As filed with the Securities and Exchange Commission on February 4,  2003.

Registration No. 333-101541

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SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

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AMENDMENT NO. 2

TO

FORM S-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

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BLACK HILLS CORPORATION

(Exact name of registrant as specified in its charter)

 

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South Dakota		46-0458824
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification Number)

 

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625 Ninth Street

Rapid City, South Dakota 57701

(605) 721-1700

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)

 

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Steven J. Helmers, Esq.

General Counsel

625 Ninth Street

Rapid City, South Dakota 57701

(605) 721-1700

(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)

 

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WITH COPIES TO:

Robert J. Melgaard, Esq. Mark D. Berman, Esq. Conner & Winters, P.C. 3700 First Place Tower 15 East Fifth Street Tulsa, Oklahoma 74103 (918) 586-5711 (918) 586-8548 (Facsimile)

Stacy J. Kanter, Esq. Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, New York 10036 (212) 735-3497 (917) 777-3497 (Facsimile)

 

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Approximate date of commencement of proposed sale of the securities to the public: From time to time after this Registration Statement becomes effective.

 

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ¨

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box: x

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

 

If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. ¨

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

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Explanatory Note

 

The sole purpose of this Amendment No. 2 is to file three exhibits to the Registration Statement, as shown in Item 16 of Part II below.

 

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PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 14.    Other Expenses of Issuance and Distribution.

 

All amounts, which are payable by the Registrant, except the SEC registration fee, are estimates.

 

SEC registration fee		$	36,800
Printing and shipping expenses			250,000
Legal fees and expenses			265,000
Accounting fees and expenses			220,000
Trustee’s and transfer agent’s fees and expenses			20,000
Rating agency fees			140,000
Miscellaneous			43,200
Total		$	975,000

 

Item 15.    Indemnification of Directors and Officers.

 

Section 47-2-58.2 of the South Dakota Codified Laws provides generally that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative 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, partnership, limited liability company, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by that person in connection with such 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. With respect to actions or suits by or in the right of the corporation, the statute provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that that person 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, partnership, limited liability company, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by that person in connection with the defense or settlement of such action or suit 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, except that no indemnification may be made in respect of any claim, issue or matter as to which such person has been adjudged to be liable for negligence or misconduct in the performance of such duty to the corporation unless and only to the extent that the court in which such action or suit was brought determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which the court deems proper. The Bylaws of the Registrant provide that the Registrant shall indemnify any officer or director who acted in a manner which such person

 

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reasonably believed to be within the scope of such person’s authority against liability incurred by such person to the same extent and under the same circumstances as are currently permitted under the South Dakota Codified Laws. 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 relate in part to certain unlawful dividend payments or stock redemptions or repurchases, or (d) for any transaction from which the director derived an improper personal benefit.

 

The 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 16.    Exhibits.

 

The following is a list of all exhibits filed as a part of this Registration Statement on Form S-3, including those incorporated by reference herein.

 

Exhibit Number		Description
1*		Form of Underwriting Agreement.
2**		Plan of Exchange Between Black Hills Corporation and Black Hills Holding Corporation.
4.1**		Articles of Incorporation of the Registrant.
4.2***		Articles of Amendment of the Registrant.
4.3**		Bylaws of the Registrant.
4.4***		Statement of Designations, Preferences and Relative Rights and Limitations of No Par Preferred Stock, Series 2000-A of the Registrant.
4.5****		Form of Indenture (Senior Debt Securities).
4.6****		Form of Senior Debt Security (included in Exhibit 4.5).
4.7****		Form of Indenture (Subordinated Debt Securities).
4.8****		Form of Subordinated Debt Security (included in Exhibit 4.7).
4.9****		Form of Stock Certificate for Common Stock, Par Value $1.00 Per Share.
4.10		Form of Warrant Agreement.
4.11		Form of Warrant Certificate (included in Exhibit 4.10).
4.12****		Form of Purchase Contract.
4.13****		Form of Purchase Contract Certificate (included in Exhibit 4.12).
5.1		Opinion of Steven J. Helmers regarding the legality of the securities.
5.2		Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
8*		Opinion of Conner & Winters, P.C., regarding certain federal tax matters.
12****		Statements Regarding Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Fixed Charges and Preferred Stock Dividends.
23.1		Consent of Steven J. Helmers (included in Exhibit 5.1).
23.2****		Consent of Deloitte & Touche LLP.

 

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Exhibit Number		Description
23.3*		Consent of Conner & Winters, P.C. (included in Exhibit 8).
23.4		Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.2).
24****		Power of Attorney (included on the signature page to this Registration Statement).
25.1*		Statement of Eligibility and Qualification on Form T-1 of Trustee (Senior Debt Securities).
25.2*		Statement of Eligibility and Qualification on Form T-1 of Trustee (Subordinated Debt Securities).

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*

To be filed by amendment or as an exhibit to a Current Report on Form 8-K in connection with a specific offering.

**

Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-4 (No. 333-52664), and incorporated by reference herein.

***

Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K filed on December 26, 2000.

****

Previously filed with this Registration Statement.

 

Item 17.    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 this 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 this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in this effective Registration Statement; and

 

(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

 

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or

 

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Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.

 

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b) The undersigned Registrant hereby undertakes that, for the 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 this 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.

 

(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referred to in Item 15 of this Registration Statement, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

 

(i) The undersigned Registrant undertakes that:

 

(1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as a part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective.

 

(2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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.

 

(j) The undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Act.

 

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to 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 4th day of February, 2003.

 

 

Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 2 to Registration Statement has been signed below by the following persons in the capacities and on the dates indicated:

 

Signature		Title		Date
/s/    DANIEL P. LANDGUTH         Daniel P. Landguth		Chairman of the Board and Chief Executive Officer (Principal Executive Officer)		February 4, 2003
/s/     MARK T. THIES         Mark T. Thies		Senior Vice President and Chief Financial Officer (Principal Financial Officer)		February 4, 2003
/s/     ROXANN R. BASHAM         Roxann R. Basham		Vice President – Controller and Assistant Secretary (Principal Accounting Officer)		February 4, 2003
/s/    EVERETT E. HOYT Everett E. Hoyt		Director, President and Chief Operating Officer		February 4, 2003
ADIL M. AMEER* Adil M. Ameer		Director		February 4, 2003
BRUCE B. BRUNDAGE* Bruce B. Brundage		Director		February 4, 2003

 

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Signature		Title		Date
DAVID C. EBERTZ* David C. Ebertz		Director		February 4, 2003
JOHN R. HOWARD* John R. Howard		Director		February 4, 2003
KAY S. JORGENSEN* Kay S. Jorgensen		Director		February 4, 2003
DAVID S. MANEY* David S. Maney		Director		February 4, 2003
THOMAS J. ZELLER* Thomas J. Zeller		Director		February 4, 2003
*By:  /s/   MARK T. THIES Mark T. Thies, Attorney-in-Fact				February 4, 2003

 

 

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INDEX TO EXHIBITS

 

