Exhibit 5.1

 

Opinion of Brian G. Iverson

 

June 16, 2023

 

Black Hills Corporation

7001 Mount Rushmore Road

Rapid City, South Dakota 57702

 

Re:         Registration Statement on Form S-3 of Black Hills Corporation

 

Gentlemen:

 

I am Senior Vice President and General Counsel of Black Hills Corporation, a South Dakota corporation (the “Company”), and I have acted as counsel for the Company in connection with the filing of a registration statement on Form S-3 (the “Registration Statement”), with the Securities and Exchange Commission (the “Commission”) on the date hereof under the Securities Act of 1933, as amended (the “Act”). The Registration Statement relates to the issuance and sale from time to time, pursuant to Rule 415 of the rules and regulations under the Act, of an indeterminate amount of securities of the Company, with such securities to include senior debt securities (the “Senior Debt Securities”), subordinated debt securities (the “Subordinated Debt Securities”), preferred stock (the “Preferred Stock”), fractional shares of Preferred Stock represented by depositary shares (the “Depositary Shares”), common stock (“Common Stock”), warrants for the purchase of debt or equity securities (the “Warrants”), purchase contracts for the purchase of debt or equity securities (the “Purchase Contracts”), and units consisting any combination of such securities (“Units” and, together with the Senior Debt Securities, Subordinated Debt Securities, Preferred Stock, Depositary Shares, Common Stock, Warrants, and Purchase Contracts, the “Securities”). The Securities may be offered separately or together with other Securities, in separate series, in amounts, at prices, and on terms to be set forth in the prospectus and one or more supplements to the prospectus constituting a part of the Registration Statement, and in the Registration Statement.

 

The Senior Debt Securities are to be issued from time to time under the indenture dated as of May 21, 2003 between the Company and Computershare Trust Company, N.A. (as current successor to LaSalle Bank National Association), as trustee, filed as Exhibit 4.3 to the Registration Statement (the “Senior Indenture”). The Subordinated Debt Securities are to be issued from time to time under the indenture dated as of November 23, 2015 between the Company and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as trustee, filed as Exhibit 4.15 to the Registration Statement (the “Subordinated Indenture”). Each series of Preferred Stock is to be issued from time to time under the Restated Articles of Incorporation, as amended, of the Company (the “Articles of Incorporation”) and one or more amendments to the Articles of Incorporation or statements of designations (each, a “Statement of Designations”) to be approved by the Board of Directors of the Company or a committee thereof and filed with the Office of the Secretary of State of the State of South Dakota in accordance with Part 6 of Chapter 47-1A of the South Dakota Business Corporation Act. The Depositary Shares are to be issued from time to time under one or more

 

 

Black Hills Corporation

June 16, 2023

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deposit agreements in a form to be filed and incorporated into the Registration Statement, with appropriate insertions (each, a “Deposit Agreement”). The Common Stock is to be issued from time to time under the Articles of Incorporation of the Company. The Warrants are to be issued from time to time under one or more warrant agreements substantially in the form filed as Exhibit 4.18 to the Registration Statement, with appropriate insertions (each, a “Warrant Agreement”). The Purchase Contracts are to be issued from time to time under one or more purchase contract agreements substantially in the form filed as Exhibit 4.19 to the Registration Statement, with appropriate insertions (each, a “Purchase Contract Agreement”). The Units are to be issued from time to time under one or more unit purchase agreements in a form to be filed and incorporated into the Registration Statement, with appropriate insertions (each, a “Unit Purchase Agreement” and, together with the Senior Indenture, the Subordinated Indenture, the Articles of Incorporation, each Statement of Designations, each Deposit Agreement, each Warrant Agreement, and each Purchase Contract Agreement, the “Governing Documents”).

 

As part of the corporate action taken and to be taken (the “Corporate Proceedings”) in connection with issuance of the Securities, the Board of Directors, a committee thereof or certain authorized officers of the Company as authorized by the Board of Directors will, before the Securities are issued under the Registration Statement, authorize the issuance and approve the terms of any Securities to be issued and sold from time to time under the Registration Statement in accordance with the terms of the applicable Governing Documents, within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities.

 

I have examined or am otherwise familiar with the Registration Statement, the Senior Indenture, the Subordinated Indenture, the form of Warrant Agreement, the form of Purchase Contract Agreement, the Corporate Proceedings that have occurred as of the date hereof, the Articles of Incorporation and the Amended and Restated Bylaws of the Company and such other documents, records and instruments as I have deemed necessary or appropriate for the purposes of the opinions set forth herein.

 

Based upon and subject to the foregoing and the limitations, qualifications, exceptions, and assumptions set forth herein, I am of the opinion that:

 

1.            With respect to Senior Debt Securities:

 

(a)            the Senior Indenture constitutes a valid and binding obligation of the Company;

 

(b)            upon (i) completion of all required Corporate Proceedings, and (ii) due authorization, execution, and delivery of a supplemental indenture in respect of such Senior Debt Securities, such supplemental indenture will constitute a valid and binding obligation of the Company; and

 

(c)            upon (i) completion of the actions in paragraph 1(b) above, (ii) due execution, issuance, and delivery of such Senior Debt Securities pursuant to the Senior

 

 

Black Hills Corporation

June 16, 2023

Page 3

 

Indenture and such supplemental indenture, and (iii) due authentication by the trustee and/or authenticating agent under the Senior Indenture and such supplemental indenture of such Senior Debt Securities, such Senior Debt Securities will be valid and binding obligations of the Company.

 

2.            With respect to Subordinated Debt Securities:

 

(a)            the Subordinated Indenture constitutes a valid and binding obligation of the Company;

 

(b)            upon (i) completion of all required Corporate Proceedings, and (ii) due authorization, execution, and delivery of a supplemental indenture in respect of such Subordinated Debt Securities, such supplemental indenture will constitute a valid and binding obligation of the Company; and

 

(c)            upon (i) completion of the actions in paragraph 2(b) above, (ii) due execution, issuance, and delivery of such Subordinated Debt Securities pursuant to the Subordinated Indenture and (if applicable) supplemental indenture, and (iii) due authentication by the trustee and/or authenticating agent under the Subordinated Indenture and such supplemental indenture of such Subordinated Debt Securities, such Subordinated Debt Securities will be valid and binding obligations of the Company.

 

3.            With respect to Preferred Stock, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, acknowledgement, delivery and filing with, and recording by, as applicable, an amendment to the Articles of Incorporation or a Statement of Designations with the Office of the Secretary of State of the State of South Dakota in respect of such Preferred Stock, and (iii) due execution, registration of issuance, and delivery of certificates representing such Preferred Stock, such Preferred Stock will be duly and validly issued, fully paid, and nonassessable.

