SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: June 7, 1994
BLACK HILLS CORPORATION
State of South Dakota File Number 1-7978 IRS Number 46-0111677
625 Ninth Street
Rapid City, South Dakota 57709
Registrant's telephone number (605) 348-1700
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Item 5. Other Events
Submission of Matters to a Vote of Security Holders
(a) The Annual Meeting of Shareholders was held on May 24,
1994.
(b) The following Directors were elected to serve until the
Annual Meeting of Shareholders in 1997.
Daniel P. Landguth
Dale E. Clement
John R. Howard
Other Directors whose term of office continues are:
Michael B. Enzi
Everett E. Hoyt
Charles T. Undlin
Glenn C. Barber
Bruce B. Brundage
Kay S. Jorgensen
(c) Matters Voted Upon at the Meeting
1. Elected three Class II Directors to serve until
the Annual Meeting of Shareholders in 1997.
Daniel P. Landguth
Votes For 11,435,837
Votes Withheld 278,612
Dale E. Clement
Votes For 11,361,221
Votes Withheld 353,228
John R. Howard
Votes For 11,417,719
Votes Withheld 296,730
2. Increased the Company's authorized indebtedness
from $200,000,000 to $500,000,000.
Votes For 8,505,055
Votes Against 690,478
Abstain 381,419
Broker Non-Votes 2,137,497
3. Adopted an amendment to Article Fourth of the
Company's Restated Articles of Incorporation
by adding paragraph 8 thereto as follows:
8. The provisions of South Dakota Codified
Laws Sections 47-33-8 through 47-33-16, inclusive,
do not apply to control share acquisitions
(as defined by South Dakota Compiled Laws
Section 47-33-3(1)) of shares of the Company.
Votes For 8,360,736
Votes Against 823,931
Abstain 391,605
Broker Non-Votes 2,138,177
On May 24, 1994, following the shareholders
annual meeting, the Board of Directors of the
Company adopted the restated Articles of
Incorporation, dated May 24, 1994 and containing
all amendments to the Restated Articles of
Incorporation as last restated on July 30, 1986,
including the above amendment to Article Fourth
adopted on May 24, 1994.
Attached as Exhibit 3(i) is a true and
correct copy of the Restated Articles of
Incorporation of the Company, dated as of
May 24, 1994 and filed with the office of
the Secretary of State of South Dakota on
June 1, 1994.
4. Ratified the appointment of Arthur Andersen & Co.
to serve as independent auditors of the Company
for the year 1994.
Votes For 11,475,382
Votes Against 87,412
Abstain 148,804
Broker Non-Votes 2,851
Item 7(c) Exhibits
Exhibit 3(i) Restated Articles of Incorporation of
the Company, dated May 24, 1994.
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
BLACK HILLS CORPORATION
By /s/DALE E. CLEMENT
Dale E. Clement, Senior Vice
President - Finance
Dated: June 7, 1994
RESTATED ARTICLES OF INCORPORATION
OF
BLACK HILLS CORPORATION
Pursuant to the provisions of SDCL 49-33-1, Black Hills
Corporation, a South Dakota corporation organized under the
provisions of SDCL 49-33, does hereby restate its Articles of
Incorporation as of May 24, 1994 and by so doing includes in this
restatement the Restated Articles of Incorporation previously
adopted by the Board of Directors on July 30, 1986 and all of the
subsequent amendments thereto which were adopted by stockholders
as set forth in Articles of Amendment dated (i) May 21, 1987 and
filed May 26, 1987, (ii) May 16, 1989 and filed June 1, 1989,
(iii) May 28, 1992 and filed June 2, 1992 (as corrected by
Articles of Correction dated September 10, 1993 and filed
September 14, 1993), and (iv) May 24, 1994 and filed May 25,
1994.
FIRST: The name of this Corporation ("Corporation" or
"Company") shall be
Black Hills Corporation
and the place where its principal corporate offices are located
shall be in Rapid City, Pennington County, State of South Dakota.
