As filed with the Securities and Exchange Commission on February 11, 2000
Registration No. 333-30272
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
under
The Securities Act of 1933
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BLACK HILLS CORPORATION
(exact name of registrant as specified in its charter)
South Dakota 46-0458824
(State of Incorporation) (IRS Employer Identification No.)
625 Ninth Street, P.O. Box 1400
Rapid City, South Dakota 57709
(address of principal executive offices)
Registrant's telephone number, including
area code: (605) 721-1700
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BLACK HILLS CORPORATION'S SHORT-TERM ANNUAL INCENTIVE PLAN
(Full title of the plan)
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ROXANN R. BASHAM
Vice President - Controller and Corporate Secretary
Black Hills Corporation
625 Ninth Street, Rapid City, South Dakota 57701
(Name and address of agent for service)
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It is respectfully requested that the
Commission send signed copies of all
notices, orders and communications to:
JOHN K. NOONEY, Esq.
Morrill Thomas Nooney & Braun LLP
625 Ninth Street, Rapid City, South Dakota 57701
- ----------------------------------
Pursuant to Rule 414(d) under the Securities Act of 1933, as amended (the
"Securities Act"), Black Hills Corporation (formerly Black Hills Holding
Corporation), a South Dakota corporation, as successor issuer to Black Hills
Power, Inc. (formerly Black Hills Corporation), a South Dakota corporation,
hereby adopts this registration statement, as amended, for all purposes under
the Securities Act and Securities Exchange Act of 1934, as amended. See
"Description of the Transaction" herein.
DESCRIPTION OF THE TRANSACTION
This Amendment is being filed in connection with a corporate
restructuring of Black Hills Power, Inc. (formerly Black Hills Corporation), a
South Dakota corporation ("Black Hills Power"). The objective of such
restructuring is to have Black Hills Power become a separate, wholly-owned
subsidiary of Black Hills Corporation (formerly Black Hills Holding Corporation)
("Registrant"), a South Dakota corporation, the new parent holding company, with
the present holders of the common stock of Black Hills Power becoming holders of
the common stock of Registrant. At their annual meeting on June 20, 2000, the
shareholders of Black Hills Power approved the formation of the holding company
structure and the "Plan of Exchange"
On December 22, 2000, Articles of Exchange were filed with the South
Dakota Secretary of State, whereupon the holders of Black Hills Power common
stock became the holders of the common shares of Black Hills Corporation and
Black Hills Corporation became the sole holder of Black Hills Power common
stock. Accordingly, all shares of common stock offered under the Short-Term
Annual Incentive Plan will be common shares of Black Hills Corporation, not
shares of Black Hills Power.
Pursuant to Rule 414(d) under the Securities Act of 1933, as amended
(the "Securities Act"), Black Hills Corporation, as successor issuer to Black
Hills Power under the Plan of Exchange, hereby adopts, as of January 2, 2001,
Black Hills Power's Registration Statement on Form S-8, as amended (Registration
No. 333-30272), which Registration Statement is applicable to shares of common
shares of Black Hills Corporation issueable under the Short-Term Annual
Incentive Plan, as the Registration Statement of Black Hills Corporation for all
purposes under the Securities Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
(a) Black Hills Corporation: The following documents, which have been
filed by the Registrant with the Securities and Exchange Commission pursuant to
the Exchange Act, are incorporated by reference herein and shall be deemed a
part hereof:
(i) Form S-4 filed December 22, 2000.
(ii) Description of Common Shares included in the Registration
Statement on Form S-4 filed under the Securities Act, including
any amendment or report filed for the purpose of updating such
description.
(b) Black Hills Power: The following documents, which have been filed
by Black Hills Power with the Securities and Exchange Commission pursuant to the
Exchange Act (File No. 1-7978, are incorporated by reference herein and shall be
deemed a part hereof:
(i) Annual Report on Form-10K, as amended, for the fiscal year ended
December 31, 1999.
(ii) Any reports filed by Black Hills Power with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by the Annual Report listed in
(b)(i) above.