 

4.            With respect to Depositary Shares, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery of a Deposit Agreement, (iii) due authorization, execution, acknowledgement, delivery and filing with, and recording by, as applicable, an amendment to the Articles of Incorporation or a Statement of Designations with the Office of the Secretary of State of the State of South Dakota in respect of the Preferred Stock represented by Depositary Shares, (iv) due execution, registration of issuance, and delivery of certificates representing such Preferred Stock to the depositary or custodian for deposit in accordance with the terms of such Deposit Agreement, and the recordation of such Preferred Stock on the books of the Company in the name of such depositary, custodian, or its nominee, and (v) due execution, registration of issuance, and delivery of depositary receipts evidencing such Depositary Shares pursuant to such Deposit Agreement, such Deposit Agreement will constitute a valid and binding obligation of the Company and the depositary receipts evidencing such Depositary Shares will be valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Deposit Agreement.

 

 

Black Hills Corporation

June 16, 2023

Page 4

 

5.            With respect to Common Stock, upon (i) completion of all required Corporate Proceedings and (ii) due execution, registration of issuance, and delivery of certificates representing such Common Stock, such Common Stock will be duly and validly issued, fully paid, and nonassessable.

 

6.            With respect to Warrants, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery of a Warrant Agreement, (iii) due execution, issuance, and delivery of warrant certificates evidencing such Warrants pursuant to such Warrant Agreement, countersigned by the warrant agent pursuant to such Warrant Agreement, and (iv) due authorization and reservation of the Securities issuable upon conversion, exchange, or exercise of such Warrants (within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities), such Warrant Agreement will constitute a valid and binding obligation of the Company and the warrant certificates evidencing such Warrants will be valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Warrant Agreement.

 

7.            With respect to Purchase Contracts, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery of a Purchase Contract Agreement, (iii) due execution, issuance, and delivery of certificates evidencing Purchase Contracts pursuant to such Purchase Contract Agreement, (iv) due authentication by the purchase contract agent under such Purchase Contract Agreement of such certificates evidencing such Purchase Contracts, and due execution of each certificate by the holder thereof or by the purchase contract agent as attorney-in-fact for such holder, and due authorization and reservation of the Securities issuable pursuant to such Purchase Contracts (within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities), such Purchase Contract Agreement will constitute a valid and binding obligation of the Company and the certificates evidencing such Purchase Contracts will be the valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Purchase Contract Agreement.

 

8.            With respect to Units, upon (i) completion of all required Corporate Proceedings, (ii) if such Units will be issued pursuant to a Unit Purchase Agreement, due authorization, execution, and delivery of such Unit Purchase Agreement, (iii) if such Units will be evidenced by certificates, due execution, issuance, and delivery of such certificates pursuant to such Unit Purchase Agreement, and (iv) due authorization, execution, registration of issuance, and delivery of the Securities comprising such Units (within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities), such Unit Purchase Agreement (if applicable) will constitute a valid and binding obligation of the Company and the certificates evidencing such Units (if applicable) will be the valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Unit Purchase Agreement.

 

The foregoing opinions are subject to the limitation that the validity, binding effect, or enforceability of the provisions of any agreement or instrument is limited by (i) applicable bankruptcy, insolvency, reorganization, assignment for the benefit of creditors, moratorium,

 

 

Black Hills Corporation

June 16, 2023

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fraudulent conveyance, fraudulent transfer, voidable transaction, receivership, and other laws of general application affecting the enforcement of creditors’ rights, (ii) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith, fair dealing, and the possible unavailability of specific performance, injunctive relief, or other equitable remedies, whether considered in a proceeding at law or in equity, (iii) public policy considerations that may limit the rights of parties to obtain specific remedies or enforce specific terms, and (iv) governmental authority to limit, delay or prohibit the making of payments outside the United States.

 

The foregoing opinions assume that (a) the Registration Statement and any amendments relating thereto shall have become effective under the Act and will continue to be effective, (b) the Company will remain duly organized, validly existing, and in good standing under the laws of the State of South Dakota, (c) at the time of the authentication and/or delivery of Securities, the Corporate Proceedings related thereto will have been taken and will not have been modified or rescinded, there will not have occurred any change in the law affecting the authorization, execution, delivery, validity, or enforceability of such Securities or Governing Documents, none of the particular terms of such Securities or Governing Documents will violate any applicable law, and neither the issuance and sale of such Securities nor the compliance by the Company with the terms of such Securities or the Governing Documents will result in a violation of any issuance limit in the Corporate Proceedings, any agreement or instrument then binding upon the Company, or any order of any court or governmental body having jurisdiction over the Company, (d) the consideration designated in the applicable Corporate Proceedings for any Securities shall have been received by the Company in accordance with applicable law, (e) the Governing Documents (other than the Senior Indenture and the Subordinated Indenture) and Securities shall have been duly authorized, executed, and delivered by all parties thereto (including the Company), and each such party shall have complied with all legal requirements pertaining to its status as such status relates to the right to enforce such agreements or instruments against it and shall have satisfied those legal requirements applicable to it to the extent necessary to make such agreements or instruments enforceable against it, (f) the Senior Indenture and the Subordinated Indenture shall have been qualified under the Trust Indenture Act of 1939, as amended, (g) the terms of the Securities will be established in conformity with the applicable Governing Documents and so as to not violate or be void under applicable law, (h) a prospectus supplement describing each class or series of Securities offered pursuant to the Registration Statement, to the extent required by applicable law, will be timely filed with the Commission, and (i) any Securities issuable upon conversion, exchange, or exercise of any of the other Securities will have been duly authorized and reserved for issuance (in each case, within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities), and duly executed and delivered and validly issued, as the case may be.

 

I have relied as to certain relevant facts upon certificates of public officials as to the accuracy of such factual matters, without independent verification thereof or other investigation. I have assumed, without investigation, the following: (a) each document submitted to me for review is accurate and complete, each such document that is an original is authentic, each such

 

 

Black Hills Corporation

June 16, 2023

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document that is a copy conforms to an authentic original, and all signatures on each such document are genuine, and (b) the legal capacity of natural persons who are involved on behalf of the Company to enter into and perform the referenced instrument or agreement or to carry out their role in it.

 

Without limiting any other qualifications set forth herein, the opinions expressed herein are subject to the effect of generally applicable laws that may limit the enforceability of provisions imposing increased interest rates or late payment charges upon delinquency in payment or default or providing for liquidated damages or for premiums upon acceleration.

