Registration No. 33__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
The Securities Act of 1933
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BLACK HILLS CORPORATION
(exact name of registrant as specified in its charter)
South Dakota 46-0111677
(State of Incorporation) (IRS Employer Identification No.)
625 Ninth Street, P.O. Box 1400
Rapid City, South Dakota 57709
(address of principal executive offices)
Registrant's telephone number, including
area code: (605) 348-1700
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1999 STOCK OPTION PLAN OF BLACK HILLS CORPORATION
(Full title of the plan)
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ROXANN R. BASHAM
Vice President - Finance
Black Hills Corporation
625 Ninth Street, Rapid City, South Dakota 57701
(Name and address of agent for service)
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It is respectfully requested that
the Commission send signed
copies of all notices, orders
and communications to:
JOHN K. NOONEY, Esq.
Morrill Thomas Nooney & Braun LLP
625 Ninth Street, Rapid City, South Dakota 57701
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------- --------------------- -------------------- --------------------- ------------------
Proposed Maximum Proposed Maximum
Title of Securities Offering Price Per Aggregate Offering Amount of
to be Registered Amount to be Share (1) Price Registration Fee
Registered (1)
- ---------------------- -------------------- ------------------- -------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock
($1 par Value) 700,000 Shares $23.0625 $16,143,750 $4,488
==================== ==================== ==================== ==================== ===================
</TABLE>
1. Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c), based upon the average of the high and low prices reported
as of July 7, 1999.
<PAGE>
PART II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Black Hills Corporation (the Company) with
the Securities and Exchange Commission are incorporated herein by reference:
(a) The Company's latest annual report on Form-10K filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act of 1934 since the end of the fiscal year covered by the annual
report on Form 10-K referred to in (a) above; and
(c) The description of the Company's common stock as contained in the
Company's registration statement under Section 12 of the Exchange Act of 1934,
including any amendment or report updating such description.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters those securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part thereof from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES
The Company's common stock is registered under Section 12 of the
Exchange Act.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
The legality of the securities offered will be passed upon for the
Company by the law firm of Morrill Thomas Nooney & Braun LLP, 625 Ninth Street,
Rapid City, South Dakota 57701.
Members of the firm of Morrill Thomas Nooney & Braun LLP and members of
their immediate families own directly or indirectly 4,000 shares of common stock
of the Company.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICER
Sections 47-2-58.1 to 47-2-58.7 of the South Dakota Codified Laws
permit indemnification of officers and directors of domestic or foreign
corporations under certain circumstances and subject to certain limitations.
Article V of the Bylaws of the Company and separate indemnification contracts
entered into between the Company and each of its directors and officers
authorize indemnification of the Company's directors and officers consistent
with the provisions of South Dakota laws.
The Company has obtained insurance policies indemnifying the Company
and the Company's directors and officers against certain civil liabilities and
related expenses.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
No securities are to be reoffered or resold pursuant to this agreement.
<PAGE>
Item 8. EXHIBITS
*4(a) Restated Articles of Incorporation dated May 24, 1994 (Exhibit 3(i)
to Form 8-K dated June 7, 1994, File No. 1-7978).
4(b) Bylaws dated April 20, 1999.
5 Opinion of Morrill Thomas Nooney & Braun LLP
23(a) Consent of Morrill Thomas Nooney & Braun LLP (contained in Exhibit 5)
23(b) Consent of Independent Public Accountants
24 Powers of Attorney
Item 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post- effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe it meets all of the
requirements for filing on Form S-8 and has duly caused this to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Rapid City,
State of South Dakota, on the 13th day of July, 1999.
BLACK HILLS CORPORATION
By /S/ROXANN R. BASHAM
Roxann R. Basham, Vice President - Finance
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
/S/DANIEL P. LANDGUTH Principal Executive July 13, 1999
Daniel P. Landguth, Officer and Director
Chairman and President
/S/ROXANN R. BASHAM Principal Financial Officer July 13, 1999
Roxann R. Basham,
Vice President - Finance
/S/MARK T. THIES Principal Accounting Officer July 13, 1999
Mark T. Thies, Controller
ADIL M. AMEER* Directors
Adil M. Ameer
GLENN C. BARBER*
Glenn C. Barber
BRUCE B. BRUNDAGE*
Bruce B. Brundage
DAVID C. EBERTZ*
David C. Ebertz
JOHN R. HOWARD*
John R. Howard
EVERETT E. HOYT* July 13, 1999
Everett E. Hoyt
KAY S. JORGENSEN* *By: /S/DANIEL P. LANDGUTH
Kay S. Jorgensen Daniel P. Landguth
Attorney at Fact
THOMAS J. ZELLER*
Thomas J. Zeller
Exhibit 4(b)
BLACK HILLS CORPORATION
BYLAWS
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Place. Meetings of the stockholders shall be held at such place
within or without the State of South Dakota as the Board of Directors may from
time to time determine and as stated in the notice of the meeting.
