set
forth in Section 8(c) below.
Conversion Price. The term "Conversion Price" shall have the meaning set
forth in Section 8(d) below.
Convertible Securities. The term "Convertible Securities" shall have the
meaning set forth in Section 8(e)(iii) below.
Current Market Price. The term "Current Market Price" shall mean the
current market price of the Common Stock as computed in accordance with Section
8(e)(xi) below.
Initial Issue Date. The term "Initial Issue Date" shall mean the date that
shares of No Par Preferred Stock, Series 2000-A are first issued by the
Corporation.
Liquidation. The term "Liquidation" shall mean any liquidation, dissolution
or winding up of the affairs of the Corporation, whether voluntary or
involuntary; provided, that neither the voluntary sale, conveyance, lease,
exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property or assets of the
Corporation, nor the consolidation or merger of the Corporation with one or more
other entities, shall, by itself, be deemed a Liquidation.
Liquidation Preference Amount. The term "Liquidation Preference Amount"
shall mean an amount equal to the sum of (i) $1,000 per share of No Par
Preferred Stock, Series 2000-A, plus (ii) all accrued and unpaid dividends
thereon calculated in accordance with Sections 4(a) and 4(b) hereof.
No Par Preferred Stock, Series 2000-A. The term "No Par Preferred Stock,
Series 2000-A", shall mean the series of No Par Preferred Stock authorized
hereby.
Person. The term "Person" shall mean an individual or a corporation,
limited liability company, partnership, trust, or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
Post-Redemption Record Date. The term "Post-Redemption Record Date" shall
have the meaning set forth in Section 5(a) below.
Preferred Dividend. The term "Preferred Dividend" shall have the meaning
set forth in Section 4(a) below.
Preferred Dividend Payment Date. The term "Preferred Dividend Payment Date"
shall have the meaning set forth in Section 4(a) below.
Preferred Dividend Rate. The term "Preferred Dividend Rate" shall have the
meaning set forth in Section 4(a) below.
Preferred Quarterly Dividend Period. The term "Preferred Quarterly Dividend
Period" shall have the meaning set forth in Section 4(a) below.
Pre-Redemption Record Date. The term "Pre-Redemption Record Date" shall
have the meaning set forth in Section 5(a) below.
Quoted Price. The term "Quoted Price" shall have the meaning set forth in
Section 8(e)(xi) below.
Redeemed Shares. The term "Redeemed Shares" shall have the meaning set
forth in Section 5(a) below.
Redemption Date. The term "Redemption Date" shall have the meaning set
forth in Section 5(a) below.
Redemption Notice Date. The term "Redemption Notice Date" shall mean the
date of delivery by the Corporation of a notice of redemption of the No Par
Preferred Stock, Series 2000-A in accordance with Subsection (B) of Article
Second of the Articles of Incorporation.
Redemption Price. The term "Redemption Price" shall have the meaning set
forth in Section 5(a) below.
Trading Days. The term "Trading Days" shall have the meaning set forth in
Section 8(e)(xi) below.
2. Designation.
The series of No Par Preferred Stock authorized hereby shall be designated
as the "No Par Preferred Stock, Series 2000-A." The number of shares
constituting such series shall initially be Twenty-One Thousand Five Hundred
(21,500). The No Par Preferred Stock, Series 2000-A, shall have no par value.
3. Consideration.
The consideration for the No Par Preferred Stock, Series 2000-A shall for
all purposes be deemed to be $1,000 per share.