 

My opinions set forth herein are limited to the laws of the States of South Dakota and New York and the federal laws of the United States of America, and I express no opinion as to the effect of any other laws. Certain of the Governing Documents and Securities purport, or will purport, as applicable, to be governed by the laws of the State of New York. To the extent the opinions set forth herein relate to the laws of the State of New York, I have relied, with their permission, as to all matters of New York law on the opinions of Faegre Drinker Biddle & Reath LLP dated the date hereof, which is filed herewith as Exhibit 5.2 to the Registration Statement.

 

This opinion is rendered as of the date first written above and is expressly limited to the matters set forth above, and I render no opinion, whether by implication or otherwise, as to any other matters relating to the Company or the Securities.

 

*         *         *

 

 

Black Hills Corporation

June 16, 2023

Page 7

 

I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to being named in the Registration Statement under the caption “Legal Opinions” with respect to the matters stated therein without implying or admitting that I am an “expert” within the meaning of the Act, or other rules and regulations of the Commission issued thereunder with respect to any part of the Registration Statement, including this exhibit.

 

	Very truly yours,
	/s/ Brian G. Iverson
	Brian G. Iverson, Senior Vice President and General Counsel

 

 

 

Exhibit 5.2

 

 

 

	Faegre Drinker Biddle & Reath LLP
	2200 Wells Fargo Center
	90 South Seventh Street
	Minneapolis, Minnesota 55402
	+1 612 766 7000 main
	+1 612 766 1600 fax

 

June 16, 2023

 

Brian G. Iverson

Senior Vice President and General Counsel

Black Hills Corporation

7001 Mount Rushmore Road

Rapid City, South Dakota 57702

 

Re:         Registration Statement on Form S-3 of Black Hills Corporation

 

Dear Mr. Iverson:

 

You are acting as counsel in connection with a Registration Statement on Form S-3 (the “Registration Statement”) to be filed by Black Hills Corporation, a South Dakota corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) on the date hereof under the Securities Act of 1933, as amended (the “Act”). As such counsel, you are furnishing an opinion in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act. In connection with such opinion, you have asked us to opine with respect to certain matters under New York law.

 

The Registration Statement relates to the issuance and sale from time to time, pursuant to Rule 415 of the rules and regulations under the Act, of an indeterminate amount of securities of the Company, with such securities to include, among others, senior debt securities (the “Senior Debt Securities”), subordinated debt securities (the “Subordinated Debt Securities”), fractional shares of preferred stock represented by depositary shares (the “Depositary Shares”), warrants for the purchase of debt or equity securities (the “Warrants”), purchase contracts for the purchase of debt or equity securities (the “Purchase Contracts”), and units consisting of one or more debt securities, equity securities, Warrants, Purchase Contracts, or any combination of such securities (“Units” and, together with the Senior Debt Securities, Subordinated Debt Securities, Depositary Shares, Warrants, and Purchase Contracts, the “Securities”). The Securities may be offered separately or together with other Securities, in one or more series, and in amounts, at prices and on terms to be set forth in the prospectus and one or more supplements to the prospectus constituting a part of the Registration Statement, and in the Registration Statement.

 

The Senior Debt Securities are to be issued from time to time under the indenture dated as of May 21, 2003 between the Company and Computershare Trust Company, N.A. (as current successor to LaSalle Bank National Association), as trustee (the “Senior Trustee”), filed as Exhibit 4.3 to the Registration Statement (the “Senior Indenture”). The Subordinated Debt Securities are to be issued from time to time under the indenture dated as of November 23, 2015

 

 

Brian G. Iverson, Esq.

June 16, 2023

Page 2

 

between the Company and U.S. Bank National Association, as trustee (the “Subordinated Trustee”), filed as Exhibit 4.15 to the Registration Statement (the “Subordinated Indenture”). The Depositary Shares are to be issued from time to time under one or more deposit agreements in a form to be filed and incorporated into the Registration Statement, with appropriate insertions (each, a “Deposit Agreement”). The Warrants are to be issued from time to time under one or more warrant agreements substantially in the form filed as Exhibit 4.18 to the Registration Statement, with appropriate insertions (each, a “Warrant Agreement”). The Purchase Contracts are to be issued from time to time under one or more purchase contract agreements substantially in the form filed as Exhibit 4.19 to the Registration Statement, with appropriate insertions (each, a “Purchase Contract Agreement”). The Units are to be issued from time to time under one or more unit purchase agreements in a form to be filed and incorporated into the Registration Statement, with appropriate insertions (each, a “Unit Purchase Agreement” and, together with the Senior Indenture, the Subordinated Indenture, any supplemental indentures to the Senior Indenture or the Subordinated Indenture, each Deposit Agreement, each Warrant Agreement, and each Purchase Contract Agreement, the “Governing Documents”).

 

As part of the corporate action taken and to be taken (the “Corporate Proceedings”) in connection with issuance of the Securities, the Board of Directors of the Company, a committee thereof or certain officers of the Company to whom such authority has been properly delegated by the Board of Directors will be required to, before the Securities are issued under the Registration Statement, duly authorize the issuance and approve the terms of any Securities to be issued and sold from time to time under the Registration Statement in accordance with the terms of the applicable Governing Documents, and within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities.

 

We have examined or are otherwise familiar with the Registration Statement, the Senior Indenture, the Subordinated Indenture, the form of Warrant Agreement, the form of Purchase Contract Agreement, and such other documents, records and instruments as we have deemed necessary or appropriate for the purposes of the opinions set forth herein.

 

Based upon and subject to the foregoing and the limitations, qualifications, exceptions, and assumptions set forth herein, we are of the opinion that:

 

1.            With respect to Senior Debt Securities:

 

(a)            the Senior Indenture constitutes a valid and binding obligation of the Company;

 

(b)            upon (i) completion of all required Corporate Proceedings, and (ii) due authorization, execution, and delivery of a supplemental indenture by the Company and the Senior Trustee in respect of such Senior Debt Securities, such supplemental indenture will constitute a valid and binding obligation of the Company; and

 

 

Brian G. Iverson, Esq.

June 16, 2023

Page 3

 

(c)            upon (i) completion of the actions in paragraph 1(b) above, (ii) due execution, issuance, and delivery by the Company of such Senior Debt Securities pursuant to the Senior Indenture and such supplemental indenture, (iii) due authentication by the Senior Trustee and/or authenticating agent under the Senior Indenture and such supplemental indenture of such Senior Debt Securities, and (iv) in the case of Senior Debt Securities issuable upon conversion, exercise or settlement of, or constituting a component of, any other Securities, completion of all actions in respect of such other Securities referred to in the applicable paragraph hereof, such Senior Debt Securities will be valid and binding obligations of the Company.