Exhibit Number		Description
1*		Form of Underwriting Agreement.
2**		Plan of Exchange Between Black Hills Corporation and Black Hills Holding Corporation.
4.1**		Articles of Incorporation of the Registrant.
4.2***		Articles of Amendment of the Registrant.
4.3**		Bylaws of the Registrant.
4.4***		Statement of Designations, Preferences and Relative Rights and Limitations of No Par Preferred Stock, Series 2000-A of the Registrant.
4.5****		Form of Indenture (Senior Debt Securities).
4.6****		Form of Senior Debt Security (included in Exhibit 4.5).
4.7****		Form of Indenture (Subordinated Debt Securities).
4.8****		Form of Subordinated Debt Security (included in Exhibit 4.7).
4.9****		Form of Stock Certificate for Common Stock, Par Value $1.00 Per Share.
4.10		Form of Warrant Agreement.
4.11		Form of Warrant Certificate (included in Exhibit 4.10).
4.12****		Form of Purchase Contract.
4.13****		Form of Purchase Contract Certificate (included in Exhibit 4.12).
5.1		Opinion of Steven J. Helmers regarding the legality of the securities.
5.2		Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
8*		Opinion of Conner & Winters, P.C. regarding certain federal tax matters.
12****		Statements Regarding Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Fixed Charges and Preferred Stock Dividends.
23.1		Consent of Steven J. Helmers (included in Exhibit 5.1).
23.2****		Consent of Deloitte & Touche LLP.
23.3*		Consent of Conner & Winters, P.C. (included in Exhibit 8).
23.4		Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.2).
24****		Power of Attorney (included on the signature page to this Registration Statement).
25.1*		Statement of Eligibility and Qualification on Form T-1 of Trustee (Senior Debt Securities).
25.2*		Statement of Eligibility and Qualification on Form T-1 of Trustee (Subordinated Debt Securities).

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*

To be filed by amendment or as an exhibit to a Current Report on Form 8-K in connection with a specific offering.

**

Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-4 (No. 333-52664), and incorporated by reference herein.

***

Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K filed on December 26, 2000.

****

Previously filed with this Registration Statement.

 

Exhibit 4.10

 

BLACK HILLS CORPORATION

 

and

 

                        ,

 

as Warrant Agent

 

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WARRANT AGREEMENT

 

Dated as of                     

 

 

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Warrants to Purchase             

 

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TABLE OF CONTENTS

				PAGE
ARTICLE I ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01.		Issuance of Warrants		2
SECTION 1.02.		Execution and Delivery of Warrant Certificates		2
SECTION 1.03.		Issuance of Warrant Certificates		3
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01.		Warrant Price		4
SECTION 2.02.		Duration of Warrants		4
SECTION 2.03.		Exercise of Warrants		4
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
SECTION 3.01.		No Rights as Warrant Securityholder Conferred by Warrant or Warrant Certificates		6
SECTION 3.02.		Lost, Mutilated, Stolen, or Destroyed Warrant Certificates		6
SECTION 3.03.		Enforcement of Rights		6
SECTION 3.04.		Merger, Consolidation, Conveyance or Transfer		7
ARTICLE IV
EXCHANGE AND TRANSFER
SECTION 4.01.		Exchange and Transfer		7
SECTION 4.02.		Treatment of Holders of Warrant Certificates		8
SECTION 4.03.		Cancellation of Warrant Certificates		8
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01.		Warrant Agent		9
SECTION 5.02.		Conditions of Warrant Agent's Obligations		9
SECTION 5.03.		Resignation and Appointment of Successor		11
ARTICLE VI
MISCELLANEOUS
SECTION 6.01.		Amendment		12

 

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SECTION 6.02.		Notices and Demands to the Company and Warrant Agent		13
SECTION 6.03.		Addresses		13
SECTION 6.04.		Applicable Law		13
SECTION 6.05.		Delivery of Prospectus		13
SECTION 6.06.		Obtaining of Governmental Approval		13
SECTION 6.07.		Persons Having Rights under Warrant Agreement		13
SECTION 6.08.		Headings		14
SECTION 6.09.		Counterparts		14
SECTION 6.10.		Inspection of Agreement		14
SECTION 6.11.		Notices to Holders of Warrants		14
EXHIBIT A—Form of Warrant Certificate

 

 

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WARRANT AGREEMENT¹

 

THIS AGREEMENT dated as of              between BLACK HILLS CORPORATION, a corporation duly organized and existing under the laws of the State of South Dakota (the “Company”), and             , a [bank] [trust company] duly incorporated and existing under the laws of            , as Warrant Agent (the “Warrant Agent”).

 

[Bracketed language here and throughout this Agreement should be inserted as follows:

 

1.    If Warrants are immediately detachable from the Offered Securities; and

 

2.    If Warrants are detachable from the Offered Securities only after the Detachable Date.]

 

WITNESSETH:

 

[WHEREAS, the Company has entered into an Indenture dated as of              (the “Senior Indenture”) between the Company and             , as Trustee (the “Senior Indenture Trustee”), and an Indenture dated as of              (the “Subordinated Indenture”) between the Company and             , as Trustee (the “Subordinated Indenture Trustee”) (together, the “Trustees” or “Trustee” and “Indentures” or “Indenture”), providing for the issuance from time to time of its unsecured debt securities to be issued in one or more series as provided in the Indenture; and]

 

WHEREAS, the Company proposes to sell [[title of such securities being offered] (the “Offered Securities”) with] one or more warrants (the “Warrants”) representing the right to purchase [title of such securities purchasable through exercise of Warrants] (the “Warrant Securities”), the Warrants to be evidenced by Warrant certificates issued pursuant to this Agreement (the “Warrant Certificates”); and

 

WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company in connection with the issuance, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be issued, transferred, exchanged, exercised and replaced;

 

NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows:

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1

Complete or modify the provisions of this form as appropriate to reflect the terms of the Warrants and Warrant Securities. Monetary amounts may be in U.S. dollars or in foreign currency.

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ARTICLE I

 

ISSUANCE OF WARRANTS AND EXECUTION AND

DELIVERY OF WARRANT CERTIFICATES

 

SECTION 1.01.    Issuance of Warrants.    The Warrants shall be evidenced by one or more Warrant Certificates. Each Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase [             shares of the Warrant Securities] [$            aggregate principal amount of Warrant Securities] and shall be initially issued in connection with the issuance of the Offered Securities [1: and shall be separately transferable immediately thereafter] [2: but shall not be separately transferable until on and after             , (the “Detachable Date”)]. [The Warrants shall be initially issued [in units] with the Offered Securities, and] each Warrant [included in such a unit] shall evidence the right, subject to the provisions contained herein and in the Warrant Certificates, to purchase [             shares of the Warrant Securities] [$             aggregate principal amount of Warrant Securities] [included in such a unit].

