UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Form 10-K/A
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
X EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2001
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from __________________ to _________________
Commission File Number 333-52664
BLACK HILLS CORPORATION
Incorporated in South Dakota IRS Identification Number 46-0458824
625 Ninth Street
Rapid City, South Dakota 57701
Registrant's telephone number, including area code
(605) 721-1700
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
------------------- -------------------
Common stock of $1.00 par value New York Stock Exchange
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
---- ----
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.
X
State the aggregate market value of the voting stock held by non-affiliates of
the Registrant.
At February 28, 2002 $734,526,500
Indicate the number of shares outstanding of each of the Registrant's classes of
common stock, as of the latest practicable date.
Class Outstanding at February 28, 2002
----- --------------------------------
Common stock, $1.00 par value 26,694,625 shares
Documents Incorporated by Reference
1. Definitive Proxy Statement of the Registrant filed pursuant to Regulation
14A for the 2002 Annual Meeting of Stockholders to be held on May 29, 2002,
is incorporated by reference in Part III.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) 1. Consolidated Financial Statements
Financial statements required by Item 14 are listed in the index
included in Item 8 of Part II.
2. Schedules
All schedules have been omitted because of the absence of the
conditions under which they are required or because the required
information is included elsewhere in the financial statements
incorporated by reference in the Form 10-K.
3. Exhibits
Exhibit
Number Description
------- -----------
2* Plan of Exchange Between Black Hills Corporation and Black Hills Holding Corporation (filed as an exhibit
to the Registrant's Registration Statement on Form S-4 (No. 333-52664)).
3.1* Articles of Incorporation of the Registrant (filed as an exhibit to the Registrant's Registration
Statement on Form S-4 (No. 333-52664)).
3.2* Articles of Amendment of the Registrant (filed as an exhibit to the Registrant's Form 8-K filed on
December 26, 2000).
3.3 Amended and Restated Bylaws of the Registrant dated December 10, 2001.
3.4* Statement of Designations, Preferences and Relative
Rights and Limitations of No Par Preferred Stock,
Series 2000-A of the Registrant (filed as an exhibit
to the Registrant's Form 8-K filed on December 26,
2000).
4.1* Restated and Amended Indenture of Mortgage and Deed of Trust of Black Hills Corporation (now called Black
Hills Power, Inc.) dated as of September 1, 1999 (filed as an exhibit to the Registrant's Registration
Statement on Form S-4 (No. 333-52664)).
4.2* Form of Stock Certificate for Common Stock, Par Value $1.00 Per Share (filed as Exhibit 4.2 to the
Registrant's Form 10-K for 2000).
10.1* Agreement for Transmission Service and the Common Use of Transmission Systems dated January 1, 1986,
among Black Hills Power, Inc., Basin Electric Power Cooperative, Rushmore Electric Power Cooperative, Inc
Tri-County Electric Association, Inc., Black Hills Electric Cooperative, Inc. and Butte Electric
Cooperative, Inc. (filed as Exhibit 10(d) to the Registrant's Form 10-K for 1987).
10.2* Restated and Amended Coal Supply Agreement for NS II dated February 12, 1993 (filed as Exhibit 10(c) to
the Registrant's Form 10-K for 1992).
10.3* Coal Leases between Wyodak Resources Development Corp. and the Federal Government
-Dated May 1, 1959 (filed as Exhibit 5(i) to the Registrant's Form S-7, File No. 2-60755)
-Modified January 22, 1990 (filed as Exhibit 10(h) to the Registrant's Form 10-K for 1989)
-Dated April 1, 1961 (filed as Exhibit 5(j) to the Registrant's Form S-7, File No. 2-60755)
-Modified January 22, 1990 (filed as Exhibit 10(i) to Registrant's Form 10-K for 1989)
-Dated October 1, 1965 (filed as Exhibit 5(k) to the Registrant's Form S-7, File No. 2-60755)
-Modified January 22, 1990 (filed as Exhibit 10(j) to the Registrant's Form 10-K for 1989).
10.4* Restated and Amended Coal Supply Agreement dated as of January 1, 2001 between Wyodak Resources
Development Corp. and PacifiCorp (filed as Exhibit 10.4 to the Registrant's Form S-1 No. 333-57440).
10.5* Second Restated and Amended Power Sales Agreement dated September 29, 1997, between PacifiCorp and Black
Hills Power, Inc. (filed as Exhibit 10(e) to the Registrant's Form 10-K for 1997).
2
10.6* Coal Supply Agreement for Wyodak Unit #2 dated February 3, 1983, and Ancillary Agreement dated February 3
1982, between Wyodak Resources Development Corp., Pacific Power & Light Company and Black Hills Power,
Inc.(filed as Exhibit 10(o) to the Registrant's Form 10-K for 1983). Amendment to Agreement for Coal
Supply for Wyodak #2 dated May 5, 1987 (filed as Exhibit 10(o) to the Registrant's Form 10-K for 1987).
10.7* Reserve Capacity Integration Agreement dated May 5, 1987, between Pacific Power & Light Company and Black
Hills Power, Inc. (filed as Exhibit 10(u) to the Registrant's Form 10-K for 1987).
10.8* Marketing, Capacity and Storage Service Agreement between Black Hills Power, Inc. and PacifiCorp dated
September 1, 1995 (filed as Exhibit 10(ag) to the Registrant's Form 10-K for 1995).
10.9* Assignment of Mining Leases and Related Agreement effective May 27, 1997, between Wyodak Resources
Development Corp. and Kerr-McGee Coal Corporation (filed as Exhibit 10(u) to the Registrant's Form 10-K
for 1997).
10.10* Rate Freeze Extension (filed as Exhibit 10(t) to the Registrant's Form 10-K for 1999).
10.11+ Amended and Restated Pension Equalization Plan of Black Hills Corporation dated November 6, 2001.
10.12+ Severance, Confidentiality, Non-disclosure and Release Agreement dated October 30, 2001 between Black
Hills Corporation and Gary R. Fish.
10.13*+ Black Hills Corporation Nonqualified Deferred Compensation Plan dated June 1, 1999 (filed as
Exhibit 10.13 to the Registrant's Form 10-K for 2000).
10.14*+ Black Hills Corporation 1996 Stock Option Plan (filed as Exhibit 10(s) to the Registrant's Form 10-K for
1997).
10.15*+ Black Hills Corporation 1999 Stock Option Plan (filed as Exhibit 10.14 to the Registrant's Form 10-K for
2000.
10.16*+ Black Hills Corporation Omnibus Incentive Compensation Plan dated May 30, 2001 (filed as Exhibit 10.16 to
the Registrant's Form 10-K for 2001).
10.17*+ Agreement for Supplemental Pension Benefit for Everett E. Hoyt dated January 20, 1992 (filed as
Exhibit 10(gg) to the Registrant's Form 10-K for 1992).
10.18*+ Change in Control Agreements for various officers (filed as Exhibit 10(af) to the Registrant's Form 10-K
for 1995).
10.19*+ Outside Directors Stock Based Compensation Plan (filed as Exhibit 10(t) to the Registrant's Form 10-K for
1997).
10.20*+ Officers Short-Term Incentive Plan (filed as Exhibit 10(s) to the Registrant's Form 10-K for 1999).
10.21* Agreement and Plan of Merger, dated as of January 1, 2000, among Black Hills Corporation, Black Hills
Energy Capital, Inc., Indeck Capital, Inc., Gerald R. Forsythe, Michelle R. Fawcett, Marsha Fournier,
Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr. (Exhibit 2 to Schedule 13D filed on behalf of
the former shareholders of Indeck Capital, Inc. consisting of Gerald R. Forsythe, Michelle R. Fawcett,
Marsha Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr., dated July 7, 2000).
10.22* Addendum to the Agreement and Plan of Merger, dated as of April 6, 2000, among Black Hills Corporation,
Black Hills Energy Capital, Inc., Indeck Capital, Inc., Gerald R. Forsythe, Michelle R. Fawcett, Marsha
Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr. (Exhibit 3 to Schedule 13D filed on
behalf of the former shareholders of Indeck Capital, Inc. consisting of Gerald R. Forsythe, Michelle R.
Fawcett, Marsha Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr., dated July 7,
2000).
10.23* Supplemental Agreement Regarding Contingent Merger Consideration, dated as of January 1, 2000, among
Black Hills Corporation, Black Hills Energy Capital, Inc., Indeck Capital, Inc., Gerald R. Forsythe,
Michelle R. Fawcett, Marsha Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr.
(Exhibit 4 to Schedule 13D filed on behalf of the former shareholders of Indeck Capital, Inc. consisting
of Gerald R. Forsythe, Michelle R. Fawcett, Marsha Fournier, Monica Breslow, Melissa S. Forsythe and
John W. Salyer, Jr., dated July 7, 2000).
10.24* Supplemental Agreement Regarding Restructuring of Certain Qualifying Facilities (Exhibit 5 to Schedule
13Dfiled on behalf of the former shareholders of Indeck Capital, Inc. consisting of Gerald R. Forsythe,
Michelle R. Fawcett, Marsha Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr., dated
July 7, 2000).
3
10.25* Addendum to the Agreement and Plan of Merger, dated as of June 30, 2000, among Black Hills Corporation,
Black Hills Energy Capital, Inc., Indeck Capital, Inc., Gerald R. Forsythe, Michelle R. Fawcett, Marsha
Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr. (Exhibit 6 to Schedule 13D filed on
behalf of the former shareholders of Indeck Capital, Inc. consisting of Gerald R. Forsythe, Michelle R.
Fawcett, Marsha Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr., dated July 7,
2000).
10.26* Registration Rights Agreement among Black Hills Corporation, Gerald R. Forsythe, Michelle R. Fawcett,
Marsha Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr. (Exhibit 7 to Schedule 13D
filed on behalf of the former shareholders of Indeck Capital, Inc. consisting of Gerald R. Forsythe,
Michelle R. Fawcett, Marsha Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr., dated
July 7, 2000).
10.27* Shareholders Agreement among Black Hills Corporation, Gerald R. Forsythe, Michelle R. Fawcett, Marsha
Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr. (Exhibit 8 to Schedule 13D filed on
behalf of the former shareholders of Indeck Capital, Inc. consisting of Gerald R. Forsythe, Michelle R.