 

2.            With respect to Subordinated Debt Securities:

 

(a)            the Subordinated Indenture constitutes a valid and binding obligation of the Company;

 

(b)            upon (i) completion of all required Corporate Proceedings, and (ii) due authorization, execution, and delivery of a supplemental indenture by the Company and the Subordinated Trustee in respect of such Subordinated Debt Securities, such supplemental indenture will constitute a valid and binding obligation of the Company; and

 

(c)            upon (i) completion of the actions in paragraph 2(b) above, (ii) due execution, issuance, and delivery by the Company of such Subordinated Debt Securities pursuant to the Subordinated Indenture and such supplemental indenture, (iii) due authentication by the Subordinated Trustee and/or authenticating agent under the Subordinated Indenture and such supplemental indenture of such Subordinated Debt Securities, and (iv) in the case of Subordinated Debt Securities issuable upon conversion, exercise or settlement of, or constituting a component of, any other Securities, completion of all actions in respect of such other Securities referred to in the applicable paragraph hereof, such Subordinated Debt Securities will be valid and binding obligations of the Company.

 

3.            With respect to Depositary Shares, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery by the Company and the depositary or custodian for deposit of a Deposit Agreement, (iii) due authorization, execution, acknowledgement, delivery and filing with, and recording by, as applicable, an amendment to the Articles of Incorporation of the Company or a statement of designations with the Office of the Secretary of State of the State of South Dakota in respect of the preferred stock of the Company represented by Depositary Shares, (iv) due authorization and issuance of such preferred stock (within the limits of the then remaining authorized but unreserved or unissued amounts of preferred stock), (v) due execution, registration of issuance, and delivery of certificates representing such preferred stock to the depositary or custodian for deposit in accordance with the terms of such Deposit Agreement, and the recordation of such preferred stock on the books of the Company in the name of such depositary, custodian, or its nominee, and (vi) due execution, registration of issuance, and delivery of depositary receipts evidencing such Depositary Shares pursuant to such

 

Brian G. Iverson, Esq.

June 16, 2023

Page 4

 

Deposit Agreement, such Deposit Agreement will constitute a valid and binding obligation of the Company and the depositary receipts evidencing such Depositary Shares will be valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Deposit Agreement.

 

4.            With respect to Warrants, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery by the Company and the warrant agent of a Warrant Agreement, (iii) due execution, registration of issuance, and delivery of warrant certificates evidencing such Warrants pursuant to such Warrant Agreement, countersigned by the warrant agent pursuant to such Warrant Agreement, (iv) due authorization and reservation of the securities issuable upon conversion, exchange, or exercise of such Warrants (within the limits of the then remaining authorized but unreserved and unissued amounts of such securities), and (v) in the case of Warrants issuable upon conversion, exercise or settlement of, or constituting a component of, any other Securities, completion of all actions in respect of such other Securities referred to in the applicable paragraph hereof, such Warrant Agreement will constitute a valid and binding obligation of the Company and the warrant certificates evidencing such Warrants will be valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Warrant Agreement.

 

5.            With respect to Purchase Contracts, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery by the Company and the purchase contract agent of a Purchase Contract Agreement, (iii) due execution, registration of issuance, and delivery of certificates evidencing such Purchase Contracts pursuant to such Purchase Contract Agreement, (iv) due authentication by the purchase contract agent under such Purchase Contract Agreement of such certificates evidencing such Purchase Contracts, and due execution of each certificate by the holder thereof or by the purchase contract agent as attorney-in-fact for such holder, (v) due authorization and reservation of the securities issuable pursuant to such Purchase Contracts (within the limits of the then remaining authorized but unreserved and unissued amounts of such securities), and (vi) in the case of Purchase Contracts issuable upon conversion, exercise or settlement of, or constituting a component of, any other Securities, completion of all actions in respect of such other Securities referred to in the applicable paragraph hereof, such Purchase Contract Agreement will constitute a valid and binding obligation of the Company and the certificates evidencing such Purchase Contracts will be the valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Purchase Contract Agreement.

 

6.            With respect to Units, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery by the Company and the unit purchase agent of a Unit Purchase Agreement, (iii) if such Units will be evidenced by certificates, due execution, issuance, and delivery of such certificates pursuant to such Unit Purchase Agreement, and (iv) due authorization, execution, issuance, and delivery of the securities comprising such Units (within the limits of the then remaining authorized but unreserved and unissued amounts of such securities), such Unit Purchase Agreement will constitute a valid and binding obligation of the Company and the certificates evidencing such Units (if applicable) will be the valid and binding obligations of

 

 

Brian G. Iverson, Esq.

June 16, 2023

Page 5

 

the Company and will entitle the holders thereof to the rights specified in such Unit Purchase Agreement.

 

The foregoing opinions are subject to the limitation that the validity, binding effect, or enforceability of the provisions of any agreement or instrument is limited by (i) applicable bankruptcy, insolvency, reorganization, assignment for the benefit of creditors, moratorium, fraudulent conveyance, fraudulent transfer, voidable transaction, receivership, and other laws of general application affecting the enforcement of creditors’ rights, (ii) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith, fair dealing, and the possible unavailability of specific performance, injunctive relief, or other equitable remedies, whether considered in a proceeding at law or in equity, (iii) public policy considerations that may limit the rights of parties to obtain specific remedies or enforce specific terms, and (iv) governmental authority to limit, delay or prohibit the making of payments outside the United States.

 

The foregoing opinions assume that (a) the Registration Statement and any amendments relating thereto shall have become effective under the Act and will continue to be effective, (b) the Company is and will remain duly organized, validly existing, and in good standing under the laws of the State of South Dakota, (c) the Company has had and will have the power and authority under its organizational documents and the laws of its jurisdiction of incorporation to authorize, execute and deliver any relevant documents and to issue and deliver any Securities, (d) at the time of the issuance, execution, authentication acknowledgement and/or delivery of any Securities or Governing Documents, the Corporate Proceedings related thereto will have been validly taken and will not have been modified or rescinded, there will not have occurred any change in the law affecting the authorization, issuance, execution, authentication, acknowledgement, delivery, filing, validity, or enforceability of such Securities or Governing Documents, none of the particular terms of such Securities or Governing Documents will violate or be void or voidable under any applicable law, the issuance of such Securities will not result in a violation of any issuance limit in the Corporate Proceedings, and neither the authorization, issuance, execution, authentication, acknowledgement, delivery, filing validity, or enforceability of such Securities nor the compliance by the Company with the terms of such Securities or the Governing Documents will result in a violation of any issuance limit in the Corporate Proceedings, any agreement or instrument then binding upon the Company, or any order of any court or governmental body having jurisdiction over the Company, (e) the consideration designated in the applicable Corporate Proceedings and any relevant agreements for any Securities shall have been received by the Company and such consideration shall be legally sufficient, (f) the Governing Documents and Securities shall have been duly authorized, executed, and delivered by the Company and each other party thereto, and each other party thereto shall have complied with all legal requirements pertaining to its status as such status relates to the right to enforce such agreements or instruments against it and shall have satisfied those legal requirements applicable to it to the extent necessary to make such agreements or instruments enforceable against it, (g) the terms of the Securities will be established in conformity with the applicable Governing Documents, (h) a prospectus supplement and any other offering material describing each class or series of Securities offered pursuant to the Registration Statement, to the extent required by applicable law, will be timely filed with the Commission,

 

 

Brian G. Iverson, Esq.

