UNITED
STATES
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
Date
of Report (Date of earliest event reported) July 11, 2005
____________
BLACK
HILLS CORPORATION
(Exact
name of registrant as specified in its charter)
____________
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South
Dakota
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(State
or other jurisdiction of incorporation)
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001-31303
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46-0458824
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(Commission
File Number)
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(IRS
Employer Identification No.)
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625
Ninth Street, PO Box 1400
Rapid
City, South Dakota
(Address
of principal
executive offices)
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57709-1400
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(Zip
Code)
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605.721.1700
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(Registrant’s
telephone number, including area code)
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Not
Applicable
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(Former
name or former address, if changed since last
report)
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____________
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see
General
Instruction A.2. below):
oWritten
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
oSoliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
oPre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
oPre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
1
Item
1.01 Entry
into a Material Definitive Agreement
The
Company may enter into various agreements with its employees from time to time
under the 2005 Omnibus Incentive Plan. The Form of Stock Option Award Agreement,
Form of Restricted Stock Award Agreement, Form of Restricted Stock Unit Award
Agreement, and Form of Performance Share Award Agreement are attached as
exhibits to this filing and are incorporated herein by reference.
Item
9.01 Financial
Statements and Exhibits
(c)
Exhibits. The
following exhibits are filed herewith:
Exhibit
Number Title
of Document
| 10.1 |
Form
of
Stock Option Award Agreement
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| 10.2 |
Form
of
Restricted Stock Award Agreement
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| 10.3 |
Form
of
Restricted Stock Unit Award
Agreement
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| 10.4 |
Form
of
Performance Share Award Agreement
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2
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.
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BLACK
HILLS CORPORATION
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By: /s/
Mark T. Thies
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Mark
T. Thies
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Executive
Vice President
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and
Chief Financial Officer
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Date: July
11, 2005
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3
Exhibit
Index
Exhibit
Number Title
of Document
| 10.1 |
Form
of
Stock Option Award Agreement
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| 10.2 |
Form
of
Restricted Stock Award Agreement
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| 10.3 |
Form
of
Restricted Stock Unit Award
Agreement
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| 10.4 |
Form
of
Performance Share Award Agreement
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Black
Hills Corporation
2005
Omnibus Incentive Plan
Option
Award Agreement
Participant:
Date
of Grant:
Number
of Shares Covered by this Option:
Number
of above Shares intended to be
Incentive
Stock Options ("ISOs")
within
the meaning of Internal Revenue
Code
§ 422:
Number
of above shares intended to be
Nonqualified
Stock Options ("NQSOs"):
Option
Price for each Share:
Date
of Expiration:
This
document constitutes part of the prospectus covering securities that have been
registered under the Securities Act of 1933.
THIS
AGREEMENT, effective as of the Date of Grant set forth above, represents the
grant of stock options by Black Hills Corporation, a South Dakota corporation
(the "Company") to the Participant named above, pursuant to the provisions
of
the Black Hills Corporation 2005 Omnibus Incentive Plan ("Plan").
All
capitalized terms used herein shall have the meanings ascribed to them in the
Plan, unless specifically set forth otherwise herein.
The
Plan
provides a complete description of the terms and conditions governing the
Option. If there is any inconsistency between the terms of this Agreement and
the terms of the Plan, the Plan's terms shall completely supersede and replace
the conflicting terms of this Agreement. The parties hereto agree as
follows:
1
1.
Grant
of Stock Options.
The
Company hereby grants to the Participant an Option to purchase the number of
Shares set forth above, at the stated Option Price, which is 100 percent (100%)
of the Fair Market Value of a Share on the Date of Grant, in the manner and
subject to the terms and conditions of the Plan and this Agreement.
2.
Exercise
of Stock Option.
Except
as hereinafter provided, the Participant may exercise this Option at any time
after the end of one year following the Date of Grant as to those Shares which
have become vested according to the vesting schedule set forth below, provided
that no exercise may occur subsequent to the close of business on the Date
of
Expiration (as defined on page 1 of this Agreement).
VESTING
SCHEDULE
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Date
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Shares
for Which Option Becomes Exercisable
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Cumulative
Number of Shares Available
for Purchase
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______
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____
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______
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___
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____
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______
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____
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This
Option may be exercised in whole or in part, but not for less than 100 Shares
at
any one time, unless fewer than 100 Shares then remain subject to the Option,
and the Option is then being exercised as to all such remaining
Shares.
3. Termination
of Employment:
| (a) |
By
death or Disability:
In the event of termination of employment by reason of death or
disability, all Shares under this Option shall become immediately
vested
(100%) and the Shares may be purchased under the terms of this Agreement
until the earlier of: (i) the expiration date of this Option; or
(ii) the
first anniversary of the date of death or Disability.
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| (b) |
By Retirement:
In the event of termination of employment by reason of retirement,
all
Shares under this Option shall become immediately vested (100%) and
the
Shares may be purchased under the terms of this Agreement until the
earlier of: (i) the expiration date of this Option; or (ii) the third
anniversary date of Retirement.
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(c)
For
other reasons:
Shares
which are vested as of the date of termination of employment of the Participant
for any reason other than those reasons set forth in 3(a) or 3(b) above may
be
purchased under the terms of this Agreement until the earlier of: (i) the
expiration date of this Option; or (ii) 90 days following the date of
termination of employment. Shares which are not vested as of the date of
termination shall immediately terminate, and shall be forfeited to the
Company.
4. Change
in Control.
In the
event of a Change in Control, all Shares under this Option shall become
immediately vested (100%) and shall remain exercisable for their entire
term.