Section 2. Annual Meeting. The annual meeting of the stockholders shall be
held at such time within six months after the end of each fiscal year of the
Company as the Board of Directors designates for the purpose of electing
directors and for the transacting of any other business as may be brought before
the meeting.
Section 3. Special Meetings. All annual and special meetings of the
stockholders shall be called by a majority of the Board of Directors.
Section 4. Notice. Unless all stockholders entitled to vote at the meeting
waive notice in writing, written notice stating the place, day and hour of each
meeting of stockholders, and in the case of a special meeting, further stating
the purpose for which such meeting is called, shall be mailed at least ten days
before the meeting when called by the Board of Directors to each stockholder of
record who shall be entitled to vote thereat to the last known post office
address of each such stockholder as it appears upon the stock transfer books of
the Company. However, notice of a meeting, at which proposal to increase the
capital stock or indebtedness is to be considered, shall be given at least sixty
days prior to such meeting.
Section 5. Quorum. The holders of a majority of the issued and outstanding
shares of the capital stock of the Company entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum for the transaction of
business at all meetings of the stockholders except as may otherwise be provided
by law or by the Articles of Incorporation. If a quorum or greater number as may
be required by law or the Articles shall not be present or represented at any
meeting of the stockholders, a majority of the stockholders who are present in
person or by proxy and who are entitled to vote thereat shall have the power to
adjourn the meeting from time to time without notice other than announcement at
the meeting until such quorum or such greater number shall have been obtained.
Section 6. Adjourned Meeting. The majority of the stockholders who are
entitled to vote and who are present in person or by proxy at any regular or
special meeting of the stockholders shall have the right to adjourn the meeting
from time to time without notice other than announcement at the meeting to be
adjourned; provided, however, the meeting may not be adjourned for a period
longer than sixty days from the date of the meeting as set forth in the notice
thereof.
Section 7. Voting. At each meeting of the stockholders, every stockholder
having the right to vote shall be entitled to vote one vote per share in person
or by proxy appointed by an instrument in writing subscribed by such
stockholder. No proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy. All voting for directors
shall be by written ballot. All elections shall be had and all questions decided
by a plurality except as otherwise provided by law or by the Articles of
Incorporation.
Section 8. Inspectors. The Board of Directors or, if the Board shall not
have made the appointment, the person presiding at any meeting of stockholders
shall have power to appoint one or more persons, other than the nominees for
directors, to act as inspectors to receive, canvass and report the votes cast by
the stockholders at such meeting. Any inspector so appointed who for any reason
does not serve in such capacity may be replaced by the person presiding at the
meeting.
ARTICLE II
BOARD OF DIRECTORS
Section 1. Definitions. For the purposes of these Bylaws an "Inside
Director" is a director who is an employee of the Company, an officer of the
Company, a person who has in the past served as an officer of the Company or any
person whose relationship to the Company other than as a director gives him
access on a regular basis to material information about the Company that is not
generally available. Any director who is not an Inside Director would for the
purpose of these Bylaws constitute an "Outside Director." For the purpose of
this Section "Company" shall also include any subsidiary of the Company.
Section 2. Management of the Company. The property, business and affairs of
the Company shall be managed by or under the direction of its Board of
Directors.
Section 3. Qualifications of Directors. At the time a person is elected as
director by the stockholders, that person must beneficially own at least 100
shares of the common stock of the Company; and if such person is elected by the
stockholders, the person must be duly qualified to vote such stock at the said
election. Each director is required to apply at least 50 percent of his or her
retainer toward the purchase of additional shares until the director has
accumulated at least 2,000 shares of common stock. No person shall be elected or
stand for reelection as a director who will be sixty-five years of age or older
on the thirty-first day of December of the year of the election, except in the
event the Board of Directors has not yet identified a director to be elected to
replace any director who will be sixty-five years of age during the year in
which he or she stands for reelection, a director may stand for reelection
solely for the purpose of filling the slate of directors. However, upon the
Board of Directors' choosing a replacement director, the incumbent director
shall tender his or her resignation to the Chairman.
