SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
December 20, 2002
(Date of earliest event reported)
BLACK HILLS CORPORATION
(Exact name of Registrant as specified in its charter)
South Dakota 001-31303 46-0458824
(State of Incorporation) (Commission File No.) (IRS Employer
Identification Number)
625 Ninth Street
P. O. Box 1400
Rapid City, South Dakota 57709
(Address of principal executive offices)
(605) 721-1700
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address if changed since last report)
Item 5. Other Information.
On December 20, 2002 Black Hills Corporation entered into
employment agreements with Daniel P. Landguth, Chief Executive
Officer and Everett E. Hoyt, President and Chief Operating
Officer. Copies of the employment agreements are attached as
exhibits to this Form 8-K.
Item 7. Financial Statements and Exhibits.
(c) Exhibits:
10.1 Employment Agreement dated December 20, 2002, by and
between Black Hills Corporation, as employer, and
Daniel P. Landguth, as employee.
10.2 Employment Agreement dated December 20, 2002, by and
between Black Hills Corporation, as employer, and
Everett E. Hoyt, as employee.
10.3 First Amendment to Agreement for Supplemental Pension
Benefit dated December 20, 2002, by and between Black
Hills Corporation and its Subsidiary Companies and
Everett E. Hoyt.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BLACK HILLS CORPORATION
By: /s/ Mark T. Thies
___________________________
Mark T. Thies
Sr. Vice President
and Chief Financial Officer
Date: December 23, 2002
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Exhibit Index
Exhibit
Number Description
10.1 Employment Agreement dated December 20, 2002, by and between
Black Hills Corporation, as employer, and Daniel P. Landguth,
as employee.
10.2 Employment Agreement dated December 20, 2002, by and between
Black Hills Corporation, as employer, and Everett E. Hoyt, as
employee.
10.3 First Amendment to Agreement for Supplemental Pension Benefit
dated December 20, 2002, by and between Black Hills Corporation
and its Subsidiary Companies and Everett E. Hoyt.
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Exhibit 10.1
EMPLOYMENT AGREEMENT
Agreement made, effective as of December 20, 2002, by and between Black Hills
Corporation, a South Dakota corporation, with its principal office located at
625 Ninth Street, Rapid City, South Dakota, referred to in this agreement as
Employer, Black Hills or Company, and Daniel P. Landguth, of Rapid City, South
Dakota, referred to in this agreement as Employee or Landguth.
RECITALS
A. Employer is a public company engaged in the business of fuel production,
energy marketing, wholesale power generation, regulated electric utility
and telecommunications.
B. Employee has been employed by the Company in various capacities since 1969.
He is currently employed as its Chief Executive Officer, and is a member of
the Board of Directors, serving as its Chairman. Employee has substantial
experience in the above-designated business activities and has provided
valuable leadership for the Company in a period of remarkable growth.
Employee and Company now seek to plan for an orderly transition of
leadership in the Company during the term of this Agreement and beyond
Employee's retirement.
C. Employee is willing to continue his employment by Employer, and Employer is
willing to continue its employment of Employee, on the terms, covenants,
and conditions set forth in this Agreement.
In consideration of the matters described above, and of the mutual benefits and
obligations set forth in this agreement, the parties agree as follows:
SECTION ONE
EMPLOYMENT AND INDEPENDENT CONTRACTOR DUTIES
A. From the date of this Agreement until June 1, 2005, ("Employment Term")
Employer employs, engages, and hires employee as Chief Executive Officer,
to perform such services as are customarily performed by an executive
officer of a public company, in such position, and additional duties as
requested or directed in good faith by the Board of Directors.
B. From June 1, 2005 until May 31, 2008, ("Contractor Term") Black Hills
hereby engages and hires Landguth as an independent contractor, in the
capacity of Senior Advisor to the Chief Executive Officer, to perform such
services as requested by the Chief Executive Officer of the Company.