2
"Change in Control" of the Company shall be deemed to have occurred (as of a particular day, as specified by the Board) upon the occurrence of any of the following events:
| (a) |
The
acquisition in a transaction or series of transactions by any Person
of
Beneficial Ownership of thirty percent (30%) or more of the combined
voting power of the then outstanding shares of common stock of the
Company; provided, however, that for purposes of this Agreement,
the
following acquisitions will not constitute a Change in Control: (A)
any
acquisition by the Company; (B) any acquisition of common
stock of
the Company by an underwriter holding securities of the Company in
connection with a public offering thereof; and (C) any acquisition
by any
Person pursuant to a transaction which complies with subsections
(c) (i),
(ii) and (iii), below;
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(b) Individuals
who, as of December 31, 2004 are members of the Board (the "Incumbent Board"),
cease for any reason to constitute at least a majority of the members of the
Board; provided, however, that if the election, or nomination for election
by
the Company's common shareholders, of any new director was approved by a vote
of
at least two-thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the Incumbent Board;
provided further, however, that no individual shall be considered a member
of
the Incumbent Board if such individual initially assumed office as a result
of
either an actual or threatened "Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Board (a
"Proxy Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest;
(c)
Consummation,
following shareholder approval, of a reorganization, merger, or consolidation
of
the Company and/or its subsidiaries, or a sale or other disposition (whether
by
sale, taxable or non-taxable exchange, formation of a joint venture or
otherwise) of fifty percent (50%) or more of the assets of the Company and/or
its subsidiaries (each a “Business Combination”), unless, in each case,
immediately following such Business Combination, (i) all or substantially all
of
the individuals and entities who were beneficial owners of shares of the common
stock of the Company immediately prior to such Business Combination beneficially
own, directly or indirectly, more that fifty percent (50%) of the combined
voting power of the then outstanding shares of the entity resulting from the
Business Combination or any direct or indirect parent corporation thereof
(including, without limitation, an entity which as a result of such transaction
owns the Company or all or substantially all of the Company’s assets either
directly or through one (1) or more subsidiaries)(the “Successor Entity”); (ii)
no Person (excluding any Successor entity or any employee benefit plan or
related trust, of the Company or such Successor Entity) owns, directly or
indirectly, thirty percent (30%) or more of the combined voting power of the
then outstanding shares of common stock of the Successor Entity, except to
the
extent that such ownership existed prior to such Business Combination; and
(iii)
at least a majority of the members of the Board of Directors of the entity
resulting from such Business Combination or any direct or indirect parent
corporation thereof were members of the Incumbent Board at the time of the
execution of the initial agreement or action of the Board providing for such
Business Combination; or
3
(d)
Approval
by the shareholders of the Company of a complete liquidation or dissolution
of
the Company, except pursuant to a Business Combination that complies with
subsections (c) (i), (ii), and (iii) above.
(e)
A
Change
in Control shall not be deemed to occur solely because any Person (the "Subject
Person") acquired Beneficial Ownership of more than the permitted amount of
the
then outstanding Common Stock as a result of the acquisition of Common Stock
by
the Company which, by reducing the number of shares of Common Stock then
outstanding, increases the proportional number of shares Beneficially Owned
by
the Subject Persons, provided that if a Change in Control would occur (but
for
the operation of this sentence) as a result of the acquisition of Common Stock
by the Company, and after such stock acquisition by the Company, the Subject
Person becomes the Beneficial Owner of any additional Common Stock which
increases the percentage of the then outstanding Common Stock Beneficially
Owned
by the Subject Person, then a Change in Control shall occur.
(f)
A
Change
in Control shall not be deemed to occur unless and until all regulatory
approvals required in order to effectuate a Change in Control of the Company
have been obtained and the transaction constituting the Change in Control has
been consummated.
5. Restrictions
on Transfer.
This
Option may not be sold, transferred, pledged, assigned, or otherwise alienated
or hypothecated, other than by will or by the laws of descent and distribution.
Further, this Option shall be exercisable during the Participant's lifetime
only
by the Participant or the Participant's legal representative.
6. Recapitalization.
In the
event there is any change in the Company's Shares through the declaration of
stock dividends or through recapitalization resulting in stock splits or through
merger, consolidation, exchange of Shares, or otherwise, the number and class
of
Shares subject to this Option, as well as the Option Price, may be equitably
adjusted by the Committee, in its sole discretion, to prevent dilution or
enlargement of rights.
7. Procedure
for Exercise of Option.
This
Option may be exercised by delivery of written notice to the Company at its
executive offices, addressed to the attention of its Secretary. Such notice:
(a)
shall be signed by the Participant or his or her legal representative; (b)
shall
specify the number of full Shares then elected to be purchased with respect
to
the Option; (c) unless a Registration Statement under the Securities Act of
1933
is in effect with respect to the Shares to be purchased, shall contain a
representation of the Participant that the Shares are being acquired by him
or
her for investment and with no present intention of selling or transferring
them, and that he or she will not sell or otherwise transfer the Shares except
in compliance with all applicable securities laws and requirements of any stock
exchange upon which the Shares may then be listed; and (d) shall be accompanied
by payment in full of the Option Price of the Shares to be purchased, and the
Participant's copy of this Agreement.
4
The
Option Price upon exercise of this Option shall be payable to the Company in
full either: (a) in cash or its equivalent (acceptable cash equivalents shall
be
determined at the sole discretion of the Committee); or (b) by tendering
previously acquired Shares having an aggregate Fair Market Value at the time
of
exercise equal to the total Option Price (provided that the Shares which are
tendered must have been held by the Participant for at least six (6) months
prior to their tender to satisfy the Option Price); or (c), by a combination
of
(a) and (b).
The
Participant may also be permitted to exercise pursuant to a "cashless exercise"
procedure as permitted under the Federal Reserve Board's Regulation T, subject
to securities law restrictions.
As
promptly as practicable after receipt of notice and payment upon exercise,
the
Company shall cause to be issued and delivered to the Participant or his or
her
legal representative, as the case may be, certificates for the Shares so
purchased, which may, if appropriate, be endorsed with appropriate restrictive
legends. The Share certificates shall be issued in the Participant's name (or,
at the discretion of the Participant, jointly in the names of the Participant
and the Participant's spouse). The Company shall maintain a record of all
information pertaining to the Participant's rights under this Agreement,
including the number of Shares for which their Option is exercisable. If the
Option shall have been exercised in full, this Agreement shall be returned
to
the Company and canceled.
8. Beneficiary
Designation.
The
Participant may, from time to time, name any beneficiary or beneficiaries (who
may be named contingently or successively) to whom any benefit under this
Agreement is to be paid in case of his or her death before he or she receives
any or all of such benefit. Each such designation shall revoke all prior
designations by the Participant, shall be in a form prescribed by the Company,
and will be effective only when filed by the Participant in writing with the
Secretary of the Company during the Participant's lifetime. In the absence
of
any such designation, benefits remaining unpaid at the Participant's death
shall
be paid to the Participant's estate.
9. Rights
as a Shareholder.
The
Participant shall have no rights as a shareholder of the Company with respect
to
the Shares subject to this Option Agreement including, without limitation,
any
right to dividends, until such time as the purchase price has been paid, and
the
Shares have been issued and delivered to him or her.
10. Continuation
of Employment.
This
Option Agreement shall not confer upon the Participant any right to continuation
of employment by the Company, nor shall this Option Agreement interfere in
any
way with the Company's right to terminate the Participant's employment at any
time. A transfer of the Participant's employment between the Company and any
one
of its Subsidiaries (or between Subsidiaries) shall not be deemed a termination
of employment.
11. Limitation.
Participant shall not exercise any shares which are intended to be ISOs
hereunder if and to the extent that the Participant would thereby be entitled
to
purchase Shares in any one calendar year, the value of which, determined at
the
time of the Date of Grant, would exceed $100,000.