Section 4. Number and Election; Vacancies and Removal. The number of
members of the Board of Directors 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, 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 Fourth. 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 Fourth. 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.
Section 5. Compensation. Outside Directors shall be entitled to such
compensation and expenses as may be determined by resolution of the Board.
Outside Directors may serve the Company in other capacities and receive
compensation therefor.
Section 6. Meetings. The Board of Directors may hold meetings within or
without the State of South Dakota. Members of the Board of Directors or any
committee thereof may participate in a meeting of such Board or committee by
means of a conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other at the same
time, and participation by such means shall constitute presence in person at a
meeting.
Section 7. Regular Meetings. The annual meeting of the Board of Directors
for the election of officers and to conduct such other business to be brought
before the meeting shall, if practicable, be held on the same day as and
immediately after the annual election of the directors by the stockholders or
any adjournment thereof, and no notice thereof need be given. Further regular
meetings of the Board may be held with or without notice at such time and place
as shall from time to time be determined by the Board by resolution.
Section 8. Special Meetings. Special meetings of the Board of Directors may
be called either by the Chairman of the Board and Chief Executive Officer, the
President or by the Secretary upon the written request of any two directors by
giving oral or written notice to each director stating the time and place of
such meeting.
Section 9. Notice of Meetings. Notice shall be considered to have been
given if a notice is either orally communicated to a director at least twelve
hours prior to such meeting or placed in writing and mailed to the director at
his last known post office address as shown by the records of the Company at
least four days prior to the meeting. Any notice to be given a director for a
meeting of the directors may be waived by the director in writing either before
or after the meeting. Presence of any director at a meeting of the Board shall
be considered to be a waiver of notice by such director unless such director
attends a meeting for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted nor the purpose of any regular or special meeting of
the Board of Directors need be specified in the notice or waiver of notice of
such meeting.
Section 10. Quorum. At all meetings of the Board of Directors a majority of
the number of directors at the time in office shall constitute a quorum for the
transaction of business; provided, less than a quorum of directors may fill
vacancies as set forth in Section 4 of this Article II. The act of a majority of
the number of directors at the time in office shall be the act of the Board of
Directors. If at any meeting of the board there shall be less than a quorum
present, a majority of those present may adjourn the meeting from time to time
until a quorum is obtained and no further notice thereof need be given other
than by announcement at said meeting which shall be so adjourned.
Section 11. Manifestation of Dissent. A director of the Company who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his dissent shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the person acting as the secretary
of the meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Company immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 12. Action Taken Without Meeting. Any action which may be taken at
a meeting of the directors or of a committee may be taken without a meeting if a
consent in writing setting forth the actions so to be taken shall be signed
before such action by all of the directors, or all of the members of the
committee, as the case may be. Such consent shall have the same effect as a
unanimous vote.
ARTICLE III
COMMITTEES
Section 1. Executive Committee. The Board of Directors shall appoint from
among its members an executive committee of five directors. The Chairman of the
Board and Chief Executive Officer and President shall be a member of the
executive committee. At least three members of the executive committee shall be
Outside Directors. The executive committee (i) shall recommend to the Board
persons to be elected as officers, (ii) recommend persons to be appointed to
Board committees, (iii) may consider and make recommendations to the Board on
other Board actions and (iv) may perform such other duties as may be permitted
by law.
Section 2. Audit Committee. The Board of Directors shall appoint from three
to five of its Outside Directors to serve as an audit committee. The audit
committee shall meet prior to and after each yearly audit with representatives
of the independent accounting firm approved by the stockholders for the purpose
of reviewing the audit of such firm of the Company's financial condition and
shall each year recommend to the Board an independent accounting firm to be
appointed by the Board for the ratification by the stockholders and shall
perform such other duties as assigned by the Board.
Section 3. Compensation Committee. The Board of Directors shall appoint
from three to five of its Outside Directors to serve as a compensation
committee. The compensation committee (i) shall perform any function required by
directors in the administration of all federal and state statutes relating to
employment and compensation, (ii) shall recommend to the Board the compensation
for officers, and (iii) shall consider and approve the compensation program,
including the benefit program and stock ownership plans, of the Company.