Landguth accepts and agrees to such hiring and engagement. In the capacity
of Senior Advisor, Landguth will not be considered an officer or employee
of Black Hills or any of its subsidiaries nor shall his engagement include
any policy-making functions for the Company or its subsidiaries.
C. In the implementation of its succession plan, the Company may employ a
successor to the office of Chief Executive Officer prior to June 1, 2005,
but in such event, Employee shall nonetheless receive compensation and
benefits as provided herein. The title and duties of Employee as Senior
Advisor under
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this Agreement, in that event, shall be advanced from the dates specified
above, but the periodic compensation provided herein shall remain
unchanged.
SECTION TWO
BEST EFFORTS OF EMPLOYEE
Employee agrees that he will at all times faithfully, industriously, and to the
best of his ability, experience, and talents, perform all of the duties that may
be required of and from him pursuant to the express and implicit terms of this
Agreement, to the reasonable satisfaction of Employer, and in accordance with
Company policies, applicable law and regulations. Such duties shall be rendered
principally at 625 Ninth Street, Rapid City, South Dakota, and intermittently at
such other place or places as Employer shall in good faith require or as the
interest, needs, business, or opportunity of Employer shall require.
SECTION THREE
TERM OF EMPLOYMENT
The term of this Agreement shall be the period commencing on December 20, 2002
and terminating May 31, 2008, ("Termination Date"), except as provided in
Section Eight of the Agreement with respect to termination for cause. The
parties may extend the term of this Agreement on such terms as are provided in a
written modification of this Agreement, signed by both parties.
SECTION FOUR
COMPENSATION OF EMPLOYEE
A. Employer shall pay Employee, and Employee shall accept from Employer, in
full payment for Employee's services under this Agreement, compensation as
follows:
1. During the Employment Term, Employer shall pay, and Employee shall
accept from Employer, in full payment for Employee's services an annual salary
rate not less than $516,000.00. Subject to the evaluation and recommendation of
the Compensation Committee, the Board of Directors may approve annual increases
in Employee's salary rate as Chief Executive Officer. The Company may employ a
successor to the office of Chief Executive Officer.
2. During the Contractor Term, while Landguth is engaged as Senior Advisor
to the Chief Executive Officer, Black Hills shall pay, and Landguth shall accept
from Black Hills, in full payment for Landguth's services, annual payment as
follows:
a. June 1, 2005 to May 31, 2006, the sum of $300,000;
b. June 1, 2006 to May 31, 2007, the sum of $200,000;
c. June 1, 2007 to May 31, 2008, the sum of $100,000.
B. During both the Employment Term, and the Contractor Term, Employer shall
reimburse Employee for all necessary expenses incurred by Employee while
traveling on behalf of Employer. Throughout the Employment Term, Employee
shall be eligible to receive and participate in all vacation and holiday
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pay, benefit plans, perquisites, retirement, disability and deferred
compensation plans, health and life insurance, customarily provided to
executive employees of the Company, consistent with its past practices and
approved plans. During the Employment Term , Employee shall be eligible to
receive or participate in incentive and other bonus payment programs
customarily provided to executive officers of the Company, consistent with
its past practices and approved plans.
C. From and after the expiration of the Employment Term, Employee shall be
deemed to have retired from his employment with the Company for purposes of
determining his eligibility for benefits under Company benefit plans
relating to retirees.
D. The Company shall approve payment of undiscounted Pension Equalization Plan
(PEP) Benefits to Employee, at the rate and terms that would have been
payable commencing at the age of 62, such that full PEP Benefits will
commence on June 1, 2005.