5
12. Miscellaneous.
| (a) |
This
Option Agreement and the rights of the Participant hereunder are
subject
to all the terms and conditions of the Plan, as the same may be amended
from time to time, as well as to such rules and regulations as the
Committee may adopt for administration of the Plan. The Committee
shall
have the right to impose such restrictions on any Shares acquired
pursuant
to the exercise of this Option, as it may deem advisable, including,
without limitation, restrictions under applicable Federal securities
laws,
under the requirements of any stock exchange or market upon which
such
Shares are then listed and/or traded, and under any blue sky or state
securities laws applicable to such Shares. It is expressly understood
that
the Committee is authorized to administer, construe, and make all
determinations necessary or appropriate to the administration of
the Plan
and this Option Agreement, all of which shall be binding upon the
Participant.
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| (b) |
With
the approval of the Board, the Committee may terminate, amend, or
modify
the Plan; provided, however, that no such termination, amendment,
or
modification of the Plan may in any material way adversely affect
the
Participant's rights under this Agreement, without the written consent
of
the Participant.
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| (c) |
The
Company shall have the power and the right to deduct or withhold,
or
require the Participant to remit to the Company, an amount sufficient
to
satisfy federal, state, and local taxes (including Participant's
FICA
obligation) required by law to be withheld with respect to any
exercise of
the Participant's rights under this
Agreement.
|
|
The
Participant may elect, subject to any procedural rules adopted by
the
Committee, to satisfy the withholding requirement, in whole or in
part, by
having the Company withhold Shares having an aggregate Fair Market
Value
on the date the tax is to be determined, equal to the amount required
to
be withheld.
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(d)
The Participant agrees to take all steps necessary to comply with all applicable
provisions of federal and state securities law in exercising
his or
her
rights under this Agreement.
(e)
This
Agreement shall be subject to all applicable laws, rules, and regulations,
and
to such approvals by any governmental agencies or national securities exchanges
as may be required.
(f)
All
obligations of the Company under the Plan and this Agreement, with respect
to
this Option, shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
6
(g)
To the extent not preempted by federal law, this Agreement shall be governed
by,
and construed in accordance with, the laws of the State of South
Dakota.
The
following parties have caused this Agreement to be executed as of the Date
of
Grant.
BLACK
HILLS CORPORATION
By________________________________________
___________________________________________
Participant
Black
Hills Corporation
2005
Omnibus Incentive Plan
Restricted
Stock Award Agreement
Dear
________________________:
Congratulations
on your selection as a Participant of Black Hills Corporation 2005 Omnibus
Incentive Plan (the “Plan”). This Agreement and the Plan together govern your
rights under the Plan and set forth all of the conditions and limitations
affecting such rights. Terms used in this Agreement that are defined in the
Plan
shall have the meanings ascribed to them in the Plan. If there is any
inconsistency between the terms of this Agreement and the terms of the Plan,
the
Plan’s terms shall supersede and replace the conflicting terms of this
Agreement.
Overview
of Your Award
| 1. |
Number
of Restricted Shares Granted.
______________________
|
| 2. |
Date
of Grant.
___________________________________________
|
| 3. |
Date
of Lapse of Restrictions.
|
Shares Date
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________ _____________________________
| 4. |
Employment
by the Company.
This Restricted Stock is awarded on the condition that the Participant
remain in the employ of Black Hills Corporation (the “Company”) from the
Date of Grant through (and including) the Dates of Lapse of Restrictions.
The Award of this Restricted Stock, however, shall not impose upon
the
Company any obligations to retain the Participant in its employ for
any
given period or upon any specific terms of
employment.
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| 5. |
Certificate
Legend.
Shares of Restricted Stock granted pursuant to the Plan shall be
held by
the Company in book entry form and shall be designated to have the
following legend:
|
|
“The
sale or other transfer of the shares of stock represented by this
certificate, whether voluntary, involuntary, or by operation of law,
is
subject to certain restrictions on transfer set forth in the Black
Hills
Corporation 2005 Omnibus Incentive Plan and in a Restricted Stock
Award
Agreement. A copy of the Plan and such Restricted Stock Agreement
may be
obtained from the Secretary of Black Hills
Corporation.”
|
1
| 6. |
Removal
of Restrictions.
Except as otherwise provided in the Plan, each of the Shares of Restricted
Stock granted under this Agreement shall become freely transferable
by the
Participant on each of the “Dates of Lapse of Restrictions” set forth on
Paragraph 3 herein.
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Once
the
shares are released from the restrictions, the Participant shall be entitled
to
receive certificates representing the Shares of stock which have been vested,
without the restrictive legend required by Paragraph 5 of this Agreement.
Notwithstanding
the terms of this Agreement, no stock shall be issued by the Corporation while
its stock transfer books are closed.
| 7. |
Voting
Rights and Dividends.
During the Period of Restriction, the Participant may exercise full
voting
rights and is entitled to receive all dividends and other distributions
paid with respect to the Shares of Restricted Stock while they are
held.
If any such dividends or distributions are paid in shares of Common
Stock
of the Company, the Shares shall be subject to the same restrictions
on
transferability as the Shares of Restricted Stock with respect to
which
they were paid.
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| 8. |
Termination
of Employment By Reasons of Death, Disability, Retirement, and Vesting
in
|
|
Connection
with a Change in Control.
In the event the Participant’s employment is terminated by reason of
Death, Disability, Retirement, or in the event of a Change in Control
prior to the Dates of Lapse of Restrictions, all Shares of Restricted
Stock then outstanding shall immediately vest one hundred percent
(100%),
and as soon as is administratively practicable, the stock certificates
representing the Shares of Restricted Stock without any restrictions
or
legend thereon, shall be delivered to the Participant’s beneficiary or
estate.
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"Change
in Control" of the Company shall be deemed to have occurred (as of a particular
day, as specified by the Board) upon the occurrence of any of the following
events:
| (a) |
The
acquisition in a transaction or series of transactions by any Person
of
Beneficial Ownership of thirty percent (30%) or more of the combined
voting power of the then outstanding shares of common stock of the
Company; provided, however, that for purposes of this Agreement,
the
following acquisitions will not constitute a Change in Control: (A)
any
acquisition by the Company; (B) any acquisition of common
stock of
the Company by an underwriter holding securities of the Company in
connection with a public offering thereof; and (C) any acquisition
by any
Person pursuant to a transaction which complies with subsections
(c) (i),
(ii) and (iii), below;
|
(b)
Individuals
who, as of December 31, 2004 are members of the Board (the "Incumbent Board"),
cease for any reason to constitute at least a majority of the members of the
Board; provided, however, that if the election, or nomination for election
by
the Company's common shareholders, of any new director was approved by a vote
of
at least two-thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the Incumbent Board;
provided further, however, that no individual shall be considered a member
of
the Incumbent Board if such individual initially assumed office as a result
of
either an actual or threatened "Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Board (a
"Proxy Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest;
2
|
(c)
|
Consummation,
following shareholder approval, of a reorganization, merger, or
consolidation of the Company and/or its subsidiaries, or a sale or
other
disposition (whether by sale, taxable or non-taxable exchange, formation
of a joint venture or otherwise) of fifty percent (50%) or more of
the
assets of the Company and/or its subsidiaries (each a “Business
Combination”), unless, in each case, immediately following such Business
Combination, (i) all or substantially all of the individuals and
entities
who were beneficial owners of shares of the common stock of the Company
immediately prior to such Business Combination beneficially own,
directly
or indirectly, more that fifty percent (50%) of the combined voting
power
of the then outstanding shares of the entity resulting from the Business
Combination or any direct or indirect parent corporation thereof
(including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the Company’s
assets either directly or through one (1) or more subsidiaries)(the
“Successor Entity”); (ii) no Person (excluding any Successor entity or any
employee benefit plan or related trust, of the Company or such Successor
Entity) owns, directly or indirectly, thirty percent (30%) or more
of the
combined voting power of the then outstanding shares of common stock
of
the Successor Entity, except to the extent that such ownership existed
prior to such Business Combination; and (iii) at least a majority
of the
members of the Board of Directors of the entity resulting from such
Business Combination or any direct or indirect parent corporation
thereof
were members of the Incumbent Board at the time of the execution
of the
initial agreement or action of the Board providing for such Business
Combination; or
|
(d)
Approval
by the shareholders of the Company of a complete liquidation or dissolution
of
the Company, except pursuant to a Business Combination that complies with
subsections (c) (i), (ii), and (iii) above.