The Corporation is formed for the purpose of generating,
transmitting and distributing electricity within the State of
South Dakota and elsewhere, the same to be sold to and used by
the public for heat, light or power, pursuant to the provisions
of Chapter 49-33 of the South Dakota Codified Laws, and shall
have all the powers and privileges therein provided and set
forth, together with such additional powers, rights and
privileges as may otherwise be provided by the laws of the State
of South Dakota. Without in any way limiting the generality of
the foregoing, the purposes for which the Corporation is formed
shall specifically include the following:
1. To generate, produce, purchase, transmit, distribute,
use and sell electricity for heat, light or power.
2. To construct, purchase, lease, maintain and operate
electric generating stations or substations and all appurtenances
thereto for electric transmission and distribution lines whether
on poles or underground, for the transmission and distribution of
electricity for heat, light or power, and, for such purposes, to
acquire by lease, purchase, or in any other lawful manner all
real property and rights-of-way necessary for the generation,
transmission and distribution of electricity and generally for
its proper corporate purposes to purchase or otherwise acquire,
hold, pledge, mortgage, sell, exchange or otherwise deal in or
dispose of, property, both real and personal, of every kind and
description.
3. To acquire, purchase, lease, operate and maintain dams,
reservoirs, ditches, flumes, pipes and conduits for the
accumulation, storage, flow and transmission of water for the
purpose of generating electricity.
4. To acquire, hold, possess and convey franchises and
grants from state or municipal authorities for supplying cities,
villages and towns, or any of them, and the inhabitants thereof
with electric current and electric power to be used for heat,
light or power.
5. To contract with cities, towns, municipalities and any
political subdivision or agency of the State of South Dakota or
of any other State or of the United States of America and with
persons, firms and corporations for the supply of electricity for
heat, light or power.
6. To buy and sell electrical appliances, supplies,
fixtures and equipment, including radios, radio parts, radio
equipment, cooling devices, washing machines, vacuum sweepers,
stoves and all other similar articles, to engage in the
electrical contracting business, to carry on and develop any
business undertaking, transaction or operation commonly carried
on by electrical retail and wholesale merchants, supply men and
contractors, and to do any and all things that may be necessary
or incidental to carry on, manage and operate said mercantile
electrical business.
7. To borrow from time to time such sums of money at such
rates of interest and upon such terms as the Board of Directors
shall agree and authorize, to execute trust deeds or mortgages or
both, as occasion may require on any or all of its property for
any amounts borrowed or owing by the Corporation and generally to
borrow money and contract debts for its corporate purposes; to
issue bonds, promissory notes, debentures and other obligations
and evidences of indebtedness without limit as to amount, whether
secured by mortgage, pledge, or otherwise or unsecured, for money
borrowed or in payment of property purchased or acquired, or for
any other lawful purpose.
8. To guarantee, purchase, hold, sell, assign, transfer,
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.
9. 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, in which, or in the
welfare of which, the Corporation shall have any interest, and 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; and to
organize, promote or facilitate the organization of subsidiary
companies.
10. To purchase, hold, sell and transfer shares of its own
capital stock in the manner and to the extent provided by the
laws of the State of South Dakota.
11. To engage in and carry on the business of a water
company and for said purposes to develop, supply, sell, buy,
purify, transport and deliver water for commercial, industrial,
domestic, governmental or any other public or private uses; to
buy, sell and deal in appliances, fixtures and products for the
utilization of water; and to acquire, construct, maintain and
operate all types of plants, works, structures, wells, ditches,
canals, flumes, pipelines, dams, reservoirs, machinery, fixtures
and equipment necessary for the conduct of said business.
12. To engage in and carry on the business of a gas company
and for said purpose to manufacture, produce, sell, buy, supply,
transport, distribute and deal in natural, manufactured or by-
product gases, their products and compounds, and liquified
petroleum gas and products for commercial, industrial, domestic,
governmental or any other public or private uses; to buy, sell
and deal in appliances and fixtures for the utilization of such
gas and petroleum products for power, heat, light or other
purposes; and to acquire, construct, maintain and operate all
types of plants, works, structures, transmission and distribution
lines, machinery, fixtures and equipment necessary for the
conduct of said business.