4. Dividends.
(a) The holders of the shares of No Par Preferred Stock, Series 2000-A
shall be entitled to receive cumulative quarterly cash dividends at a dividend
rate equal to 1% per annum per share (the "Preferred Dividend Rate") computed on
the basis of $1,000 per share, when and as declared by the Board of Directors of
the Corporation or a duly authorized committee thereof, out of funds legally
available for the payment of dividends; in preference to and in priority over
any dividends upon Common Stock (the "Preferred Dividend"). Quarterly dividend
periods (each a "Preferred Quarterly Dividend Period") shall commence on
February 28, May 31, August 31, and November 30, in each year, except that the
first Preferred Quarterly Dividend Period shall commence on the date of issuance
of the No Par Preferred Stock, Series 2000-A and shall end on and include the
day immediately preceding the first day of the next Preferred Quarterly Dividend
Period. Dividends on the shares of No Par Preferred Stock, Series 2000-A shall
be payable in arrears on March 1, June 1, September 1 and December 1 of each
year (each, a "Preferred Dividend Payment Date"), commencing March 1, 2000 [or
June 1 in the event Closing occurs after March 1]. Each such dividend shall be
paid to the holders of record of the No Par Preferred Stock, Series 2000-A as
they shall appear on the stock register of the Corporation on such record date,
not exceeding 45 days nor less than 10 days preceding such Preferred Dividend
Payment Date, as shall be fixed by the Board of Directors of the Corporation or
a duly authorized committee thereof. If any date on which dividends would
otherwise be payable is a Saturday, Sunday or a day on which banking
institutions in the State of South Dakota are authorized or obligated by law or
executive order to close, then the dividends otherwise payable on such date
shall instead be payable on the next succeeding business day. In addition to the
Preferred Dividend, the holders of record of No Par Preferred Stock, Series
2000-A, shall be entitled to receive, when and as declared by the Board of
Directors or a duly authorized committee thereof out of funds legally available
therefor, dividends (cash or otherwise) in an amount equal to the amount of any
dividend declared (other than a dividend declared under a stockholder rights
plan or in connection with the implementation of a stockholders rights plan)
payable with respect to the Common Stock multiplied by the number of shares of
Common Stock into which each share of No Par Preferred Stock, Series 2000-A is
convertible pursuant to Section 8 hereof (it being assumed for such purposes
that all conditions to conversion have been met, whether or not such conditions
have in fact been so met), as of the record date for the determination of
holders of shares of Common Stock and No Par Preferred Stock, Series 2000-A
entitled to receive such dividends. No dividend shall be declared or paid with
respect to Common Stock (other than a dividend declared under a stockholder
rights plan or in connection with the implementation of a stockholders rights
plan) unless such a dividend is declared and paid with respect to the No Par
Preferred Stock, Series 2000-A. The record dates and payment dates (the "Common
Stock Dividend Payment Date") with respect to the No Par Preferred Stock, Series
2000-A shall be the same as the record and payment dates with respect to the
payment of dividends with respect to the Common Stock.
(b) The amount of any dividends accrued on any share of the No Par
Preferred Stock, Series 2000-A on any Preferred Dividend Payment Date shall be
deemed to be the amount of any unpaid dividends accumulated thereon to and
including such Preferred Dividend Payment Date, whether or not earned or
declared. Accumulated and unpaid dividends shall not bear interest. The amount
of dividends accrued on any share of the No Par Preferred Stock, Series 2000-A
on any date other than a Preferred Dividend Payment Date shall be deemed to be
the sum of (i) the amount of any unpaid dividends accumulated thereon to and
including the last preceding Preferred Dividend Payment Date, whether or not
earned or declared, and (ii) an amount determined by multiplying (x) the
Preferred Dividend Rate by (y) a fraction, the numerator of which shall be the
number of days from the last preceding Preferred Dividend Payment Date to and
including the date on which such calculation is made and the denominator of
which shall be the full number of days in such Preferred Quarterly Dividend
Period.
5. Redemption.
(a) The Corporation by resolution of its Board of Directors may redeem the
No Par Preferred Stock, Series 2000-A, in whole or in part, at any time. The
redemption price per share (the "Redemption Price") for such shares of No Par
Preferred Stock, Series 2000-A so redeemed shall equal the Liquidation
Preference Amount on the date fixed for redemption (the "Redemption Date").
Notwithstanding such redemption, if the Redemption Date falls prior to the
record date of any dividend payable on Common Stock (other than a dividend
declared under a stockholder rights plan or in connection with the
implementation of a stockholder rights plan), the holders of record of any
shares of No Par Preferred Stock, Series 2000-A so redeemed (the "Redeemed
Shares") shall be entitled to receive on the next Common Stock Dividend Payment
Date following the next record date for the payment of dividends on Common Stock
(the "Post-Redemption Record Date") provided that the Post-Redemption Record
Date occurs within twelve months of the Redemption Date, an amount equal to the
product of the number of shares of Common Stock into which such Redeemed Shares
were convertible on the Redemption Date (assuming for such purpose that the
Redeemed Shares were convertible on the Redemption Date) multiplied by (A) the
dividend payable on each share of Common Stock multiplied by (B) a fraction the
numerator of which is the number of days elapsed from the last Common Stock
dividend record date prior to the Redemption Date (the "Pre-Redemption Record
Date") to the Redemption Date and the denominator of which is the number of days
elapsed from the Pre-Redemption Record Date to the Post-Redemption Record Date.
(b) Nothing in this Section 5 shall be construed to preclude a holder of No
Par Preferred Stock, Series 2000-A from converting any or all of its shares of
No Par Preferred Stock, Series 2000-A in accordance with Section 8 at any time
prior to the close of business on the third full business day prior to the
Redemption Date.
6. Voting Rights; Priority.
(a) The No Par Preferred Stock, Series 2000-A, except as provided in the
Articles of Incorporation or as otherwise required by law, shall have no voting
rights.
(b) The No Par Preferred Stock, Series 2000-A shall rank pari passu with
each other series of Preferred Stock as to dividends and distribution of assets
on liquidation.