(e)
A
Change
in Control shall not be deemed to occur solely because any Person (the "Subject
Person") acquired Beneficial Ownership of more than the permitted amount of
the
then outstanding Common Stock as a result of the acquisition of Common Stock
by
the Company which, by reducing the number of shares of Common Stock then
outstanding, increases the proportional number of shares Beneficially Owned
by
the Subject Persons, provided that if a Change in Control would occur (but
for
the operation of this sentence) as a result of the acquisition of Common Stock
by the Company, and after such stock acquisition by the Company, the Subject
Person becomes the Beneficial Owner of any additional Common Stock which
increases the percentage of the then outstanding Common Stock Beneficially
Owned
by the Subject Person, then a Change in Control shall occur.
(f)
A
Change
in Control shall not be deemed to occur unless and until all regulatory
approvals required in order to effectuate a Change in Control of the Company
have been obtained and the transaction constituting the Change in Control has
been consummated.
| 9. |
Beneficiary
Designation.
The Participant may, from time to time, name any beneficiary or
beneficiaries (who may be named contingently or successively) to
whom any
benefit under this Agreement is to be paid in case of his or her
death
prior to the Dates of Lapse of Restrictions. Each such designation
shall
revoke all prior designations by the Participant, shall be in a form
prescribed by the Company, and will be effective only when filed
by the
Participant in writing with the Company during the Participant’s lifetime.
In the absence of any such designation, benefits remaining unpaid
at the
Participant’s death shall be paid to the Participant’s
estate.
|
3
| 10. |
Termination
of Employment for Other Reasons.
In the event the Participant’s employment is terminated for reasons other
than those described in Section 8 herein prior to the Dates of the
Lapse
of Restrictions, all outstanding Shares of unvested Restricted Stock
granted hereunder shall immediately be forfeited by the
Participant.
|
| 11. |
Transferability.
This Restricted Stock is not transferable by the Participant, whether
voluntarily or involuntarily, by operation of laws or otherwise,
during
the Restriction Period, except as provided in the Plan. If any assessment,
pledge, transfer, or other disposition, voluntary or involuntary,
of this
Restricted Stock shall be made, or if any attachment, execution,
garnishment, or client shall be issued against or placed upon the
Restricted Stock, then the Participant’s right to the Restricted Stock
shall immediately cease and terminate and the Participant shall promptly
forfeit to the Company all Restricted Stock awarded under this
Agreement.
|
| 12. |
Tax
Treatment.
The following is a brief summary of the principal federal income
tax
consequences related to grants of restricted stock. This summary
is based
on the Company’s understanding of present federal income tax law and
regulations. The summary does not purport to be complete or applicable
to
every specific situation.
|
The
value
of restricted stock granted to the Participant will be taxable to the
Participant in the year in which it is no longer subject to substantial risk
of
forfeiture (i.e., when the restrictions lapse). When the restrictions lapse,
there is an ordinary income tax event to the Participant equal to the number
of
shares multiplied by the market price of the shares at the time the restrictions
lapse. The Participant must satisfy federal and state withholding requirements
and may do so by having the Company sell sufficient shares to meet the
withholding requirements.
The
Participant has the option to make a Code Section 83(b) election on a grant
of
restricted stock. Code Section 83(b) allows the Participant to choose to be
taxed immediately on the amounts received in connection with a substantially
“nonvested” right (i.e., compensation that has not been constructively
received). This is accomplished by the Participant filing an election with
the
IRS stating that he or she will pay ordinary income on the value as measured
at
the time of grant. Any future appreciation in the stock property will be treated
as capital gain when sold. This election must be made within 30 days after
the
stock is received.
If
the
Participant elects Section 83(b) treatment and later forfeits the subject stock,
he or she will not be entitled to any refund for the taxes paid; however, he
or
she will be entitled to treat the forfeiture as a sale of the stock at a loss
(i.e., capital loss) (limited
to the amount paid for shares--typically zero).
| 13. |
Withholding.
|
Tax
Withholding.
The
Company shall have the power and the right to deduct or withhold, or require
the
Participant to remit to the Company, an amount sufficient to satisfy federal,
state and local taxes (including Participant’s FICA obligation), domestic or
foreign, required by law or regulation to be withheld with respect to any
taxable event arising as a result of this Plan.
Share
Withholding.
With
respect to withholding required upon the lapse of restrictions or upon any
other
taxable event arising as a result of the Awards granted hereunder, the
Participants may elect, subject to the approval of the Board, to satisfy the
withholding requirement, in whole or in part, by having the Company withhold
shares having a Fair Market Value on the date the tax is to be determined equal
to the minimum statutory total tax that could be imposed on the transaction.
All
such elections shall be irrevocable, made in writing, signed by the Participant,
and shall be subject to any restrictions or limitations that the Committee,
in
its sole discretion, deems appropriate.
4
| 14. |
Requirements
of Law.
The issuance of Shares under the Plan shall be subject to all applicable
laws, rules, and regulations, and to such approvals by any governmental
agencies or national securities exchanges as may be
required.
|
| 15. |
Inability
to Obtain Authorization.
The inability of the Company to obtain authority from any regulatory
body
having jurisdiction, which authority is deemed by the Company’s counsel to
be necessary to the lawful issuance of any Shares hereunder, shall
relieve
the Company of any liability in respect of the failure to issue such
Shares as to which such requisite authority shall not have been
obtained.
|
| 16. |
Severability.
In the event any provision of this Agreement shall be held to be
illegal
or invalid for any reason, the illegality or invalidity shall not
affect
the remaining parts of this Agreement, and the Agreement shall be
construed and enforced as if the illegal or invalid provision had
not been
included.
|
| 17. |
Continuation
of Employment.