June 16, 2023

Page 6

 

(i) any securities issuable upon conversion, exchange, or exercise of any of the other Securities will have been duly authorized and reserved for issuance (in each case, within the limits of the then remaining authorized but unreserved and unissued amounts of such securities), and any issuance of such Securities will be effected in accordance with the terms and conditions set forth in such other Securities and the Governing Documents related thereto, and (j) any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities will be obtained.

 

We have relied as to certain relevant facts upon certificates of public officials and certificates of and information provided by officers and employees of the Company as to the accuracy of such factual matters, in each case without independent verification thereof or other investigation. We have assumed, without investigation, the following: (a) the genuineness of signatures appearing upon certifications, documents, and proceedings, (b) each document submitted to us for review is accurate and complete, each such document that is an original is authentic and each such document that is a copy conforms to an authentic original, (c) the legal capacity of natural persons who are involved on behalf of the Company to enter into and perform the referenced instrument or agreement or to carry out their role in it, (d) the truth, accuracy and completeness of the information, representations and warranties contained in the documents, instruments, certificates and records we have reviewed, (e) the absence of any undisclosed modifications to the agreements and instruments reviewed by us, and (f) that New York law has or will be chosen to govern each Governing Document and the Securities and/or certificates evidencing such Securities described in the foregoing opinions.

 

Without limiting any other qualifications set forth herein, the opinions expressed herein are subject to the effect of generally applicable laws that (a) provide for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver, (b) limit the enforcement of provisions of instruments or agreements that purport to require waiver of the obligations of good faith, fair dealing, diligence and reasonableness, (c) limit the availability of a remedy under certain circumstances where another remedy has been elected, (d) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of or contribution to a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct or unlawful conduct or insofar as such provisions otherwise contravene public policy, (e) may, where less than all of an instrument or agreement may be unenforceable, limit the enforceability of the balance of the instrument or agreement to circumstances in which the unenforceable portion is not an essential part of the agreed exchange, (f) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs, (g) may permit a party who has materially failed to render or offer performance required by a contract to cure that failure unless either permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance or it is important under the circumstances to the aggrieved party that performance occur by the date stated in the instrument or agreement, (h) may require mitigation of damages, (i) may limit the enforceability of certain waivers, and (j) provide a time limitation after which a remedy may not be enforced (i.e., statutes of limitation).

 

 

Brian G. Iverson, Esq.

June 16, 2023

Page 7

 

We express no opinion as to (i) whether a court would award a judgment in a currency other than United States dollars or as to the enforceability of any provision specifying rates of exchange for, or requiring indemnity against loss in, converting into a specified currency the proceeds or amount of a court judgment in another currency, (ii) any agreement to submit to the jurisdiction of any particular court or other governmental authority (either as to personal jurisdiction or subject matter jurisdiction), any waivers of the right to jury trial, any waivers of service of process requirements that would otherwise be applicable, any agreement that a judgment rendered by a court in one jurisdiction may be enforced in another jurisdiction, or any provision otherwise affecting the jurisdiction or venue of courts, or (iii) any provision waiving legal, statutory or equitable defenses or other procedural, judicial or administrative rights.

 

Without limiting any other qualifications set forth herein, the opinions expressed herein are subject to the effect of generally applicable laws that may limit the enforceability of provisions imposing increased interest rates or late payment charges upon delinquency in payment or default or providing for liquidated damages or for premiums upon acceleration.

 

Our opinions set forth herein are limited to the laws of the State of New York.

 

This opinion is rendered as of the date first written above and is expressly limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Securities or the Governing Documents.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to being named in the Registration Statement under the caption “Legal Opinions” with respect to the matters stated therein without implying or admitting that we are “experts” within the meaning of the Act, or other rules and regulations of the Commission issued thereunder with respect to any part of the Registration Statement, including this exhibit.

 

	Very truly yours,
	FAEGRE DRINKER BIDDLE & REATH LLP
	By:	/s/ Brandon C. Mason
		Brandon C. Mason, Partner

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated February 14, 2023 relating to the financial statements of Black Hills Corporation and the effectiveness of Black Hills Corporation's internal control over financial reporting, appearing in the Annual Report on Form 10-K of Black Hills Corporation for the year ended December 31, 2022. We also consent to the reference to us under the heading "Experts" in such Registration Statement.

 

/s/ DELOITTE & TOUCHE LLP

 

Minneapolis, Minnesota

June 16, 2023

 

 

 

Exhibit 25.1

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM T-1

STATEMENT OF ELIGIBILITY

UNDER THE TRUST INDENTURE ACT OF 1939 OF A

CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A

TRUSTEE PURSUANT TO SECTION 305(b)(2)  ¨

 

 

Computershare Trust Company, National Association

(Exact name of trustee as specified in its charter)

 

National Banking Association (Jurisdiction of incorporation or organization if not a U.S. national bank)	04-3401714 (I.R.S. Employer Identification Number)
150 Royall Street, Canton, MA (Address of principal executive offices)	02021 (Zip Code)
Law Department Computershare Trust Company, National Association 150 Royall Street, Canton, MA 02021 (781) 575-2000 (Name, address and telephone number of agent for service)

 

 

Black Hills Corporation

(Exact name of obligor as specified in its charter)

 

South Dakota (State or other jurisdiction of incorporation or organization)	46-0458824 (I.R.S. Employer Identification Number)
7001 Mount Rushmore Road Rapid City, South Dakota (Address of principal executive offices)	57702 (Zip Code)

 

 

Senior Debt Securities

(Title of the indenture securities)

 

 

 

Item 1.

General Information. Furnish the following information as to the trustee:

 

(a)

Name and address of each examining or supervising authority to which it is subject.

 

Comptroller of the Currency

340 Madison Avenue, 4^th Floor

New York, NY 10017-2613

 

(b)

Whether it is authorized to exercise corporate trust powers.

 

The trustee is authorized to exercise corporate trust powers.

 

Item 2.

Affiliations with the obligor. If the obligor is an affiliate of the trustee, describe such affiliation.