13. To engage in and carry on the business of operating a
gas or petroleum transmission pipeline for the purpose of
transporting, supplying and selling gas, petroleum and petroleum
products for its own use or for the public, or for private
persons and firms and governmental agencies.
14. To engage in and carry on the business of a telegraph
or telephone company and for said purpose to acquire, construct,
maintain and operate telephone and telegraph lines providing for
all manner and kind of telegraph and telephone service for
commercial, industrial, domestic, governmental or other public or
private uses, and including the providing of such service through
its electric light and power facilities and services, or by lease
or other arrangement for use of such electric light and power
facilities and services; to buy, sell and deal in appliances,
fixtures and products for the utilization of such telegraph and
telephone services; and to acquire, construct, maintain and
operate all type of plants, works, structures, lines, machinery,
fixtures and equipment necessary for the conduct of said
business.
15. To engage in and carry on any other business for profit
as permitted by law.
16. To do all and everything necessary and proper for the
accomplishment of the objects enumerated in these Restated
Articles of Incorporation or any amendment thereof, or necessary
or incidental to the protection and benefit of the Corporation,
and to have, enjoy and exercise all the rights, powers and
privileges which are now or may hereafter be conferred upon
corporations organized under the same statutes as the
Corporation.
The foregoing clauses shall be construed both as objects and
powers, and it is hereby expressly provided that the above
enumeration of specific powers shall not be held to limit or
restrict in any manner the 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.
SECOND: The amount of the total authorized capital stock of
the Corporation shall be 50,670,000 shares divided into three
classes consisting of (1) 270,000 shares of Cumulative Preferred
Stock having a par value of $100 per share (hereinafter called
the "$100 Preferred Stock"), (2) 400,000 shares of Cumulative
Preferred Stock having a no par value (hereinafter called the "No
Par Preferred Stock"), and (3) 50,000,000 shares of Common Stock
having a par value of $1 per share.
Where the term "Preferred Stock" is used in this Article
Second without being immediately preceded by either "$100" or "No
Par," the term shall include both $100 Preferred Stock and No Par
Preferred Stock.
All classes and series of the Preferred Stock shall be
designated as specified in resolutions of the Board of Directors
provided for in said subdivision (K).
All classes and series of the Preferred Stock shall rank
pari passu with each other as to dividends and distribution of
assets on liquidation.
The further description of the different classes and series
of stock of the Corporation and a statement of the designations
and powers (including voting powers), preferences and relative
participating, optional or other rights and the qualifications,
limitations and restrictions thereof are as follows:
(A) Before any dividends on the Common Stock
shall be paid or declared or set apart for payment, the
holders of the Preferred Stock at the time outstanding
shall be entitled to receive, but only when and as
declared, out of funds legally available for the
declaration of dividends, cumulative cash dividends
payable quarterly on March 1, June 1, September 1, and
December 1 in each year at such rates and principal as
shall be specified by the Board of Directors pursuant
to subdivision (K) of this Article Second. Such
dividends shall be cumulative from the first day of the
quarterly dividend period in which such shares of
Preferred Stock are issued, unless otherwise specified
by the Board of Directors pursuant to said subdivision
(K). If dividends at said specified rates on all
outstanding shares of the Preferred Stock from the date
from which dividends on such shares became cumulative
shall not have been paid, or declared and set apart for
payment, for all past quarterly dividend periods, and
the full dividends thereon for the current quarterly
dividend period shall not have been paid, or declared
and set apart for payment, the deficiency shall be
fully paid or dividends equal thereto declared and set
apart for payment, but without interest on cumulative
dividends, before any dividends shall be declared or
any distribution made on the Common Stock. After full
dividends on the Preferred Stock shall have been paid,
or declared and set apart for payment, then, and not
otherwise, dividends may be declared and paid upon the
Common Stock, out of any funds legally available for
the declaration of dividends but only when and as
determined by the Board of Directors. The provisions
of this subdivision (A) with respect to dividends upon
the Common Stock are subject to the requirements with
respect to sinking funds or retirement funds for the
Preferred Stock pursuant to subdivision (D) and (K) of
this Article Second.