 

SECTION 1.02.    Execution and Delivery of Warrant Certificates.    Each Warrant, whenever issued, shall be evidenced by a Warrant Certificate in registered form, substantially in the form set forth in Exhibit A hereto, shall be dated and may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Warrants may be listed, or to conform to usage. The Warrant Certificates shall be signed on behalf of the Company by its chairman or vice chairman of the Board of Directors, the president, any managing director or the treasurer of the Company, in each case under its corporate seal, which may but need not be, attested by its secretary or one of its assistant secretaries. Such signatures may be manual or facsimile signatures of such authorized officers and may be imprinted or otherwise reproduced on the Warrant Certificates. The corporate seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates.

 

No Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been countersigned by the Warrant Agent by manual signature. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence, and the only evidence, that the Warrant Certificate so countersigned has been duly issued hereunder.

 

In case any officer of the Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be such officer before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent as provided herein, such Warrant Certificates may be

 

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countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased to be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution of this Agreement any such person was not such officer.

 

The term “Holder”, when used with respect to any Warrant Certificate, shall mean any person in whose name at the time such Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose [2: or, prior to the Detachable Date, any person in whose name at the time the Offered Security to which such Warrant Certificate is attached is registered upon the register of the Offered Securities. Prior to the Detachable Date, the Company will, or will cause the registrar of the Offered Securities to, make available at all times to the Warrant Agent such information as to holders of the Offered Securities with Warrants as may be necessary to keep the Warrant Agent’s records up to date.]

 

SECTION 1.03.    Issuance of Warrant Certificates.    Warrant Certificates evidencing the right to purchase [             shares of the Warrant Securities] [an aggregate principal amount not exceeding $             of Warrant Securities] (except as provided in Sections 2.03, 3.02 and 4.01) may be executed by the Company and delivered to the Warrant Agent upon the execution of this Warrant Agreement or from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, countersign Warrant Certificates evidencing              Warrants representing the right to purchase up to [             shares of the Warrant Securities] [$             aggregate principal amount of Warrant Securities] and shall deliver such Warrant Certificates to or upon the order of the Company. Subsequent to such original issuance of the Warrant Certificates, the Warrant Agent shall countersign a Warrant Certificate only if the Warrant Certificate is issued in exchange or substitution for one or more previously countersigned Warrant Certificates or in connection with their transfer as hereinafter provided or as provided in the penultimate paragraph of Section 2.03.

 

Pending the preparation of definitive Warrant Certificates evidencing Warrants, the Company may execute and the Warrant Agent shall countersign and deliver temporary Warrant Certificates evidencing such Warrants (printed, lithographed, typewritten or otherwise produced, in each case in form satisfactory to the Warrant Agent). Such temporary Warrant Certificates shall be issuable substantially in the form of the definitive Warrant Certificates but with such omissions, insertions and variations as may be appropriate for temporary Warrant Certificates, all as may be determined by the Company with the concurrence of the Warrant Agent. Such temporary Warrant Certificates may contain such reference to any provisions of this Warrant Agreement as may be appropriate. Every such temporary Warrant Certificate shall be executed by the Company and shall be countersigned by the Warrant Agent upon the same conditions and in substantially the same manner, and with like effect, as the definitive Warrant Certificates. Without unreasonable delay, the Company shall execute and shall furnish definitive Warrant Certificates and thereupon such temporary Warrant Certificates may

 

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be surrendered in exchange therefor without charge pursuant to and subject to the provisions of Section 4.01, and the Warrant Agent shall countersign and deliver in exchange for such temporary Warrant Certificates definitive Warrant Certificates of authorized denominations evidencing a like aggregate number of Warrants evidenced by such temporary Warrant Certificates. Until so exchanged, such temporary Warrant Certificates shall be entitled to the same benefits under this Warrant Agreement as definitive Warrant Certificates.

 

ARTICLE II

 

WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS

 

SECTION 2.01.    Warrant Price.    On             ,             , the exercise price of each Warrant will be             . During the period from             ,              through and including             ,             , the exercise price of each Warrant will be              [plus [accrued amortization of the original issue discount] [accrued interest] from             ,             .] [In each case, the original issue discount will be amortized at a             % annual rate, computed on an annual basis using the “interest” method and using a 360-day year consisting of twelve 30-day months]. Such exercise price of Warrant Securities is referred to in this Agreement as the “Warrant Price”. [The original issue discount for each principal amount of Warrant Securities is             ].

 

SECTION 2.02.    Duration of Warrants.    [Subject to Section 4.03(b),] each Warrant may be exercised [in whole but not in part] [in whole or in part] [at any time, as specified herein, on or after [the date thereof] [            ,             ] and at or before [time, location] on             ,              (each day during such period may hereinafter be referred to as an “Exercise Date”)] [on [list of specific dates] (each, an “Exercise Date”)], or such later date as the Company may designate by notice to the Warrant Agent and the Holders of Warrant Certificates [in registered form and to the beneficial owners of the global Warrant Certificate] (the “Expiration Date”). Each Warrant not exercised at or before [time, location] on the Expiration Date shall become void, and all rights of the Holder [and any beneficial owners] of the Warrant Certificate evidencing such Warrant under this Agreement shall cease.

 

SECTION 2.03.    Exercise of Warrants.    During the period specified in Section 2.02, any whole number of Warrants may be exercised by providing certain information as set forth on the reverse side of the Warrant Certificates evidencing such Warrants and by paying in full [in lawful money of the United States of America] [in applicable currency] [in cash] [by certified check or official bank check or by bank wire transfer, in each case,] [by bank wire transfer] [in immediately available funds,] the Warrant Price for each Warrant exercised [(plus accrued interest, if any, on the Warrant Securities to be issued upon exercise of such Warrant from and including the Interest Payment Date (as defined in the Indenture), if any, in respect of such Warrant Securities immediately preceding the Exercise Date to and including the Exercise Date (unless the Exercise Date is after the Regular Record Date (as defined in the Indenture), if any, for such Interest Payment Date, but on or before the immediately succeeding Interest Payment Date for such Warrant Securities, in which event no such accrued interest shall

 

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be payable in respect of Warrant Securities to be issued in registered form))] to the Warrant Agent at its corporate trust office at [address] [or at             ], provided that such exercise is subject to receipt within five business days of such [payment] [wire transfer] by the Warrant Agent of the Warrant Certificate evidencing each Warrant exercised with the form of election to purchase Warrant Securities set forth on the reverse side of the Warrant Certificate properly completed and duly executed.

 

[Insert Cashless Exercise Option provisions, if applicable]

 

The date on which payment in full of the Warrant Price (plus any such accrued interest) is received by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the date on which the Warrant is exercised. The Warrant Agent shall deposit all funds received by it in payment for the exercise of Warrants in an account of the Company maintained with it (or in such other account as may be designated by the Company) and shall advise the Company, by telephone or by facsimile transmission or other form of electronic communication available to both parties, at the end of each day on which a payment for the exercise of Warrants is received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such advice to the Company in writing.

 

If a day on which Warrants may be exercised in the city in which such Warrants are to be exercised shall be a Saturday or Sunday or a day on which banking institutions in such city are authorized or required to be closed, then, notwithstanding any other provision of this Agreement or the Warrant Certificate evidencing such Warrants, but subject to the limitation that no Warrant may be exercised after the Expiration Date, the Warrants shall be exercisable on the next succeeding day which in such city is not a Saturday or Sunday or a day on which banking institutions in such city are authorized or required to be closed.