Section 4. Director Nominating Committee. The Board of Directors shall
appoint a director nominating committee to be composed of the chief executive
officer and a number of outside directors as determined by the Board of
Directors. An outside director shall be appointed by the Board of Directors to
serve as chairman of the director nominating committee. The director nominating
committee shall recommend to the Board of Directors persons to be nominated as
directors or to be elected to fill vacancies on the Board of Directors and in
making such recommendations shall consider the recommendations of other
directors as well as stockholders.
Section 5. Other Committees. The Board of Directors may also appoint from
among its own members such other committees as the Board may determine and
assign such powers and duties as shall from time to time be prescribed by the
Board.
Section 6. Removal from Committees and Rules of Procedure. Subject to these
Bylaws directors may be removed from the committees and vacancies therein may be
filled by a majority of the Board of Directors. A meeting of any committee may
be called by any member of the committee. The provisions of these Bylaws
concerning notice of meetings, compensation, manifestation of dissent and taking
action without a meeting as they pertain to directors shall also pertain to
committees.
ARTICLE IV
OFFICERS
Section 1. Officers. The Board of Directors shall elect as officers of the
Company a Chairman of the Board, who shall be the Chief Executive Officer, a
President, a Vice President, a Secretary, a Treasurer and may elect a Controller
and such other Vice Presidents and other officers as the Board may determine is
necessary for the conduct of the business of the Company. Officers need not be
directors except for the Chairman of the Board, the President and one Vice
President. Any two or more offices may be held by the same person. (No person
shall hold an officer position after the last day of the month during which said
person became sixty-five years of age.)
Section 2. Term and Removal. All officers of the Company shall serve at the
pleasure of the Board of Directors, and the Board at any regular or special
meeting by the vote of a majority of the whole Board may remove an officer from
an office.
Section 3. Duties of Chairman of the Board and Chief Executive Officer. The
Chairman of the Board and Chief Executive Officer shall be the chief
administrative officer of the Company. The Chairman of the Board and Chief
Executive Officer (i) shall exercise such duties as customarily pertain to the
office of Chief Executive Officer, (ii) shall have general and active management
authority and supervision over the property, business and affairs of the company
and over its officers and employees, (iii) may appoint employees, consultants
and agents as deemed necessary for the proper conduct of the Company's business,
(iv) may sign, execute and deliver in the name of the Company powers of
attorney, contracts, bonds and other obligations subject to direction of the
Board as set forth in Article VI of these Bylaws, (v) shall recommend to the
Board of Directors persons for appointment to offices and committees and for
nomination of directors, (vi) shall preside at stockholder meetings and at
meetings of the Board of Directors, and (vii) shall perform such other duties as
may be prescribed from time to time by the Board of Directors.
Section 4. Duties of the President. The President shall perform such duties
as may be prescribed from time to time by the Board of Directors or by the
Chairman of the Board and Chief Executive Officer. The President, in the absence
or disability of the Chairman of the Board and Chief Executive Officer, shall
perform the duties and exercise the powers of the Chairman of the Board and
Chief Executive Officer.
Section 5. Duties of Vice Presidents. The Vice Presidents shall have such
powers and perform such duties as may be assigned to them by the Board of
Directors, or the Chairman of the Board and Chief Executive Officer. In the
absence or disability of the Chairman of the Board and Chief Executive Officer,
and the President, the Vice Presidents in the order as designated by the Board,
or if the Board so directs, by the Chairman of the Board and Chief Executive
Officer, shall perform the duties and exercise the powers of the Chairman of the
Board and Chief Executive Officer.
Section 6. Duties of Secretary. The Secretary shall attend all meetings of
the Board and stockholders, record all votes and the minutes of all proceedings
in books to be kept for such purposes and shall perform like duties for the
committees when required. He shall have the custody of the seal. He shall have
the custody of the stock books and shall perform such other duties as may be
prescribed by the Board of Directors or the Chairman of the Board and Chief
Executive Officer.
Section 7. Duties of Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books of the Company and shall deposit all monies
and other valuable effects in the name and to the credit of the Company in such
depositories as may be designated by the Board of Directors. He shall disburse
the funds of the Company as may be ordered by the Board, taking proper vouchers
for such disbursements and shall render to the Chairman of the Board and Chief
Executive Officer and to the Board of Directors at its regular meetings or
whenever they may require it, an account of all his transactions as Treasurer
and of the financial condition of the Company.
Section 8. Duties of Other Officers. All officers of the Company shall have
such duties as shall be prescribed by the Board of Directors or the Chairman of
the Board and Chief Executive Officer.