Fawcett, Marsha Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr., dated July 7,
2000).
10.28* 3-year Credit Agreement dated as of August 28, 2001 among Black Hills Corporation, as Borrower, The
Financial Institutions party, hereto, as Banks, ABN AMRO BANK N.V., as Administrative Agent, Union Bank
of California, N.A., as Syndication Agent, Bank of Montreal, as Co-Syndication Agent, US Bank, National
Association, as Documentation Agent, and The Bank of Nova Scotia, as Co-Documentation Agent (filed as
Exhibit 10.1 to the Registrant's Form 10-Q for the quarterly period ended September 30, 2001).
10.29* 364-day Credit Agreement dated as of August 28, 2001 among Black Hills Corporation, as Borrower, The
Financial Institutions party, hereto, as Banks, ABN AMRO BANK N.V., as Administrative Agent, Union Bank
of California, N.A., as Syndication Agent, Bank of Montreal, as Co-Syndication Agent, US Bank, National
Association, as Documentation Agent, and The Bank of Nova Scotia, as Co-Documentation Agent (filed as
Exhibit 10.2 to the Registrant's Form 10-Q for the quarterly period ended September 30, 2001).
10.30* Purchase and Sale Agreement by and between TLS Investors, LLC and Black Hills Energy Capital, Inc. dated
June 18, 2001 to purchase Southwest Power, LLC (filed as Exhibit 10.30 to the Registrant's Form 10-K for
2001).
10.31* Agreement for Lease between Wygen Funding, Limited Partnership and Black Hills Generation, Inc. dated as
of July 20, 2001 (filed as Exhibit 10.31 to the Registrant's Form 10-K for 2001).
10.32* Amendment No. 1 dated as of December 20, 2001 to Agreement for Lease dated as of July 20, 2001 between
Wygen Funding, Limited Partnership as Owner and Black Hills Generation, Inc., as Agent (filed as Exhibit
10.32 to the Registrant's Form 10-K for 2001).
10.33* Lease Agreement dated as of July 20, 2001 between Wygen Funding, Limited Partnership as Lessor and Black
Hills Generation, Inc. as Lessee (filed as Exhibit 10.33 to the Registrant's Form 10-K for 2001).
21* List of Subsidiaries of Black Hills Corporation (filed as Exhibit 21 to the Registrant's Form 10-K for
2001).
23.1* Consent of Independent Public Accountants (filed as Exhibit 23.1 to the Registrant's Form 10-K for 2001).
23.2* Consent of Petroleum Engineer and Geologist (filed as Exhibit 23.2 to the Registrant's Form 10-K for
2001).
99.1* Letter to Commission Pursuant to Temporary Note 3T (filed as Exhibit 99.1 to the Registrant's Form 10-K
for 2001).
- ----------
* Previously filed as part of the filing indicated and incorporated by reference
herein.
+ Indicates a board of director or management compensatory plan.
4
(b) Reports on Form 8-K
We have not filed any Reports on Form 8-K since September 30, 2001.
(c) See (a) 3. Exhibits above.
(d) See (a) 2. Schedules above.
5
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
BLACK HILLS CORPORATION
By DANIEL P. LANDGUTH
-----------------------------
Daniel P. Landguth, Chairman
and Chief Executive Officer
Dated: March 30, 2002
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
DANIEL P. LANDGUTH Director and Principal March 30, 2002
- ------------------------------------------ Executive Director
Daniel P. Landguth, Chairman,
and Chief Executive Officer
MARK T. THIES Principal Financial Officer March 30, 2002
- -------------------------------------------
Mark T. Thies, Senior Vice President and
Chief Financial Officer
ROXANN R. BASHAM Principal Accounting Officer March 30, 2002
- -------------------------------------------
Roxann R. Basham, Vice President-Controller,
and Assistant Secretary
ADIL M. AMEER Director March 30, 2002
- -------------------------------------------
Adil M. Ameer
BRUCE B. BRUNDAGE Director March 30, 2002
- -------------------------------------------
Bruce B. Brundage
DAVID C. EBERTZ Director March 30, 2002
- -------------------------------------------
David C. Ebertz
JOHN R. HOWARD Director March 30, 2002
- -------------------------------------------
John R. Howard
EVERETT E. HOYT Director and Officer March 30, 2002
- -------------------------------------------
Everett E. Hoyt, President and Chief
Operating Officer
KAY S. JORGENSEN Director March 30, 2002
- -------------------------------------------
Kay S. Jorgensen
DAVID S. MANEY Director March 30, 2002
- -------------------------------------------
David S. Maney
THOMAS J. ZELLER Director March 30, 2002
- -------------------------------------------
Thomas J. Zeller
6
INDEX TO EXHIBITS
Exhibit
Number Description
------- -----------
2* Plan of Exchange Between Black Hills Corporation and Black Hills Holding Corporation (filed as an exhibit to
the Registrant's Registration Statement on Form S-4 (No. 333-52664)).
3.1* Articles of Incorporation of the Registrant (filed as an exhibit to the Registrant's Registration Statement on
Form S-4 (No. 333-52664)).
3.2* Articles of Amendment of the Registrant (filed as an exhibit to the Registrant's Form 8-K filed on
December 26, 2000).
3.3 Amended and Restated Bylaws of the Registrant dated December 10, 2001.
3.4* Statement of Designations, Preferences and Relative Rights
and Limitations of No Par Preferred Stock, Series 2000-A
of the Registrant (filed as an exhibit to the Registrant's
Form 8-K filed on December 26, 2000).
4.1* Restated and Amended Indenture of Mortgage and Deed of Trust of Black Hills Corporation (now called
Black Hills Power, Inc.) dated as of September 1, 1999 (filed as an exhibit to the Registrant's Registration
Statement on Form S-4 (No. 333-52664)).
4.2* Form of Stock Certificate for Common Stock, Par Value $1.00 Per Share (filed at Exhibit 4.2 to the
Registrant's Form 10-K for 2000).
10.1* Agreement for Transmission Service and the Common Use of Transmission Systems dated January 1, 1986, among
Black Hills Power, Inc., Basin Electric Power Cooperative, Rushmore Electric Power Cooperative, Inc.,
Tri-County Electric Association, Inc., Black Hills Electric Cooperative, Inc. and Butte Electric Cooperative,
Inc. (filed as Exhibit 10(d) to the Registrant's Form 10-K for 1987).
10.2* Restated and Amended Coal Supply Agreement for NS II dated February 12, 1993 (filed as Exhibit 10(c) to the
Registrant's Form 10-K for 1992).
10.3* Coal Leases between Wyodak Resources Development Corp. and the Federal Government
-Dated May 1, 1959 (filed as Exhibit 5(i) to the Registrant's Form S-7, File No. 2-60755)
-Modified January 22, 1990 (filed as Exhibit 10(h) to the Registrant's Form 10-K for 1989)
-Dated April 1, 1961 (filed as Exhibit 5(j) to the Registrant's Form S-7, File No. 2-60755)
-Modified January 22, 1990 (filed as Exhibit 10(i) to Registrant's Form 10-K for 1989)
-Dated October 1, 1965 (filed as Exhibit 5(k) to the Registrant's Form S-7, File No. 2-60755)
-Modified January 22, 1990 (filed as Exhibit 10(j) to the Registrant's Form 10-K for 1989).
10.4* Restated and Amended Coal Supply Agreement dated as of January 1, 2001 between Wyodak Resources Development
Corp. and PacifiCorp (filed as Exhibit 10.4 to the Registrant's Form S-1 No. 333-57440).
10.5* Second Restated and Amended Power Sales Agreement dated September 29, 1997, between PacifiCorp and Black Hills
Power, Inc. (filed as Exhibit 10(e) to the Registrant's Form 10-K for 1997).
7
10.6* Coal Supply Agreement for Wyodak Unit #2 dated February 3, 1983, and Ancillary Agreement dated February 3,
1982, between Wyodak Resources Development Corp., Pacific Power & Light Company and Black Hills Power, Inc.
(filed as Exhibit 10(o) to the Registrant's Form 10-K for 1983). Amendment to Agreement for Coal Supply for
Wyodak #2 dated May 5, 1987 (filed as Exhibit 10(o) to the Registrant's Form 10-K for 1987).
10.7* Reserve Capacity Integration Agreement dated May 5, 1987, between Pacific Power & Light Company and Black
Hills Power, Inc. (filed as Exhibit 10(u) to the Registrant's Form 10-K for 1987).
10.8* Marketing, Capacity and Storage Service Agreement between Black Hills Power, Inc. and PacifiCorp dated
September 1, 1995 (filed as Exhibit 10(ag) to the Registrant's Form 10-K for 1995).
10.9* Assignment of Mining Leases and Related Agreement effective May 27, 1997, between Wyodak Resources Development
Corp. and Kerr-McGee Coal Corporation (filed as Exhibit 10(u) to the Registrant's Form 10-K for 1997).
10.10* Rate Freeze Extension (filed as Exhibit 10(t) to the Registrant's Form 10-K for 1999).
10.11+ Amended and Restated Pension Equalization Plan of Black Hills Corporation dated November 6, 2001.
10.12+ Severance, Confidentiality, Non-disclosure and Release Agreement dated October 30, 2001 between Black Hills
Corporation and Gary R. Fish.
10.13*+ Black Hills Corporation Nonqualified Deferred Compensation Plan dated June 1, 1999 (filed as Exhibit 10.13 to
the Registrant's Form 10-K for 2000).
10.14*+ Black Hills Corporation 1996 Stock Option Plan (filed as Exhibit 10(s) to the Registrant's Form 10-K for 1997)
10.15*+ Black Hills Corporation 1999 Stock Option Plan (filed as Exhibit 10.14 to the Registrant's Form 10-K for 2000.
10.16*+ Black Hills Corporation Omnibus Incentive Compensation Plan dated May 30, 2001 (filed as Exhibit 10.16 to the
Registrant's Form 10-K for 2001).
10.17*+ Agreement for Supplemental Pension Benefit for Everett E. Hoyt dated January 20, 1992 (filed as Exhibit 10(gg)
to the Registrant's Form 10-K for 1992).