 

None.

 

Items 3-15.

No responses are included for Items 3-15 of this Form T-1 because, to the best of the Trustee’s knowledge, neither the obligor nor any guarantor is in default under any Indenture for which the Trustee acts as Trustee and the Trustee is not a foreign trustee as provided under Item 15.

 

Item 16.

List of exhibits. List below all exhibits filed as a part of this statement of eligibility.

 

1.            A copy of the articles of association of the trustee. (See Exhibit 1 to Form T-1 filed with Registration Statement No. 333-200089).

 

2.            A copy of the certificate of authority of the trustee to commence business.

 

3.            A copy of the Comptroller of the Currency Certification of Fiduciary Powers for Computershare Trust Company, National Association.

 

4.            A copy of the existing bylaws of the trustee, as now in effect. (See Exhibit 4 to Form T-1 filed with Registration Statement No. 333-200089).

 

5.            Not applicable

 

6.            The consent of the Trustee required by Section 321(b) of the Act.

 

7.            A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.

 

8.            Not applicable

 

9.            Not applicable

 

 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee, Computershare Trust Company, National Association, a national banking association, organized and existing under the laws of the United States, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of St. Paul, and State of Minnesota, on the 15th day of June, 2023.

 

	COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION
	By:	/s/ Scott Little
		Name: Scott Little
		Title: Vice President

 

 

EXHIBIT 2

 

A copy of the Comptroller of the Currency Certificate of Corporate Existence for Computershare Trust Company, National Association, dated May 1, 2023.

 

 

 

 

EXHIBIT 3

 

A copy of the Comptroller of the Currency Certification of Fiduciary Powers for Computershare Trust Company, National Association, dated May 1, 2023.

 

 

 

 

EXHIBIT 6

 

CONSENT OF THE TRUSTEE

 

Pursuant to the requirements of Section 321 (b) of the Trust Indenture Act of 1939, and in connection with the proposed issue of debt securities, Computershare Trust Company, National Association hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefore.

 

	COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION
	By:	/s/ Scott Little
		Title: Vice President
June 15, 2023

 

 

EXHIBIT 7

 

 Consolidated Report of Condition of

 

Computershare TRUST COMPANY, NATIONAL ASSOCIATION

 

150 Royall Street, Canton, MA 02021

at the close of business December 31, 2022.

 

		Dollar Amounts In Thousands
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin			3,297
Interest-bearing balances			354,504
Securities:
Held-to-maturity securities			-0-
Available-for-sale securities			-0-
Federal funds sold and securities purchased under agreements to resell:
Federal funds sold in domestic offices			-0-
Securities purchased under agreements to resell			-0-
Loans and lease financing receivables:
Loans and leases held for sale			-0-
Loans and leases, net of unearned income			-0-
LESS: Allowance for loan and lease losses			-0-
Loans and leases, net of unearned income and allowance			-0-
Trading assets			-0-
Premises and fixed assets (including capitalized leases)			7,524
Other real estate owned			-0-
Investments in unconsolidated subsidiaries and associated companies			-0-
Direct and indirect investments in real estate ventures			-0-
Intangible assets:
Goodwill			671,815
Other intangible assets			-0-
Other assets			139,364
Total assets			1,176,504

 

 

LIABILITIES
Deposits:
In domestic offices			-0-
Noninterest-bearing			-0-
Interest-bearing			-0-
Federal funds purchased and securities sold under agreements to repurchase:
Federal funds purchased in domestic offices			-0-
Securities sold under agreements to repurchase			-0-
Trading liabilities			-0-
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases)			-0-
Not applicable
Not applicable
Subordinated notes and debentures			-0-
Other liabilities			184,765
Total liabilities			184,765
EQUITY CAPITAL
Perpetual preferred stock and related surplus			0
Common stock			500
Surplus (exclude all surplus related to preferred stock)			827,224
Retained earnings			164,015
Accumulated other comprehensive income			-0-
Other equity capital components			-0-
Total bank equity capital			991,739
Noncontrolling (minority) interests in consolidated subsidiaries			-0-
Total equity capital			991,739
Total liabilities and equity capital			1,176,504

 

 

I, Robert G. Marshall, Assistant Controller of the above named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.

 

	Robert G. Marshall
	Assistant Controller

 

 

 

Exhibit 25.2

 

 

securities and exchange commission

Washington, D.C. 20549

 

 

FORM T-1

 

Statement of Eligibility Under

The Trust Indenture Act of 1939 of a

Corporation Designated to Act as Trustee

Check if an Application to Determine Eligibility of

a Trustee Pursuant to Section 305(b)(2) ¨

 

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION

(Exact name of Trustee as specified in its charter)

 

91-1821036

I.R.S. Employer Identification No.

 

800 Nicollet Mall Minneapolis, Minnesota	55402
(Address of principal executive offices)	(Zip Code)

 

Joshua A. Hahn

U.S. Bank Trust Company, National Association

60 Livingston Avenue

St. Paul, MN 55107

(651) 466-6309

(Name, address and telephone number of agent for service)

 

Black Hills Corporation

(Issuer with respect to the Securities)

South Dakota	46-0458824
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

 

7001 Mount Rushmore Road Rapid City, South Dakota	57702
(Address of Principal Executive Offices)	(Zip Code)

 

Debt Securities

(Title of the Indenture Securities)

 

 

 

FORM T-1

 

Item 1.

GENERAL INFORMATION. Furnish the following information as to the Trustee.

 

a)

Name and address of each examining or supervising authority to which it is subject.

Comptroller of the Currency

Washington, D.C.

 

b)

Whether it is authorized to exercise corporate trust powers.

Yes

 

Item 2.

AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.

None

 

Items 3-15

Items 3-15 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.

 

Item 16.

LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.

 

1.

A copy of the Articles of Association of the Trustee, attached as Exhibit 1.

 

2.

A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2.

 

3.

A copy of the authorization of the Trustee to exercise corporate trust powers, attached as Exhibit 2.

 

4.

A copy of the existing bylaws of the Trustee, attached as Exhibit 3.

 

5.

A copy of each Indenture referred to in Item 4. Not applicable.

 

6.

The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 4.

 

7.

Report of Condition of the Trustee as of March 31, 2023, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 5.

 

 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of St. Paul, State of Minnesota on the 25th of May, 2023.

 

By:		/s/ Joshua A. Hahn
		Joshua A. Hahn
		Vice President

 

 

Exhibit 1

 

ARTICLES OF ASSOCIATION

OF

U. S. BANK TRUST COMPANY, NATIONAL ASSOCIATION

 

For the purpose of organizing an association (the “Association”) to perform any lawful activities of national banks, the undersigned enter into the following Articles of Association:

 

FIRST. The title of this Association shall be U. S. Bank Trust Company, National Association.