Section 9. Delegation of Duties of Officers. In the case of the absence of
any officer of the Company or for any other reason that the Board may deem
sufficient, the Board may delegate the powers or duties of any officer to any
other officer or to any director for such time as determined by the Board.
Section 10. Compensation of Officers. The compensation of the Chairman of
the Board and Chief Executive Officer shall be determined by the Board of
Directors. The compensation of each of the other officers shall be recommended
by the Chairman of the Board and Chief Executive Officer and approved by the
Board of Directors. No officer shall be prevented from receiving such salary by
reason of the fact that he is also a director of the Company.
ARTICLE V
INDEMNIFICATION
Section 1. Actions, Suits or Proceedings Other than by or in the Right of
the Company. The Company shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
including all appeals, (other than an action by or in the right of the Company)
by reason of the fact that he is or was or has agreed to become a director or
officer of the Company, or is or was serving or had agreed to serve at the
request of the Company as a director or officer of another corporation
(including a subsidiary of the corporation, or subsidiaries of subsidiaries),
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against costs,
charges, expenses (including attorneys' fees), judgments, fines, penalties and
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he reasonably believed to
be within the scope of this authority and in, or not opposed to, the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be within the scope of his authority and
in, or not opposed to, the best interests of the Company and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
Section 2. Actions or Suits by or in the Right of the Company. The Company
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
including all appeals, by or in the right of the Company to procure a judgment
in its favor by reason of the fact that he is or was or has agreed to become a
director or officer of the Company or is or was serving or has agreed to serve
at the request of the Company as a director or officer of another corporation
(including a subsidiary of the corporation or subsidiaries of subsidiaries),
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against costs,
charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection with the defense or settlement of
such action or suit and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be within the scope of his authority and in, or
not opposed to, the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Company unless
and only to the extent that the Courts of South Dakota or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of such liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such costs,
charges and expenses which the Courts of South Dakota or such other court shall
deem proper.
Section 3. Indemnification for Costs, Charges and Expenses of Successful
Party. Notwithstanding the other provisions of this Article V, to the extent
that a director or officer has been successful, on the merits or otherwise,
including, without limitation, the dismissal of an action without prejudice, in
defense of any action, suit or proceeding referred to in Sections 1 and 2 of
this Article V, or in defense of any claim, issue or matter therein, he shall be
indemnified against all costs, charges and expenses (including attorneys' fees)
actually and reasonably incurred by him or on his behalf in connection
therewith.
Section 4. Determination of Right to Indemnification. Any indemnification
under Sections 1 and 2 of this Article V (unless ordered by a court) shall be
paid by the Company unless a determination is made (i) by the board of directors
by a majority vote of the directors who were not parties to such action, suit or
proceeding, or if such majority of disinterested directors so directs, (ii) by
independent legal counsel in a written opinion, or (iii) by the shareholders,
that indemnification of the director or officer is not proper in the
circumstances because he has not met the applicable standard of conduct set
forth in Sections 1 and 2 of this Article V.
Section 5. Advance of Costs, Charges and Expenses. Costs, charges and
expenses (including attorneys' fees) incurred by a person referred to in
Sections 1 or 2 of this Article V in defending a civil or criminal action, suit
or proceeding shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding; provided, however, that the
payment of such costs, charges and expenses incurred by a director or officer in
his capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer) in
advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified by
the Company as authorized in this Article V. Such costs, charges and expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the majority of the directors deems appropriate. The
majority of the directors may, in the manner set forth above, and upon approval
of such director or officer of the Company, authorize the Company's counsel to
represent such person, in any action, suit or proceeding, whether or not the
Company is a party to such action, suit or proceeding.
Section 6. Procedure of Indemnification. Any indemnification under Sections
1, 2 and 3, or advance of costs, charges and expenses under Section 5 of this
Article V shall be made promptly, and in any event within 60 days, upon the
written request of the director or officer. The right to indemnification or
advances as granted by this Article V shall be enforceable by the director or
officer in any court of competent jurisdiction, if the Company denies such
request, in whole or in part, or if no disposition thereof is made within 60
days. Such person's costs and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Company. It shall be a defense to any
such action (other than an action brought to enforce a claim for the advance of
costs, charges and expenses under Section 5 of this Article V where the required
undertaking, if any, has been received by the Company) that the claimant has not
met the standard of conduct set forth in Sections 1 or 2 of this Article V, but
the burden of proving such defense shall be on the Company. Neither the failure
of the Company (including its board of directors, its independent legal counsel
and its shareholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in Sections 1 or
2 of this Article V, nor the fact that there has been an actual determination by
the Company (including its board of directors, its independent legal counsel and
its shareholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standards of conduct.