SECTION FIVE
EXCLUSIVE EMPLOYMENT
During the Employment Term, Employee shall devote all of his time, attention,
knowledge, and skills solely to the business and interest of Employer, and
Employer shall be entitled to all of the benefits, profits, or other issues
arising from or incident to all work, services, and advice of Employee. Employee
shall not, during the Employment Term, be interested directly or indirectly, as
partner, officer, shareholder, employee, in any other business similar to
Employer's business or any allied trade; provided, however, that nothing
contained in this section shall be deemed to prevent or to limit the right of
Employee to invest any of his money in the capital stock or other securities of
any corporation whose stock or securities are publicly owned or are regularly
traded on any public exchange. Employee may accept appointment as a director of
another public or private corporation, provided that he complies with the
Company's Governance Guidelines, including the requirement for Board approval of
such assignments.
SECTION SIX
STRATEGIC, FINANCIAL AND SUCCESSION PLANNING
During the Employment Term, Employee shall render all services required by the
Company, and provide counsel, strategic and financial planning and direction to
the Company, for the benefit of Employer and its shareholders, in full
compliance with applicable laws and regulations. Employee shall provide services
as requested, to support and make recommendations to the Board of Directors
concerning an orderly transition to succeeding leadership in the office of Chief
Executive Officer. In addition, for the remainder of his employment as Chief
Executive Officer, Employee shall continue to oversee the design, direction, and
implementation of a succession planning program. Consistent with guidelines
established by the Board of Directors, the program shall, among other
provisions: establish and revise policies and procedures; define present and
future corporate work requirements and competencies; identify key positions and
performance requirements; appraise and evaluate participants; establish
individual development plans; and identify challenges and undertake steps to
ensure the timely implementation of the program.
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SECTION SEVEN
CONFIDENTIALITY AND TRADE SECRETS
Except as required by law, Employee shall not at any time or in any manner,
either directly or indirectly, divulge, disclose or communicate to any person,
firm, corporation, or other entity in any manner whatsoever any information
concerning any matters affecting or relating to the business of Employer,
including but not limited to any of its customers, counter-party arrangements,
the prices it obtains or has obtained from the sale of, or at which it sells or
has sold, its products, or any other information concerning the business of
Employer, its manner of operation, its plans, processes, financial or business
strategy or other similar data. Employer and Employee specifically and expressly
stipulate that as between them, such matters are important, material, and
confidential and gravely affect the effective and successful conduct of the
business of Employer, and Employer's good will, and that any breach of the terms
of this section shall be a material breach of this agreement.
SECTION EIGHT
TERMINATION
A. Termination without Cause. This Agreement may be terminated by either
party, for any reason, without just cause, on thirty (30) days' written
notice to the other. If Employer shall so terminate this Agreement,
Employee shall be entitled to receive payment of compensation and benefits
as provided in this Agreement through and including the Termination Date.
If Employee shall so terminate this Agreement, Employee shall receive
compensation and benefits as provided in this Agreement through the
effective date of such termination of employment. In the event that
Employee's employment is terminated (actually or constructively) as a
result of a "Change of Control" , as defined in Company-approved Change of
Control Agreements, the parties agree that Employee shall be deemed to have
been terminated without cause for purposes of this Agreement.
B. Termination by Employer for Cause. In the event of any violation by
Employee of any of the terms of this Agreement, or for other just cause,
Employer may terminate this Agreement and Employee's employment upon thirty
(30) days' written notice and with compensation and benefits paid to
employee through the date of such termination. The written notice shall
state the grounds for termination. For purposes of this Agreement, "Cause"
or "Just Cause" means (i) an act or acts of dishonesty on Employee's part
which are intended to result in his substantial personal enrichment at the
expense of Black Hills; (ii) repeated violations by Employee of his
obligations under this Agreement which are demonstrably willful and
deliberate on his part and which result in material injury to Black Hills;
(iii) conduct of a criminal nature which has or which is more likely than
not to have a material adverse effect on Black Hills's reputation or
standing in the community or on its continuing relationships with its
customers or those who purchase or use its products; or (iv) fraudulent
conduct in connection with the business or affairs of Black Hills,
regardless of whether said conduct is designed to defraud Black Hills or
others.