7. Liquidation Preference.
(a) In the event of any Liquidation, holders of the No Par Preferred Stock,
Series 2000-A shall have the rights set forth in Article Second of the Articles
of Incorporation.
(b) Written notice of any Liquidation of the Corporation, stating a payment
date and the place where the distributive amounts shall be payable, shall be
given by mail, postage prepaid, not less than 30 days prior to the payment date
stated therein, to the holders of record of the No Par Preferred Stock, Series
2000-A at their respective addresses as the same shall appear on the books of
the Corporation.
8. Conversion.
(a) Each share of No Par Preferred Stock, Series 2000-A shall be (i)
convertible at the option of the holder thereof into validly issued, fully paid
and nonassessable shares of Common Stock, in an amount determined in accordance
with Section 8(d) below, at any time prior to the fifth (5th) anniversary of the
Initial Issue Date, and (ii) automatically converted into validly issued, fully
paid and nonassessable shares of Common Stock, in an amount determined in
accordance with Section 8(d) below, if outstanding on the fifth (5th)
anniversary of the Initial Issue Date (the "Automatic Conversion Date").
(b) Immediately following the conversion of No Par Preferred Stock, Series
2000-A into Common Stock on the Conversion Date (i) such converted shares of No
Par Preferred Stock, Series 2000-A shall be deemed no longer outstanding and
(ii) the Persons entitled to receive the Common Stock upon the conversion of
such converted No Par Preferred Stock, Series 2000-A shall be treated for all
purposes as having become the owners of record of such Common Stock. Upon the
issuance of shares of Common Stock upon conversion of No Par Preferred Stock,
Series 2000-A pursuant to this Section 8, such shares of Common Stock shall be
deemed to be duly authorized, validly issued, fully paid and nonassessable.
(c) To convert No Par Preferred Stock, Series 2000-A into Common Stock at
the option of the holder pursuant to Section 8(a)(i), a holder must give written
notice to the Corporation at its principal office that such holder elects to
convert No Par Preferred Stock, Series 2000-A into Common Stock, and the number
of shares to be converted. Such conversion, to the extent permitted by law,
regulation, rule or other requirement of any governmental authority and the
provisions hereof, including but not limited to Section 5(b), shall be deemed to
have been effected as of the close of business on the date on which the holder
delivers such notice to the Corporation (such date and the Automatic Conversion
Date are each referred to herein as the "Conversion Date" for purposes of any
conversion of No Par Preferred Stock, Series 2000-A pursuant to Section 8(a)).
Promptly after the Conversion Date, the holder shall (i) surrender the
certificate or certificates evidencing the shares of No Par Preferred Stock,
Series 2000-A converted or to be converted, duly endorsed in a form reasonably
satisfactory to the Corporation, at the office of the Corporation or of the
transfer agent for the No Par Preferred Stock, Series 2000-A, (ii) state in
writing the name or names in which the certificate or certificates for shares of
Common Stock are to be issued, (iii) provide evidence reasonably satisfactory to
the Corporation that such holder has satisfied any conditions, contained in any
agreement or any legend on the certificates representing the No Par Preferred
Stock, Series 2000-A, relating to the transfer thereof, if shares of Common
Stock are to be issued in a name or names other than the holder's, and (iv) pay
any transfer or similar tax if required as provided in Section 8(j) below. As
soon as practical following receipt of the foregoing, the Corporation shall
deliver to such former holder of No Par Preferred Stock, Series 2000-A, a
certificate representing the shares of Common Stock issued upon the conversion,
together with a new certificate representing the unconverted portion, if any, of
the shares of No Par Preferred Stock, Series 2000-A, formerly represented by the
certificate or certificates surrendered for conversion.
(d) For the purposes of the conversion of No Par Preferred Stock, Series
2000-A into Common Stock pursuant to Section 8(a), each share of No Par
Preferred Stock, Series 2000-A shall be convertible into the number of shares of
Common Stock equal to the Liquidation Preference Amount divided by the
Conversion Price in effect on the Conversion Date. The number of full shares of
Common Stock issuable to a single holder upon conversion of the No Par Preferred
Stock, Series 2000-A shall be based on the aggregate Liquidation Preference
Amount of all shares of No Par Preferred Stock, Series 2000-A owned by such
holder. The Conversion Price initially shall equal $35.00. In the event the
Corporation delivers a notice of redemption of the No Par Preferred Stock,
Series 2000-A in accordance with Subsection (B) of Article Second of the
Articles of Incorporation, the Conversion Price shall be adjusted to equal the
lesser of (i) the Conversion Price then in effect and (ii) the Current Market
Price (as hereinafter defined) on the Redemption Notice Date. In order to
prevent dilution of the conversion rights granted hereunder, the Conversion
Price shall be subject to adjustment from time to time in accordance with
Sections 8(e) through 8(h).