This Agreement shall not confer upon the Participant any right to
continuation of employment by the Company, nor shall this Agreement
interfere in any way with the Company’s right to terminate the
Participant’s employment at any
time.
|
| 18. |
Applicable
Laws and Consent to Jurisdiction.
The validity, construction, interpretation and enforceability of
this
Agreement shall be determined and governed by the laws of the State
of
South Dakota without giving effect to the principles of conflicts
of law.
For the purpose of litigating any dispute that arises under this
Agreement, the parties hereby consent to exclusive jurisdiction in
South
Dakota and agree that such litigation shall be conducted in the courts
of
Pennington County or the federal courts of the United States for
the
District of South Dakota, Western
Division.
|
| 19. |
Miscellaneous.
The Plan may be amended at any time, and from time to time, by a
written
instrument approved by the Board of Directors of Black Hills Corporation.
No termination, amendment or modification of the Plan shall adversely
affect in any material way any Award previously granted under the
Plan,
without the written consent of the Participant holding such Award.
|
The
Plan
and this Agreement are binding upon Participant, as well as his/her heirs,
executors, personal representatives, trustees, attorneys, agents,
administrators, and successors.
Please
refer any questions you may have regarding your restricted stock to
______________________. Once again, congratulations on receipt of your
restricted stock.
Sincerely,
_____________________________________________
5
Please
acknowledge your agreement to participate in the Plan and this Agreement, and
to
abide by all of the governing terms and provisions, by signing the following
representation:
Agreement
to Participate
|
By
signing a copy of this Agreement and returning it to _____________________
of Black Hills Corporation, I acknowledge that I have read the Plan,
and
that I fully understand all of my rights under the Plan, as well
as all of
the terms and conditions which may limit my eligibility to exercise
this
Award. Without limiting the generality of the preceding sentence,
I
understand that my right to exercise this Award is conditioned upon
my
continued employment with Black Hills Corporation or its
Subsidiaries.
|
___________________________________
Black
Hills Corporation
2005
Omnibus Incentive Plan
Restricted
Stock Unit Agreement
________________
Congratulations
on your award under the Black Hills Corporation 2005 Omnibus Incentive Plan
(the
“Omnibus Plan”) and your participation in the Black Hills Corporation
Nonqualified Deferred Compensation Plan (the “NDC Plan”) (collectively, the
“Plans”). This Agreement and the Plans together govern your rights to the award
and set forth all of the conditions and limitations affecting such rights.
Copies of the Plans have been delivered to you. Terms used in this Agreement
that are defined in the Plans shall have the meanings ascribed to them in the
respective Plan. If there is any inconsistency between the terms of this
Agreement and the terms of the Plans, the Plans’ terms shall supersede and
replace the conflicting terms of this Agreement. By signing below, you agree
to
be bound by all the provisions of the Plans and this Agreement.
Overview
of Your Award.
|
1.
|
Number
of Restricted Stock Units Granted. _______
Restricted Stock Units ("RSUs”), each unit corresponding to one share of
Black Hills Corporation Common Stock. Each RSU constitutes only an
unsecured promise of the Company to deliver a share of Common Stock
to the
Participant under the terms of the NDC Plan. As a holder of RSUs,
the
Participant has only the rights of a general unsecured creditor of
the
Company.
|
2. Date
of Grant. _____________
|
3.
|
Date
of Vesting. Subject
to continued employment under Section 4 below, the RSUs shall vest
and
become nonforfeitable in accordance with the following schedule (each
date
is a “Vesting Date”):
|
|
Shares
|
Date
|
|
|
_____
|
_______
|
|
|
_____
|
_______
|
|
|
_____
|
_______
|
|
|
4.
|
Employment
by the Company. This
Restricted Stock Unit Award is conditioned on the Participant’s remaining
as an employee of Black Hills Corporation and its Affiliates (the
“Company”) from the Date of Grant through (and including) the Vesting
Dates. The Award of these RSUs, however, shall not impose upon the
Company
any obligations to retain the Participant in its employ for any given
period or upon any specific terms of employment.
|
1
|
5.
|
Termination
of Employment by Reasons of Death, Disability, Retirement, and Vesting
in
Connection with a Change in Control. In
the event the Participant’s employment is terminated by reason of Death,
Disability, Retirement or in the event of a Change in Control prior
to any
one of the Vesting Dates, all RSUs then unvested and outstanding
shall
immediately vest one hundred percent (100%), and, as soon as is
administratively practicable, the awards shall be settled in accordance
with
|
Section
7.
"Change
in Control" of the Company shall be deemed to have occurred (as of a particular
day, as specified by the Board) upon the occurrence of any of the following
events:
| (a) |
The acquisition in a transaction or series of transactions by any
Person
of Beneficial Ownership of thirty percent (30%) or more of the combined
voting power of the then outstanding shares of common stock of the
Company; provided, however, that for purposes of this Agreement,
the
following acquisitions will not constitute a Change in Control: (A)
any
acquisition by the Company; (B) any acquisition of common
stock of
the Company by an underwriter holding securities of the Company in
connection with a public offering thereof; and (C) any acquisition
by any
Person pursuant to a transaction which complies with subsections
(c) (i),
(ii) and (iii), below;
|
|
(b)
|
Individuals
who, as of December 31, 2004 are members of the Board (the "Incumbent
Board"), cease for any reason to constitute at least a majority of
the
members of the Board; provided, however, that if the election, or
nomination for election by the Company's common shareholders, of
any new
director was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Plan, be considered
as a member of the Incumbent Board; provided further, however, that
no
individual shall be considered a member of the Incumbent Board if
such
individual initially assumed office as a result of either an actual
or
threatened "Election Contest" (as described in Rule 14a-11 promulgated
under the Exchange Act) or other actual or threatened solicitation
of
proxies or consents by or on behalf of a Person other than the Board
(a
"Proxy Contest") including by reason of any agreement intended to
avoid or
settle any Election Contest or Proxy
Contest;
|
|
(c)
|
Consummation,
following shareholder approval, of a reorganization, merger, or
consolidation of the Company and/or its subsidiaries, or a sale or
other
disposition (whether by sale, taxable or non-taxable exchange, formation
of a joint venture or otherwise) of fifty percent (50%) or more of
the
assets of the Company and/or its subsidiaries (each a “Business
Combination”), unless, in each case, immediately following such Business
Combination, (i) all or substantially all of the individuals and
entities
who were beneficial owners of shares of the common stock of the Company
immediately prior to such Business Combination beneficially own,
directly
or indirectly, more that fifty percent (50%) of the combined voting
power
of the then outstanding shares of the entity resulting from the Business
Combination or any direct or indirect parent corporation thereof
(including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the Company’s
assets either directly or through one (1) or more subsidiaries)(the
“Successor Entity”); (ii) no Person (excluding any Successor entity or any
employee benefit plan or related trust, of the Company or such Successor
Entity) owns, directly or indirectly, thirty percent (30%) or more
of the
combined voting power of the then outstanding shares of common stock
of
the Successor Entity, except to the extent that such ownership existed
prior to such Business Combination; and (iii) at least a majority
of the
members of the Board of Directors of the entity resulting from such
Business Combination or any direct or indirect parent corporation
thereof
were members of the Incumbent Board at the time of the execution
of the
initial agreement or action of the Board providing for such Business
Combination; or
|
2
|
(d)
|
Approval
by the shareholders of the Company of a complete liquidation or
dissolution of the Company, except pursuant to a Business Combination
that
complies with subsections (c) (i), (ii), and (iii) above.