(B) The Corporation at its option may redeem at
any time or from time to time the whole or any part of
the Preferred Stock outstanding by paying to the
holders of such shares to be redeemed such sums as
shall be determined by the Board of Directors pursuant
to subdivision (K) of this Article Second, together, in
each case, with a sum in respect of each such share
computed at the annual dividend rate from the date from
which dividends on such share became cumulative to the
date fixed for such redemption, less the aggregate of
the dividends theretofore or on such redemption date
paid thereon. Notice of every such redemption shall be
given at least thirty days and not more than sixty days
prior to the date fixed for such redemption by mailing
to the holders of record of the Preferred Stock to be
redeemed, at their respective addresses as the same
shall appear on the books of the Corporation; but
neither failure to mail such notice nor any defect
therein or in the mailing thereof shall affect the
validity of the proceedings for the redemption of any
shares of the Preferred Stock so to be redeemed. In
the event that at any time less than all of the
Preferred Stock of a particular series outstanding is
to be redeemed, the shares to be redeemed may be
selected by lot or in such other manner as the Board of
Directors may determine. If such notice of redemption
shall have been duly given, and if on or before the
redemption date specified in such notice all funds
necessary for such redemption shall have been set aside
so as to be available therefor, then, notwithstanding
that any certificate for the shares of the Preferred
Stock so called for redemption shall not have been
surrendered for redemption, the shares represented
thereby shall no longer be deemed outstanding in the
hands of the persons who are the holders thereof
immediately preceding such redemption, the right of
such holders to receive dividends thereon shall cease
to accrue from and after the date of redemption so
fixed, and all rights of such holders with respect to
such shares of Preferred Stock so called for redemption
shall forthwith on such redemption date cease and
terminate, except only the right of such holders to
receive the amount payable upon redemption thereof, but
without interest; provided, however, that the
Corporation may, after giving such notice of any such
redemption, or giving irrevocable instructions
therefor, and prior to the redemption date specified in
such notice, deposit in trust, for the account of the
holders of the Preferred Stock to be redeemed, with a
bank or trust company in good standing, organized under
the laws of the United States of America or of the
State of New York, doing business in the Borough of
Manhattan, the City of New York, having a capital,
surplus and undivided profits aggregating at least
$5,000,000, all funds necessary for such redemption,
and thereupon all shares of the Preferred Stock with
respect to which such deposit shall have been made
shall no longer be deemed to be outstanding in the
hands of such holders, and all rights of such holders
with respect to such shares of Preferred Stock shall
forthwith upon such deposit in trust cease and
terminate, except only the right of such holders to
receive the amount payable upon the redemption thereof,
but without interest, and except, in the case of any
series of Preferred Stock convertible into shares of
the Common Stock of the Corporation, the right, within
limits specified by the Board of Directors to convert
shares of such series into shares of Common Stock not
later than the close of business on the third full
business day prior to the date fixed for such
redemption. All or any shares of the Preferred Stock
redeemed at any time may, in the discretion of the
Board of Directors and to the extent permitted by law,
be reissued or otherwise disposed of as shares of the
same class at any time or from time to time subject to
the provisions of this Article Second.
(C) In the event of any liquidation, dissolution
or winding up of the affairs of the Corporation, then
before any distribution shall be made to the holders of
the Common Stock, the holders of the shares of the
Preferred Stock at the time outstanding shall be
entitled to receive in cash, (i) upon any involuntary
liquidation, dissolution or winding up of the affairs
of the Corporation, the par value for the $100
Preferred Stock and the amount of the consideration as
fixed in the resolutions creating the respective series
of the No Par Preferred Stock for the No Par Preferred
Stock, together with a sum in respect of each share of
Preferred Stock, computed at the annual dividend rate
from the date from which dividends on such share became
cumulative to the date fixed for the payment of such
distributive amounts, less the aggregate of the
dividends theretofore or on such date paid thereon, or
(ii) upon any voluntary liquidation, dissolution or
winding up of the affairs of the Corporation, the sums
to which such holders of shares of the Preferred Stock
would be entitled if such shares were redeemed (other
than pursuant to subdivision (D) of this Article Second
or pursuant to the provisions of any sinking or
analogous fund of any series of Preferred Stock) on the
date fixed for the distribution. After such payment to
the holders of the Preferred Stock, the remaining
assets and funds of the Corporation shall be divided
and distributed among the holders of the Common Stock
then outstanding according to their respective shares.