(e) The number of shares issuable upon conversion and the Conversion Price
(and each component thereof) are subject to adjustment by the Corporation from
time to time upon the occurrence of the events enumerated in this Section 8;
provided, however, there shall be no such adjustment in connection with a
dividend declared under, or in connection with the implementation of, a
stockholder rights plan which would entitle the Common Stock issuable upon
conversion of the No Par Preferred Stock, Series 2000-A to the same rights as
the Common Stock outstanding on the date of such dividend declaration.
(i) Changes in Capital Stock.
(A) If the Corporation (i) pays a dividend or makes a
distribution on its Common Stock in shares of its Common Stock,
(ii) subdivides, by stock split, reclassification or otherwise,
its outstanding shares of Common Stock into a greater number of
shares, (iii) combines its outstanding shares of Common Stock
into a smaller number of shares, (iv) makes a distribution on its
Common Stock in shares of its capital stock other than Common
Stock or (v) issues by reclassification of its Common Stock any
shares of its capital stock, then the Conversion Price (and each
component thereof) in effect immediately prior to such action
shall be proportionately adjusted so that each holder of shares
of No Par Preferred Stock, Series 2000-A may receive the
aggregate number and kind of shares of capital stock of the
Corporation which such holder would have owned immediately
following such action if such holder had converted all of his
shares of No Par Preferred Stock, Series 2000-A into Common Stock
immediately prior to such action.
(B) The adjustment shall become effective immediately after
the record date in the case of a dividend or distribution and
immediately after the effective date in the case of a
subdivision, combination or reclassification.
(C) If after an adjustment a holder of shares of No Par
Preferred Stock, Series 2000-A upon conversion may receive shares
of two or more classes of capital stock of the Corporation, the
Corporation shall determine the allocation of the adjusted
Conversion Price between the classes of capital stock. After such
allocation, the conversion privilege and the Conversion Price of
each class of capital stock shall thereafter be subject to
adjustment on terms comparable to those applicable to Common
Stock in this Section 8(e)(i).
(D) Any adjustments made pursuant to this Section 8(e)(i)
shall be made successively.
(ii) Common Stock Issue.
(A) If the Corporation issues any additional shares of
Common Stock for a consideration per share less than the Current
Market Price (as hereinafter defined) on the date the Corporation
fixes the offering price of such additional shares, the
Conversion Price shall be adjusted as set forth below, such that
a holder of shares of No Par Preferred Stock, Series 2000-A, upon
conversion of his shares of No Par Preferred Stock, Series 2000-A
into shares of Common Stock, shall have the right to receive that
number of shares of Common Stock which, after giving effect to
the following adjustment, such holder would receive if such
holder elected to convert his shares of No Par Preferred Stock,
Series 2000-A into Common Stock. The Conversion Price shall be
adjusted to the number determined by multiplying the Conversion
Price in effect immediately prior to such issuance or sale by a
fraction, the numerator of which shall be the sum of (i) the
number of shares of Common Stock outstanding immediately prior to
the issuance or sale of such additional shares of Common Stock
plus (ii) the number of such additional shares which the
aggregate consideration received (or by express provision hereof
deemed to have been received) by the Corporation for such
additional shares so issued or sold would purchase at a
consideration per share equal to the Current Market Price, and
the denominator of which shall be the number of shares of Common
Stock outstanding immediately after the issuance or sale of such
additional shares of Common Stock. For the purposes of this
Section 8(e)(ii), the date as of which the Current Market Price
shall be determined shall be the date of the actual issuance or
sale of such shares.
(B) The adjustment shall be made successively whenever any
such issuance is made, and shall become effective immediately
after such issuance.
<PAGE>
(C) This Section 8(e)(ii) does not apply to:(i) any of the
transactions described in Sections 8(e)(i), 8(e)(iii) and
8(e)(iv), (ii) the conversion of the shares of No Par Preferred
Stock, Series 2000-A, (iii) up to 2,300,000 shares of Common
Stock (as adjusted for stock splits, reverse stock splits, stock
dividends and reclassifications) to be issued to officers,
directors, employees, consultants and advisors of the Corporation
and its subsidiaries pursuant to stock purchase, 401(k) or stock
option plans or agreements or other incentive stock arrangements
approved by the Board of Directors of the Corporation, (iv)
shares of Common Stock issued in an arms-length transaction to
either acquire another business or other properties or assets as
approved by the Board of Directors of the Corporation wherein the
Board of Directors has determined that the fair market value of
the Common Stock issued in connection with such acquisition does
not exceed the fair market value of the business, properties and
assets acquired, (v) the issuance and sale of Common Stock in an
underwritten public offering, and (vi) the issuance and sale of
Common Stock pursuant to a dividend reinvestment plan of the
Corporation.
(iii) Rights Issue.