(iii)All documents subsequently filed by Black Hills Power or the
Short-Term Annual Incentive Plan pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities
offered have been sold or which deregisters those securities then
remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing such
documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICER
Section 47-5-27 of the South Dakota Codified Laws provide generally
that a corporation may indemnify any person who was or is a party to or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative in
nature, other than an action by or in the right of the corporation, by reason of
the fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, limited liability
company, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with the action,
suit or proceeding if that person acted in good faith and in a manner that
person reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such conduct was unlawful. The Bylaws of the
Registrant provide that, with respect to actions, suits or proceedings other
than by or in the right of the Registrant, the Registrant shall indemnify an
officer or director against liability incurred by such person as authorized
under the South Dakota Codified Laws. With respect to actions or suits by or in
the right of the Registrant, the Bylaws of the Registrant provide that the
Registrant shall indemnify any officer or director for any action or proceeding
he is made a party to by reason of the fact that he is or was a director or
officer of the Registrant, against expenses (including attorney's fees) actually
and reasonably incurred by him in connection with the action or suit, if he
acted in good faith and in a manner he reasonably believed to be within the
scope of his authority and in, or not opposed to, the best interests of the
Registrant, except for those claims, issues or matters as to which such officer
or director shall have been adjudged to be liable to the Registrant, unless such
indemnification is deemed proper by a court. In addition, the Registrant has
entered into specific agreements with the directors and officers of the
Registrant providing for indemnification of such persons under certain
circumstances.
The Registrant's Articles of Incorporation also eliminate the liability
of the Registrant's directors for monetary damages for breach of their fiduciary
duty as directors. This provision, however, does not eliminate a director's
liability (a) for any breach of the director's duty of loyalty to the registrant
or its shareholders, (b) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (c) for any
violation of Sections 47-5-15 to 47-5-19, inclusive, of the South Dakota
Codified Laws, which relates in part to certain unlawful dividend payments or
stock redemptions or repurchases, or (d) for any transaction from which the
director derived an improper personal benefit.
The Registrant carries directors' and officers' liability insurance to
insure its directors and officers against liability for certain errors and
omissions and to defray costs of a suit or proceeding against an officer or
director.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
*4.1 Articles of Incorporation (Exhibit 3.3 to Registrant's Registration
Statement on Form S-4 (No. 333-52664)).
*4.2 Articles of Amendment to the Articles of Incorporation (Exhibit 3.2 to
the Report on Form 8-K dated December 22, 2000).
*4.3 Bylaws (Exhibit 3.4 to Registrant's Registration Statement on Form S-4
(No. 333-52664)).
23 Consent of Independent Public Accountants
Item 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post- effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement;
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe it meets all of the
requirements for filing on Form S-8 and has duly caused this Post-Effective
Amendment No. 1 to the Form S-8 registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Rapid City,
State of South Dakota, on the 2nd day of January, 2001.
BLACK HILLS CORPORATION
By /S/MARK T. THIES
Mark T. Thies, Sr. Vice President & CFO
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
/S/DANIEL P. LANDGUTH Principal Executive January 2, 2001
Daniel P. Landguth, Officer and Director
Chairman and President
/S/MARK T. THIES Principal Financial Officer January 2, 2001
Mark T. Thies,
Sr. Vice President & CFO
/S/ROXANN R. BASHAM Principal Accounting Officer January 2, 2001
Roxann R. Basham,
Vice President - Controller
ADIL M. AMEER Director January 2, 2001
Adil M. Ameer
BRUCE B. BRUNDAGE Director January 2, 2001
Bruce B. Brundage
DAVID C. EBERTZ Director January 2, 2001
David C. Ebertz
GERALD R. FORSYTHE Director January 2, 2001
Gerald R. Forsythe
JOHN R. HOWARD Director January 2, 2001
John R. Howard
EVERETT E. HOYT Director January 2, 2001
Everett E. Hoyt
KAY S. JORGENSEN Director January 2, 2001
Kay S. Jorgensen
DAVID S. MANEY Director January 2, 2001
David S. Maney
THOMAS J. ZELLER Director January 2, 2001
Thomas J. Zeller
EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 26, 2000
included in Black Hills Corporation's Form 10-K for the year ended December 31,
1999 and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
January 2, 2001