(D) After the Corporation shall have paid or
shall have declared and set apart for payment full
dividends on the Preferred Stock, and on any other
stock ranking on a parity with or prior to the
Preferred Stock as to dividends and assets, for all
past quarterly dividend periods and for the current
quarterly dividend period, it shall set aside out of
funds legally available therefor as a retirement fund
in the amounts and at the times as will be determined
by the Board of Directors in each certificate of
designation authorizing a series of Preferred Stock.
The obligation of the Corporation to set aside such
retirement funds shall be cumulative, so that unless
the payments for all past periods shall have been made,
no dividend shall be paid or declared and no other
distribution shall be made on the Common Stock and no
Common Stock shall be purchased or otherwise acquired
for value by the Corporation.
(E) The holders of shares of Preferred Stock
shall not be entitled to notice of any meeting of
stockholders and shall have no right to vote at any
meeting of stockholders for the election of members of
the Board of Directors or for any other purpose or
otherwise to participate in any actions taken by the
Corporation, or the stockholders thereof, except as
otherwise required by statutes of the State of South
Dakota or specifically provided for at subdivisions (F)
and (G) of this Article Second.
(F) Whenever and as often as dividends payable on
the Preferred Stock shall be accrued and unpaid in an
amount equivalent to or exceeding four (but less than
eight) quarterly dividends, the holders of the
Preferred Stock voting separately as one class for such
purpose, shall be entitled at the next succeeding
Annual Meeting of Stockholders to elect such number of
directors as will constitute one-third of the then
board members; and the holders of the Common Stock,
voting separately as one class for such purpose, shall
be entitled to elect the remaining directors of the
Corporation.
Whenever and as often as dividends payable on the
Preferred Stock shall be accrued and unpaid in an
amount equivalent to or exceeding eight quarterly
dividends, the holders of the Preferred Stock, voting
separately as one class for such purpose, shall be
entitled (in lieu of the voting rights conferred by the
provisions of the first paragraph of this subdivision
(F) of this Article Second) at the next succeeding
Annual Meeting of Stockholders to elect the smallest
number of directors necessary to constitute a majority
of the Board of Directors, and the holders of the
Common Stock, voting separately as one class for such
purpose, shall be entitled to elect the remaining
directors of the Corporation.
If and when all dividends accrued and unpaid on
the Preferred Stock shall have been paid, the holders
of the Preferred Stock shall at the next succeeding
Annual Meeting of the Stockholders be divested of their
rights in respect of the election of directors provided
in this subdivision (F), and the voting rights of
holders of the Preferred Stock and Common Stock shall
revert to the status existing prior to the first
dividend payment date on which dividends were not paid
in full, but subject always to the provisions for
revesting rights in the holders of the Preferred Stock
in the event specified in this subdivision (F) and to
the extent herein set forth.
At all meetings of stockholders at which holders
of the Preferred Stock are entitled to elect directors
in the exercise of rights provided in this subdivision
(F), the holders of record of 25 percent of the
aggregate number of shares of the Preferred Stock, then
outstanding, shall constitute a quorum for the election
of such directors. At all such meetings each holder of
Preferred Stock shall be entitled to one vote for each
share of Preferred Stock held by the holder thereof.
In case any vacancy shall occur among the
directors elected by the holders of the Preferred Stock
pursuant to this subdivision (G), the successor to any
such director shall be elected by the vote of the
majority of the remaining members of the Board of
Directors, whether elected by the holders of the
Preferred Stock or by the holders of Common Stock, such
successor to hold office until the end of the term of
the Class in which the vacancy occurred.