(A) If the Corporation issues or sells any warrants or
options or other rights entitling the holders of Common Stock to
subscribe for or purchase either any additional shares of Common
Stock or evidences of indebtedness, shares of stock or other
securities which are convertible into or exchangeable, with or
without payment of additional consideration in cash or property,
for additional shares of Common Stock (such convertible or
exchangeable evidence of indebtedness, shares of stock or other
securities hereinafter being called "Convertible Securities"),
and the consideration per share for which additional shares of
Common Stock may at any time thereafter be issuable pursuant to
such warrants, options or other rights or pursuant to the terms
of such Convertible Securities (when added to the consideration
per share of Common Stock, if any, received for such warrants,
options or other rights), shall be less than the Current Market
Price at the time of the issuance of the warrants, options or
other rights, then the Conversion Price shall be adjusted as
provided below, such that a holder of shares of the No Par
Preferred Stock, Series 2000-A, upon conversion of his shares of
No Par Preferred Stock, Series 2000-A into shares of Common
Stock, shall have the right to receive that number of shares of
Common Stock which, after giving effect to the following
adjustment, such holder would receive if such holder elected to
convert his shares of No Par Preferred Stock, Series 2000-A into
Common Stock. The Conversion Price shall be adjusted to the
number determined by multiplying the current Conversion Price by
a fraction, (A) the numerator of which shall be the sum of (i)
the number of shares of Common Stock outstanding on the record
date plus (ii) the quotient of (x) the number of additional
shares of Common Stock covered by such warrants, options or
rights, multiplied by the sales price per share of additional
shares covered by such warrants, options or other rights, divided
by (y) the Current Market Price per share of Common Stock on the
record date, and (B) the denominator of which shall be the sum of
(i) the number of shares of Common Stock outstanding on the
record date and (ii) the number of additional shares of Common
Stock covered by such warrants, options or other rights. For
purposes of this Section 8(e)(iii), the foregoing adjustment
shall be made on the basis that (i) the maximum number of
additional shares of Common Stock issuable pursuant to all such
warrants, options or other rights or necessary to effect the
conversion or exchange of all such Convertible Securities shall
be deemed to have been issued and (ii) the aggregate
consideration for such maximum number of additional shares shall
be deemed to be the minimum consideration received and receivable
by the Corporation for the issuance of such additional shares
(plus the consideration, if any, received for such warrants,
options or other rights) pursuant to such warrants, options or
other rights or pursuant to the terms of such Convertible
Securities.
(B) The adjustment shall be made successively whenever any
such warrants, options or other rights are issued and shall
become effective immediately after the record date for the
determination of shareholders entitled to receive the warrants,
options or other rights.
(C) This Section 8(e)(iii) does not apply to (i) the
conversion of the shares of No Par Preferred Stock, Series 2000-A
and (ii) the issuance of options or other rights to purchase
shares of Common Stock referenced in Section 8(e)(ii)(C)(iii).
(iv) Convertible Securities Issue.
(A) If the Corporation issues Convertible Securities (other
than securities issued in transactions described in Section
8(e)(iii)) and the consideration per share for which additional
shares of Common Stock may at any time thereafter be issuable
pursuant to the terms of such Convertible Securities is less than
the Current Market Price on the date of issuance of such
securities, the Conversion Price shall be adjusted as provided
below, such that a holder of shares of No Par Preferred Stock,
Series 2000-A, upon conversion of his shares of No Par Preferred
Stock, Series 2000-A into shares of Common Stock, shall have the
right to receive that number of shares of Common Stock which,
after giving effect to the following formula, such holder would
receive if such holder elected to convert his shares of No Par
Preferred Stock, Series 2000-A into Common Stock. The Conversion
Price shall be adjusted to the number determined by multiplying
the current Conversion Price by a fraction, (A) the numerator of
which shall be the sum of (i) the number of shares of Common
Stock outstanding immediately prior to the issuance of such
securities and (ii) the quotient of (x) the aggregate
consideration received for the issuance of such securities,
divided by (y) the Current Market Price per share on the date of
issuance of such securities and (B) the denominator of which
shall be the sum of (i) the number of shares of Common Stock
outstanding immediately prior to the issuance of such securities
and (ii) the maximum number of shares deliverable upon conversion
or in exchange for such securities at the initial conversion or
exchange rate. The adjustment shall be made on the basis that (i)
the maximum number of additional shares of Common Stock necessary
to effect the conversion or exchange of all such Convertible
Securities shall be deemed to have been issued and (ii) the
aggregate consideration for such maximum number of additional
shares of Common Stock shall be deemed to be the minimum
consideration received and receivable by the Corporation for the
issuance of such additional shares pursuant to the terms of such
Convertible Securities. No adjustment of the Conversion Price
shall be made under this Section 8(e)(iv) upon the issuance of
any Convertible Securities which are issued pursuant to the
exercise of any warrants or other subscription or purchase rights
therefor, if such adjustment shall previously have been made upon
the issuance of such warrants or other rights pursuant to Section
8(e)(iii).