 

The Warrant Agent shall, from time to time, as promptly as practicable, advise the Company and the Trustee in writing of (i) the number of Warrants exercised, (ii) the instructions of each Holder of the Warrant Certificates evidencing such Warrants with respect to delivery of the Warrant Securities to be issued upon such exercise, (iii) delivery of any Warrant Certificates evidencing the balance, if any, of the Warrants remaining after such exercise, and (iv) such other information as the Company or the Trustee shall reasonably require.

 

As soon as practicable after the exercise of any Warrant, but subject to receipt by the Warrant Agent of the Warrant Certificate evidencing such Warrant as provided in this Section, the Company shall issue[, pursuant to the Indenture, in authorized denominations to or upon the order of the Holder of the Warrant Certificate evidencing each Warrant,] the Warrant Securities to which such Holder is entitled, in fully registered form, registered in such name or names as may be directed by such Holder. If fewer than all of the Warrants evidenced by such Warrant Certificate are exercised, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver, a new Warrant Certificate evidencing the number of such Warrants remaining unexercised.

 

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The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer involved in the issuance of the Warrant Securities, and in the event that any such transfer is involved, the Company shall not be required to issue or deliver any Warrant Security until such tax or other charge shall have been paid or it has been established to the Company’s satisfaction that no such tax or other charge is due.

 

ARTICLE III

 

OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT

 

SECTION 3.01.    No Rights as Warrant Securityholder Conferred by Warrant or Warrant Certificates.    No Warrant Certificate or Warrant evidenced thereby shall entitle the Holder or any beneficial owner thereof to any of the rights of a holder or beneficial owner of Warrant Securities, including, without limitation, [the right to receive the payment of principal of (premium, if any) or interest, if any, on Warrant Securities or to enforce any of the covenants in the Indenture] [the right to receive dividend payments on the Warrant Securities or any voting rights].

 

SECTION 3.02.    Lost, Mutilated, Stolen, or Destroyed Warrant Certificates.    Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and the Company of the ownership of and the loss, mutilation, theft or destruction of any Warrant Certificate and of such security or indemnity as may be required by the Company and the Warrant Agent to hold each of them and any agent of them harmless and, in the case of mutilation of a Warrant Certificate, upon surrender thereof to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver, in exchange for or in lieu of the lost, mutilated, stolen or destroyed Warrant Certificate, a new Warrant Certificate of the same tenor and evidencing a like number of Warrants. Upon the issuance of any new Warrant Certificate under this Section, the Company may require the payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) in connection therewith. Every substitute Warrant Certificate executed and delivered pursuant to this Section in lieu of any lost, mutilated, stolen or destroyed Warrant Certificate shall represent an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of lost, mutilated, stolen or destroyed Warrant Certificates.

 

SECTION 3.03.    Enforcement of Rights.    Notwithstanding any of the provisions of this Agreement, any Holder of a Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the holder of any Offered Securities or the Holder of any

 

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other Warrant Certificate, may, in its own behalf and for its own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, its right to exercise its Warrants in the manner provided in its Warrant Certificate and in this Agreement.

 

SECTION 3.04.    Merger, Consolidation, Conveyance or Transfer.    (a) If at any time there shall be a merger or consolidation of the Company or a conveyance or transfer of its property and assets substantially as an entirety [as permitted under the Indenture], then in any such event the successor or assuming corporation referred to therein shall succeed to and be substituted for the Company, with the same effect [, subject to the Indenture,] as if it had been named herein and in the Warrant Certificates as the Company; the Company shall thereupon, except in the case of a transfer by way of lease, be relieved of any further obligation hereunder and under the Warrants and the Warrant Certificates, and the Company as the predecessor corporation, except in the case of a transfer by way of lease, may thereupon or at any time thereafter be dissolved, wound up or liquidated. Such successor or assuming corporation may thereupon cause to be signed, and may issue either in its own name or in the name of the Company, Warrant Certificates evidencing any or all of the Warrants issuable hereunder which theretofore shall not have been signed by the Company, and may execute and deliver Warrant Securities in its own name [, pursuant to the Indenture,] in fulfillment of its obligations to deliver Warrant Securities upon exercise of the Warrants. All the Warrants so issued shall in all respects have the same legal rank and benefit under this Agreement as the Warrants theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Warrants had been issued at the date of the execution hereof. In any case of any such merger, consolidation, conveyance or transfer, such changes in phraseology and form (but not in substance) may be made in the Warrant Certificates representing the Warrants thereafter to be issued as may be appropriate.

 

(b)  The Warrant Agent may receive a written opinion of legal counsel (who shall be acceptable to the Warrant Agent) as conclusive evidence that any such merger, consolidation, conveyance or transfer complies with the provisions of this Section and the Indenture.

 

[Add Anti-Dilution provisions as necessary.]

 

ARTICLE IV

 

EXCHANGE AND TRANSFER

 

SECTION 4.01.    Exchange and Transfer.    (a)  [1: Upon] [2: Prior to the Detachable Date, a Warrant Certificate may be exchanged or transferred only together with the Offered Security to which such Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Security. Prior to any Detachable Date, each transfer of the Offered Security, shall operate also to transfer the related Warrant Certificates. On or after the Detachable Date, upon] surrender at the corporate trust office of the Warrant Agent at [address] [or             ], Warrant Certificates evidencing Warrants may be exchanged for Warrant

 

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Certificates in other authorized denominations evidencing such Warrants or the transfer thereof may be registered in whole or in part; provided, however, that such other Warrant Certificates shall evidence the same aggregate number of Warrants as the Warrant Certificates so surrendered.

 

(b)  The Warrant Agent shall keep, at its corporate trust office at [address] [and at             ], books in which, subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and exchanges and transfers of outstanding Warrant Certificates upon surrender of such Warrant Certificates to the Warrant Agent at its corporate trust office at [address] [or             ] for exchange or registration of transfer, properly endorsed [or accompanied by appropriate instruments of registration of transfer and written instructions for transfer, all in form satisfactory to the Company and the Warrant Agent.]

 

(c)  No service charge shall be made for any exchange or registration of transfer of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with any such exchange or registration of transfer.

 

(d)  Whenever any Warrant Certificates are so surrendered for exchange or registration of transfer, an authorized officer of the Warrant Agent shall manually countersign and deliver to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates, duly authorized and executed by the Company, as so requested. The Warrant Agent shall not effect any exchange or registration of transfer which will result in the issuance of a Warrant Certificate, evidencing a fraction of a Warrant or a number of full Warrants and a fraction of a Warrant.

 

(e)  All Warrant Certificates issued upon any exchange or registration of transfer of Warrant Certificates shall be the valid obligations of the Company evidencing the same obligations, and entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered for such exchange or registration or transfer.