Section 7. Settlement. The Company shall not be obligated to reimburse the
costs of any settlement to which it has not agreed. If in any action, suit or
proceeding, including any appeal, within the scope of Sections 1 or 2 of this
Article V, the person to be indemnified shall have unreasonably failed to enter
into a settlement thereof offered or assented to by the opposing party or
parties in such action, suit or proceeding, then, notwithstanding any other
provision hereof, the indemnification obligation of the Company to such person
in connection with such action, suit or proceeding shall not exceed the total of
the amount at which settlement could have been made and the expenses incurred by
such person prior to the time such settlement could reasonably have been
effected.
Section 8. Subsequent Amendment. No amendment, termination or repeal of
this Article V or of relevant provisions of the South Dakota corporation law or
any other applicable laws shall affect or diminish in any way the rights of any
director or officer of the Company to indemnification under the provisions
hereof with respect to any action, suit or proceeding arising out of, or
relating to, any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or repeal.
Section 9. Other Rights, Continuation of Right to Indemnification. The
indemnification provided by this Article V shall not be deemed exclusive of any
other rights to which a director, officer, employee or agent seeking
indemnification may be entitled under any law (common or statutory), agreement,
vote of shareholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in any other capacity while holding
office or while employed by or acting as agent for the Company, and shall
continue as to a person who has ceased to be a director, officer, employee or
agent, and shall inure to the benefit of the estate, heirs, executors and
administrators of such person. Nothing contained in this Article V shall be
deemed to prohibit, and the Company is specifically authorized to enter into,
agreements with officers and directors providing indemnification rights and
procedures different from those set forth herein. All rights to indemnification
under this Article V shall be deemed to be a contract between the Company and
each director or officer of the Company who serves or served in such capacity at
any time while this Article V is in effect. This Article V shall be binding upon
any successor corporation to this Company, whether by way of acquisition,
merger, consolidation or otherwise.
Section 10. Savings Clause. If this Article V or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify each director or officer of the Company as
to any costs, charges, expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including an action by
or in the right of the Company, to the full extent permitted by any applicable
portion of this Article V that shall not have been invalidated and to the full
extent permitted by applicable law.
Section 11. Subsequent Legislation. If the South Dakota law is amended
after the adoption of this Article V to further expand the indemnification
permitted to directors and officers of the Company, then the Company shall
indemnify such persons to the fullest extent permitted by the South Dakota law,
as so amended.
ARTICLE VI
CAPITAL STOCK
Section 1. Stock Certificates. Certificates for stock of the Company shall
be in such form as the Board of Directors may from time to time prescribe and
shall be signed by the President or a Vice President and by a Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary. If certificates
are signed by a transfer agent, acting in behalf of the Company, or registered
by a registrar, the signatures of the officers of the Company may be facsimile.
The Company, through its officers, may cause certificates to be issued and
delivered bearing facsimile signatures of persons even though at the time of the
issuance and delivery of such certificates, any of such persons may no longer be
an officer of the Company.
Section 2. Transfer Agent. The Board of Directors shall have power to
appoint one or more transfer agents and registrars for the transfer and
registration of certificates of stock of any class and may require that stock
certificates shall be countersigned and registered by one or more of such
transfer agents and registrars. The transfer agent and registrar may be the same
person.
Section 3. Transfer of Stock. Shares of the capital stock of the Company
shall be transferable on the books of the Company only by the holder of record
thereof in person or by a duly authorized attorney upon surrender and
cancellation of certificates for a like number of shares properly endorsed.
Section 4. Lost Certificate. In case any certificates of the capital stock
of the Company shall be lost, stolen or destroyed, the Company may cause
replacement certificates to be issued upon such proof of the fact and such
indemnity to be given to it and to its transfer agent and registrar, if any, as
shall be deemed necessary or advisable by it.
Section 5. Holder of Record. The Company shall be entitled to treat the
holder of record of any share or shares of stock as the holder thereof in fact
and shall not be bound to recognize any equitable or other claim to or interest
in such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by law.
The expression "stockholder" or "stockholders" whenever used in these Bylaws
shall be deemed to mean only the holder or holders of record of stock.