(B) The adjustment shall be made successively whenever any
such issuance is made, and shall become effective immediately
after such issuance.
(C) This Section 8(e)(iv) does not apply to the conversion
of the shares of No Par Preferred Stock, Series 2000-A.
(v) Conversion Price Date. For purposes of Sections 8(e)(iii) and
8(e)(iv), the date as of which the Conversion Price shall be computed
shall be the earliest of (i) the date on which the Corporation shall
take a record of the holders of its Common Stock for the purpose of
entitling them to receive any warrants or other rights referred to in
Section 8(e)(iii) or to receive any Convertible Securities, (ii) the
date on which the Corporation shall enter into a firm contract for the
issuance of such warrants or other rights or Convertible Securities or
(iii) the date of the actual issuance of such warrants or other rights
or Convertible Securities.
(vi) No Compound Adjustment. No adjustment of the Conversion Price
shall be made under Section 8(e)(ii) upon the issuance of any
additional shares of Common Stock which are issued pursuant to the
exercise of any warrants or other subscription or purchase rights or
pursuant to the exercise of any conversion or exchange rights in any
Convertible Securities, if such adjustment shall previously have been
made upon the issuance of such warrants or other rights or upon the
issuance of such Convertible Securities (or upon the issuance of any
warrants or other rights therefor), pursuant to Sections 8(e)(iii) and
8(e)(iv).
(vii) Readjustment. If any warrants or other rights (or any portions
thereof) which shall have given rise to an adjustment pursuant to
Section 8(e)(iii) or conversion rights pursuant to Convertible
Securities which shall have given rise to an adjustment pursuant to
Section 8(e)(iv) shall have expired or terminated without the exercise
thereof and/or if by reason of the terms of such warrants or other
rights or Convertible Securities there shall have been an increase or
increases, with the passage of time or otherwise, in the price payable
upon the exercise or conversion thereof, then the Conversion Price
hereunder shall be readjusted (but to no greater extent than
originally adjusted), taking into account all transactions described
in Sections 8(e)(i) through 8(e)(iv) hereof that have occurred in the
interim, on the basis of (i) eliminating from the computation any
additional shares of Common Stock corresponding to such warrants or
other rights or conversion rights as shall have expired or terminated,
(ii) treating the additional shares of Common Stock, if any, actually
issued or issuable pursuant to the previous exercise of such warrants
or other rights or of conversion rights pursuant to any Convertible
Securities as having been issued for the consideration actually
received and receivable therefor and (iii) treating any of such
warrants or other rights or conversion rights pursuant to any
Convertible Securities which remain outstanding as being subject to
exercise or conversion on the basis of such exercise or Conversion
Price as shall be in effect at the time; provided, however, that any
consideration which was actually received by the Corporation in
connection with the issuance or sale of such warrants or other rights
shall form part of the readjustment computation even though such
warrants or other rights shall have expired or terminated without the
exercise thereof.
(viii) Consideration Received. To the extent that any additional
shares of Common Stock, any warrants, options or other rights to
subscribe for or purchase any additional shares of Common Stock, or
any Convertible Securities shall be issued for cash consideration, the
consideration received by the Corporation therefor shall be deemed to
be the amount of the cash received by the Corporation therefor, or, if
such additional shares, warrants, options or other rights or
Convertible Securities are sold to underwriters or dealers for public
offering without a subscription offering, the initial public offering
price, in any such case excluding any amounts paid or receivable for
accrued interest or accrued dividends and without deduction of any
compensation, discounts or expenses paid or incurred by the
Corporation for and in the underwriting of, or otherwise in connection
with, the issuance thereof. If and to the extent that such issuance
shall be for a consideration other than cash, then, except as herein
otherwise expressly provided, the amount of such consideration shall
be deemed to be the fair value of such consideration at the time of
such issuance as determined by the Board of Directors of the
Corporation. If additional shares of Common Stock shall be issued as
part of a unit with warrants or other rights, then the amount of
consideration for the warrant or other right shall be deemed to be the
amount determined at the time of issuance by the Board of Directors of
the Corporation. If the Board of Directors of the Corporation shall
not make any such determination, the consideration for the warrant,
option or other right shall be deemed to be zero.
(ix) Other Conversions. If a state of facts shall occur which, without
being specifically controlled by the provisions of this Section 8,
would not fairly protect the conversion rights of the holders of
shares of No Par Preferred Stock, Series 2000-A in accordance with the
essential intent and principles of such provisions, then the Board of
Directors of the Corporation shall make an adjustment in the
application of such provisions, in accordance with such essential
intent and principles, so to protect such conversion rights.