C. Termination by Employee for Good Reason. Employee may terminate his
employment at any time for Good Reason. For purposes of this Agreement,
"Good Reason" means the good faith determination by Employee that any one
or more of the following have occurred: (i) without the express written
consent of Employee, any change(s) in any of the duties, or
responsibilities of Employee which is (are) inconsistent in any substantial
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respect with Employee's position, duties, or responsibilities as
contemplated by this Agreement; (ii) any failure by Employer to comply with
any of the provisions of this Agreement, other than an insubstantial and
inadvertent failure remedied by Employer promptly after receipt of notice
thereof given by Employee; (iii) without Employee's consent, any
requirement by Employer that Employee be based at any office or location
other than an office or location in Rapid City, South Dakota, except for
travel reasonably required in the performance of Employee's
responsibilities; (iv) any proposed termination by Employer of Employee's
employment otherwise than as permitted by this Agreement
D. It is further agreed that any breach or evasion of any of the terms of this
Agreement by either party will result in immediate and irreparable injury
to the other party and will authorize recourse to injunction and or
specific performance as well as to all other legal or equitable remedies to
which such injured party may be entitled under this Agreement.
E. In the event of termination by Employer without cause, or by Employee for
good reason, Employee shall be entitled to receive compensation and
benefits as provided in this Agreement through and including the
Termination Date, and he shall receive credit for thirty-five (35) years of
service with the Company for purposes of determining his eligibility for
benefits under the Company's retirement and pension plans.
SECTION NINE
TERMINATION FOR DEATH OR DISABILITY
A. Notwithstanding anything in this Agreement to the contrary, Employer may
terminate this Agreement in the event that Employee shall, during the term
of this Agreement, die or become permanently disabled. Employer shall
provide written notice to Employee or his personal representative of its
election to terminate this Agreement for these reasons. On the giving of
such notice, this Agreement shall cease on the last day of the month in
which the notice is delivered. In the event of termination for reasons
specified in this Section, Employee shall be given credit for years of
service through the Termination Date, for purposes of determining his
eligibility for benefits under the Company's retirement and pension plans.
B. For the purposes of this Agreement, Employee shall be deemed to have become
permanently disabled according to the terms of Employer's Short Term and
Long Term Disability Plans currently in effect at the time of disability.
SECTION TEN
CHOICE OF LAW AND VENUE
It is the intention of the parties that the terms of this Agreement and the
parties' performance under this Agreement, shall be construed and determined in
accordance with and pursuant to the laws of the State of South Dakota. Any
action, special proceeding or other proceeding that may be brought arising out
of, in connection with, or by reason of this Agreement, shall be brought or
filed exclusively in the state or federal courts located in Pennington County,
South Dakota.
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SECTION ELEVEN
MISCELLANEOUS PROVISIONS
A. Complete Agreement. This Agreement contains the complete agreement
concerning the employment arrangement between the parties and shall, as of
the effective date of this Agreement, supersede all other agreements
between the parties. The parties agree that the Change of Control Agreement
between them shall be cancelled upon the execution of this Agreement. The
parties stipulate that neither of them has made any representation with
respect to the subject matter of this Agreement or any representations
including the execution and delivery of this Agreement except such
representations as are specifically set forth in this Agreement. Employee
has relied on his own judgment in entering into this Agreement. The parties
further acknowledge that any payments or representations that may have been
made by either of them to the other prior to the date of executing this
Agreement are of no effect and that neither of them has relied on such
payments or representations in connection with its dealings with the other.
B. Partial Invalidity. The invalidity of any portion of this Agreement will
not and shall not be deemed to affect the validity of any other provision.
In the event that any provision of this Agreement is held to be invalid,
the parties agree that the remaining provisions shall continue in full
force and effect as if they were executed by both parties subsequent to the
avoidance of the invalid provision.