Section 6. Closing of Transfer Books. The Board of Directors shall have
power to close the stock transfer books of the Company for a stated period but
not to exceed, in any case, fifty days, and in case of a meeting of stockholders
not less than ten days, preceding the date of any meeting of stockholders, or
the date for payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of capital stock shall go
into effect, or in order to make a determination of stockholders for any other
proper purpose; provided, however, that in lieu of closing the stock transfer
books, the Board of Directors may fix in advance a date as the record date for
any such determination of stockholders, not less than ten days prior to the date
on which the particular action, requiring such determination of stockholders, is
to be taken; and in such case only such stockholders as shall be stockholders of
record on the date so fixed shall be entitled to such notice of, and to vote at,
such meeting, or to receive payment of such dividend, or to receive such
allotment of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any stock on the books of the Company after any
such record date fixed as aforesaid. When a determination of stockholders
entitled to vote at any meeting of stockholders has been made as provided in
this section, such determination shall apply to any adjournment thereof.
Section 7. Closing of Transfer Books to Authorize Increase in Indebtedness
and Capital Stock. Notwithstanding Section 6 of this Article and in order to
comply with Section 8 of Article XVII of the South Dakota Constitution, the
notice to be given stockholders for a meeting at which a proposal to increase
the Company's authorized indebtedness or capital stock is to be considered shall
be given at least sixty days prior to the meeting and the record date for the
determination of stockholders eligible to vote at such meeting may be set by the
Board sixty or more days prior to the said meeting.
ARTICLE VII
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Company, and such authority may
be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the Company and
no evidences of indebtedness shall be issued in its name unless authorized by a
resolution of the Board of Directors. Such authority may be general or confined
to specific instances.
Section 3. Checks, Drafts, etc. All checks, drafts, or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Company shall be signed by such officer or officers, agent or agents of the
Company and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
Section 4. Deposits and Investments. All funds of the Company not otherwise
employed shall be deposited from time to time to the credit of the Company in
such banks, trust companies or other depositories as the Board of Directors or
officers of the Company designated by the Board of Directors may select; or be
invested as authorized by the Board of Directors. Such authority may be general
or confined to specific instances.
ARTICLE VIII
MISCELLANEOUS
Section 1. Offices. The principal office of the Company shall be in the
City of Rapid City, County of Pennington, State of South Dakota. The Company may
also have offices at such other places within or without the State of South
Dakota as the Board of Directors may from time to time designate or as the
business of the Company may require.
Section 2. Seal. The corporate seal shall have inscribed thereon the name
of the Company and the words "Corporate Seal -1941- South Dakota."
Section 3. Audit. The books of account of the Company shall be audited
annually by an independent firm of public accountants who shall be appointed by
the Board of Directors and ratified by the stockholders at each annual meeting.
Such auditors shall submit to the Board of Directors each year certified
financial statements of the Company for the preceding fiscal year.
ARTICLE IX
AMENDMENTS
These Bylaws may be altered, amended or repealed at any meeting of the
Board of Directors by the affirmative vote of a majority of the whole Board;
provided, no alteration or amendment may be in conflict with any provision of
the Articles of Incorporation.
I certify that the foregoing is a true copy of the Amended Bylaws of Black
Hills Corporation as adopted by the Board of Directors of the Corporation on the
30th day of January, 1996 to become effective in their entirety on the 20th day
of April, 1999.
Witness my hand and the seal of the Corporation on this 20th day of April,
1999.
Roxann R. Basham
Corporate Secretary
Exhibit 5
July 13, 1999
Board of Directors of
Black Hills Corporation
625 Ninth Street
P. O. Box 1400
Rapid City, SD 57709
Re: Opinion of Counsel
200,000 Shares of Common Stock of Black Hills Corporation under
the Employees' Stock Purchase Plan
With respect to the Registration Statement on Form S-8 (the
"Registration Statement") of Black Hills Corporation (the "Company"), relating
to the issuance and sale of up to 700,000 additional shares of Common Stock of
the par value $1.00 per share (the "Shares") of the Company in connection with
the 1999 Stock Option Plan of Black Hills Corporation (the "Plan"), as described
in the Registration Statement, we wish to advise you as follows:
We are of the opinion that the Company is a corporation validly
incorporated and existing under the laws of the State of South Dakota and is
fully qualified to carry on the business in which it is now engaged.