10.18*+ Change in Control Agreements for various officers (filed as Exhibit 10(af) to the Registrant's Form 10-K for
1995).
10.19*+ Outside Directors Stock Based Compensation Plan (filed as Exhibit 10(t) to the Registrant's Form 10-K for
1997).
10.20*+ Officers Short-Term Incentive Plan (filed as Exhibit 10(s) to the Registrant's Form 10-K for 1999).
10.21* Agreement and Plan of Merger, dated as of January 1, 2000, among Black Hills Corporation, Black Hills Energy
Capital, Inc., Indeck Capital, Inc., Gerald R. Forsythe, Michelle R. Fawcett, Marsha Fournier, Monica Breslow,
Melissa S. Forsythe and John W. Salyer, Jr. (Exhibit 2 to Schedule 13D filed on behalf of the former
shareholders of Indeck Capital, Inc. consisting of Gerald R. Forsythe, Michelle R. Fawcett, Marsha Fournier,
Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr., dated July 7, 2000).
10.22* Addendum to the Agreement and Plan of Merger, dated as of April 6, 2000, among Black Hills Corporation, Black
Hills Energy Capital, Inc., Indeck Capital, Inc., Gerald R. Forsythe, Michelle R. Fawcett, Marsha Fournier,
Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr. (Exhibit 3 to Schedule 13D filed on behalf of the
former shareholders of Indeck Capital, Inc. consisting of Gerald R. Forsythe, Michelle R. Fawcett, Marsha
Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr., dated July 7, 2000).
8
10.23* Supplemental Agreement Regarding Contingent Merger Consideration, dated as of January 1, 2000, among Black
Hills Corporation, Black Hills Energy Capital, Inc., Indeck Capital, Inc., Gerald R. Forsythe, Michelle R.
Fawcett, Marsha Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr. (Exhibit 4 to Schedule
13D filed on behalf of the former shareholders of Indeck Capital, Inc. consisting of Gerald R. Forsythe,
Michelle R. Fawcett, Marsha Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr., dated July
7, 2000).
10.24* Supplemental Agreement Regarding Restructuring of Certain Qualifying Facilities (Exhibit 5 to Schedule 13D
filed on behalf of the former shareholders of Indeck Capital, Inc. consisting of Gerald R. Forsythe, Michelle
R. Fawcett, Marsha Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr., dated July 7, 2000).
10.25* Addendum to the Agreement and Plan of Merger, dated as of June 30, 2000, among Black Hills Corporation, Black
Hills Energy Capital, Inc., Indeck Capital, Inc., Gerald R. Forsythe, Michelle R. Fawcett, Marsha Fournier,
Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr. (Exhibit 6 to Schedule 13D filed on behalf of the
former shareholders of Indeck Capital, Inc. consisting of Gerald R. Forsythe, Michelle R. Fawcett, Marsha
Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr., dated July 7, 2000).
10.26* Registration Rights Agreement among Black Hills Corporation, Gerald R. Forsythe, Michelle R. Fawcett, Marsha
Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr. (Exhibit 7 to Schedule 13D filed on
behalf of the former shareholders of Indeck Capital, Inc. consisting of Gerald R. Forsythe, Michelle R.
Fawcett, Marsha Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr., dated July 7, 2000).
10.27* Shareholders Agreement among Black Hills Corporation, Gerald R. Forsythe, Michelle R. Fawcett, Marsha Fournier
Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr. (Exhibit 8 to Schedule 13D filed on behalf of the
former shareholders of Indeck Capital, Inc. consisting of Gerald R. Forsythe, Michelle R. Fawcett, Marsha
Fournier, Monica Breslow, Melissa S. Forsythe and John W. Salyer, Jr., dated July 7, 2000).
10.28* 3-year Credit Agreement dated as of August 28, 2001 among Black Hills Corporation, as Borrower, The Financial
Institutions party, hereto, as Banks, ABN AMRO BANK N.V., as Administrative Agent, Union Bank of California,
N.A., as Syndication Agent, Bank of Montreal, as Co-Syndication Agent, US Bank, National Association, as
Documentation Agent, and The Bank of Nova Scotia, as Co-Documentation Agent (filed as Exhibit 10.1 to the
Registrant's Form 10-Q for the quarterly period ended September 30, 2001).
10.29* 364-Day Credit Agreement dated as of August 28, 2001 among Black Hills Corporation, as Borrower, The Financial
Institutions party, hereto, as Banks, ABN AMRO BANK N.V., as Administrative Agent, Union Bank of California,
N.A., as Syndication Agent, Bank of Montreal, as Co-Syndication Agent, US Bank, National Association, as
Documentation Agent, and The Bank of Nova Scotia, as Co-Documentation Agent (filed as Exhibit 10.2 to the
Registrant's Form 10-Q for the quarterly period ended September 30, 2001).
10.30* Purchase and Sale Agreement by and between TLS Investors, LLC and Black Hills Energy Capital, Inc. dated June
18, 2001 to purchase Southwest Power, LLC (filed as Exhibit 10.30 to the Registrant's Form 10-K for 2001).
9
10.31* Agreement for Lease between Wygen Funding, Limited Partnership and Black Hills Generation, Inc. dated as of
July 20, 2001 (filed as Exhibit 10.31 to the Registrant's Form 10-K for 2001).
10.32* Amendment No. 1 dated as of December 20, 2001 to Agreement for Lease dated as of July 20, 2001 between Wygen
Funding, Limited Partnership as Owner and Black Hills Generation, Inc., as Agent (filed as Exhibit 10.32 to
the Registrant's Form 10-K for 2001).
10.33* Lease Agreement dated as of July 20, 2001 between Wygen Funding, Limited Partnership as Lessor and Black Hills
Generation, Inc. as Lessee (filed as Exhibit 10.33 to the Registrant's Form 10-K for 2001).
21* List of Subsidiaries of Black Hills Corporation (filed as Exhibit 21 to the Registrant's Form 10-K for 2001).
23.1* Consent of Independent Public Accountants (filed as Exhibit 23.1 to the Registrant's Form 10-K for 2001).
23.2* Consent of Petroleum Engineer and Geologist (filed as Exhibit 23.2 to the Registrant's Form 10-K for 2001).
99.1* Letter to Commission Pursuant to Temporary Note 3T (filed as Exhibit 99.1 to the Registrant's Form 10-K for
2001).
- ----------
* Previously filed as part of the filing indicated and incorporated by reference
herein.
+ Indicates a board of director or management compensatory plan.
10
BLACK HILLS HOLDING CORPORATION
AMENDED BYLAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. Place. Meetings of the shareholders shall be held at such
place within or without the State of South Dakota as the Board of Directors may
from time to time determine and as stated in the notice of the meeting.
Section 2. Annual Meeting. The annual meeting of the shareholders shall
be held at such time within six months after the end of each fiscal year of the
Company as the Board of Directors designates for the purpose of electing
directors and for the transacting of any other business as may be brought before
the meeting.
Section 3. Special Meetings. All annual and special meetings of the
shareholders shall be called by a majority of the Board of Directors.
Section 4. Notice. Unless all shareholders entitled to vote at the
meeting waive notice in writing, written notice stating the place, day and hour
of each meeting of shareholders, and in the case of a special meeting, further
stating the purpose for which such meeting is called, shall be mailed at least
ten days before the meeting when called by the Board of Directors to each
stockholder of record who shall be entitled to vote thereat to the last known
post office address of each such stockholder as it appears upon the stock
transfer books of the Company. However, notice of a meeting, at which proposal
to increase the capital stock or indebtedness is to be considered, shall be
given at least sixty days prior to such meeting.
Section 5. Quorum. The holders of a majority of the issued and
outstanding shares of the capital stock of the Company entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum for the
transaction of business at all meetings of the shareholders except as may
otherwise be provided by law or by the Articles of Incorporation. If a quorum or
greater number as may be required by law or the Articles shall not be present or
represented at any meeting of the shareholders, a majority of the shareholders
who are present in person or by proxy and who are entitled to vote thereat shall
have the power to adjourn the meeting from time to time without notice other
than announcement at the meeting until such quorum or such greater number shall
have been obtained.
Section 6. Adjourned Meeting. The majority of the shareholders who are
entitled to vote and who are present in person or by proxy at any regular or
special meeting of the shareholders shall have the right to adjourn the meeting
from time to time without notice other than
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announcement at the meeting to be adjourned; provided, however, the meeting may
not be adjourned for a period longer than sixty days from the date of the
meeting as set forth in the notice thereof.
Section 7. Voting. At each meeting of the shareholders, every
stockholder having the right to vote shall be entitled to vote one vote per
share in person or by proxy appointed by an instrument in writing subscribed by
such stockholder. No proxy shall be valid after eleven months from the date of
its execution, unless otherwise provided in the proxy. All voting for directors
shall be by written ballot. All elections shall be had and all questions decided
by a plurality except as otherwise provided by law or by the Articles of
Incorporation.
Section 8. Inspectors. The Board of Directors or, if the Board shall
not have made the appointment, the person presiding at any meeting of
shareholders shall have power to appoint one or more persons, other than the
nominees for directors, to act as inspectors to receive, canvass and report the
votes cast by the shareholders at such meeting. Any inspector so appointed who
for any reason does not serve in such capacity may be replaced by the person
presiding at the meeting.
ARTICLE II
BOARD OF DIRECTORS
Section 1. Definitions. For the purposes of these Bylaws an "Inside
Director" is a director who is an employee of the Company, an officer of the
Company, a person who has in the past served as an officer of the Company or any
person whose relationship to the Company other than as a director gives him
access on a regular basis to material information about the Company that is not
generally available. Any director who is not an Inside Director would for the
purpose of these Bylaws constitute an "Outside Director." For the purpose of
this Section "Company" shall also include any subsidiary of the Company.
Section 2. Management of the Company. The property, business and
affairs of the Company shall be managed by or under the direction of its Board
of Directors.