C. Non-Waiver. The failure of either party to this Agreement to insist upon
the performance of any of the terms and conditions of this Agreement, or
the waiver of any breach of any of the terms and conditions of this
Agreement, shall not be construed as thereafter waiving any such terms and
conditions, but the same shall continue and remain in full force and effect
as if no such forebearance or waiver had occurred.
D. Modification and Assignment. Any modification of this agreement or
additional obligation assumed by either party in connection with this
Agreement shall be binding only if evidenced in writing signed by each
party or an authorized representative of each party. This Agreement may not
be assigned by either party without the written consent of the other.
E. Binding upon Successors. This Agreement shall be binding upon and inure to
the benefit of the parties, their heirs, personal representatives,
successors and assigns.
F. Notices. All notices required under this Agreement shall be delivered as
follows:
If to Employee:
Daniel P. Landguth
23448 Sand Ct.
Rapid City, SD 57702
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If to Employer:
Black Hills Corporation
625 Ninth Street
P.O. Box 1400
Rapid City, South Dakota 57709
Attention: Steven J. Helmers, General Counsel
In witness of the above, each party to this Agreement has caused it to be
executed at Rapid City, South Dakota, on the date indicated below.
Black Hills Corporation Daniel P. Landguth
By: /s/ Steven J. Helmers /s/ Daniel P. Landguth
Its: General Counsel and Corporate Secretary Date: December 20, 2002
Date: December 20, 2002
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Exhibit 10.2
EMPLOYMENT AGREEMENT
Agreement made, effective as of December 20, 2002 by and between Black Hills
Corporation, a South Dakota corporation, with its principal office located at
625 Ninth Street, Rapid City, South Dakota, referred to in this agreement as
Employer, Black Hills or Company, and Everett E. Hoyt, of Rapid City, South
Dakota, referred to in this agreement as Employee.
RECITALS
A. Employer is a public company engaged in the business of fuel production,
energy marketing, wholesale power generation, regulated electric utility,
and telecommunications.
B. Employee has been employed by the Company in various capacities since 1989,
and is currently employed as its President and Chief Operating Officer.
Employee has substantial experience in the above-designated business
activities and has provided valuable leadership for the Company. Employee
is eligible to retire from the Company at the present time, but could
continue his employment with the Company until mandatory retirement as an
officer of the Company, at age sixty-five (65), on August 8, 2004.
C. Employee is willing to continue his employment by Employer, and Employer is
willing to continue its employment of Employee, on the terms, covenants,
and conditions set forth in this Agreement.
In consideration of the matters described above, and of the mutual benefits and
obligations set forth in this agreement, the parties agree as follows:
SECTION ONE
EMPLOYMENT AND DUTIES
A. Employer employs, engages, and hires employee as an executive officer of
the Company to perform services in the management of business activities of
the Company, as assigned by the Chief Executive Officer. Employee accepts
and agrees to such hiring, engagement, and employment, subject to the
general supervision and pursuant to the orders, advice, and direction of
the Company, through its Board of Directors and Chief Executive Officer.
B. Employee shall perform such other duties as are customarily performed by
one holding such position in other, same, or similar businesses or
enterprises as that engaged in by Employer, and shall also render such
other and unrelated services and duties as may be assigned to him from time
to time by Employer.
SECTION TWO
BEST EFFORTS OF EMPLOYEE
Employee agrees that he will at all times faithfully, industriously, and to the
best of his ability, experience, and talents, perform all of the duties that may
be required of and from him pursuant to the express and implicit terms of this
1
Agreement, to the reasonable satisfaction of Employer, in accordance with
policies of the Company, applicable law and regulations. Such duties shall be
rendered principally at 625 Ninth Street, Rapid City, South Dakota, and
intermittently at such other place or places as Employer shall in good faith
require or as the interest, needs, business, or opportunity of Employer shall
require.