(x) De Minimis Adjustment. Anything herein to the contrary
notwithstanding, no adjustment in the Conversion Price shall be
required unless such adjustment, either by itself or with other
adjustments not previously made, would require a change of at least
one percent (1%) in the Conversion Price; provided, however, that any
adjustment which by reason of this Section 8(e)(x) is not required to
be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 8 shall be
made to the nearest one-tenth of a cent ($.001) (rounded to the
nearest cent ($.01) with respect to any monetary amount to be actually
paid) or to the nearest one hundredth (0.01) of a share, as the case
may be.
(xi) Current Market Price. For the purpose of any computation
hereunder, the "Current Market Price" on any date will be the average
of the last reported sale prices per share (the "Quoted Price") of the
Common Stock on each of the fifteen consecutive Trading Days (as
defined below) preceding the date of the computation. The Quoted Price
of the Common Stock on each day will be (A) the last reported sales
price of the Common Stock on the principal stock exchange on which the
Common Stock is listed, or (B) if the Common Stock is not listed on a
stock exchange, the last reported sales price of the Common Stock on
the principal automated securities price quotation system on which
sale prices of the Common Stock are reported, or (C) if the Common
Stock is not listed on a stock exchange and sale prices of the Common
Stock are not reported on an automated quotation system, the mean of
the high bid and low asked price quotations for the Common Stock as
reported by National Quotation Bureau Incorporated if at least two
securities dealers have inserted both bid and asked quotations for the
Common Stock on a day will be the Quoted Price of the Common Stock on
that day as determined by a member firm of the New York Stock
Exchange, Inc. selected by the Board of Directors. If no two
securities dealers have inserted such bid and ask quotations, or such
Quoted Prices otherwise are not available, the Current Market Price
means the fair market value of the Common Stock as of the date prior
to the date on which the Current Market Price is determined, which
such fair market value shall be determined by the Board of Directors
of the Corporation. As used with regard to the No Par Preferred Stock,
Series 2000-A, the term "Trading Day" means (x) if the Common Stock is
listed on at least one stock exchange, a day on which there is trading
on the principal stock exchange on which the Common Stock is listed,
(y) if the Common Stock is not listed on a stock exchange, but sale
prices of the Common Stock are reported on an automated quotation
system, a day on which trading is reported on the principal automated
quotation system on which sales of the Common Stock are reported, or
(z) if the Common Stock is not listed on a stock exchange and sale
prices of the Common Stock are not reported on an automated quotation
system, a day on which quotations are reported by National Quotation
Bureau Incorporated.
(f) No fractional shares of Common Stock shall be issued upon the
conversion of No Par Preferred Stock, Series 2000-A. If any fractional interest
in a share of Common Stock would, except for the provisions of this subparagraph
(f), be deliverable upon the conversion of any No Par Preferred Stock, Series
2000-A, the Corporation shall, in lieu of delivering the fractional share
therefor, adjust such fractional interest by payment to the holder of such
converted No Par Preferred Stock, Series 2000-A of an amount in cash equal
(computed to the nearest cent) to the Current Market Price of such fractional
interest on the Conversion Date.
(g) Whenever the Conversion Price is adjusted, as herein provided, the
Corporation shall promptly mail a notice of the adjustment to holders of No Par
Preferred Stock, Series 2000-A. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of the action resulting in
the adjustment to the Conversion Price. The Corporation shall forthwith maintain
at its principal executive office and file with the transfer agent, if any, for
No Par Preferred Stock, Series 2000-A, a statement, signed by the Chairman of
the Board, or the President, or a Vice President of the Corporation and by its
chief financial officer or an Assistant Treasurer, showing in reasonable detail
the facts requiring such adjustment and the Conversion Price after such
adjustment. Such transfer agent shall be under no duty or responsibility with
respect to any such statement except to exhibit the same from time to time to
any holder of No Par Preferred Stock, Series 2000-A desiring an inspection
thereof.
(h) If there shall occur any capital reorganization or any reclassification
of the capital stock of the Corporation, consolidation or merger of the
Corporation with or into another entity, or the conveyance of all or
substantially all of the assets of the Corporation to another person or entity,
each share of No Par Preferred Stock, Series 2000-A shall thereafter be
convertible into the number of shares or other securities or property to which a
holder of the number of shares of Common Stock of the Corporation deliverable
upon conversion of such No Par Preferred Stock, Series 2000-A would have been
entitled upon such reorganization, reclassification, consolidation, merger or
conveyance; and, in any such case, appropriate adjustment (as determined in good
faith in the sole discretion of the Board of Directors of the Corporation) shall
be made in the application of the provisions herein set forth with respect to
the rights and interests thereafter of the holders of the No Par Preferred
Stock, Series 2000-A, to the end that the provisions set forth herein (including
provisions with respect to changes in and other adjustments of the Conversion
Price) shall be applicable, as nearly as reasonably may be, in relation to any
shares or other property thereafter deliverable upon the conversion of the No
Par Preferred Stock, Series 2000-A.