(G) So long as any shares of the Preferred Stock
are outstanding, the Corporation shall not, without the
affirmative consent (given in writing without a meeting
or by vote at a meeting duly called for the purpose) of
the holders of at least two-thirds of the aggregate
number of shares of each affected series of the
Preferred Stock then outstanding, alter or amend the
preferences, voting powers or other special rights or
the qualifications, limitations or restrictions
thereof, of such series of Preferred Stock so as
adversely to affect the shares of such series; but such
action may be taken with such affirmative consent,
together with such additional vote or consent of
stockholders as from time to time may be required by
law.
So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not, without the
affirmative consent (given in writing without a meeting
or by vote at a meeting duly called for the purpose) of
the holders of at least two-thirds of the aggregate
number of shares of the Preferred Stock then
outstanding voting as one class:
(1) create or increase the authorized amount of
any other class of stock which shall rank prior to the Preferred
Stock in respect of dividends or assets;
(2) reclassify shares of stock of any class
ranking junior to the Preferred Stock in respect of dividends or
assets, wholly or partially into shares of stock of any class
ranking on a parity with or prior to the Preferred Stock in
respect of dividends or assets;
(3) sell all or substantially all of its property
and assets to, or merge or consolidate into or with, any other
company; or
(4) make any distribution out of capital or
capital surplus (other than dividends payable in stock ranking
junior to the Preferred Stock in respect of dividends and assets)
to holders of stock of the Corporation ranking junior to the
Preferred Stock in respect of dividends or assets.
(H) If any class of stock is hereafter created
which ranks on a parity with the Preferred Stock in
respect of dividends and assets and which by its terms
is to have voting rights equal to the voting rights of
the Preferred Stock specified in subdivisions (F) and
(G) of this Article Second then the Preferred Stock and
each such additional class of stock shall vote together
as one class in all instances in which it is provided
in said subdivisions that the Preferred Stock shall
vote as one class.
(I) Neither the holders of the Common Stock nor
the holders of the Preferred Stock shall have any
preemptive rights to subscribe to any issue of stock or
other securities of any class of the Corporation.
(J) Each holder of Common Stock shall at every
meeting of the stockholders be entitled to one vote for
each share of Common Stock held by him, subject to the
provisions of subdivisions (F) and (G) of this Article
Second.
(K) Shares of each series of Preferred Stock
shall have such distinctive serial designations as
shall be set forth in the resolution or resolutions
from time to time adopted by the Board of Directors
providing for the issue of shares of such series; and
in any such resolution or resolutions with respect to
each particular series of Preferred Stock the Board of
Directors is hereby expressly authorized to fix from
time to time before issuance and to the extent which
may be permitted by law,
(1) the consideration for the No Par Preferred
Stock,
(2) the annual dividend rate for the particular
series,
(3) the redemption prices per share for the
particular series, and
(4) any other characteristics of, and any
restrictive or other provisions (including sinking fund or other
retirement fund provisions and the right to convert shares of
said series into shares of Common Stock) relating to, the shares
of the particular series, not inconsistent with the provisions of
this Article Second applicable to all series.
THIRD: The Corporation shall have perpetual existence.
FOURTH: 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
stockholders:
1. The Board of Directors shall have power from time
to time to fix and determine and to vary the amount to be
reserved as working capital of the Corporation and, before the
payment of any dividends or making any distribution of profits,
it may set aside out of the net profits or surplus of the
Corporation such sum or sums as it may from time to time in its
absolute discretion think proper, whether as a reserve fund to
meet contingencies or for the equalizing of dividends or for
repairing or maintaining any property of the Corporation or for
such corporate purposes as the board shall think conducive to the
interests of the Corporation, subject only to such limitations as
the Bylaws of the Corporation may from time to time impose.
2. 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.
3. The Board of Directors shall have the power to fix
the times for the declaration and payment of dividends, except as
herein otherwise provided; to borrow money and contract debts
when necessary for the transaction of the business of the
Corporation, or for the exercise of its corporate rights,
privileges or franchises; and to issue bonds, promissory notes,
debentures and other obligations and evidences of indebtedness
without limitation, whether secured by mortgage, pledge or
otherwise or unsecured, for money borrowed or in payment of
property purchased or acquired or any other lawful purpose.
4. Subject to direction by resolution of a majority
of the stockholders, the Board of Directors shall have power from
time to time to determine whether and to what extent and at what
times and places and under what conditions and regulations the
accounts, books and stock ledger of the Corporation or any of
them, shall be open to the inspection of stockholders; and no
stockholder shall have any right to inspect any account, book,
stock ledger or document of the Corporation except as conferred
by statute or authorized by the Board of Directors or by a
resolution of the stockholders.
5. The Board of Directors shall have the power to
appoint an Executive Committee from among its number, which
Committee, to the extent and in the manner provided in the Bylaws
of the Corporation, shall have and may exercise all of the powers
of the Board of Directors, so far as may be permitted by law, in
the management of the business and affairs of the Corporation
whenever the Board of Directors is not in session.
6. 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 Restated Articles of Incorporation.
7. 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 stockholders 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 stockholders, (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 Sections 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.
8. The provisions of South Dakota Codified Laws
Sections 47-33-8 through 47-33-16, inclusive, do not apply to
control share acquisitions (as defined by South Dakota Compiled
Laws Section 47-33-3(l)) of shares of the Company.
FIFTH: 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 be nine (9); provided, (i) the Board of
Directors may determine the number of directors to be more than
nine through amendments to its Bylaws if permitted by the state
law governing this corporation, and (ii) the number of directors
shall be increased under the conditions set forth in the
following paragraph. 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. Each
director shall serve for a term ending on the date of the third
annual meeting following the annual meeting at which such
director was elected; provided, each initial director in Class I
shall hold office until the annual meeting of stockholders in
1987, each initial director in Class II shall hold office until
the annual meeting of stockholders in 1988, and each initial
director in Class III shall hold office until the annual meeting
of stockholders in 1989.
In the event that dividends payable on the Preferred Stock
shall be accrued and unpaid in an amount equivalent to or
exceeding four (but less than eight) quarterly dividends, the
number of directors constituting the Board of Directors shall be
increased by a number sufficient so that, without removal of any
director from office prior to the expiration of his or her term,
the holders of the Preferred Stock, voting separately as one
class for such purpose, can elect a sufficient number of
directors to constitute one-third of all directors, in compliance
with subdivision (G) of the Article Second. At each subsequent
annual meeting of stockholders, the holders of the Preferred
Stock shall elect the smallest number of directors necessary to
ensure that one-third of all directors shall have been elected by
the holders of the Preferred Stock, until such time as all
dividends accrued and unpaid on the Preferred Stock shall have
been paid, after which such voting rights of the holders of the
Preferred Stock shall be terminated. In the event that dividends
payable on the Preferred Stock shall be accrued and unpaid in an
amount equivalent to or exceeding eight quarterly dividends, the
number of directors constituting the Board of Directors shall be
increased by a number sufficient so that, without removal of any
director from office prior to the expiration of his or her term,
the holders of the Preferred Stock, voting separately as one
class for such purpose, can elect a sufficient number of
directors to constitute a majority of all directors, in
compliance with subdivision (H) of the Article Second. At each
subsequent annual meeting of stockholders, the holders of the
Preferred Stock shall elect the smallest number of directors
necessary to ensure that a majority of all directors shall have
been elected by the holders of the Preferred Stock, until such
time as all dividends accrued and unpaid on the Preferred Stock
shall have been paid, after which such voting rights of the
holders of the Preferred Stock shall be terminated.
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 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.
In the event of any change in the authorized number of
directors, the Board of Directors shall apportion any newly
created directorships to, or reduce the number of directorships
in, such class or classes as shall, so far as possible, equalize
the number of directors in each class. The Board of Directors
shall allocate consistently with the rule that the three classes
shall be as nearly equal in number of directors as possible, any
newly-created directorship to the class the term of office of
which is due to expire at the latest date following such
allocation.