SECTION THREE
TERM OF EMPLOYMENT
The term of this Agreement shall be the period commencing on the date of this
Agreement, and terminating August 8, 2004, ("Termination Date"), except as
provided in Section Eight of the Agreement with respect to termination for
cause.
SECTION FOUR
COMPENSATION OF EMPLOYEE
Employer shall pay Employee, and Employee shall accept from Employer, in full
payment for Employee's services under this Agreement, compensation at an annual
salary rate not less than $347,800.00, while this Agreement shall be in force.
Employer shall reimburse Employee for all necessary expenses incurred by
Employee while traveling pursuant to Employer's directions. Employee shall be
eligible to receive or participate in all other vacation and holiday pay,
benefit plans, perquisites, retirement, disability and deferred compensation
plans, health and life insurance, incentive and bonus payments, all as
customarily provided to executive officers of the Company, consistent with its
past practices and approved plans. From and after the Termination Date, Employee
shall be deemed to have retired from his employment with the Company for
purposes of determining his eligibility for benefits under Company benefit plans
relating to retirees.
SECTION FIVE
EXCLUSIVE EMPLOYMENT
Employee shall devote all of his time, attention, knowledge, and skills solely
to the business and interest of Employer, and Employer shall be entitled to all
of the benefits, profits, or other issues arising from or incident to all work,
services, and advice of Employee. Employee shall not, during the term of this
Agreement, be interested directly or indirectly, as partner, officer,
shareholder, advisor, employee, in any other business similar to Employer's
business or any allied trade; provided, however, that nothing contained in this
section shall be deemed to prevent or to limit the right of Employee to invest
any of his money in the capital stock or other securities of any corporation
whose stock or securities are publicly owned or are regularly traded on any
public exchange. Employee may accept appointment as a director of another public
or private company provided he complies with the Company's Governance
Guidelines, including Board approval of such appointments.
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SECTION SIX
RECOMMENDATIONS FOR IMPROVING OPERATIONS
Employee shall make available to Employer all information of which Employee
shall have any knowledge and shall make all suggestions and recommendations that
will be of mutual benefit to Employer and Employee.
SECTION SEVEN
CONFIDENTIALITY AND TRADE SECRETS
Except as required by law, Employee shall not at any time or in any manner,
either directly or indirectly, divulge, disclose or communicate to any person,
firm, corporation, or other entity in any manner whatsoever any information
concerning any matters affecting or relating to the business of Employer,
including but not limited to any of its customers, counter-party arrangements,
the prices it obtains or has obtained from the sale of, or at which it sells or
has sold, its products, or any other information concerning the business of
Employer, its manner of operation, its plans, processes, financial or business
strategy or other similar data. Employer and Employee specifically and expressly
stipulate that as between them, such matters are important, material, and
confidential and gravely affect the effective and successful conduct of the
business of Employer, and Employer's good will, and that any breach of the terms
of this section shall be a material breach of this Agreement.
SECTION EIGHT
TERMINATION
A. Termination without Cause. This agreement may be terminated by either
party, for any reason, without just cause, on thirty (30) days' written
notice to the other. If Employer shall so terminate this Agreement,
Employee shall be entitled to receive payment of compensation and benefits
as provided in this Agreement through and including the Termination Date.
If Employee shall so terminate this Agreement, Employee shall receive
compensation and benefits as provided in this Agreement through the
effective date of such termination of employment. In the event that
Employee's employment is terminated (actually or constructively) as a
result of a "Change of Control" , as defined in Company-approved Change of
Control Agreements, the parties agree that Employee shall be deemed to have
been terminated without cause for purposes of this Agreement.