 

SECOND. The main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The business of the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association may not expand or alter its business beyond that stated in this article without the prior approval of the Comptroller of the Currency.

 

THIRD. The board of directors of the Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the Association or of a holding company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either (i) the date of purchase, (ii) the date the person became a director, or (iii) the date of that person's most recent election to the board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company may be used.

 

Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the number of directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the expiration of a director's term, the director shall continue to serve until his or her successor is elected and qualified or until there is a decrease in the number of directors and his or her position is eliminated.

 

Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of the Association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determined the number of directors of the Association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.

 

FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the Bylaws, or if that day falls on a legal holiday in the state in which the

 

 

Association is located, on the next following banking day. If no election is held on the day fixed or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’ advance notice of the meeting shall be given to the shareholders by first-class mail.

 

In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.

 

A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.

 

A director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose or one of the purposes is to remove him or her is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect him or her under cumulative voting is voted against his or her removal.

 

FIFTH. The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of the par value of ten dollars ($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States. The Association shall have only one class of capital stock.

 

No holder of shares of the capital stock of any class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association, whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix.

 

Transfers of the Association's stock are subject to the prior written approval of a federal depository institution regulatory agency. If no other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.

 

Unless otherwise specified in the Articles of Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of Association must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.

 

 

Unless otherwise specified in the Articles of Association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.

 

Unless otherwise provided in the Bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.

 

The Association, at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders. Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.

 

SIXTH. The board of directors shall appoint one of its members president of this Association and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors' and shareholders' meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance with the Bylaws.

 

The board of directors shall have the power to:

 

(1)

Define the duties of the officers, employees, and agents of the Association.

 

(2)

Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the Association.

 

(3)

Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law.

 

(4)

Dismiss officers and employees.

 

(5)

Require bonds from officers and employees and to fix the penalty thereof.

 

(6)

Ratify written policies authorized by the Association's management or committees of the board.

 

(7)

Regulate the manner any increase or decrease of the capital of the Association shall be made; provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital.

 

 

(8)

Manage and administer the business and affairs of the Association.

 

(9)

Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs of the Association.

 

(10)

Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders.

 

(11)

Make contracts.

 

(12)

Generally perform all acts that are legal for a board of directors to perform.

 

SEVENTH. The board of directors shall have the power to change the location of the main office to any authorized branch within the limits of the city of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of the Association for a location outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits. The board of directors shall have the power to establish or change the location of any office or offices of the Association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.

 

EIGHTH. The corporate existence of this Association shall continue until termination according to the laws of the United States.

 

NINTH. The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock of the Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the United States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to each shareholder of record at his/her address as shown upon the books of the Association. Unless otherwise provided by the Bylaws, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.

 

TENTH. These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association's activities and services may not be expanded without the prior written approval of the Comptroller of the Currency. The Association's board of directors may propose one or more amendments to the Articles of Association for submission to the shareholders.

 

 

In witness whereof, we have hereunto set our hands this 11^th of June, 1997.

 

/s/ Jeffrey T. Grubb
Jeffrey T. Grubb
/s/ Robert D. Sznewajs
Robert D. Sznewajs
/s/ Dwight V. Board
Dwight V. Board
/s/ P. K. Chatterjee
P. K. Chatterjee
/s/ Robert Lane
Robert Lane

 

 

Exhibit 2

 

 

 

Exhibit 3

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION

 

AMENDED AND RESTATED BYLAWS

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1. Annual Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business, shall be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less than ten (10) days or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the Comptroller of the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made on the designated day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to hold an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work a forfeiture or dissolution of the Association.

 

Section 1.2. Special Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders owning at least ten percent of the outstanding stock. Every such special meeting, unless otherwise provided by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose of the meeting.

 

Section 1.3. Nominations for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.

 

Section 1.4. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting and any adjournments of such meeting and shall be filed with the records of the meeting.

 

Section 1.5. Record Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date of such meeting, unless otherwise determined by the Board.

 

Section 1.6. Quorum and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any

 

 

meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.

 

Section 1.7. Inspectors. The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at all annual and special meetings of shareholders.

 

Section 1.8. Waiver and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.

 

Section 1.9. Remote Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State of Delaware.

 

ARTICLE II

Directors

 

Section 2.1. Board of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.

 

Section 2.2. Term of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified, or until their earlier resignation or removal.

 

Section 2.3. Powers. In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles of Association, the Bylaws and by law.

 

Section 2.4. Number. As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than twenty-five members, unless the OCC has exempted the Association from the twenty-five- member limit. The Board shall consist of a number of members to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting thereof, in accordance with the Articles of Association. Between meetings of the shareholders held for the purpose of electing directors, the Board

 

 

by a majority vote of the full Board may increase the size of the Board but not to more than a total of twenty-five directors, and fill any vacancy so created in the Board; provided that the Board may increase the number of directors only by up to two directors, when the number of directors last elected by shareholders was fifteen or fewer, and by up to four directors, when the number of directors last elected by shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company that has control of the Association in each case as required by applicable law. Each director shall own such qualifying equity interest in his or her own right and meet any minimum threshold ownership required by applicable law.

 

Section 2.5. Organization Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time fixed for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.

 

Section 2.6. Regular Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.

 

Section 2.7. Special Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board or the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting of the Board shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting.

 

Section 2.8. Quorum and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of those directors present and voting shall be the act of the Board.

 

 

Section 2.9. Written Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.

 

Section 2.10. Remote Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.

 

Section 2.11. Vacancies. When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular meeting of the Board, or at a special meeting called for that purpose.

 

ARTICLE III

Committees

 

Section 3.1. Advisory Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board of directors established with respect to the business affairs of either this Association alone or the business affairs of a group of affiliated organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined by the Board, provided, that the Board's responsibility for the business and affairs of this Association shall in no respect be delegated or diminished.

 

Section 3.2. Trust Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits, the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).

 

The Audit Committee of the financial holding company that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:

 

 

(1)  Must not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s fiduciary activities; and

 

(2)  Must consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and control the fiduciary activities of the Association.

 

Section 3.3. Executive Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the Board is not meeting.

 

Section 3.4. Trust Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.

 

Section 3.5. Other Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or responsibilities that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any such committee shall at all times be subject to the direction and control of the Board.

 

Section 3.6. Meetings, Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of the advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken or recommendations made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory board of directors or a committee may, in consideration of

 

 

its purpose, adopt its own rules for the exercise of any of its functions or authority.

 

ARTICLE IV

Officers

 

Section 4.1. Chairman of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers, as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred upon or assigned by the Board.