 

SECTION 4.02.    Treatment of Holders of Warrant Certificates.    Each Holder of a Warrant Certificate, by accepting the same, consents and agrees with the Company, the Warrant Agent and every subsequent Holder of such Warrant Certificate that until the transfer of such Warrant Certificate is registered on the books of such Warrant Agent [2: or, prior to the Detachable Date, until the transfer of the Offered Security to which such Warrant Certificate is attached is registered in the register of the Offered Securities], the Company and the Warrant Agent may treat the registered Holder of such Warrant Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced thereby, any notice to the contrary notwithstanding.

 

SECTION 4.03.    Cancellation of Warrant Certificates.    [(a)]  Any Warrant Certificate surrendered for exchange or registration of transfer or exercise of the Warrants evidenced thereby shall, if surrendered to the Company, be delivered to the

 

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Warrant Agent, and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not be reissued and, except as expressly permitted by this Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The Warrant Agent shall cause all cancelled Warrant Certificates to be destroyed and shall deliver a certificate of such destruction to the Company.

 

[(b)  If the Company notifies the Trustee of its election to redeem [2: prior to the Detachable Date] [, as a whole but not in part,] [2: the Offered Securities [or] [and]] the Warrant Securities pursuant to the Indenture or the terms thereof, the Company may elect, and shall give notice to the Warrant Agent of its election, to cancel the unexercised Warrants, the Warrant Certificates and the rights evidenced thereby. Promptly after receipt of such notice by the Warrant Agent, the Company shall, or, at the Company’s request, the Warrant Agent shall in the name of and at the expense of the Company, give notice of such cancellation to the Holders of the Warrant Certificates, such notice to be so given not less than 30 nor more than 60 days prior to the date fixed for the redemption of [2: the Offered Securities [or] [and]] the Warrant Securities pursuant to the Indenture or the terms thereof. The unexercised Warrants, the Warrant Certificates and the rights evidenced thereby shall be cancelled and become void on the 15th day prior to such date fixed for redemption.]

 

ARTICLE V

 

CONCERNING THE WARRANT AGENT

 

SECTION 5.01.    Warrant Agent.    The Company hereby appoints              as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates upon the terms and subject to the conditions herein and in the Warrant Certificates set forth; and              hereby accepts such appointment. The Warrant Agent shall have the powers and authority granted to and conferred upon it in the Warrant Certificates and herein and such further powers and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it.

 

All of the terms and provisions with respect to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof.

 

SECTION 5.02.    Conditions of Warrant Agent’s Obligations.    The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders from time to time of the Warrant Certificates shall be subject:

 

(a)  Compensation and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including reasonable attorneys’ fees)

 

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incurred by the Warrant Agent without negligence, bad faith or breach of this Agreement on its part in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Warrant Agent, arising out of or in connection with its acting as Warrant Agent hereunder, as well as the reasonable costs and expenses of defending against any claim of such liability.

 

(b)  Agent for the Company. In acting under this Agreement and in connection with the Warrants and the Warrant Certificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the Holders of Warrant Certificates or beneficial owners of Warrants.

 

(c)  Counsel. The Warrant Agent may consult with counsel satisfactory to it in its reasonable judgment, and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice of such counsel.

 

(d)  Documents. The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in reliance upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties.

 

(e)  Certain Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest in, Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of holders of Warrant Securities or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. [Nothing in this Warrant Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee under the Indenture.]

 

(f)  No Liability for Interest. The Warrant Agent shall have no liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.

 

(g)  No Liability for Invalidity. The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due authorization to execute this Agreement and the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of any Warrant Certificates (except its countersignature thereof).

 

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(h)  No Liability for Recitals. The recitals contained herein shall be taken as the statements of the Company, and the Warrant Agent assumes no liability for the correctness of the same.

 

(i)  No Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates countersigned by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from a Holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.02, to make any demand upon the Company.

 

SECTION 5.03.    Resignation and Appointment of Successor.    (a) The Company agrees, for the benefit of the Holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant Agent hereunder until all the Warrants have been exercised or are no longer exercisable.

 

(b)  The Warrant Agent may at any time resign as such by giving written notice of its resignation to the Company, specifying the desired date on which its resignation shall become effective; provided, however, that such date shall be not less than 90 days after the date on which such notice is given unless the Company agrees to accept shorter notice. Upon receiving such notice of resignation, the Company shall promptly appoint a successor Warrant Agent (which shall be a bank or trust company in good standing, authorized under the laws of the jurisdiction of its organization to exercise corporate trust powers) by written instrument in duplicate signed on behalf of the Company, one copy of which shall be delivered to the resigning Warrant Agent and one copy to the successor Warrant Agent. The Company may, at any time and for any reason, remove the Warrant Agent and appoint a successor Warrant Agent (qualified as aforesaid) by written instrument in duplicate signed on behalf of the Company and specifying such removal and the date when it is intended to become effective, one copy of which shall be delivered to the Warrant Agent being removed and one copy to the successor Warrant Agent. Any resignation or removal of the Warrant Agent and any appointment of a successor Warrant Agent shall become effective upon acceptance of appointment by the successor Warrant Agent as provided in this subsection (b). In the event a successor Warrant Agent has not been appointed and accepted its duties within 90 days of the Warrant Agent’s notice of resignation, the Warrant Agent may apply to any court of competent jurisdiction for the designation of a successor Warrant Agent. Upon

 

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its resignation or removal, the Warrant Agent shall be entitled to the payment by the Company of the compensation and to the reimbursement of all reasonable out-of-pocket expenses (including reasonable attorneys’ fees) incurred by it hereunder as agreed to in Section 5.02(a).

 

(c)  The Company shall remove the Warrant Agent and appoint a successor Warrant Agent if the Warrant Agent (i) shall become incapable of acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, (iv) shall consent to, or shall have had entered against it a court order for, any such relief or to the appointment of or taking possession by any such official in any involuntary case or other proceedings commenced against it, (v) shall make a general assignment for the benefit of creditors or (vi) shall fail generally to pay its debts as they become due. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by it of such appointment, the predecessor Warrant Agent shall, if not previously disqualified by operation of law, cease to be Warrant Agent hereunder.

 

(d)  Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and the Company an instrument accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, immunities, duties and obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and other property on deposit with or held by such predecessor as Warrant Agent hereunder.

 

(e)  Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto.

 

ARTICLE VI

 

MISCELLANEOUS

 

SECTION 6.01.    Amendment.    This Agreement and the terms of the Warrants and the Warrant Certificates may be amended by the parties hereto, without the consent of the Holder of any Warrant Certificate or the beneficial owner of any Warrant, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any

 

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defective or inconsistent provision contained herein or in the Warrant Certificates, or making any other provisions with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may deem necessary or desirable, provided that such action shall not affect adversely the interests of the Holders of the Warrant Certificates or the beneficial owners of Warrants in any material respect.

 

SECTION 6.02.    Notices and Demands to the Company and Warrant Agent.    If the Warrant Agent shall receive any notice or demand addressed to the Company by the Holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such notice or demand to the Company.

 

SECTION 6.03.    Addresses.    Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to             , Attention:             , and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to Black Hills Corporation, 625 Ninth Street, P.O. Box 1400, Rapid City, South Dakota 57701, Attention:              (or such other address as shall be specified in writing by the Warrant Agent or by the Company).