|
|
(e)
|
A
Change in Control shall not be deemed to occur solely because any
Person
(the "Subject Person") acquired Beneficial Ownership of more than
the
permitted amount of the then outstanding Common Stock as a result
of the
acquisition of Common Stock by the Company which, by reducing the
number
of shares of Common Stock then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Persons, provided
that
if a Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of Common Stock by the Company,
and after such stock acquisition by the Company, the Subject Person
becomes the Beneficial Owner of any additional Common Stock which
increases the percentage of the then outstanding Common Stock Beneficially
Owned by the Subject Person, then a Change in Control shall
occur.
|
|
(f)
|
A
Change in Control shall not be deemed to occur unless and until all
regulatory approvals required in order to effectuate a Change in
Control
of the Company have been obtained and the transaction constituting
the
Change in Control has been
consummated.
|
|
6.
|
Termination
of Employment for Other Reasons. In
the event the Participant’s employment is terminated for reasons other
than those described in Section 5 herein prior to the Vesting Dates,
then
all outstanding RSUs granted hereunder that are unvested shall immediately
be forfeited by the Participant.
|
7. Settlement
of RSU Award.
Settlement.
The
Company shall credit to Participant’s Account under the NDC Plan (or any
successor Plan that may be adopted by the Company) as soon as practicable
following the execution of this Agreement, the number of units specified above;
provided, however, that any RSUs deferred remain subject to (a) the relevant
Vesting Date for such portion of the Award and (b) any cancellation of the
RSUs
pursuant to Section 6. If the RSU does not vest, the deferral into the NDC
Plan
shall be null and void.
3
Dividend
and Stock Split Equivalents. For
so
long as Participant holds RSUs in his or her Account under the NDC Plan, at
the
time any dividend is paid with respect to a share of Common Stock or any forward
stock split occurs, the Company shall pay to Participant on the same date (or
as
soon as practicable thereafter) in respect of each RSU held by the Participant
as of the record date for such dividend or split an amount at the Company’s
sole, absolute and unfettered discretion, in cash, Common Stock, or other
property, or in a combination thereof, in each case having a value equal to
the
dividend or split. Such amounts shall vest and shall be paid at the same time
as
the underlying RSU award is settled.
|
8.
|
Beneficiary
Designation. The
Participant may, from time to time, name any beneficiary or beneficiaries
(who may be named contingently or successively) to whom any benefit
under
this Agreement and the NDC Plan is to be paid. The designation of
a
beneficiary shall be made in accordance with the beneficiary designation
procedures specified in the NDC Plan.
|
|
9.
|
Transferability.
The
RSUs are not transferable by the Participant, whether voluntarily
or
involuntarily, by operation of laws or otherwise. If any assessment,
pledge, transfer, or other disposition, voluntary or involuntary,
of the
RSUs shall be made, or it any attachment, execution, garnishment,
or
client shall be issued against or placed upon the RSUs, then the
Participant’s right to the RSUs shall immediately cease and terminate and
the Participant shall promptly forfeit to the Company all RSUs awarded
under this Agreement.
|
|
10.
|
Withholding.
The
Company shall have the power and the right to deduct or withhold,
or
require the Participant to remit to the Company, an amount sufficient
to
satisfy federal, state and local taxes (including Participant’s FICA
obligation), domestic or foreign, required by law or regulation to
be
withheld with respect to any taxable event arising as a result of
this
Agreement as specified under the NDC
Plan.
|
|
11.
|
Requirements
of Law. The
issuance of Shares under the Plans following settlement of the RSUs
shall
be subject to all applicable laws, rules, and regulations, and to
such
approvals by any governmental agencies or national securities exchanges
as
may be required.
|
|
12.
|
Inability
to Obtain Authorization. The
inability of the Company to obtain authority from any regulatory
body
having jurisdiction, which authority is deemed by the Company’s counsel to
be necessary to the lawful issuance of any Shares hereunder, shall
relieve
the Company of any liability in respect of the failure to issue such
Shares as to which such requisite authority shall not have been obtained.
|
|
13.
|
Severability.
In
the event any provision of this Agreement shall be held to be illegal
or
invalid for any reason, the illegality or invalidity shall not affect
the
remaining parts of this Agreement, and the Agreement shall be construed
and enforced as if the illegal or invalid provision had not been
included.
|
|
14.
|
Continuation
of Employment. This
Agreement shall not confer upon the Participant any right to continuation
of employment by the Company, nor shall this Agreement interfere
in any
way with the Company’s right to terminate the Participant’s employment at
any time.
|
4
|
15.
|
Applicable
Laws and Consent to Jurisdiction. The
validity, construction, interpretation and enforceability of this
Agreement shall be determined and governed by the laws of the State
of
South Dakota without giving effect to the principles of conflicts
of law.
For the purpose of litigating any dispute that arises under this
Agreement, the parties hereby consent to exclusive jurisdiction in
South
Dakota and agree that such litigation shall be conducted in the courts
of
Pennington County or the federal courts of the United States for
the
District of South Dakota, Western Division.
|
|
16.
|
Miscellaneous.
The
Plan may be amended at any time, and from time to time, by a written
instrument approved by the Board of Directors of Black Hills Corporation.
No termination, amendment or modification of the Plan shall adversely
affect in any material way any Award previously granted under the
Plan,
without the written consent of the Participant holding such Award.
|
The
Plan
and this Agreement are binding upon Participant, as well as his/her heirs,
executors, personal representatives, trustees, attorneys, agents,
administrators, and successors.
Please
refer any questions you may have regarding your RSU award to _____________.
Once
again, congratulations on receipt of your award.
Sincerely,
Please
acknowledge your agreement to participate in the Plans and this Agreement,
and
to abide by all of the governing terms and provisions, by signing the following
representation:
Agreement
to Participate
By
signing a copy of this Agreement and returning it to ________________ of Black
Hills Corporation, I acknowledge that I have read the Plans, and that I fully
understand all of my rights under the Plans, as well as all of the terms and
conditions which may limit my eligibility to exercise this Award. Without
limiting the generality of the preceding sentence, I understand that my right
to
exercise this Award is conditioned upon my continued employment with Black
Hills
Corporation or its Subsidiaries.