We are further of the opinion that subject to compliance with the
Securities Act of 1933, as amended and the offering and sale of the Shares in
accordance with the Plan and the issuance and sale of, and payment for, the
Shares in the manner and at the price set forth in the Plan the Shares will be
duly authorized, legally and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Morrill Thomas Nooney & Braun, LLP
TLT:bae
EXHIBIT 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 27, 1999
included in Black Hills Corporation's Form 10-K for the year ended December 31,
1998 and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
July 12, 1999
EXHIBIT 24(a)
BLACK HILLS CORPORATION
Power of Attorney
I, Adil M. Ameer, do hereby constitute and appoint Daniel P. Landguth
my Attorney-in-Fact for the purpose of signing, in my name and in my behalf as a
Director of Black Hills Corporation, the Form S-8 Registration Statement of
Black Hills Corporation and to deliver in my behalf said Registration Statement
for filing with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1933, as amended.
Executed the 26th day of June, 1999.
By: /s/ Adil M. Ameer
<PAGE>
EXHIBIT 24(b)
BLACK HILLS CORPORATION
Power of Attorney
I, Glenn C. Barber, do hereby constitute and appoint Daniel P. Landguth
my Attorney-in-Fact for the purpose of signing, in my name and in my behalf as a
Director of Black Hills Corporation, the Form S-8 Registration Statement of
Black Hills Corporation and to deliver in my behalf said Registration Statement
for filing with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1933, as amended.
Executed the 26th day of June, 1999.
By: /s/ Glenn C. Barber
<PAGE>
EXHIBIT 24(c)
BLACK HILLS CORPORATION
Power of Attorney
I, Bruce B. Brundage, do hereby constitute and appoint Daniel P.
Landguth my Attorney-in-Fact for the purpose of signing, in my name and in my
behalf as a Director of Black Hills Corporation, the Form S-8 Registration
Statement of Black Hills Corporation and to deliver in my behalf said
Registration Statement for filing with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1933, as amended.
Executed the 26th day of June, 1999.
By: /s/ Bruce B. Brundage
<PAGE>
EXHIBIT 24(d)
BLACK HILLS CORPORATION
Power of Attorney
I, David C. Ebertz, do hereby constitute and appoint Daniel P. Landguth
my Attorney-in-Fact for the purpose of signing, in my name and in my behalf as a
Director of Black Hills Corporation, the Form S-8 Registration Statement of
Black Hills Corporation and to deliver in my behalf said Registration Statement
for filing with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1933, as amended.
Executed the 26th day of June, 1999.
By: /s/ David C. Ebertz
<PAGE>
EXHIBIT 24(e)
BLACK HILLS CORPORATION
Power of Attorney
I, John R. Howard, do hereby constitute and appoint Daniel P. Landguth
my Attorney-in-Fact for the purpose of signing, in my name and in my behalf as a
Director of Black Hills Corporation, the Form S-8 Registration Statement of
Black Hills Corporation and to deliver in my behalf said Registration Statement
for filing with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1933, as amended.
Executed the 28th day of June, 1999.
By: /s/ John R. Howard
<PAGE>
EXHIBIT 24(f)
BLACK HILLS CORPORATION
Power of Attorney
I, Everett E. Hoyt, do hereby constitute and appoint Daniel P. Landguth
my Attorney-in-Fact for the purpose of signing, in my name and in my behalf as a
Director of Black Hills Corporation, the Form S-8 Registration Statement of
Black Hills Corporation and to deliver in my behalf said Registration Statement
for filing with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1933, as amended.
Executed the 28th day of June, 1999.
By: /s/ Everett E. Hoyt
<PAGE>
EXHIBIT 24(g)
BLACK HILLS CORPORATION
Power of Attorney
I, Kay S. Jorgensen, do hereby constitute and appoint Daniel P.
Landguth my Attorney-in-Fact for the purpose of signing, in my name and in my
behalf as a Director of Black Hills Corporation, the Form S-8 Registration
Statement of Black Hills Corporation and to deliver in my behalf said
Registration Statement for filing with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1933, as amended.
Executed the 28th day of , 1999.
By: /s/ Kay S. Jorgensen
<PAGE>
EXHIBIT 24(h)
BLACK HILLS CORPORATION
Power of Attorney
I, Thomas J. Zeller, do hereby constitute and appoint Daniel P.
Landguth my Attorney-in-Fact for the purpose of signing, in my name and in my
behalf as a Director of Black Hills Corporation, the Form S-8 Registration
Statement of Black Hills Corporation and to deliver in my behalf said
Registration Statement for filing with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1933, as amended.
Executed the 25th day of June, 1999.
By: /s/ Thomas J. Zeller
<PAGE>