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 directors so chosen
shall hold office until the next election of the class for which
such directors shall have been chosen.
Notwithstanding any of the foregoing, each director shall
serve for a term continuing until the annual meeting of
stockholders 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 these Restated
Articles of Incorporation to the contrary, the affirmative vote
or concurrence of the holders of at least eighty percent (80%) of
the Common Stock entitled to vote thereon and sixty-six and two-
thirds percent (66-2/3%) of the Preferred Stock entitled to vote
thereon shall be required to alter, amend, or repeal this Article
Fifth.
SIXTH: 1. In addition to any other approvals and voting
requirements mandated by law and other provisions of these
Restated 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 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 stockholder of the Company); provided, the eighty percent (80%)
voting requirement shall not be applicable if either:
(i) 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
(ii) 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.
2. For purposes of this Article Sixth:
(i) 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
acquisitions (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.
(ii) 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."
(iii) 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 (ii) above.
(iv) For the purposes of subparagraph (ii) of paragraph 1 of
this Article Sixth, 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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) The terms "Highest Purchase Price" and "Highest
Equivalent Price" as used in this Article Sixth 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.
(ix) 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.
(x) 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.
(xi) 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).
(xii) 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.
3. For the purposes of this Article Sixth, 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: (i) the number of shares of Voting Stock that any Person
Beneficially Owns, (ii) whether a Person is an Affiliate or
Associate of another, (iii) whether a Person has an agreement,
contract, arrangement or understanding with another or some other
right as to the matters referred to in subparagraph 2(i)(h) or
2(iii) hereof, (iv) whether the assets subject to any Business
Transaction constitute a Substantial Part, (v) whether any
Business Transaction is one in which a Related Person has an
interest (except proportionately as a stockholder of the
Company), (vi) the date of the initial acquisition of Common
Stock by a Related Person, (vii) whether the consideration to be
received is in the same form as to the matter referred to in
subparagraph 1(ii)(c), and (viii) such other matters with respect
to which a determination is required under this Article Sixth.
4. The provisions set forth in this Article Sixth 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.
IN WITNESS WHEREOF, Black Hills Corporation, as authorized
and directed by resolution adopted by its Board of Directors at a
regular meeting held May 24, 1994 pursuant to authority at SDCL
49-33-1, executes these Restated Articles of Incorporation as of
May 31, 1994, through its duly authorized officers.
BLACK HILLS CORPORATION
By /s/DALE E. CLEMENT
Dale E. Clement
Its Senior Vice President -
Finance
ATTEST:
By /s/ ROXANN R. BASHAM
Roxann R. Basham
Its Secretary
(CORPORATE SEAL)
STATE OF SOUTH DAKOTA
COUNTY OF PENNINGTON
Dale E. Clement and Roxann R. Basham hereby each first duly
sworn on his or her oath deposes and says as follows: Dale E.
Clement is the Senior Vice President - Finance and Roxann R.
Basham is the Secretary of Black Hills Corporation; each has read
the within and foregoing Restated Articles of Incorporation and
knows the contents thereof to be true; the above Restated
Articles of Incorporation constitute a true and correct
restatement of the Corporation's Restated Articles of
Incorporation as previously adopted by the Board of Directors on
July 30, 1986 and as amended by as set forth in Articles of
Amendment dated (i) May 21, 1987 and filed May 26, 1987, (ii) May
16, 1989 and filed June 1, 1989, (iii) May 28, 1992 and filed
June 2, 1992 (as corrected by Articles of Correction dated
September 10, 1993 and filed September 14, 1993), and (iv) May
24, 1994 and filed May 25, 1994; and these Restated Articles of
Incorporation were adopted by unanimous vote of the members of
the Board of Directors at a meeting regularly called and held May
24, 1994.
/s/ DALE E. CLEMENT
Dale E. Clement
/s/ ROXANN R. BASHAM
Roxann R. Basham
Subscribed and sworn before me this 31st day of May, 1994.
/s/ BARBARA RASK
Notary Public
(SEAL)