(i) The Corporation shall at all times reserve and keep available, out of
its authorized but unissued shares of Common Stock or treasury shares thereof,
solely for the purpose of issuance upon the conversion of No Par Preferred
Stock, Series 2000-A, the full number of shares of Common Stock deliverable upon
the conversion of all No Par Preferred Stock, Series 2000-A from time to time
outstanding. The Corporation shall from time to time, in accordance with the
laws of the State of South Dakota, take all action within its power required to
increase the authorized amount of its Common Stock if at any time the authorized
number of shares of Common Stock remaining unissued shall not be sufficient to
permit the conversion of all of the No Par Preferred Stock, Series 2000-A at the
time outstanding.
(j) The Corporation shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of shares of Common Stock upon conversion of the
No Par Preferred Stock, Series 2000-A into Common Stock. The Corporation shall
not, however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of any security in a name other than
that in which the No Par Preferred Stock, Series 2000-A so converted was
registered, and no such issue or delivery shall be made unless and until the
person who requested such issue has paid to the Corporation the amount of any
such tax, or has established to the satisfaction of the Corporation that such
tax has been paid.
9. Exclusion of Other Rights.
Except as otherwise required by law, shares of No Par Preferred Stock,
Series 2000-A shall not have any preferences or relative, participating,
optional or other special rights, other than those specifically set forth in
this resolution and in the Statement of Designations filed pursuant hereto (as
such Statement may be amended from time to time) and in the Articles of
Incorporation.
10. Reissuance of No Par Preferred Stock, Series 2000-A.
Shares of No Par Preferred Stock, Series 2000-A that have been issued and
reacquired in any manner, including shares purchased, redeemed, converted or
exchanged, shall (upon compliance with any applicable provisions of South Dakota
Codified Laws) have the status of authorized and unissued shares of No Par
Preferred Stock undesignated as to series and may be redesignated and reissued
as part of any series of No Par Preferred Stock, except No Par Preferred Stock,
Series 2000-A.
11. No Retirement Fund; Waivers. The Corporation shall not be required to
set aside any funds as a retirement fund for purposes of Article Second,
Subsection (D) of the Articles of Incorporation. To the extent applicable, any
rights that the holders of the No Par Preferred Stock, Series 2000-A may have
under Article Second, Subsection (G)(4) of the Articles of Incorporation with
respect to a dividend declared under a stockholder rights plan or in connection
with the implementation of a stockholder rights plan are waived. To the extent
applicable, the holders of the No Par Preferred Stock, Series 2000-A waive any
rights they may have under Article Second, Subsection (G)(3) of the Articles of
Incorporation with respect to the creation, through merger or other
reorganization, of a holding company ("Holdco") for the Company, provided that
in connection therewith the holders shall receive, in exchange for their shares
of No Par Preferred Stock, Series 2000-A shares of preferred stock of Holdco
having identical designations, preferences and relative rights and limitations
as set forth herein.
12. Headings of Subdivisions.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
13. Severability of Provisions.
If any right, preference or limitation of the No Par Preferred Stock,
Series 2000-A set forth in this resolution and in the Statement of Designations
for the No Par Preferred Stock, Series 2000-A (as such Statement may be amended
from time to time) is invalid, unlawful or incapable of being enforced by reason
of any rule or law or public policy, all other rights, preferences and
limitations set forth in such Statement of Designations (as so amended) which
can be given effect without the invalid, unlawful or unenforceable right,
preference or limitation shall, nevertheless, remain in full force and effect,
and no right, preference or limitation herein set forth shall be deemed
dependent upon any other such right, preference or limitation unless so
expressed herein.
14. Notice.
All notices and other communications required or permitted to be given to
the Corporation hereunder shall be made by hand delivery or registered or
certified mail, return receipt requested, to the Corporation at its principal
executive offices (currently located on the date of the adoption of these
resolutions at Black Hills Corporation, 625 Ninth Street, P.O. Box 1400, Rapid
City, South Dakota 57709), Attention: Secretary. Minor imperfections in any such
notice shall not affect the validity thereof.
IN WITNESS WHEREOF, Black Hills Corporation has caused this statement to be
signed by _______________________, its __________________, this ____ day of
___________, 2000.
BLACK HILLS CORPORATION,
a South Dakota corporation
By:
Name:
Title:
STATE OF SOUTH DAKOTA
COUNTY OF PENNINGTON
On the ____ day of _________, 2000, before me, the undersigned
officer, personally appeared __________________________-_, who acknowledged
h__self to be the _______________________ of ____________________________, a
corporation, and that _he, as such __________________, being authorized so to
do, executed the foregoing instrument for the purposes therein contained, by
signing the name of the corporation by h__self as ________________________.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
--------------------------------
Notary Public
(SEAL)