B. Termination by Employer for Cause. In the event of any violation by
Employee of any of the terms of this Agreement, or for other just cause,
Employer may terminate this Agreement and Employee's employment upon thirty
(30) days' written notice and with compensation and benefits paid to
employee through the date of such termination. The written notice shall
state the grounds for termination. For purposes of this Agreement, "Cause"
or "Just Cause" means (i) an act or acts of dishonesty on Employee's part
which are intended to result in his substantial personal enrichment at the
expense of Black Hills; (ii) repeated violations by Employee of his
obligations under this Agreement which are demonstrably willful and
deliberate on his part and which result in material injury to Black Hills;
(iii) conduct of a criminal nature which has or which is more likely than
not to have a material adverse effect on Black Hills's reputation or
standing in the community or on its continuing relationships with its
customers or those who purchase or use its products; or (iv) fraudulent
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conduct in connection with the business or affairs of Black Hills,
regardless of whether said conduct is designed to defraud Black Hills or
others.
C. Termination by Employee for Good Reason. Employee may terminate his
employment at any time for Good Reason. For purposes of this Agreement,
"Good Reason" means the good faith determination by Employee that any one
or more of the following have occurred: (i) without the express written
consent of Employee, any change(s) in any of the duties, or
responsibilities of Employee which is (are) inconsistent in any substantial
respect with Employee's position, duties, or responsibilities as
contemplated by this Agreement; (ii) any failure by Black Hills to comply
with any of the provisions of this Agreement, other than an insubstantial
and inadvertent failure remedied by Black Hills promptly after receipt of
notice thereof given by Employee; (iii) without Employee's consent, any
requirement by Black Hills that Employee be based at any office or location
other than an office or location in Rapid City, South Dakota, except for
travel reasonably required in the performance of Employee's
responsibilities; (iv) any proposed termination by Black Hills of
Employee's employment otherwise than as permitted by this Agreement
D. It is further agreed that any breach or evasion of any of the terms of this
Agreement by either party will result in immediate and irreparable injury
to the other party and will authorize recourse to injunction and or
specific performance as well as to all other legal or equitable remedies to
which such injured party may be entitled under this Agreement.
E. In the event of termination by Employer without Cause, or by Employee for
Good Reason, Employee shall be entitled to receive compensation and
benefits as provided in this Agreement through and including the
Termination Date.
SECTION NINE
TERMINATION FOR DEATH OR DISABILITY
A. Notwithstanding anything in this Agreement to the contrary, Employer may
terminate this Agreement in the event that Employee shall, during the term
of this Agreement, die or become permanently disabled. Employer shall
provide written notice to Employee or his personal representative of its
election to terminate this Agreement for these reasons. On the giving of
such notice, this Agreement, and the employment of Employee, shall cease at
the end month in which the notice is delivered. In the event of termination
for reasons specified in this Section, Employee shall be given credit for
years of service through the Termination Date, for purposes of determining
his right to receive benefits under any retirement or pension plan of the
Company.
B. For the purposes of this Agreement, Employee shall be deemed to have become
permanently disabled according to the terms of Employer's Short Term and
Long Term Disability Plans currently in effect at the time of disability.
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SECTION TEN
CHOICE OF LAW AND VENUE
It is the intention of the parties that the terms of this Agreement and the
parties' performance under this Agreement, shall be construed in accordance with
and under and pursuant to the laws of the State of South Dakota. Any action,
special proceeding or other proceeding that may be brought arising out of, in
connection with, or by reason of this Agreement, shall be brought or filed in
the state or federal courts located in Pennington County, South Dakota.
SECTION ELEVEN
MISCELLANEOUS PROVISIONS
A. Complete Agreement. Together with the terms of the Agreement for
Supplemental Pension Benefit dated January 20, 1992, as amended, this
Agreement contains the complete agreement concerning the employment
arrangement between the parties and shall. As of the effective date of this
Agreement, and except for the terms of the Agreement for Supplemental
Pension Benefit cited above, this Agreement shall supersede all other
agreements between the parties. The parties agree that the Change of
Control Agreement between them shall be cancelled upon the execution of
this Agreement. The parties stipulate that neither of them has made any
representation with respect to the subject matter of this Agreement or any
representations including the execution and delivery of this Agreement
except such representations as are specifically set forth in this
Agreement. Employee has relied on his own judgment in entering into this
Agreement. The parties further acknowledge that any payments or
representations that may have been made by either of them to the other
prior to the date of executing this Agreement are of no effect and that
neither of them has relied on such payments or representations in
connection with its dealings with the other.
B. Partial Invalidity. The invalidity of any portion of this Agreement will
not and shall not be deemed to affect the validity of any other provision.
In the event that any provision of this Agreement is held to be invalid,
the parties agree that the remaining provisions shall continue in full
force and effect as if they were executed by both parties subsequent to the
avoidance of the invalid provision.
C. Non-Waiver. The failure of either party to this Agreement to insist upon
the performance of any of the terms and conditions of this Agreement, or
the waiver of any breach of any of the terms and conditions of this
Agreement, shall not be construed as thereafter waiving any such terms and
conditions, but the same shall continue and remain in full force and effect
as if no such forebearance or waiver had occurred.
D. Modification and Assignment. Any modification of this agreement or
additional obligation assumed by either party in connection with this
Agreement shall be binding only if evidenced in writing signed by each
party or an authorized representative of each party. This Agreement may not
be assigned by either party without the written consent of the other.
E. Binding upon Successors. This Agreement shall be binding upon and inure to
the benefit of the parties, their heirs, personal representatives,
successors and assigns.
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F. Notices. All notices required under this Agreement shall be delivered as
follows: If to Employee: Everett E. Hoyt 4422 Carriage Hills Dr. Rapid
City, SD 57702
If to Employer:
Black Hills Corporation
625 Ninth Street
P.O. Box 1400
Rapid City, South Dakota 57709
Attention: Steven J. Helmers, General Counsel
In witness of the above, each party to this Agreement has caused it to be
executed at Rapid City, South Dakota, on the date indicated below.
Black Hills Corporation
By: /s/ Steven J. Helmers
Its: General Counsel and Corporate Secretary
Date: December 20, 2002
Everett E. Hoyt
/s/ Everett E. Hoyt
Date: December 20, 2002
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Exhibit 10.3
FIRST AMENDMENT TO AGREEMENT FOR SUPPLEMENTAL PENSION BENEFIT
This First Amendment to the Agreement for Supplemental Pension Benefit
("Amendment") made as of the 20th day of December, 2002, by and between Black
Hills Corporation and its Subsidiary Companies ("Employer"), and Everett E. Hoyt
("Employee").
Whereas, Employer and Employee entered into an Agreement for Supplemental
Pension Benefit ("Agreement") dated January 20, 1992; and
Whereas the parties desire to make certain amendments to the Agreement on the
terms and conditions set forth herein;
Now, therefore, in consideration of the employment of Employee, and for other
good and valuable consideration, the parties agree as follows:
1. The Agreement shall be and hereby is amended to include a defined term
on page (1) one as follows:
"Pension Plan" shall mean, for purposes of this Agreement, the Employee's
Defined Benefit Plan, Pension Plan and Pension Equalization Plan.
2. Paragraph 8 of the Agreement shall be and hereby is amended to include
the following provision:
" This Agreement may be modified or amended only by a written agreement
signed by the parties."
3. The Agreement shall be and hereby is amended to include a new paragraph
as follows:
"9. INVALID PROVISIONS.
If any provision of this Agreement, as amended by the written agreement of
the parties, is held to be illegal, invalid or unenforceable under present or
future laws, such provision shall be fully severable and the remaining
provisions of this Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance."
4. The Agreement, as hereby amended, contains the entire agreement of the
parties regarding the subject matter hereof. Amendment shall be effective
immediately upon execution by both parties.
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BLACK HILLS CORPORATION EVERETT E. HOYT
By: /s/ Steven J. Helmers /s/ Everett E. Hoyt
Its: General Counsel and Corporate Secretary
Date: December 20, 2002 Date: December 20, 2002
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