Black
Hills Corporation
2005
Omnibus Incentive Plan
Performance
Share Award Agreement
(Performance
Period ______________ - _______________)
1
Contents
|
Article
1. Performance Period
|
1
|
|
Article
2. Value of Performance Shares
|
1
|
|
Article
3. Performance Shares and Achievement of Performance
Measure
|
2
|
|
Article
4. Termination Provisions
|
3
|
|
Article
5. Change in Control
|
3
|
|
Article
6. Dividends
|
3
|
|
Article
7. Form and Timing of Payment of Performance
Shares
|
3
|
|
Article
8. Nontransferability
|
4
|
|
Article
9. Administration
|
4
|
|
Article
10. Miscellaneous
|
4
|
2
Black
Hills Corporation
2005
Omnibus Incentive Plan
Performance
Share Award Agreement
You
have
been selected to be a participant in the Black Hills Corporation 2005
Omnibus
Incentive
Plan (the “Plan”), as specified below:
Participant:
_____________________
Target
Performance Share Award:
______
shares
Performance
Period:
_____________ to _______________
Performance
Measure:
Total
Shareholder Return (“TSR”).
Peer
Index:
S&P
MID CAP UTILITY INDEX
Alliant
Energy Corporation; DPL Inc.; Duquesne Light Holding Inc.; Great Plains Energy
Inc.; Hawaiian Electric Inds.; Idacorp Inc.; Northeast Utilities; Nstar; OGE
Energy Corporation; Pepco Holdings Inc.; PNM Resources Inc.; Puget Energy Inc.;
Wisconsin Energy Corp,; and WPS Resources Corp.
THIS
AGREEMENT (the “Agreement”) effective _______________, represents the grant of
Performance Shares by Black Hills Corporation, a South Dakota corporation (the
“Company”), to the Participant named above, pursuant to the provisions of the
Plan.
The
Plan
provides a complete description of the terms and conditions governing the
Performance Shares. If there is any inconsistency between the terms of this
Agreement and the terms of the Plan, the Plan’s terms shall completely supersede
and replace the conflicting terms of this Agreement.
All
capitalized terms shall have the meanings ascribed to them in the Plan, unless
specifically set forth otherwise herein.
The
parties hereto agree as follows:
Article
1. Performance Period
The
Performance Period commences on ______________ and ends on
________________.
Article
2. Value of Performance Shares
Each
Performance Share shall represent and have a value equal to one share of common
stock of the Company.
3
Notwithstanding
anything herein to the contrary, the Performance Shares shall have no value
whatsoever if the Ending Stock Price (as defined herein) is not greater than
Beginning Stock Price (as defined herein), taking into account any adjustments
made pursuant to Paragraph 4.3 of the Plan.
Article
3. Performance Shares and Achievement of Performance
Measure
| (a) |
The
number of Performance Shares to be earned under this Agreement shall
be
based upon the achievement of pre-established TSR performance goals
as set
by the Compensation Committee of the Board of Directors (Committee)
for
the Performance Period, based on the following
chart:
|
|
TSR
Performance Relative to Companies in Peer Index
|
Payout
(%
of Target)
|
|
80th
Percentile or Above
|
175%
|
|
70th
Percentile
|
150%
|
|
60th
Percentile
|
125%
|
|
50th
Percentile
|
100%
|
|
40th
Percentile
|
50%
|
|
30th
Percentile or Below
|
0%
|
Interpolation
shall be used to determine the percentile rank in the event the Company’s
Percentile Rank does not fall directly on one of the ranks listed in the above
chart.
For
this
purpose, Total Shareholder Return shall be determined as follows:
|
Total
Shareholder
Return
|
=
|
Change
in Stock Price + Dividends Paid
Beginning
Stock Price
|
Beginning
Stock Price shall mean the average closing price on the applicable stock
exchange of one share of stock for the twenty (20) trading days immediately
prior to the first day of the Performance Period; Ending Stock Price shall
mean
the average closing price on the applicable stock exchange of one share of
stock
for the twenty (20) trading days immediately prior to the last day of the
Performance Period; Change in Stock Price shall mean the difference between
the
Beginning Stock Price and the Ending Stock Price; and Dividends Paid shall
mean
the total of all dividends paid on one (1) share of stock during the Performance
Period.
Following
the Total Shareholder Return determination, the Company’s Percentile Rank shall
be determined as follows:
Percentile
Rank shall be determined by listing from highest Total Shareholder Return to
lowest Total Shareholder Return each company in the Peer Index (excluding the
Company). The top company would have a one hundred percentile (100%) rank and
the bottom company would have a zero percentile (0.0%) rank. Each company in
between would be one hundred divided by n minus one (100/n-1) above the company
below it. The Company percentile rank would then be interpolated based on the
Company TSR. The Companies in the Peer Index shall remain constant throughout
the entire Performance Period.
4
Article
4. Termination Provisions
Except
as
provided below, a Participant shall be eligible for payment of awarded
Performance Shares, as determined in Section 3, only if the Participant’s
employment with the Company continues through the end of the Performance
Period.
If
participant retires, suffers a Disability, or dies during the Performance
Period, the Participant (or the Participant’s estate) shall be entitled to that
proportion of the number of Performance Shares as such Participant is entitled
to under Section 3 for such Performance Period that the number of full months
of
participation during the Performance Period bears to the total number of months
in the Performance Period. The form and timing of the payment of such
Performance Shares shall be as set forth in Article 7.
Termination
of employment for any reason other than Retirement, Disability, or death during
the Performance Period shall require forfeiture of this entire award, with
no
payment to the Participant.
Article
5. Change in Control
Notwithstanding
anything herein to the contrary, upon a Change in Control, the Participant
shall
be entitled to that proportion of the number of Performance Shares as such
Participant is entitled to under Section 3 for such Performance Period that
the
number of full months of participation during the Performance Period (as of
the
effective date of the Change in Control) bears to the total number of months
in
the Performance Period. When there is a Change in Control, the TSR shall be
calculated as set forth in Article 3, except that the Ending Stock Price shall
mean the average closing price on the applicable stock exchange of one share
of
stock for the twenty (20) trading days immediately prior to the Change in
Control. Performance Shares shall be paid out to the Participant in cash within
thirty (30) days of the effective date of the Change in Control.