 

SECTION 6.04.    Applicable Law.    The validity, interpretation and performance of this Agreement and each Warrant Certificate issued hereunder and of the respective terms and provisions hereof and thereof shall be governed by, and construed in accordance with, the laws of the State of New York.

 

SECTION 6.05.    Delivery of Prospectus.    The Company will furnish to the Warrant Agent sufficient copies of a prospectus relating to the Warrant Securities deliverable upon exercise of Warrants (the “Prospectus”), and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the Holder of the Warrant Certificate evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Securities issued upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy of such Prospectus.

 

SECTION 6.06.    Obtaining of Governmental Approval.    The Company will from time to time take all action which may be necessary to obtain and keep effective any and all permits, consents and approvals of governmental agencies and authorities and securities acts filings under United States federal and state laws (including without limitation a registration statement in respect of the Warrants and Warrant Securities under the Securities Act of 1933, as amended), which may be or become requisite in connection with the issuance, sale, transfer and delivery of the Warrant Certificates, the exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrant Securities issued upon exercise of the Warrants or upon the expiration of the period during which the Warrants are exercisable.

 

SECTION 6.07.    Persons Having Rights under Warrant Agreement.    Nothing in this Agreement shall give to any person other than the Company, the Warrant

 

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Agent and the Holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.

 

SECTION 6.08.    Headings.    The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof.

 

SECTION 6.09.    Counterparts.    This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original, but such counterparts shall together constitute but one and the same instrument.

 

SECTION 6.10.    Inspection of Agreement.    A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant Agent for inspection by the Holder of any Warrant Certificate. The Warrant Agent may require such Holder to submit its Warrant Certificate to the Warrant Agent for review prior to such inspection.

 

SECTION 6.11.    Notices to Holders of Warrants.    Any notice to Holders of Warrants evidenced by Warrant Certificates which by any provisions of this Warrant Agreement is required or permitted to be given shall be given by first class mail prepaid at such Holder’s address as it appears on the books of the Warrant Agent.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

 

 

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EXHIBIT A

 

[FORM OF WARRANT CERTIFICATE]

 

[Face]

 

[Prior to             , this Warrant Certificate may be transferred or exchanged if and only if the [title of Offered Security] to which it was initially attached is so transferred or exchanged.]

 

[Prior to             , Warrants evidenced by this Warrant Certificate cannot be exercised.]

 

EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT

AGENT AS PROVIDED HEREIN

 

VOID AFTER THE CLOSE OF BUSINESS ON             ,             

 

BLACK HILLS CORPORATION

 

Warrant Certificate representing

Warrants to purchase

[Title of Warrant Securities]

as described herein

 

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No.

Warrants

 

This certifies that [                        ] or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling such registered owner to purchase, at any time [after the close of business on             ,             , and] on or before the close of business on             ,             , [             shares of [title of Warrant Securities]] [$             aggregate principal amount of [title of Warrant Securities]] (the “Warrant Securities”) of Black Hills Corporation (the “Company”) [, issued or to be issued under the Indenture (as hereinafter defined),] on the following basis.² [During the period from             ,              through and including             ,             , each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company the [principal] amount of Warrant Securities stated above in this Warrant Certificate at the exercise price of [            ] [            % of the principal amount thereof [plus accrued amortization, if any, of the original issue discount of the Warrant Securities][plus accrued interest, if any, from the most recent date from

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2

Complete and modify the following provisions as appropriate to reflect the terms of the Warrants and the Warrant Securities.

 

A-1

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which interest shall have been paid on the Warrant Securities or, if no interest shall have been paid on the Warrant Securities, from             ,             ]; [in each case, the original issue discount ($             for each $1,000 principal amount of Warrant Securities) will be amortized at a             % annual rate, computed on a[n] [semi-]annual basis[, using a 360-day year constituting of twelve 30-day months]] (the “Exercise Price”). The Holder of this Warrant Certificate may exercise the Warrants evidenced hereby, in whole or in part, by surrendering this Warrant Certificate, with the purchase form set forth hereon duly completed, accompanied [by payment in full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds]], the Exercise Price for each Warrant exercised, to the Warrant Agent (as hereinafter defined), at the corporate trust office of [name of Warrant Agent], or its successor as warrant agent (the “Warrant Agent”), at the addresses specified on the reverse hereof [or at             ] and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined). This Warrant Certificate may be exercised only for the purchase of [             shares of] Warrant Securities [in the principal amount of $            ] or any integral multiple thereof.

 

[Insert Cashless Exercise Option provisions, if applicable]

 

The term “Holder” as used herein shall mean[, prior to             ,              (the “Detachable Date”), the registered owner of the Company’s [title of Offered Securities] to which such Warrant Certificate was initially attached, and after such Detachable Date,] the person in whose name at the time such Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to the Warrant Agreement.

 

Any whole number of Warrants evidenced by this Warrant Certificate may be exercised to purchase Warrant Securities in registered form. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the registered owner hereof a new Warrant Certificate evidencing the number of Warrants remaining unexercised.

 

This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of             ,              (the “Warrant Agreement”), between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file at the above-mentioned office of the Warrant Agent [and at             ].

 

[The Warrant Securities to be issued and delivered upon the exercise of Warrants evidenced by this Warrant Certificate will be issued under and in accordance with an Indenture, dated as of              (the “Indenture”), between the Company and             , a [corporation] [national banking association] organized under the laws of the State of             , as trustee (such trustee, and any successors to such trustee, the “Trustee”) and will be subject to the terms and provisions contained in the Warrant Securities and in the Indenture. Copies of the Indenture,

 

A-2

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including the form of the Warrant Securities, are on file at the corporate trust office of the Trustee [and at             ].]

 

[Prior to             ,              (the “Detachable Date”), this Warrant Certificate may be exchanged or transferred only together with the [title of Offered Security] (the “Offered Security”) to which this Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Security. Additionally, on or prior to the Detachable Date, each transfer of such Offered Security on the register of the Offered Securities shall operate also to transfer this Warrant Certificate. After the Detachable Date,] this Warrant Certificate, and all rights hereunder, may be transferred when surrendered at the corporate trust office of the Warrant Agent [or             ] by the registered owner or its assigns, in person or by an attorney duly authorized in writing, in the manner and subject to the limitations provided in the Warrant Agreement.

 

Except as provided in the immediately preceding paragraph, after authentication by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the corporate trust office of the Warrant Agent [or at             ] for Warrant Certificates representing the same aggregate number of Warrants.

 

This Warrant Certificate shall not entitle the registered owner hereof to any of the rights of a registered holder of the Warrant Securities, including, without limitation, [the right to receive payments of principal of (and premium, if any) or interest, if any, on the Warrant Securities or to enforce any of the covenants of the Indenture] [the right to receive dividend payments on the Warrant Securities or any voting rights].

 

Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

This Warrant Certificate shall not be valid or obligatory for any purpose until authenticated by the Warrant Agent.

 

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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed as of the date hereof.