Section 3. Qualifications of Directors. At the time a person is elected
as director by the shareholders, that person must beneficially own at least 100
shares of the common stock of the Company; and if such person is elected by the
shareholders, the person must be duly qualified to vote such stock at the said
election. Each director is required to apply at least 50 percent of his or her
retainer toward the purchase of additional shares until the director has
accumulated at least 2,000 shares of common stock. No person shall be elected or
stand for reelection as a director who will be seventy (70) years of age or
older on the thirty-first day of December of the year of the election, except in
the event the Board of Directors has not yet identified a director to be elected
to replace any director who will be seventy (70) years of age during the year in
which he
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or she stands for reelection, a director may stand for reelection
solely for the purpose of filling the slate of directors. However, upon the
Board of Directors' choosing a replacement director, the incumbent director
shall tender his or her resignation to the Chairman.
Section 4. Number and Election; Vacancies and Removal. The number of
members of the Board of Directors shall not be less than nine (9); provided, the
Board of Directors may change the number of directors through amendments to its
Bylaws. The Board of Directors shall be and is divided into three classes, Class
I, Class II and Class III, which shall be as nearly equal in number as possible.
Each director shall serve for a term ending on the date of the third annual
meeting following the annual meeting at which such director was elected;
provided, each initial director in Class I shall hold office until the annual
meeting of shareholders in 2002, each initial director in Class II shall hold
office until the annual meeting of shareholders in 2003, and each initial
director in Class III shall hold office until the annual meeting of shareholders
in 2001.
The Board of Directors is expressly authorized to determine the rights,
powers, duties, rules and procedures that affect the power of the Board of
Directors to manage and direct the business and affairs of the Corporation,
including the power to designate and empower committees of the Board of
Directors, to elect, appoint and empower the officers and other agents of the
Corporation, and to determine the time and place of, and the notice requirements
for, Board meetings, as well as quorum and voting requirements for, and the
manner of taking, Board action.
In the event of any change in the authorized number of directors, the
Board of Directors shall apportion any newly created directorships to, or reduce
the number of directorships in, such class or classes as shall, so far as
possible, equalize the number of directors in each class. The Board of Directors
shall allocate consistently with the rule that the three classes shall be as
nearly equal in number of directors as possible, any newly-created directorship
to the class the term of office of which is due to expire at the latest date
following such allocation.
Any vacancies in the Board of Directors for any reason, including any
newly created directorships resulting from any increase in the number of
directors, may be filled by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum; and any directors so
chosen shall hold office until the next election of the class for which such
directors shall have been chosen.
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Notwithstanding any of the foregoing, each director shall serve for a
term continuing until the annual meeting of shareholders at which the term of
the class to which he was elected expires and until his successor is elected and
qualified or until his or her earlier death, resignation or removal; except, a
director may be removed from office prior to the expiration of his or her term
only for cause and by a vote of the majority of the total number of members of
the Board of Directors without including the director who is the subject of the
removal determination and without such director being entitled to vote thereon.
Section 5. Compensation. Outside Directors shall be entitled to such
compensation and expenses as may be determined by resolution of the Board.
Outside Directors may serve the Company in other capacities and receive
compensation therefor.
Section 6. Meetings. The Board of Directors may hold meetings within or
without the State of South Dakota. Members of the Board of Directors or any
committee thereof may participate in a meeting of such Board or committee by
means of a conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other at the same
time, and participation by such means shall constitute presence in person at a
meeting.
Section 7. Regular Meetings. The annual meeting of the Board of
Directors for the election of officers and to conduct such other business to be
brought before the meeting shall, if practicable, be held on the same day as and
immediately after the annual election of the directors by the shareholders or
any adjournment thereof, and no notice thereof need be given. Further regular
meetings of the Board may be held with or without notice at such time and place
as shall from time to time be determined by the Board by resolution.
Section 8. Special Meetings. Special meetings of the Board of Directors
may be called either by the Chairman of the Board and Chief Executive Officer,
the President or by the Secretary upon the written request of any two directors
by giving oral or written notice to each director stating the time and place of
such meeting.
Section 9. Notice of Meetings. Notice shall be considered to have been
given if a notice is either orally communicated to a director at least twelve
hours prior to such meeting or placed in writing and mailed to the director at
his last known post office address as shown by the records of the Company at
least four days prior to the meeting. Any notice to be given a director for a
meeting of the directors may be waived by the director in writing either before
or after the meeting. Presence of any director at a meeting of the Board shall
be considered to be a waiver of notice by such director unless such director
attends a meeting for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted nor the purpose of any regular or special meeting of
the Board of Directors need be specified in the notice or waiver of notice of
such meeting.
Section 10. Quorum. At all meetings of the Board of Directors a majority of the
number of directors at the time in office shall constitute a quorum for the
transaction of business; provided, less than a quorum of directors may fill
vacancies as set forth in Section 4 of this Article II. The act of a majority of
the number of directors at the time in office shall be the act of the Board of
Directors. If at any meeting of the board there shall be less than a quorum
present, a majority of those present may adjourn the meeting from time to time
until a quorum is obtained
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and no further notice thereof need be given other than by announcement at said
meeting which shall be so adjourned.
Section 11. Manifestation of Dissent. A director of the Company who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his dissent shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the person acting as the secretary
of the meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Company immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 12. Action Taken Without Meeting. Any action which may be taken
at a meeting of the directors or of a committee may be taken without a meeting
if a consent in writing setting forth the actions so to be taken shall be signed
before such action by all of the directors, or all of the members of the
committee, as the case may be. Such consent shall have the same effect as a
unanimous vote.
ARTICLE III
COMMITTEES
Section 1. Executive Committee. The Board of Directors shall appoint
from among its members an executive committee of at least five directors. The
Chairman of the Board and Chief Executive Officer and President shall be a
member of the executive committee. At least three members of the executive
committee shall be Outside Directors. The executive committee (i) shall
recommend to the Board persons to be elected as officers, (ii) recommend persons
to be appointed to Board committees, (iii) may consider and make recommendations
to the Board on other Board actions and (iv) may perform such other duties as
may be permitted by law.
Section 2. Audit Committee. The Board of Directors shall appoint at
least three of its Outside Directors to serve as an audit committee, all of whom
shall have no relationship to the Company that may interfere with the exercise
of their independence from management. The audit committee shall meet prior to
and after each yearly audit with representatives of the independent accounting
firm approved by the shareholders for the purpose of reviewing the audit of such
firm of the Company's financial condition and shall each year recommend to the
Board an independent accounting firm to be appointed by the Board for the
ratification by the shareholders and shall perform such other duties as assigned
by the Board.
Section 3. Compensation Committee. The Board of Directors shall appoint
at least three of its Outside Directors to serve as a compensation committee.
The compensation committee (i) shall perform any function required by directors
in the administration of all federal and state statutes relating to employment
and compensation, (ii) shall recommend to the Board the
5
compensation for officers, and (iii) shall consider and approve the compensation
program, including the benefit program and stock ownership plans, of the
Company.
Section 4. Governance Committee. The Board of Directors shall appoint a
Governance Committee to be composed of a minimum of four Outside Directors as
determined by the Board of Directors. An Outside Director shall be appointed by
the Board of Directors to serve as Lead Director of the Governance Committee.
The Governance Committee shall provide action and oversight on the following
matters: (a) to recruit and nominate individuals to serve as Directors of the
Company; (b) to consider candidates to fill new positions created by expansion
and vacancies that occur by resignation, retirement or for any other reason; (c)
to assess the size and other membership needs of the Board of Directors and
establish selection criteria for Board Membership; (d) to establish and
regularly review guidelines for corporate governance; (e) to implement and
administer an annual evaluation of the performance of the Board of Directors;
(f) to implement and administer the process for orienting new Directors both to
the Company, and to their responsibilities as Board Members; (g) to nominate on
an annual basis an Outside Director to serve as Lead Director who will serve as
Chairman of the Governance Committee; (h) to regularly review the independence
of Board Members.
Section 5. Other Committees. The Board of Directors may also appoint
from among its own members such other committees as the Board may determine and
assign such powers and duties as shall from time to time be prescribed by the
Board.
Section 6. Removal from Committees and Rules of Procedure. Subject to
these Bylaws directors may be removed from the committees and vacancies therein
may be filled by a majority of the Board of Directors. A meeting of any
committee may be called by any member of the committee. The provisions of these
Bylaws concerning notice of meetings, compensation, manifestation of dissent and
taking action without a meeting as they pertain to directors shall also pertain
to committee meetings.
ARTICLE IV
OFFICERS
Section 1. Officers. The Board of Directors shall elect as officers of
the Company a Chairman of the Board, who shall be the Chief Executive Officer, a
President, a Vice President, a Secretary, a Treasurer and may elect a Controller
and such other Vice Presidents and other officers as the Board may determine is
necessary for the conduct of the business of the Company. Officers need not be
directors except for the Chairman of the Board. Any two or more offices may be
held by the same person. No person shall hold an officer position after the last
day of the month during which said person became sixty-five years of age.
6
Section 2. Term and Removal. All officers of the Company shall serve at
the pleasure of the Board of Directors, and the Board at any regular or special
meeting by the vote of a majority of the whole Board may remove an officer from
an office.
Section 3. Duties of Chairman of the Board and Chief Executive Officer.
The Chairman of the Board and Chief Executive Officer shall be the chief
administrative officer of the Company. The Chairman of the Board and Chief
Executive Officer (i) shall exercise such duties as customarily pertain to the
office of Chief Executive Officer, (ii) shall have general and active management
authority and supervision over the property, business and affairs of the company
and over its officers and employees, (iii) may appoint employees, consultants
and agents as deemed necessary for the proper conduct of the Company's business,
(iv) may sign, execute and deliver in the name of the Company powers of
attorney, contracts, bonds and other obligations subject to direction of the
Board as set forth in Article VII of these Bylaws, (v) shall recommend to the
Board of Directors persons for appointment to offices and committees and for
nomination of directors, (vi) shall preside at stockholder meetings and at
meetings of the Board of Directors, and (vii) shall perform such other duties as
may be prescribed from time to time by the Board of Directors.
Section 4. Duties of the President. The President shall perform such
duties as may be prescribed from time to time by the Board of Directors or by
the Chairman of the Board and Chief Executive Officer. The President, in the
absence or disability of the Chairman of the Board and Chief Executive Officer,
shall perform the duties and exercise the powers of the Chairman of the Board
and Chief Executive Officer.
Section 5. Duties of Vice Presidents. The Vice Presidents shall have
such powers and perform such duties as may be assigned to them by the Board of
Directors, or the Chairman of the Board and Chief Executive Officer. In the
absence or disability of the Chairman of the Board and Chief Executive Officer,
and the President, the Vice Presidents in the order as designated by the Board,
or if the Board so directs, by the Chairman of the Board and Chief Executive
Officer, shall perform the duties and exercise the powers of the Chairman of the
Board and Chief Executive Officer.
Section 6. Duties of Secretary. The Secretary shall attend all meetings
of the Board and shareholders, record all votes and the minutes of all
proceedings in books to be kept for such purposes and shall perform like duties
for the committees when required. The Secretary shall have the custody of the
seal. The Secretary shall have the custody of the stock books and shall perform
such other duties as may be prescribed by the Board of Directors or the Chairman
of the Board and Chief Executive Officer.
Section 7. Duties of Treasurer. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books of the Company and shall deposit all monies
and other valuable effects in the name and to
7
the credit of the Company in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Company as may be
ordered by the Board, taking proper vouchers for such disbursements and shall
render to the Chairman of the Board and Chief Executive Officer and to the Board
of Directors at its regular meetings or whenever they may require it, an account
of all his transactions as Treasurer and of the financial condition of the
Company.
Section 8. Duties of Other Officers. All other officers of the Company
shall have such duties as shall be prescribed by the Board of Directors or the
Chairman of the Board and Chief Executive Officer.
Section 9. Delegation of Duties of Officers. In the case of the absence
of any officer of the Company or for any other reason that the Board may deem
sufficient, the Board may delegate the powers or duties of any officer to any
other officer or to any director for such time as determined by the Board.
Section 10. Compensation of Officers. The compensation of the Chairman
of the Board and Chief Executive Officer shall be determined by the Board of
Directors. The compensation of each of the other officers shall be recommended
by the Chairman of the Board and Chief Executive Officer and approved by the
Board of Directors. No officer shall be prevented from receiving such salary by
reason of the fact that he is also a director of the Company.
ARTICLE V
INDEMNIFICATION
Section 1. Actions, Suits or Proceedings Other than by or in the Right
of the Company. The Company shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
including all appeals, (other than an action by or in the right of the Company)
by reason of the fact that he is or was or has agreed to become a director or
officer of the Company, or is or was serving or had agreed to serve at the
request of the Company as a director or officer of another corporation
(including a subsidiary of the corporation, or subsidiaries of subsidiaries),
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against costs,
charges, expenses (including attorneys' fees), judgments, fines, penalties and
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he reasonably believed to
be within the scope of his authority and in, or not opposed to, the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by
8
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be within
the scope of his authority and in, or not opposed to, the best interests of the
Company and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 2. Actions or Suits by or in the Right of the Company. The
Company shall indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
including all appeals, by or in the right of the Company to procure a judgment
in its favor by reason of the fact that he is or was or has agreed to become a
director or officer of the Company or is or was serving or has agreed to serve
at the request of the Company as a director or officer of another corporation
(including a subsidiary of the corporation or subsidiaries of subsidiaries),
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against costs,
charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection with the defense or settlement of
such action or suit and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be within the scope of his authority and in, or
not opposed to, the best interests of the Company, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Company unless
and only to the extent that the Courts of South Dakota or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of such liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such costs,
charges and expenses which the Courts of South Dakota or such other court shall
deem proper.
Section 3. Indemnification for Costs, Charges and Expenses of
Successful Party. Notwithstanding the other provisions of this Article V, to the
extent that a director or officer has been successful, on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to in Sections
1 and 2 of this Article V, or in defense of any claim, issue or matter therein,
he shall be indemnified against all costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection therewith.
Section 4. Determination of Right to Indemnification. Any
indemnification under Sections 1 and 2 of this Article V (unless ordered by a
court) shall be paid by the Company unless a determination is made (i) by the
board of directors by a majority vote of the directors who were not parties to
such action, suit or proceeding, or if such majority of disinterested directors
so directs, (ii) by independent legal counsel in a written opinion, or (iii) by
the shareholders, that indemnification of the director or officer is not proper
in the circumstances because he has not met the applicable standard of conduct
set forth in Sections 1 and 2 of this Article V.
9
Section 5. Advance of Costs, Charges and Expenses. Costs, charges and
expenses (including attorneys' fees) incurred by a person referred to in
Sections 1 or 2 of this Article V in defending a civil or criminal action, suit
or proceeding shall be paid by the Company in advance of the final disposition
of such action, suit or proceeding; provided, however, that the payment of such
costs, charges and expenses incurred by a director or officer in his capacity as
a director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer) in advance of the final
disposition of such action, suit or proceeding shall be made only upon receipt
of an undertaking by or on behalf of the director or officer to repay all
amounts so advanced in the event that it shall ultimately be determined that
such director or officer is not entitled to be indemnified by the Company as
authorized in this Article V. Such costs, charges and expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the majority of the directors deems appropriate. The majority of the directors
may, in the manner set forth above, and upon approval of such director or
officer of the Company, authorize the Company's counsel to represent such
person, in any action, suit or proceeding, whether or not the Company is a party
to such action, suit or proceeding.
Section 6. Procedure of Indemnification. Any indemnification under
Sections 1, 2 and 3, or advance of costs, charges and expenses under Section 5
of this Article V shall be made promptly, and in any event within 60 days, upon
the written request of the director or officer. The right to indemnification or
advances as granted by this Article V shall be enforceable by the director or
officer in any court of competent jurisdiction, if the Company denies such
request, in whole or in part, or if no disposition thereof is made within 60
days. Such person's costs and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Company. It shall be a defense to any
such action (other than an action brought to enforce a claim for the advance of
costs, charges and expenses under Section 5 of this Article V where the required
undertaking, if any, has been received by the Company) that the claimant has not
met the standard of conduct set forth in Sections 1 or 2 of this Article V, but
the burden of proving such defense shall be on the Company. Neither the failure
of the Company (including its board of directors, its independent legal counsel
and its shareholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in Sections 1 or
2 of this Article V, nor the fact that there has been an actual determination by
the Company (including its board of directors, its independent legal counsel and
its shareholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standards of conduct.
Section 7. Settlement. The Company shall not be obligated to reimburse
the costs of any settlement to which it has not agreed. If in any action, suit
or proceeding, including any appeal, within the scope of Sections 1 or 2 of this
Article V, the person to be indemnified shall have unreasonably failed to enter
into a settlement thereof offered or assented to by the opposing party
10
or parties in such action, suit or proceeding, then, notwithstanding any other
provision hereof, the indemnification obligation of the Company to such person
in connection with such action, suit or proceeding shall not exceed the total of
the amount at which settlement could have been made and the expenses incurred by
such person prior to the time such settlement could reasonably have been
effected.
Section 8. Subsequent Amendment. No amendment, termination or repeal of
this Article V or of relevant provisions of the South Dakota corporation law or
any other applicable laws shall affect or diminish in any way the rights of any
director or officer of the Company to indemnification under the provisions
hereof with respect to any action, suit or proceeding arising out of, or
relating to, any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or repeal.
Section 9. Other Rights, Continuation of Right to Indemnification. The
indemnification provided by this Article V shall not be deemed exclusive of any
other rights to which a director, officer, employee or agent seeking
indemnification may be entitled under any law (common or statutory), agreement,
vote of shareholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in any other capacity while holding
office or while employed by or acting as agent for the Company, and shall
continue as to a person who has ceased to be a director, officer, employee or
agent, and shall inure to the benefit of the estate, heirs, executors and
administrators of such person. Nothing contained in this Article V shall be
deemed to prohibit, and the Company is specifically authorized to enter into,
agreements with officers and directors providing indemnification rights and
procedures different from those set forth herein. All rights to indemnification
under this Article V shall be deemed to be a contract between the Company and
each director or officer of the Company who serves or served in such capacity at
any time while this Article V is in effect. This Article V shall be binding upon
any successor corporation to this Company, whether by way of acquisition,
merger, consolidation or otherwise.
Section 10. Savings Clause. If this Article V or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Company shall nevertheless indemnify each director or officer of the Company
as to any costs, charges, expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including an action by
or in the right of the Company, to the full extent permitted by any applicable
portion of this Article V that shall not have been invalidated and to the full
extent permitted by applicable law.
Section 11. Subsequent Legislation. If the South Dakota law is amended
after the adoption of this Article V to further expand the indemnification
permitted to directors and officers of the Company, then the Company shall
indemnify such persons to the fullest extent permitted by the South Dakota law,
as so amended.
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ARTICLE VI
CAPITAL STOCK
Section 1. Stock Certificates. Certificates for stock of the Company
shall be in such form as the Board of Directors may from time to time prescribe
and shall be signed by the President or a Vice President and by a Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary. If
certificates are signed by a transfer agent, acting in behalf of the Company, or
registered by a registrar, the signatures of the officers of the Company may be
facsimile. The Company, through its officers, may cause certificates to be
issued and delivered bearing facsimile signatures of persons even though at the
time of the issuance and delivery of such certificates, any of such persons may
no longer be an officer of the Company.
Section 2. Transfer Agent. The Board of Directors shall have power to
appoint one or more transfer agents and registrars for the transfer and
registration of certificates of stock of any class and may require that stock
certificates shall be countersigned and registered by one or more of such
transfer agents and registrars. The transfer agent and registrar may be the same
person.
Section 3. Transfer of Stock. Shares of the capital stock of the
Company shall be transferable on the books of the Company only by the holder of
record thereof in person or by a duly authorized attorney upon surrender and
cancellation of certificates for a like number of shares properly endorsed.
Section 4. Lost Certificate. In case any certificates of the capital
stock of the Company shall be lost, stolen or destroyed, the Company may cause
replacement certificates to be issued upon such proof of the fact and such
indemnity to be given to it and to its transfer agent and registrar, if any, as
shall be deemed necessary or advisable by it.
Section 5. Holder of Record. The Company shall be entitled to treat the
holder of record of any share or shares of stock as the holder thereof in fact
and shall not be bound to recognize any equitable or other claim to or interest
in such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by law.
The expression "stockholder" or "shareholders" whenever used in these Bylaws
shall be deemed to mean only the holder or holders of record of stock.
Section 6. Closing of Transfer Books. The Board of Directors shall have
power to close the stock transfer books of the Company for a stated period but
not to exceed, in any case, fifty days, and in case of a meeting of shareholders
not less than ten days, preceding the date of any meeting of shareholders, or
the date for payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of capital stock shall go
into effect, or in order to make a determination of shareholders for any other
proper purpose; provided, however, that in lieu of closing the stock transfer
books, the Board of Directors may fix
12
in advance a date as the record date for any such determination of shareholders,
not less than ten days prior to the date on which the particular action,
requiring such determination of shareholders, is to be taken; and in such case
only such shareholders as shall be shareholders of record on the date so fixed
shall be entitled to such notice of, and to vote at, such meeting, or to receive
payment of such dividend, or to receive such allotment of rights, or to exercise
such rights, as the case may be, notwithstanding any transfer of any stock on
the books of the Company after any such record date fixed as aforesaid. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this section, such determination shall apply to any
adjournment thereof.
Section 7. Closing of Transfer Books to Authorize Increase in
Indebtedness and Capital Stock. Notwithstanding Section 6 of this Article and in
order to comply with Section 8 of Article XVII of the South Dakota Constitution,
the notice to be given shareholders for a meeting at which a proposal to
increase the Company's authorized indebtedness or capital stock is to be
considered shall be given at least sixty days prior to the meeting and the
record date for the determination of shareholders eligible to vote at such
meeting may be set by the Board sixty or more days prior to the said meeting.
ARTICLE VII
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the Company, and such authority
may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the Company
and no evidences of indebtedness shall be issued in its name unless authorized
by a resolution of the Board of Directors. Such authority may be general or
confined to specific instances.
Section 3. Checks, Drafts, etc. All checks, drafts, or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Company shall be signed by such officer or officers, agent or agents
of the Company and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
Section 4. Deposits and Investments. All funds of the Company not
otherwise employed shall be deposited from time to time to the credit of the
Company in such banks, trust companies or other depositories as the Board of
Directors or officers of the Company designated by the Board of Directors may
select; or be invested as authorized by the Board of Directors. Such authority
may be general or confined to specific instances.
13
ARTICLE VIII
MISCELLANEOUS
Section 1. Offices. The principal office of the Company shall be in the
City of Rapid City, County of Pennington, State of South Dakota. The Company may
also have offices at such other places within or without the State of South
Dakota as the Board of Directors may from time to time designate or as the
business of the Company may require.
Section 2. Seal. The corporate seal shall have inscribed thereon the
name of the Company and the words "Corporate Seal--2000--South Dakota."
Section 3. Audit. The books of account of the Company shall be audited
annually by an independent firm of public accountants who shall be appointed by
the Board of Directors and ratified by the shareholders at each annual meeting.
Such auditors shall submit to the Board of Directors each year certified
financial statements of the Company for the preceding fiscal year.
ARTICLE IX
AMENDMENTS
These Bylaws may be altered, amended or repealed at any meeting of the
Board of Directors by the affirmative vote of a majority of the whole Board;
provided, no alteration or amendment may be in conflict with any provision of
the Articles of Incorporation.
Dated this 10th day of December, 2001.
By /s/ Steven J. Helmers
--------------------------------------
Steven J. Helmers, Corporate Secretary
14
PENSION EQUALIZATION PLAN
OF BLACK HILLS CORPORATION
1. RECITALS.
--------
Black Hills Corporation, a South Dakota corporation ("Company") is the
parent and holding company of, among other Affiliates (as defined below), Black
Hills Power, Inc., a South Dakota corporation formerly known as Black Hills
Corporation ("BHP"), and Wyodak Resources Development Corp., a Delaware
corporation ("WRDC"). BHP maintains a nonqualified "top hat" pension
equalization plan for certain of its management or highly compensated employees,
which plan was last restated the 6th day of January, 2000 and last amended
effective January 30, 2001 ("BHP Plan"). WRDC maintains a nonqualified "top hat"
pension equalization plan for certain of its and its Affiliates' management or
highly compensated employees, which plan was last restated the 6th day of
January, 2000 and last amended effective January 30, 2001 ("WRDC Plan"). The
Company hereby wishes to establish this Pension Equalization Plan of Black Hills
Corporation ("Plan") to consolidate the BHP Plan and the WRDC Plan into one plan
maintained by the Company for the Company's and its Affiliates' employees. Based
on the foregoing recitals, the Company hereby establishes the Plan effective the
6th day of November, 2001.
2. PURPOSE OF PLAN.
---------------
The purpose of the Plan is to provide to a select group of management
or highly compensated employees with certain retirement and death benefits in
addition to those benefits which the Participants may enjoy from the Company's
tax qualified defined benefit plan in order to supplement and attempt to
equalize total retirement benefits being paid to persons holding like
1
executive and management positions by other companies. The Plan is designed
to aid the Company in attracting and retaining its executive employees, persons
whose abilities, experience and judgment can contribute to the well-being of the
Company. It is the intention of Company that this Plan shall be administered as
an unfunded benefit plan established and maintained for a select group of
management or highly compensated employees.
3. DEFINITIONS.
-----------
"Affiliate" shall mean any business organization or legal
entity that, directly or indirectly, controls, is controlled
by or is under common control with the Company. For purposes
of this definition, the term "control" (including the terms
"controlling," "controlled by," and "under common control
with") includes the possession, direct or indirect, of the
power to vote 50 percent or more of the voting equity
securities, membership interest, or other voting interest, or
to direct or cause the direction of the management and
policies of such business organization or other legal entity,
whether through the ownership of voting equity securities,
membership interest, by contract, or otherwise.
"Annual Compensation Limitation" shall mean the limitation on
annual compensation for tax qualified retirement plans as set
forth in Internal Revenue Code Section 401(a)(17) as the same
may be amended hereafter from time to time.
"Average Earnings" shall mean whichever of the following
results in the highest annual average Earnings: (i) a
Participant's average Earnings for the five (5) consecutive
full calendar years of employment during the ten (10) full
calendar years of employment immediately preceding the
Calculation Date, which results in the highest such average;
or (ii) a Participant's average Earnings determined by
dividing the sum of the following by five (5): (a) the
Participant's Earnings for the four full calendar years
preceding the year containing his Calculation Date; (b) the
Participant's Earnings for the year containing his Calculation
Date as of the Calculation Date; and (c) a portion of the
Participant's Earnings for the fifth full calendar year
preceding the year containing his Calculation Date determined
by multiplying his Earnings for said fifth preceding full
calendar year by a ratio, the numerator of which shall be 365
2
minus the number of days in the year containing his
Calculation Date measured from the first day of said year to
his Calculation Date, and the denominator of which ratio shall
be 365. If the Participant has less than five (5) full
calendar years of employment, the average shall be taken over
his total full calendar years of employment.
"Board of Directors" means the Board of Directors of the
Company.
"Calculation Date" shall mean the earlier of (i) the date the
Participant's employment with the Company was terminated, (ii)
the date that the Participant's participation in the Plan was
terminated, or (iii) the date of the Participant's death.
"Committee" shall mean the Compensation Committee of the Board
of Directors of the Company.
"Earnings" shall mean the compensation paid to an Employee by
a Company during a calendar year, including any amounts paid
to him as overtime, bonus, commission, unused paid time off or
incentive compensation, any earnings reduction under a cash or
deferred arrangement established by the Company under Section
401(k) of the Code, any salary reduction under a flexible
benefit program established by the Company under Section 125
of the Code and, effective January 1, 2000, any compensation
reduction elected for qualified transportation fringe benefits
under Section 132(f)(4) of the Code, but excluding
reimbursements and expense allowances, taxable fringe
benefits, moving expenses, moving/relocation allowances,
non-cash incentives and stock options, long-term incentive
compensation (such as payments under the Black Hills
Corporation Omnibus Incentive Compensation Plan), nonqualified
deferred compensation and welfare benefits (such as group term
life insurance in excess of $50,000 and tuition assistance).
"Pension Restoration Benefit" shall mean the benefit payable
under paragraph 9.
"PEP Benefits" shall mean the benefits payable under paragraph
4.
"Salary Level" shall mean the base compensation paid to a
Participant by the Company or an Affiliate during a calendar
year, including any compensation reduction under a cash or
deferred arrangement under Section 401(k) of the Internal
Revenue Code or under a flexible benefit program under Section
125 of the Internal Revenue Code and any salary deferrals made
3
by a Participant under the Company's Nonqualified Deferred
Compensation Plan, but not including any amounts paid to the
Participant as overtime, bonus, commission or incentive
compensation, nor reimbursements and expense allowances,
fringe benefits, moving expenses, nonqualified deferred
compensation payments, or welfare benefits.
"Section 415 Benefit Limitation" shall mean the limitation on
the provision of annual benefits with respect to defined
benefit plans as set forth in Internal Revenue Code Section
415(b) as the same may be amended hereafter from time to time.
"Social Security Wage Base" shall mean the contribution base
as determined under Section 1402(k)(1) of the Internal Revenue
Code.
4. PARTICIPANTS.
------------
Those persons eligible for participation in the Plan ("Participants")
are those management or highly compensated employees of the Company or its
Affiliates whose Salary Level equals or exceeds the Social Security Wage Base
and who are designated by the Board of Directors of the Company upon
recommendation of the Chief Executive Officer of the Company. The Board of
Directors may in its discretion discontinue the participation of any Participant
in the Plan at any time.
5. PEP BENEFITS.
------------
Benefits payable to Participants ("PEP Benefits") shall consist of 180
equal monthly payments, each payment in the amount of one-twelfth of the product
of (i) the Participant's Average Earnings as of the Calculation Date times
(ii)(a) 25 percent if the Participant's Average Earnings as of the Calculation
Date is less than twice the Social Security Wage Base; or (b) 30 percent if the
4
Participant's Average Earnings equals or exceeds twice the Social Security Wage
Base; times (iii) the applicable vesting percentages provided in paragraph 8.
6. COMMENCEMENT OF PAYMENT OF PEP BENEFITS.
---------------------------------------
PEP Benefit payments shall be paid commencing at the earliest of (i)
the time the Participant is 62 years of age or more and is no longer an employee
of the Company or the applicable Affiliate; or (ii) upon the death of the
Participant. PEP Benefits shall be paid to the Participant or, if deceased, to
the Participant's designated beneficiary, or, if none, to his or her estate. If
the Participant's death occurs after commencement of PEP Benefit payments to the
Participant under the Plan, the Participant's designated beneficiary or estate
will continue to receive the balance of the payments due the Participant under
the Plan.
Notwithstanding the above, a Participant with vested PEP Benefits who
is 55 years of age or more and no longer an Employee of the Company or the
applicable Affiliate may elect in writing to be paid PEP Benefits beginning at
age 55 or older, subject to a discount of such PEP Benefits according to
Schedule 1, attached hereto and incorporated herein by this reference. Once a
Participant has elected discounted PEP Benefits under this paragraph, and has
received the first of such discounted PEP Benefit payments, the election shall
be irrevocable.
7. DESIGNATION OF BENEFICIARY.
--------------------------
A Participant may designate a beneficiary or beneficiaries for PEP
Benefits which shall be effective upon filing written notice with the Committee
on the form provided for that purpose. If more than one beneficiary designation
has been filed, the beneficiary or beneficiaries designated in the notice
5
bearing the most recent date will be deemed the valid beneficiary or
beneficiaries.
8. VESTING OF PEP BENEFITS.
-----------------------
PEP Benefits payable under the Plan will vest at the following rate:
Years of Plan Participation Percent of Benefit
Vested
Less than 3 years 0
3 years but less than 4 20
4 years but less than 5 35
5 years but less than 6 50
6 years but less than 7 65
7 years but less than 8 80
8 or more years 100
No credit for service with the Company or the applicable Affiliate
prior to January 1, 1990 shall be given. The provisions for vesting set forth in
this paragraph are not intended to give any Participants any rights or claim to
any specific assets of the Company.
9. PENSION RESTORATION BENEFITS.
----------------------------
In the event that a Participant's benefit under the Company's tax
qualified defined benefit plan ("Pension Plan") is reduced, or is required to be
reduced, because of (i) the Annual Compensation Limitation; (ii) the Section 415
Benefit Limitation; or (iii) the Participant's deferral of salaries, bonus, or
other compensation under the Company's Nonqualified Deferred Compensation Plan,
then the Participant shall be entitled to receive an additional benefit
("Pension Restoration Benefit"), which shall be measured by the difference
between (x) the monthly benefit which would have been provided to the
Participant under the Pension Plan
6
without regard to the reduction in the Pension Plan benefit caused by any of
the foregoing limitations (i), (ii), and (iii) and (y) the actual monthly
benefit to be provided to the Participant under the Pension Plan. The Pension
Restoration Benefit shall be determined using the same factors, actuarial or
otherwise, as used in determining the Participant's Pension Plan benefit and
shall be payable at like times and in like manner as the Pension Plan benefit.
Notwithstanding anything contained above, in the event that a
Participant hereunder is not a participant in or eligible to participate in the
Company Pension Plan, then such Participant shall have no right to any Pension
Restoration Benefit under this paragraph, and nothing contained herein shall be
deemed to provide for or suggest the right in any Participant hereunder to be a
participant or be eligible to participate in the Company Pension Plan.
10. LOSS OF BENEFITS.
----------------
Notwithstanding any other provisions in this Plan, if a Participant is
terminated on account of misconduct or dishonesty, the Participant shall forfeit
all right to any benefits payable under this Plan, including vested accrued
benefits.
11. FUNDING OF PLAN.
---------------
All benefit payments under the Plan will be made from the general
assets of the Company. Participants and their beneficiaries who are entitled to
be paid benefits under this Plan are unsecured general creditors of the Company.
The Company may, but shall not be required to, invest corporate assets in life
insurance or annuity contracts to assure that the Company will have a source of
funds for the payment of benefits required to be paid under this Plan. Any such
7
insurance or annuity contract shall constitute assets of the Company and the
Participant shall have no right, title or interest in any such insurance or
annuity contract. The Company reserves the right to refuse participation in the
plan to any Participant who, if requested to do so, declines to supply
information or to otherwise cooperate as necessary to allow the Company to
obtain insurance on the Participant's life.
12. PLAN MAY BE MODIFIED OR DISCONTINUED.
------------------------------------
The Company reserves the right to amend, modify or discontinue the Plan
at any time. Any modification or discontinuance of benefits shall not reduce
accrued benefits which become vested prior thereto.
13. WITHHOLDING.
-----------
There shall be deducted from all benefits paid under this Plan the
amount of any taxes required to be withheld by any federal, state or local
government. The Participants and their beneficiaries, distributees and personal
representatives will bear any and all federal, foreign, state, local or other
income or other taxes imposed on amounts paid under this Plan.
14. ASSIGNABILITY.
-------------
No right to receive payments under this Plan shall be subject to
voluntary or involuntary alienation, assignment or transfer.
8
15. ADMINISTRATION OF THE PLAN.
--------------------------
The Plan shall be administered by the Committee. The Committee shall
conclusively interpret the provisions of the Plan, decide all claims, and shall
make all determinations under the Plan. The Committee shall act by vote or
written consent of a majority of its members.
16. CLAIMS PROCEDURE.
----------------
All claims for benefits under the Plan shall be made to the Committee.
If the Committee denies a claim, the Committee shall provide notice to the
Participant or beneficiary, in writing, within 90 days after the claim is filed
unless special circumstances require an extension of time for processing the
claim, not to exceed an additional 90 days. If the Committee does not notify the
Participant or beneficiary of the denial of the claim within the time period
specified above, then the claim shall be deemed denied. The notice of a denial
of a claim shall be written in a manner calculated to be understood by the
claimant and shall set forth (1) the specific reason or reasons for the claim
denial; (2) specific references to the pertinent Plan provisions on which the
denial is based; (3) a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation as to why
such information is necessary; and (4) a description of the Plan's review
procedures, including any time limits for such procedures.
Within 60 days after receipt of the above material, the claimant shall
have a reasonable opportunity to appeal the claim denial to the Committee for a
full and fair review. The claimant or his duly authorized representative may (1)
request a review within the foregoing sixty- (60-) day period upon written
notice to the Committee; (2) upon request and free of charge, have reasonable
access to, and copies of, all documents, records, and other information relevant
to the claim; and (3) submit written comments, documents, records, and other
9
information relating to the claim for benefits. The foregoing review shall take
into account all comments, documents, records, and other information submitted
by the claimant relating to the claim, without regard to whether such
information was submitted or considered in the initial benefit determination.
A decision on the review by the Committee will be made not later than
60 days after receipt of a request for review, unless special circumstances
require an extension of time for processing (such as the need to hold a
hearing), in which case a decision shall be rendered as soon as possible, but
not later than 120 days after receipt of a request for review. The decision on
review shall be in writing and shall include (1) the specific reason or reasons
for the determination on review; (2) reference to the specific plan provisions
on which the benefit determination is based; and (3) a statement that the
claimant is entitled to receive, upon request and free of charge, reasonable
access to, and copies of, all documents, records, and other information relevant
to the claimant's claim for benefits.
17. GOVERNING LAW.
-------------
This agreement shall be governed by and construed in accordance with
the laws of the state of South Dakota, to the extent not preempted by federal
law.
18. NO EMPLOYMENT CONTRACT.
----------------------
Neither the action taken by the Company in establishing the Plan or any
action taken by it or by the Committee under the provisions hereof or any
provision of the Plan shall be construed as giving to any eligible Participant
the right to be retained in the employment of the Company.
10
19. NON QUALIFIED AND UNFUNDED PLAN.
-------------------------------
Notwithstanding anything contained herein, it is intended that this
Plan be treated as "nonqualified" and unfunded for tax purposes and for purposes
of Title I of ERISA.
BLACK HILLS CORPORATION
By /s/ Daniel P. Landguth
Its Chairman and CEO
11
SCHEDULE 1
DISCOUNT APPLICABLE TO EARLY PEP BENEFITS
- ---------------------------------- -------------------------------------------
Age at Start of Payments Percentage of PEP Benefit Payable
- ---------------------------------- -------------------------------------------
- ---------------------------------- -------------------------------------------
61 93.0%
- ---------------------------------- -------------------------------------------
- ---------------------------------- -------------------------------------------
60 86.5%
- ---------------------------------- -------------------------------------------
- ---------------------------------- -------------------------------------------
59 80.5%
- ---------------------------------- -------------------------------------------
- ---------------------------------- -------------------------------------------
58 74.9%
- ---------------------------------- -------------------------------------------
- ---------------------------------- -------------------------------------------
57 69.7%
- ---------------------------------- -------------------------------------------
- ---------------------------------- -------------------------------------------
56 64.8%
- ---------------------------------- -------------------------------------------
- ---------------------------------- -------------------------------------------
55 60.3%
- ---------------------------------- -------------------------------------------
- ---------------------------------- -------------------------------------------
1-1
SEVERANCE, CONFIDENTIALITY, NON-DISCLOSURE
AND RELEASE AGREEMENT
This Agreement, dated this the 31st day of October, 2001, is between
Gary R. Fish, the ("Employee"), and Black Hills Corporation, Inc., a South
Dakota corporation, the ("Employer" or "Company"). Effective on or before
October 30, 2001 ("Effective Date"), Employee resigns and voluntarily terminates
the employment relationship between Employer and Employee.
Employee shall receive all regular wages, benefits and other
compensation due to him by reason of his employment with Employer through the
Effective Date. In addition, upon execution of this Agreement, Employer shall
provide the following severance compensation or benefits to Employee:
Additional Compensation:
Employee will receive an amount equal to $322,920 under the 2001 Short Term
Incentive program. Additionally, for Severance Pay you will receive an amount
equal to nine (9) months of regular pay. This amounts to a one-time, lump, gross
sum payment of $201,825. The Severance Pay shall be taxable as payroll wages.