"Change
in Control" of the Company shall be deemed to have occurred (as of a particular
day, as specified by the Board) upon the occurrence of any of the following
events:
(a) The
acquisition in a transaction or series of transactions by any Person of
Beneficial Ownership of thirty percent (30%) or more of the combined voting
power of the then outstanding shares of common stock of the Company; provided,
however, that for purposes of this Agreement, the following acquisitions will
not constitute a Change in Control: (A) any acquisition by the Company;
(B) any acquisition of common stock of the Company by an underwriter
holding securities of the Company in connection with a public offering thereof;
and (C) any acquisition by any Person pursuant to a transaction which complies
with subsections (c) (i), (ii) and (iii), below;
(b) Individuals
who, as of December 31, 2004 are members of the Board (the "Incumbent Board"),
cease for any reason to constitute at least a majority of the members of the
Board; provided, however, that if the election, or nomination for election
by
the Company's common shareholders, of any new director was approved by a vote
of
at least two-thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the Incumbent Board;
provided further, however, that no individual shall be considered a member
of
the Incumbent Board if such individual initially assumed office as a result
of
either an actual or threatened "Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Board (a
"Proxy Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest;
5
(c) Consummation,
following shareholder approval, of a reorganization, merger, or consolidation
of
the Company and/or its subsidiaries, or a sale or other disposition (whether
by
sale, taxable or non-taxable exchange, formation of a joint venture or
otherwise) of fifty percent (50%) or more of the assets of the Company and/or
its subsidiaries (each a “Business Combination”), unless, in each case,
immediately following such Business Combination, (i) all or substantially all
of
the individuals and entities who were beneficial owners of shares of the common
stock of the Company immediately prior to such Business Combination beneficially
own, directly or indirectly, more that fifty percent (50%) of the combined
voting power of the then outstanding shares of the entity resulting from the
Business Combination or any direct or indirect parent corporation thereof
(including, without limitation, an entity which as a result of such transaction
owns the Company or all or substantially all of the Company’s assets either
directly or through one (1) or more subsidiaries)(the “Successor Entity”); (ii)
no Person (excluding any Successor entity or any employee benefit plan or
related trust, of the Company or such Successor Entity) owns, directly or
indirectly, thirty percent (30%) or more of the combined voting power of the
then outstanding shares of common stock of the Successor Entity, except to
the
extent that such ownership existed prior to such Business Combination; and
(iii)
at least a majority of the members of the Board of Directors of the entity
resulting from such Business Combination or any direct or indirect parent
corporation thereof were members of the Incumbent Board at the time of the
execution of the initial agreement or action of the Board providing for such
Business Combination; or
(d) Approval
by the shareholders of the Company of a complete liquidation or dissolution
of
the Company, except pursuant to a Business Combination that complies with
subsections (c) (i), (ii), and (iii) above.
(e) A
Change
in Control shall not be deemed to occur solely because any Person (the "Subject
Person") acquired Beneficial Ownership of more than the permitted amount of
the
then outstanding Common Stock as a result of the acquisition of Common Stock
by
the Company which, by reducing the number of shares of Common Stock then
outstanding, increases the proportional number of shares Beneficially Owned
by
the Subject Persons, provided that if a Change in Control would occur (but
for
the operation of this sentence) as a result of the acquisition of Common Stock
by the Company, and after such stock acquisition by the Company, the Subject
Person becomes the Beneficial Owner of any additional Common Stock which
increases the percentage of the then outstanding Common Stock Beneficially
Owned
by the Subject Person, then a Change in Control shall occur.
6
(f) A
Change
in Control shall not be deemed to occur unless and until all regulatory
approvals required in order to effectuate a Change in Control of the Company
have been obtained and the transaction constituting the Change in Control has
been consummated.
Article
6. Dividends
During
the Performance Period, all dividends and other distributions paid with respect
to the shares of Common Stock shall accrue for the benefit of the Participant
to
be paid out to the Participant pursuant to Article 7.
Article
7. Form and Timing of Payment of Performance Shares
Payment
of the Performance Shares, including accrued dividends, shall be made fifty
percent (50%) in cash and fifty percent (50%) in shares of Company stock.
Payment
of Performance Shares shall be made within sixty (60) calendar days following
the close of the Performance Period, subject to the following:
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(a)
The Participant shall have no right with respect to any Award or
a portion
there of, until such award shall be paid to such Participant.
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(b)
If the Committee determines, in its sole discretion, that a Participant
at
any time has willfully engaged in any activity that the Committee
determines was or is harmful to the Company, any unpaid pending Award
will
be forfeited by such Participant.
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(c) All
appropriate taxes will be withheld from the cash portion of the
award.
Article
8. Nontransferability
Performance
Shares may not be sold, transferred, pledged, assigned, or otherwise alienated
or hypothecated, other than by will or by the laws of descent and distribution.
Further, except as otherwise provided in a Participant’s Award Agreement, a
Participant’s rights under the Plan shall be exercisable during the
Participant’s lifetime only by the Participant or the Participant’s legal
representative.
Article
9. Administration
This
Agreement and the rights of the Participant hereunder are subject to all the
terms and conditions of the Plan, as the same may be amended from time to time
by the Board of Directors, as well as to such rules and regulations as the
Committee may adopt for administration of the Plan. It is expressly understood
that the Committee is authorized to administer, construe, and make all
determinations necessary or appropriate to the administration of the Plan and
this Agreement, in its sole discretion, all of which shall be binding upon
the
Participant.
Any
inconsistency between the Agreement and the Plan shall be resolved in favor
of
the Plan.
7
Article
10. Miscellaneous
(a) The
selection of any employee for participation in the Plan shall not give such
Participant any right to be retained in the employ of the Company. The right
and
power of the Company to dismiss or discharge any Participant at-will, is
specifically reserved. Such Participant or any person claiming under or through
the Participant shall not have any right or interest in the Plan or any Award
thereunder, unless and until all terms, conditions, and provisions of the Plan
that affect such Participant have been complied with as specified herein.
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(b)
With the approval of the Board, the Committee may terminate, amend,
or
modify the Plan; provided, however, that no such termination, amendment,
or modification of the Plan may in any way adversely affect the
Participant’s rights under this Agreement without the Participant’s
written consent.
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(c)
Participant shall not have voting rights with respect to the Performance
Shares. Participant shall obtain voting rights upon the settlement
of
Performance Shares and distribution into shares of common stock of
the
Company.
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(d) The
Participant may defer such Participant’s receipt of the payment of cash and the
delivery of shares of common stock, that would otherwise be due to such
Participant by virtue of the satisfaction of the performance goals with respect
to the Performance Shares, pursuant to the rules of the Black Hills Corporation
Nonqualified Deferred Compensation Plan and the procedures set forth by the
Compensation Committee. If the Participant elects to defer the receipt of the
award, the Participant will be required to pay any necessary taxes from their
own funds. They will not be allowed to have their deferred award reduced for
tax
withholding.
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(e)
This Agreement shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required.
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(f)
To the extent not preempted by federal law, this Agreement shall
be
governed by, and construed in accordance with, the laws of the State
of
South Dakota.
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(g) Any
awards received by Participant are subject to the provisions of the Stock
Ownership Guidelines approved by the Board of Directors.
The
following parties have caused this Agreement to be executed effective as of
_______________.
Black
Hills Corporation
By:
_______________________
___________________________
Participant