As filed with the Securities and Exchange Commission on June 18, 2001
Registration No. 333-__________
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 46-0458824
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
625 Ninth Street, P.O. Box 1400
Rapid City, South Dakota 57709
(605) 721-1700
(Address, including zip code, and
telephone number, including area code, of
Registrant's principal executive offices)
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BLACK HILLS CORPORATION
OMNIBUS INCENTIVE COMPENSATION PLAN
(Full title of the plan)
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Roxann R. Basham
Vice President - Controller
Black Hills Corporation
625 Ninth Street, P.O. Box 1400
Rapid City, South Dakota 57709
(605) 721-1700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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WITH A COPY TO:
STEVEN J. HELMERS
General Counsel
Black Hills Corporation
625 Ninth Street, P.O. Box 1400
Rapid City, South Dakota 57709
(605) 721-1700
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CALCULATION OF REGISTRATION FEE
======================= ===================== ==================== ===================== ====================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered (1) Share (1) Price Registration Fee
- ----------------------- --------------------- -------------------- --------------------- --------------------
Common Stock
($1 par Value) 1,200,000 Shares $45.710 $54,852,000 $13,713.00
======================= ===================== ==================== ===================== ====================
1. Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(h) of the Securities Act of 1933, as
amended, on the basis of the average high and low sales prices of the
common stock, as reported on the New York Stock Exchange for June 14, 2001.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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 Annual Report on Form-10K for the fiscal year ended
December 31, 2000, filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 2001.
(c) The Company's Report on Form 8-K dated December 5, 2000, filed January
12, 2001.
(d) The Company's Report on Form 8-K/A1 dated February 16, 2001.
(e) The Company's Report on Form 8-K dated April 6, 2001.
(f) The description of the Company's common stock contained in the
Company's Registration Statement on Form S-1 dated March 22, 2001 and any
amendments thereto.
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
Not applicable.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Steven J. Helmers, General Counsel and Corporate Secretary of the
Company, whose opinion with respect to the common stock is filed as Exhibit 5
hereto, is an officer of the Company and owns as of June 15, 2001, 115 shares of
common stock and 19,000 common stock options.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICER
Section 47-5-27 of the South Dakota Codified Laws provides generally
that a corporation may indemnify any person who was or is a party to or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative in
nature, other than an action by or in the right of the corporation, by reason of
the fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, limited liability
company, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with the action,
suit or proceeding if that person acted in good faith and in a manner that
person reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such conduct was unlawful.
The Bylaws of the Company provide that, with respect to actions, suits
or proceedings other than by or in the right of the Company, the Company shall
indemnify an officer or director against
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liability incurred by such person as authorized under the South Dakota Codified
Laws. With respect to actions or suits by or in the right of the Registrant, the
Bylaws of the Registrant provide that the Registrant shall indemnify any officer
or director for any action or proceeding he is made a party to by reason of the
fact that he is or was a director or officer of the Registrant, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the action or suit, 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 Company, except for those claims, issues
or matters as to which such officer or director shall have been adjudged to be
liable to the Company, unless such indemnification is deemed proper by a court.
In addition, the Company has entered into specific agreements with the directors
and officers of the Company providing for indemnification of such persons under
certain circumstances.
The Company's Articles of Incorporation also eliminate the liability of
the Company's directors for monetary damages for breach of their fiduciary duty
as directors. This provision, however, does not eliminate a director's liability
(a) for any breach of the director's duty of loyalty to the Company or its
shareholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) for any violation of
Sections 47-5-15 to 47-5-19, inclusive, of the South Dakota Codified Laws, which
relate in part to certain unlawful dividend payments or stock redemptions or
repurchases, or (d) for any transaction from which the director derived an
improper personal benefit.
The Company carries directors' and officers' liability insurance to
insure its directors and officers against liability for certain errors and
omissions and to defray costs of a suit or proceeding against an officer or
director.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
*4(a) Articles of Incorporation of the Registrant (filed as an
exhibit to the Registrant's Registration Statement on Form
S-4 (No. 333-52664)).
*4(b) Articles of Amendment of the Registrant (filed as an exhibit
to the Registrant's Current Report on Form 8-K filed on
December 26, 2000).
*4(c) Bylaws of the Registrant (filed as an exhibit to the
Registrant's Registration Statement on Form S-4 (No.
333-52664)).
*4(d) Statement of Designations, Preferences and Relative Rights and
Limitations of No Par Preferred Stock, Series 2000-A of the
Registrant (filed as an exhibit to the Registrant's Current
Report on Form 8-K filed on December 26, 2000).
*4(e) Restated and Amended Indenture of Mortgage and Deed of Trust
of Black Hills Power, Inc. dated as of September 1, 1999
(filed as an exhibit to the Registrant's Registration Statement
on Form S-4 (No. 333-52664)).
5 Opinion of Steven J. Helmers, Esq., General Counsel to the
Registrant.
23(a) Consent of Steven J. Helmers, Esq. (included in Exhibit 5).
23(b) Consent of Arthur Andersen LLP.
24 Powers of Attorney (included on the signature page to this
Registration Statement).
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* Previously filed as part of the filing indicated and incorporated by
reference herein.
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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
with or furnished to the Commission 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 of 1933, 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 of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
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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 18th day of June, 2001.
BLACK HILLS CORPORATION
By /s/ DANIEL P. LANDGUTH
Daniel P. Landguth,
Chairman and Chief Executive Officer
Each individual whose signature appears below constitutes and appoints
Daniel P. Landguth, Mark T. Thies and Roxann R. Basham, and each of them
severally, as his true and lawful attorneys-in-fact and agents with full power
of substitution, to sign in his or her name and behalf, in any and all
capacities stated below, and to file with the Securities and Exchange
Commission, any and all amendments, to this Registration Statement, and the
Registrant hereby also appoints each such agent as its attorney-in-fact with the
authority to sign and file any such amendments in its name and behalf.
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 June 18, 2001
Daniel P. Landguth, Officer and Director
Chairman and Chief Executive
/s/ MARK T. THIES Principal Financial Officer June 18, 2001
Mark T. Thies,
Senior Vice President
and Chief Financial Officer
/s/ ROXANN R. BASHAM Principal Accounting Officer June 18, 2001
Roxann R. Basham,
Vice President-Controller
/s/ BRUCE B. BRUNDAGE Director June 18, 2001
Bruce B. Brundage
/s/ DAVID C. EBERTZ Director June 18, 2001
David C. Ebertz
/s/ GERALD R. FORSYTHE Director June 18, 2001
Gerald R. Forsythe
/s/ JOHN R. HOWARD Director June 18, 2001
John R. Howard
/s/ EVERETT E. HOYT Director June 18, 2001
Everett E. Hoyt
/s/ KAY S. JORGENSEN Director June 18, 2001
Kay S. Jorgensen
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/s/ THOMAS J. ZELLER Director June 18, 2001
Thomas J. Zeller
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EXHIBIT 5
Black Hills Corporation
Steven J. Helmers 625 Ninth Street - P.O. Box 1400
General Counsel & Rapid City, SD 57709-1400
Corporate Secretary Telephone: (605) 721-2303
E-mail: shelmers@bh-corp.com Fax: (605) 721-2550
June 18, 2001
Board of Directors of
Black Hills Corporation
P.O. Box 1400
Rapid City, SD 57709-1400
Re: Opinion of Counsel
1,200,000 Shares of Common Stock of Black Hills Corporation under the
Omnibus Incentive Compensation Plan
With respect to the Registration Statement on Form S-8 (the
"Registration Statement") of Black Hills Corporation (the "Company"), relating
to the issuance of up to 1,200,000 shares of Common Stock of the par value $1.00
per share (the "Shares") of the Company in connection with the Black Hills
Corporation Omnibus Incentive Compensation Plan (the "Plan"), as described in
the Registration Statement, I wish to advise you as follows:
I am 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.
I am 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.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ Steven J. Helmers
Steven J. Helmers
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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 26, 2001
included in Black Hills Corporation's Form 10-K for the year ended December 31,
2000 and to all references to our Firm included in this registration statement.
Arthur Andersen LLP
Minneapolis, Minnesota,
June 18, 2001