 

Section 4.2. President. The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also have and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.

 

Section 4.3. Vice President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting of the Board in the absence of both the Chairman and President.

 

Section 4.4. Secretary. The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these Bylaws; and shall also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries with such powers and duties as the Board, the President or the Secretary shall from time to time determine.

 

Section 4.5. Other Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as from time to time may appear to the Board, the Chairman, the President or such other

 

 

officer to be required or desirable to transact the business of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other authorized officer. Any person may hold two offices.

 

Section 4.6. Tenure of Office. The Chairman or the President and all other officers shall hold office until their respective successors are elected and qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the Board or authorized officer to discharge any officer at any time.

 

ARTICLE V

Stock

 

Section 5.1. The Board may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such form as the Board may from time to time prescribe. If the Board issues certificated stock, the certificate shall be signed by the President, Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall, in proportion to such person's shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association for stock transfers, voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.

 

ARTICLE VI

Corporate Seal

 

Section 6.1. The Association shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any Assistant Secretary shall have the authority to affix such seal:

 

 

ARTICLE VII

Miscellaneous Provisions

 

Section 7.1. Execution of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers, endorsements, assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed, acknowledged, endorsed, verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association, or such employee or agent as may be designated from time to time by the Board by resolution, or by the Chairman or the President by written instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association. The provisions of this section are supplementary to any other provision of the Articles of Association or Bylaws.

 

Section 7.2. Records. The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders, the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.

 

Section 7.3. Trust Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities have been properly undertaken and discharged.

 

Section 7.4. Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and according to law. Where such instrument does not specify the character and class of investments to be made and does not vest in the Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under law.

 

Section 7.5. Notice. Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e- mail, in person, or by any other means by which such notice can reasonably be expected to be received, using the address of the person to receive such notice, or such other personal data, as may appear on the records of the Association. Except where specified otherwise in these Bylaws, prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice is given.

 

 

ARTICLE VIII

Indemnification

 

Section 8.1. The Association shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145 of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined at 12 U.S.C. § 1813(u).

 

Section 8.2. Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and (b) any indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be in accordance with Delaware General Corporation Law and consistent with safe and sound banking practices.

 

ARTICLE IX

Bylaws: Interpretation and Amendment

 

Section 9.1. These Bylaws shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed, at any regular or special meeting of the Board.

 

Section 9.2. A copy of the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be open for inspection to all shareholders during Association hours.

 

 

ARTICLE X

Miscellaneous Provisions

 

Section 10.1. Fiscal Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the thirty-first day of December following.

 

Section 10.2. Governing Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.

 

***

 

(February 8, 2021)

 

 

Exhibit 4

 

CONSENT

 

In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

 

Dated: May 25, 2023

 

By:		/s/ Joshua A. Hahn
		Joshua A. Hahn
		Vice President

 

 

Exhibit 5

 

U.S. Bank Trust Company, National Association

Statement of Financial Condition

as of 03/31/2023

 

($000’s)

 

		03/31/2023
Assets
Cash and Balances Due From Depository Institutions		$	839,082
Securities			4,425
Federal Funds			0
Loans & Lease Financing Receivables			0
Fixed Assets			1,939
Intangible Assets			580,455
Other Assets			126,317
Total Assets		$	1,552,218
Liabilities
Deposits		$	0
Fed Funds			0
Treasury Demand Notes			0
Trading Liabilities			0
Other Borrowed Money			0
Acceptances			0
Subordinated Notes and Debentures			0
Other Liabilities			95,562
Total Liabilities		$	95,562
Equity
Common and Preferred Stock			200
Surplus			1,171,635
Undivided Profits			284,821
Minority Interest in Subsidiaries			0
Total Equity Capital		$	1,456,656
Total Liabilities and Equity Capital		$	1,552,218

 

 

Exhibit 107

 

Calculation of Filing Fee Table

Form S-3

(Form Type)

 

Black Hills Corporation

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered and Carry Forward Securities

 

	Security Type	Security Class Title	Fee Calculation or Carry Forward Rule	Amount Registered	Proposed Maximum Offering Price Per Unit	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee	Carry Forward Form Type	Carry Forward File Number	Carry Forward Initial Effective Date	Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward
Newly Registered Securities
Fees to be Paid	Debt	Debt Securities (2)	Rule 456(b) and Rule 457(r)	(1)	(1)	(1)	(1)	(1)
Fees to be Paid	Equity	Preferred Stock	Rule 456(b) and Rule 457(r)	(1)	(1)	(1)	(1)	(1)
Fees to be Paid	Equity	Depositary Shares	Rule 456(b) and Rule 457(r)	(1)	(1)	(1)	(1)	(1)
Fees to be Paid	Equity	Common stock, par value $1.00	Rule 456(b) and Rule 457(r)	(1)	(1)	(1)	(1)	(1)
Fees to be Paid	Other	Warrants	Rule 456(b) and Rule 457(r)	(1)	(1)	(1)	(1)	(1)
Fees to be Paid	Other	Purchase Contracts	Rule 456(b) and Rule 457(r)	(1)	(1)	(1)	(1)	(1)
Fees to be Paid	Other	Units (3)	Rule 456(b) and Rule 457(r)	(1)	(1)	(1)	(1)	(1)
Fees Previously Paid	—	—	—	—	—	—		—
Carry Forward Securities
Carry Forward Securities	Equity	Common stock, par value $1.00	415(a)(6)	(4)		$139,935,431.03 (4)			S-3	333-240320	August 4, 2020	$18,163.62 (4)
	Total Offering Amount					(1)		(1)
	Total Fees Previously Paid							—
	Total Fee Offsets							—
	Net Fee Due							$0

 

 

(1)

An indeterminate aggregate initial offering price or number of securities of each identified class is being registered as may from time to time be offered at indeterminate prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, the Registrant is deferring payment of the registration fees.

 

(2)

The Debt Securities to be offered hereunder will consist of one or more series of Senior Debt Securities, Subordinated Debt Securities, Junior Subordinated Debt Securities, or any combination thereof.

 

(3)

Any securities registered hereunder may be sold separately or as units with other securities registered hereunder.

 

(4)

Pursuant to Rule 415(a)(6) under the Securities Act of 1933, this Registration Statement includes unsold securities originally registered under the Registrant’s Registration Statement on Form S-3 filed with the Securities and Exchange Commission on August 4, 2020 (Registration No. 333-240320), as follows: an aggregate amount of $139,935,431.03 of common stock issuable under the registrant’s at-the-market equity offering program. Also pursuant to Rule 415(a)(6), the offering of such unsold securities under the original registration statement is deemed terminated as of the date of effectiveness of this Registration Statement.