 

Dated:                     

 

 

CERTIFICATE OF AUTHENTICATION

 

This is one of the Warrant Certificates referred to in the within-mentioned Warrant Agreement.

 

 

 

A-4

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[FORM OF WARRANT CERTIFICATE]

 

[Reverse]

 

(Instructions for exercise of Warrants)

 

To exercise any Warrants evidenced hereby, the Holder of this Warrant Certificate must pay [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds], the Exercise Price in full for each of the Warrants exercised, to             , Corporate Trust Department,             , Attn:              [or             ], which payment should specify the name of the Holder of this Warrant Certificate and the number of Warrants exercised by such Holder. In addition, the Holder of this Warrant Certificate should complete the information required below and present in person or mail by registered mail this Warrant Certificate to the Warrant Agent at the addresses set forth below.

 

[FORM OF EXERCISE]

 

(To be executed upon exercise of Warrants)

 

The undersigned hereby irrevocably elects to exercise              Warrants, represented by this Warrant Certificate, to purchase [             shares of [title of Warrant Securities]] [$             aggregate principal amount of the [title of Warrant Securities]] (the “Warrant Securities”) of BLACK HILLS CORPORATION and represents that he has tendered payment for such Warrant Securities [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds] to the order of Black Hills Corporation, c/o Treasurer in the amount of $             in accordance with the terms hereof. The undersigned requests that said [principal] amount of Warrant Securities be in fully registered form, in the authorized denominations, registered in such names and delivered, all as specified in accordance with the instructions set forth below.

 

If said [principal] amount of Warrant Securities is less than all of the Warrant Securities purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of the Warrants evidenced hereby be issued and delivered to the undersigned unless otherwise specified in the instructions below.

 

Dated:                    

 

 

(Insert Social Security or Other Identifying Number of Holder)

 

A-5

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This Warrant may be exercised at the following addresses:

 

By hand at:

 

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By mail at:

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(Instructions as to form and delivery of Warrant Securities and/or Warrant Certificates):

 

A-6

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[FORM OF ASSIGNMENT]

 

(To be executed to transfer the Warrant Certificate)

 

FOR VALUE RECEIVED              hereby sells, assigns and transfers unto

 

 

                            the right represented by the within Warrant Certificate and does hereby irrevocably constitute and appoint             , Attorney, to transfer said Warrant Certificate on the books of the Warrant Agent with full power of substitution.

 

Dated:                        

 

 

Signature Guarantee:

 

 

Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor program reasonably acceptable to the Warrant Agent)

 

A-7

 

Exhibit 5.1

 

February 4, 2003

 

Black Hills Corporation

625 Ninth Street

Rapid City, South Dakota 57701

 

Re:

Black Hills Corporation

Registration Statement on Form S-3

 

Gentlemen:

 

I am 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, as amended (the “Registration Statement”), with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), for the registration of the sale from time to time of up to $400,000,000 aggregate offering price of (i) debt securities of the Company, which may be either senior debt securities (the “Senior Debt Securities”) or subordinated debt securities (the “Subordinated Debt Securities” and together with the Senior Debt Securities, the “Debt Securities”), (ii) shares of the Company’s preferred stock, without par value (the “Preferred Stock”), (iii) shares of the Company’s common stock, par value $1.00 per share (the “Common Stock”), (iv) warrants representing rights to purchase Debt Securities, Preferred Stock or Common Stock of the Company (“Warrants”), (v) purchase contracts for the purchase or sale of debt or equity securities of the Company or any combination thereof (“Purchase Contracts”), and (vi) units consisting of one or more Purchase Contracts, Warrants, Debt Securities, shares of Common Stock, shares of Preferred Stock or any combination of such securities (“Units”) and together with the Debt Securities, Preferred Stock, Common Stock, Warrants and Purchase Contracts (the “Securities”). The Securities will be sold or delivered from time to time as set forth in the Registration Statement, the prospectus contained therein (the “Prospectus”) and supplements to the Prospectus (the “Prospectus Supplements”).

 

I have examined (i) the Articles of Incorporation and Bylaws of the Company, (ii) the Registration Statement, (iii) the form of Indenture relating to the Senior Debt Securities (the “Senior Indenture”) to be executed by the Company and an indenture trustee to be selected by the Company and filed as an exhibit to the Registration Statement, (iv) the form of Indenture relating to the Subordinated Debt Securities (the “Subordinated Indenture”) to be executed by the Company and an indenture trustee to be selected by the Company and filed as an exhibit to the Registration Statement, (v) the form of Warrant Agreement to be executed by the Company and a warrant agent to be selected by the Company and filed as an exhibit to the Registration Statement (the “Warrant Agreement”), and (vi) the form of Purchase Contract to be executed by the Company and filed as an exhibit to the Registration Statement (the “Purchase Contract Agreement”). In addition, I have (a) examined such certificates of public officials and of corporate officers and directors and such other documents and matters as I have deemed necessary or appropriate, (b) relied upon the accuracy of facts and information set forth in all

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Black Hills Corporation

February 4, 2003

Page 2

 

such documents, and (c) assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as copies, and the authenticity of the originals from which all such copies were made.

 

Based on the foregoing and subject to the qualifications and limitations stated herein, I am of the opinion that:

 

1.    The Senior Debt Securities proposed to be sold by the Company, when (i) duly authorized by all necessary corporate action, (ii) the Senior Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, (iii) the Senior Indenture and any supplemental indenture in respect of the Senior Debt Securities have been duly executed and delivered, (iv) the terms of the Senior Debt Securities have been duly established in accordance with the Senior Indenture and any applicable supplemental indenture relating to the Senior Debt Securities, and (v) the Senior Debt Securities have been duly executed and authenticated in accordance with the Senior Indenture and any related supplemental indenture in respect of the Senior Debt Securities and duly issued and delivered by the Company upon payment of the consideration therefor in the manner contemplated in the Registration Statement and any Prospectus Supplement relating thereto, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms.

 

2.    The Subordinated Debt Securities proposed to be sold by the Company, when (i) duly authorized by all necessary corporate action, (ii) the Subordinated Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, (iii) the Subordinated Indenture and any supplemental indenture in respect of the Subordinated Debt Securities have been duly executed and delivered, (iv) the terms of the Subordinated Debt Securities have been duly established in accordance with the Subordinated Indenture and any applicable supplemental indenture relating to the Subordinated Debt Securities, and (v) the Subordinated Debt Securities have been duly executed and authenticated in accordance with the Subordinated Indenture and any related supplemental indenture in respect of the Subordinated Debt Securities and duly issued and delivered by the Company upon payment of the consideration therefor in the manner contemplated in the Registration Statement and any Prospectus Supplement relating thereto, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms.

 

3.    The shares of Preferred Stock proposed to be sold by the Company, when (i) all necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of such series of Preferred Stock, including the adoption of a Statement of Designation relating to the Preferred Stock (a “Statement”) and the filing of the Statement with the Secretary of State of the State of South Dakota, and (ii) such shares of Preferred Stock are issued and delivered upon payment of the consideration therefor in the manner contemplated in the Registration Statement and any Prospectus Supplement relating thereto or upon the conversion, exchange or exercise of any other Security in accordance with the terms of such Security or the instrument governing such Security providing for such conversion, exchange or exercise, will be validly issued, fully paid and non-assessable.