Employer shall make the usual and customary withholding for federal and state
income tax, Social Security and Medicare. Employer shall furnish Employee with
tax form W-2 for the Severance Pay.
Defined Benefit Plan (Pension Plan), Defined Contribution Plan (401k), Employee
Stock Purchase Plan (ESPP)
Employee will receive information regarding his 401k Plan and the ESPP outlining
the options available to him. Employee's resignation, for pension plan purposes,
is considered as a vested termination. Since Employee is vested, he is deemed
eligible to receive pension benefits pursuant to the plan document and will be
credited with fifteen (15) years of service.
Pension Equalization Plan (PEP)
Employee is vested under the PEP plan, and therefore, is entitled to the
benefits associated with this plan, including the Pension Restoration Benefit.
Attached to this Agreement is a copy of the plan document, which states that the
Pension Restoration Benefit shall be payable at like times and manner as the
Pension Plan Benefit. Should the Board of Directors amend the PEP for
acceleration of plan benefits (not earlier than age 55 with an appropriate
discount for early payment of benefits), you will be eligible to receive your
benefit under the amended plan. Please note the definition of "earnings" as
defined in the PEP document. Payments for unused personal time as well as
payments which are directly or indirectly associated with any long term
equity-based plan are excluded from the earnings calculation.
Unused Personal Time Hours
Employee shall be compensated for any earned unused personal time hours. This
amount will be based upon Employee's current rate of pay. Appropriate taxes will
be withheld. Currently Employee has ninety (90) unused personal time hours
remaining in this anniversary year.
1
Payment for this amount will be included as a lump sum in employee's final
paycheck. Employee will be provided with an additional one hundred sixty (160)
hours of personal time as part of this Agreement. This severance compensation
will be paid in a lump sum amount of approximately $20, 700.00.
Health and Welfare Plans
Resignation of employment is considered a qualifying event allowing Employee to
continue medical/health insurance coverage (COBRA) for up to 18 months. Employer
will provide Employee with the initial six months (November and April 2002) at
no cost to Employee. At the end of the six months, Employee will be responsible
for payment of the premiums associated with continuation of coverage for the
remaining months of eligibility. Employee will be informed of the details
regarding continuation of coverage (COBRA) in a separate letter.
Employee will have the opportunity to continue his current coverage under the
basic Life Insurance program through an individual life policy. If Employee also
participated in the Group Universal Life program, he may elect to continue this
coverage as well. The Human Resources Department of Employer will work with
Employee to implement any election of continuation coverage.
Disability benefits, benefit days, and any other employment benefits not listed
herein shall terminate on the last day worked.
Stock Option Plan
During the course of his employment, Employee received grants of stock options.
Employer's Corporate Controller, Roxann Basham, shall provide Employee with all
information associated with the termination provisions of this plan. Employee is
advised to give immediate attention to the termination provisions of all
non-qualified stock options, which are currently vested. The plan provides a
90-day time period to take action on any of the vested options. Employee
understands that should no action be taken pursuant to these termination
provisions of the plan, any and all vested options will be forfeited.
Employee will receive a cash payment, less taxes, for an amount equal to the
following: the stock price as of closing on the date of October 30, 2001, 27.75
less the stock price of $21.8750, times 13,667.
Any and all other options, non-qualified stock options or restricted, which are
not vested by Employee's last day of employment will be forfeited according to
the provisions of the plan document.
Consulting Services
Effective October 31, 2001, Employee will provide consulting services as
requested by the Company related to transition or other matters that may require
the Employee's time. Employee will be compensated at an hourly consulting rate
of $130.00 per hour for services provided. Payment of bills for consulting
services will be coordinated through James Mattern.
2
Miscellaneous Terms
1. Employee may attend technology training programs offered by DAKSOFT through
the end of the year 2001, at no cost.
2. Employee may receive phone support for technology-based questions through
the end of the year 2001, at no cost.
3. Employee may have access to the Company's websites to assist in job search
activities. This will include:
a. CERA website and e-mail literature.
b. EEI website and e-mail literature
c. CSFB e-mails and related research.
Information that is determined to be confidential and Company specific
will not be released.
4. Trade journals and periodicals personally addressed to Employee will be
provided until the current subscription expires. Employee will be
responsible for collecting these materials from the General Office.
5. Employee will be allowed to download information from the Palm V to disk or
another storage source. Information that is confidential or involves
Company trade secrets will not be downloaded, copied or retained.
6. Company will forward personal electronic mail (e-mails) addressed to Gary
R. Fish through the end of the calendar year. No email containing
confidential information, Company trade secrets or other information
identified in the confidentiality provisions of this Agreement shall be
delivered to Employee.
Employee's Obligations
Employee agrees to pay any outstanding balance on any Employer account, ESPP,
computer purchase plan, and the like. Employer's Human Resources Department will
advise Employee of the payment process.
On or before Employee's final date of employment, all Employer property,
including but not limited to records, files, keys, equipment and credit cards
need to be returned to the Human Resources Department. Employee shall submit all
outstanding Company expenses by his last day of employment along with receipts
so they may be processed accordingly.
General Release
In consideration of receiving the severance benefits from Employer, Employee
hereby waives, releases and discharges all rights, remedies, claims and causes
of action, known or unknown, that he may have against Employer, or any related
company, their officers, directors, employees and their respective insurers
(collectively referred to as "Employer") for any claim or matter relating
3
to or arising from his employment, or the termination of his employment. This
Release includes, but is not limited to any claim, right, remedy or cause of
action arising under:
- any common law theory;
- any federal, state or local statute, ordinance or regulation,
including any cause of action pertaining to employment or
employment discrimination (race, age, color, sex or marital
status, religion, national origin or ancestry, or disability);
- any tort theory;
- any contract theory;
- any statute, ordinance or regulation authorizing the recovery of
attorney's fees, liquidated damages, punitive damages or interest.
ADEA/OWBPA Release
Employee specifically releases and waives all rights, remedies, claims and
causes of action, known or unknown, that he may have against Employer for any
matter related to his employment and, the termination of that employment under
the Age Discrimination and Employment Act of 1967, 28 U.S.C. ss.ss. 621-634
(ADEA). Employee knowingly and voluntarily makes this Severance and Release
Agreement. This Severance and Release Agreement does not cover rights, remedies,
claims and causes of action that may arise after the date of the execution of
this Agreement, although Employee's agreement, if any, to perform future
actions, such as terminating employment, remain in effect. This Severance and
Release Agreement is not given in exchange for consideration of anything of
value to which Employee already is entitled. Employee has been advised in
writing to consult with an attorney before executing this Agreement.
As provided by the Older Workers Benefit Protection Act (OWBPA) Employee has
been given a reasonable period of time (at least twenty-one (21) days) to
consider this Agreement before executing it. Changes, whether material or
immaterial to this Agreement, shall not restart the running of the twenty-one
(21) day time period. Employee may execute this Agreement prior to the end of
the twenty-one (21) day time period. This Agreement may be revoked by Employee
within seven (7) days after execution of this Agreement by Employee. This
Agreement shall not become effective or enforceable until the revocation period
has expired. The seven (7) day revocation period shall not be shortened by the
parties, by agreement or otherwise. If not revoked by Employee, the eighth day
after the date of Employee's acceptance will be the Effective Date of this
Agreement.
Confidentiality
As further consideration for payment of Severance Pay and benefits, Employee
shall hold the terms of this Agreement in the strictest confidence. The terms
shall not be disclosed to anyone, except to Employee's spouse and legal and tax
advisors, for whom Employee agrees to assume responsibility for any disclosure
by them of the terms of this Agreement. Disclosure may be made by Employee if
required by subpoena or other request for disclosure. Employee shall give
immediate notice to Employer of any subpoena or legal request for information
about the terms of this Agreement.
4
Employee shall not disclose to any person or entity any confidential information
and/or trade secrets concerning Employer's (or its subsidiaries' and
affiliates') business operations, financial status or condition, strategic
plans, personnel, or other matters. Nothing contained in this Agreement shall
restrict Employee from working as an employee, officer, consultant or director
for any business that competes with Black Hills Corporation.
Non-Disparagement
The parties wish to exhibit mutual respect towards each other, in recognition of
a long and appreciated association. Neither party shall defame or disparage the
other, its officers or directors, or make negative comments about the other. In
all verbal or written communications regarding the other the parties agree to be
professional and respectful.
The parties will jointly prepare any press release or public announcement
concerning Employee's resignation.
Arbitration
Any dispute over the performance, interpretation, breach or other issue in any
way relating to this Agreement shall be determined and resolved by binding
arbitration, not litigation. Arbitration shall be governed by the South Dakota
Uniform Arbitration Act, or if not addressed in the Act, then by the commercial
rules of the American Arbitration Association. Any arbitration proceeding shall
be venued in Rapid City, South Dakota. Arbitration may be demanded within one
year of the time the claim accrued or the claim shall be forever barred. The
arbitrator shall have the power, but not the obligation to award reasonable
attorney's fees, costs and disbursements to the prevailing party. The
arbitrator's award shall be final and binding and judgment may be entered
thereon by any state or federal court sitting in the State of South Dakota.
Miscellaneous Provisions
If any part of this Agreement is determined by a court of last resort to be
unlawful, invalid or otherwise unenforceable, the balance of this Agreement
shall remain in full force and effect, and the offending provisions shall be
deemed amended to the extent necessary to conform to the law.
No purported modification or waiver of any provision of this Agreement shall be
binding unless in writing and signed by both parties. This Agreement shall be
binding upon, and inure to the benefit of the parties, their heirs, successors,
personal representatives and assigns.
This Agreement is made and entered into in the State of South Dakota, and shall
in all respects be interpreted, enforced and governed by the laws of this State
RELEASE STATEMENT
By signing this Agreement, Employee acknowledges that he has read this Agreement
carefully, had the opportunity to consult with counsel, understands the terms of
this Agreement, and voluntarily agrees to them.
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Dated this 31st day of October, 2001.
BLACK HILLS CORPORATION, INC.
By: /s/ James M. Mattern
----------------------------------------
Name: James M. Mattern
Its: Senior Vice President
EMPLOYEE
/s/ Gary R. Fish
---------------------------------------
Name: Gary R. Fish
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