 

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Black Hills Corporation

February 4, 2003

Page 3

 

4.    The shares of Common Stock proposed to be sold by the Company, when (i) all necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of such shares of Common Stock, and (ii) such shares of Common Stock are issued and delivered upon payment of the consideration therefor (not less than the par value of the Common Stock) in the manner contemplated in the Registration Statement and any Prospectus Supplement relating thereto or upon the conversion, exchange or exercise of any other Security in accordance with the terms of such Security or the instrument governing such Security providing for such conversion, exchange or exercise, will be validly issued, fully paid and non-assessable.

 

5.    The Warrants proposed to be sold by the Company, when (i) all necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of the Warrants, (ii) the Warrant Agreement has been duly authorized and validly executed and delivered, (iii) the Warrants or certificates representing the Warrants have been duly executed and authenticated in accordance with the Warrant Agreement, and (iv) the Warrants are issued and delivered by the Company upon payment of the consideration therefor in the manner contemplated in the Registration Statement and any Prospectus Supplement relating thereto, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms.

 

6.    The Purchase Contracts proposed to be sold by the Company, when (i) all necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of the Purchase Contracts, (ii) the Purchase Contract Agreement has been duly authorized and validly executed and delivered, and (iii) the Purchase Contracts are issued and delivered by the Company upon payment of the consideration therefor in the manner contemplated in the Registration Statement and any Prospectus Supplement relating thereto, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms.

 

7.    The Units, when (i) all necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of the Units, (ii) the terms of the collateral arrangements, if any, relating to the Units have been duly established and the agreement(s) relating thereto have been duly executed and delivered and the collateral has been deposited with the collateral agent in accordance with such arrangements, and (iii) the Units are issued and delivered by the Company upon payment of the consideration therefor in the manner contemplated by the Registration Statement and any Prospectus Supplement relating thereto, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms.

 

My opinions set forth in paragraphs 1, 2, 5, 6 and 7 above are subject to the effects of bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance, moratorium or other similar laws now or hereinafter in effect relating to or affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

 

I am a member of the bar of the State of South Dakota. My opinion expressed above is limited to the laws of the States of South Dakota and New York and the federal law of the United States of America, and I do not express any opinion herein concerning the laws of any other

 

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Black Hills Corporation

February 4, 2003

Page 4

 

jurisdiction. The Senior Indenture, the Subordinated Indenture, the Warrant Agreement and the Purchase Contract Agreement provide that they are governed by the laws of the State of New York. To the extent that the opinion expressed herein relates to matters governed by the laws of the State of New York, I have relied, with their permission, as to all matters of New York law, on the opinion of Skadden, Arps, Slate, Meagher & Flom LLP dated February 4, 2003, which is filed herewith as Exhibit 5.2 to the Registration Statement, and my opinion is subject to the exceptions, qualifications and assumptions contained in such opinion.

 

I consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to me in the Prospectus constituting a part of the Registration Statement under the caption “Legal Opinions.” In giving this consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

 

Sincerely,

 

/s/ Steven J. Helmers

 

Steven J. Helmers, General Counsel

of Black Hills Corporation

 

Exhibit 5.2

 

[LETTERHEAD OF SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP]

 

February 4, 2003

 

Steven J. Helmers, Esq.

General Counsel

Black Hills Corporation

625 Ninth Street

Rapid City, South Dakota 57701

 

Re:

Registration Statement on Form S-3

Black Hills Corporation

 

Dear Mr. Helmers:

 

You are acting as counsel in connection with the 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”). 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 securities of the Company for aggregate proceeds of up to $400,000,000, with such securities to include senior debt securities (the “Senior Debt Securities”); subordinated debt securities (the “Subordinated Debt Securities” and together with the Senior Debt Securities, the “Debt Securities”); purchase contracts (the “Purchase Contracts”); and warrants (the “Warrants”).

 

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 governed by New York law.

 

In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement; (ii) the form of Indenture relating to the Senior Debt Securities (the “Senior Indenture”) filed as an exhibit to the Registration Statement; (iii) the form of Indenture relating to the Subordinated Debt Securities (the “Subordinated Indenture”) filed as

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February 4, 2003

Page 2

 

an exhibit to the Registration Statement; (iv) the form of Purchase Contract Agreement relating to the Purchase Contracts (the “Purchase Contract Agreement”) filed as an exhibit to the Registration Statement; and (v) the form of Warrant Agreement relating to the Warrants (the “Warrant Agreement”) filed as an exhibit to the Registration Statement. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein.

 

In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. In making our examination of executed documents or documents to be executed, we have assumed that the parties thereto, including the Company, had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents, and, as to parties other than the Company, the validity and binding effect on such parties. We have also assumed that the Company has been duly organized and is validly existing in good standing under the laws of the state of South Dakota and that the Company has complied with all aspects of applicable laws of jurisdictions other than the United States of America and the State of New York in connection with the transactions contemplated by the Senior Indenture, the Subordinated Indenture, the Purchase Contract Agreement, the Warrant Agreement, and the Registration Statement. We have also assumed that the choice of New York law to govern the Senior Indenture, the Subordinated Indenture, the Purchase Contract Agreement and the Warrant Agreement is a valid and legal provision.

 

 

Our opinions set forth herein are limited to the laws of the State of New York which are normally applicable to transactions of the type contemplated by the Registration Statement and to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws (all of the foregoing being referred to as “Opined on Law”). We do not express

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February 4, 2003

Page 3

 

any opinion with respect to the law of any jurisdiction other than Opined on Law or as to the effect of any such non opined law on the opinions herein stated.

 

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

 

1.    The Senior Indenture, when duly executed and delivered by the Company and the other parties thereto, will constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

 

2.    The Subordinated Indenture, when duly executed and delivered by the Company and the other parties thereto, will constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

 

3.    The Purchase Contract Agreement, when duly executed and delivered by the Company and the other parties thereto, will constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

 

4.    The Warrant Agreement, when duly executed and delivered by the Company and the other parties thereto, will constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

 

The opinions set forth above are subject to the following qualifications, further assumptions and limitations:

 

(a)    the enforcement of any agreements or instruments may be limited by (1) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (2) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and

 

(b)    we have assumed that the execution and delivery by the Company of the Senior Indenture, the Subordinated Indenture, the Purchase Contract Agreement and the Warrant Agreement and the performance by the Company of its obligations thereunder do not and will not violate, conflict with or constitute a default under any agreement or instrument to which the Company or its properties is subject.

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February 4, 2003

Page 4

 

We understand that in your relying on this opinion that you may attach this opinion as an exhibit to the Registration Statement. We also consent to the reference to our firm under the caption “Legal Opinions” in the Registration Statement to the extent of your reliance on our opinion under New York law. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.

 

Very truly yours,

 

/s/ SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP