As filed with the Securities and Exchange Commission on November 8, 2010
Registration No. 333-___________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT
under
The Securities Act of 1933
_____________________
BLACK HILLS CORPORATION
(Exact Name of Registrant as Specified in its Charter)
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South Dakota
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46-0458824
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(State or Other Jurisdiction of Incorporation or Organization)
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(IRS Employer Identification No.)
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625 Ninth Street, P.O. Box 1400
Rapid City, South Dakota
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57709
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(Address of Principal Executive Offices)
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(Zip Code)
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_____________________
BLACK HILLS CORPORATION
2005 OMNIBUS INCENTIVE PLAN
(Full Title of the Plan)
_____________________
Steven J. Helmers
General Counsel
Black Hills Corporation
625 Ninth Street, P.O. Box 1400
Rapid City, South Dakota 57709
(Name and Address of Agent for Service)
(605) 721-1700
(Telephone Number, Including Area Code, of Agent for Service)
_____________________
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company (as defined in Rule 12b-2 of the Exchange Act).
Large accelerated filer x Accelerated filer o Non-accelerated filero Smaller reporting company o
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Title of Securities
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Amount to be
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Offering Price Per
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Aggregate Offering
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Amount of
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to be Registered
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Registered(1)
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Share(2)
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Price
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Registration Fee
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Common Stock ($1 par value)
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500,000 Shares(3)
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$32.02
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$16,010,000
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$1,141.51
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(1)
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In addition, pursuant to Rule 416 under the Securities Act of 1933, this registration statement also covers an indeterminate number of additional shares of Common Stock as may become issuable as a result of any future anti-dilution adjustment in accordance with the terms of the 2005 Omnibus Incentive Plan.
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(2)
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The estimated Proposed Maximum Offering Price Per Share was calculated pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933 on the basis of the average high and low price of the Common Stock, as reported on the New York Stock Exchange for November 1, 2010.
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(3)
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Represents 500,000 additional shares that may be issued pursuant to the Registrant’s 2005 Omnibus Incentive Plan.
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2
REGISTRATION OF ADDITIONAL SECURITIES WITH RESPECT TO THE
BLACK HILLS CORPORATION 2005 OMNIBUS INCENTIVE PLAN, AS AMENDED AS OF MAY 25, 2010
By a Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the “SEC”) on June 10, 2005, Registration No. 333-125697 (the “First Registration Statement”), the Registrant registered 1,150,000 Common Shares issuable under the 2005 Omnibus Incentive Plan. The Registrant is hereby registering an additional 500,000 Common Shares issuable under the 2005 Omnibus Plan. The First Registration Statement is incorporated by reference herein. The Items below contain information required in this Registration Statement that was not included in the First Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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INCORPORATION OF DOCUMENTS BY REFERENCE
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The following documents filed by Black Hills Corporation (the “Company,” “we,” “our,” or “us”) with the SEC are incorporated by reference in this Registration Statement:
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(a)
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The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009.
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(b)
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The Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2010, June 30, 2010 and September 30, 2010.
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(c)
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The Company’s Current Reports on Form 8-K filed on January 6, 2010, February 3, 2010, April 21, 2010, May 13, 2010, May 26, 2010, June 3, 2010, July 13, 2010, July 15, 2010, September 1, 2010 and September 10, 2010.
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(d)
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The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A, dated April 19, 2002, including any amendment or report heretofor or heretoafter filed for the purpose of updating the description.
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All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (other than any portions of such filings that are furnished rather than filed under applicable SEC rules), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters those securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing such documents.
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Item 5.
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INTERESTS OF NAMED EXPERTS AND COUNSEL
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Steven J. Helmers, Sr. Vice President and General Counsel of the Company, whose opinion with respect to the common stock is filed as Exhibit 5 hereto, is an officer of the Company, and owns as of November 5, 2010, 37,951 shares of common stock and 19,110 common stock options.
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Item 6.
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INDEMNIFICATION OF DIRECTORS AND OFFICERS
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Section 47-1A-851 of the South Dakota Codified Laws allows a corporation to indemnify any person who was, is, or is threatened to be made a defendant or respondent to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative and whether formal or informal, by reason of the fact that he is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other entity, against judgments, settlements, penalties, fines and reasonable expenses (including attorneys' fees) incurred by that person in connection with such action, suit or proceeding if that person acted in good faith and in a
manner that person reasonably believed to be, in the case of conduct in an official capacity, in the best interests of the corporation, and in all other cases, at least not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such conduct was unlawful. Unless ordered by a court, the corporation may not indemnify a director (a) in respect of a proceeding by or in the right of the corporation, except for reasonable expenses incurred in connection with the proceeding if it is determined that the director has met the relevant standard of conduct in Section 47-1A-851, or (b) in connection with any proceeding with respect to conduct for which the director was adjudged liable on the basis that the director received a financial benefit to which the director was not entitled, whether or not involving action in the director's official capacity.
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Our Bylaws provide that we shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, including all appeals, by reason of the fact that such person is or was serving or has agreed to serve as a director or officer of us or at our request of another corporation or entity, who acted in good faith and in a manner which such person reasonably believed to be within the scope of such person’s authority and in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, the person had no reasonable cause to believe their conduct was unlawful, against liability incurred by such person in connection with the defense or settlement of such action or suit and any appeal therefrom. With respect to proceedings by or in
our right to procure judgment in our favor, no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to us unless and only to the extent that the court in which such action or suit was brought shall determine that, despite the adjudication of such liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity. In addition, we have entered into specific agreements with our directors and officers providing for indemnification of such persons under certain circumstances.
Our Articles of Incorporation also eliminate the personal liability of our directors for monetary damages for breach of their fiduciary duty as directors. This provision, however, does not eliminate a director’s liability (a) for any breach of the director’s duty of loyalty to us or our shareholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) for unlawful distributions by directors in violation of the South Dakota Codified Laws, or (d) for any transaction for which the director received an improper personal benefit.
We carry directors’ and officers’ liability insurance to insure our directors and officers against liability for certain errors and omissions and to defray costs of a suit or proceeding against an officer or director.
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Item 8.
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EXHIBITS
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4
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Second Amendment to the 2005 Omnibus Incentive Plan (filed as Exhibit 10 to the Company's Form 8-K filed on May 26, 2010 and incorporated by reference herein).
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5
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Opinion of Steven J. Helmers, Esq., General Counsel to the Company.
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23.1
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Consent of Steven J. Helmers, Esq. (included in Exhibit 5).
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23.2
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Consent of Deloitte & Touche LLP.
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23.3
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Consent of Petroleum Engineer and Geologist, Cawley, Gillespie & Associates, Inc.
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24
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Powers of Attorney (included on the signature page to this Registration Statement).
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Item 9.
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UNDERTAKINGS
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933.
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement.
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
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4
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(b)
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The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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5
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rapid City, State of South Dakota, on the 8th day of November, 2010.
BLACK HILLS CORPORATION
By: /s/ DAVID R. EMERY
David R. Emery
Chairman, President and Chief Executive Officer
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POWER OF ATTORNEY
Each individual whose signature appears below constitutes and appoints David R. Emery and Anthony S. Cleberg, and each of them severally, as his true and lawful attorneys-in-fact and agents with full power of substitution, to sign in his or her name and behalf, in any and all capacities stated below, and to file with the Securities and Exchange Commission, any and all amendments, to this Registration Statement, and the Registrant hereby also appoints each such agent as its attorney-in-fact with the authority to sign and file any such amendments in its name and behalf.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.
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/s/ DAVID R. EMERY
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Director and
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November 8, 2010
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David R. Emery, Chairman, President
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Principal Executive Officer
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and Chief Executive Officer
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/s/ ANTHONY S. CLEBERG
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Principal Financial and
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November 8, 2010
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Anthony S. Cleberg, Executive Vice President and
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Accounting Officer
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Chief Financial Officer
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/s/DAVID C. EBERTZ
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Director
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November 8, 2010
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David C. Ebertz
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/s/JACK W. EUGSTER
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Director
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November 8, 2010
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Jack W. Eugster
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/s/ JOHN R. HOWARD
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Director
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November 8, 2010
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John R. Howard
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/s/ KAY S. JORGENSEN
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Director
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November 8, 2010
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Kay S. Jorgensen
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/s/STEPHEN D. NEWLIN
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Director
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November 8, 2010
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Stephen D. Newlin
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/s/ GARY L. PECHOTA
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Director
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November 8, 2010
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Gary L. Pechota
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/s/ WARREN L. ROBINSON
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Director
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November 8, 2010
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Warren L. Robinson
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/s/ JOHN B. VERING
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Director
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November 8, 2010
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John B. Vering
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/s/ THOMAS J. ZELLER
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Director
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November 8, 2010
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Thomas J. Zeller
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7
EXHIBIT INDEX
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Exhibit
Number
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Name
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5
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Opinion of Steven J. Helmers, Esq., General Counsel to the Company.
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23.1
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Consent of Steven J. Helmers, Esq. (included in Exhibit 5).
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23.2
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Consent of Deloitte & Touche LLP.
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23.3
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Consent of Petroleum Engineer and Geologist, Cawley, Gillespie & Associates, Inc.
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24
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Powers of Attorney (included on the signature page to this Registration Statement).
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8
EXHIBIT 5
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Black Hills Corporation
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625 Ninth Street – P.O. Box 1400
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Steven J. Helmers
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Rapid City, SD 57709-1400
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General Counsel & Corporate Secretary
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Telephone: (605) 721-2303
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E-mail: shelmers@bh-corp.com
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Fax: (605)721-2550
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November 8, 2010
Board of Directors of
Black Hills Corporation
P.O. Box 1400
Rapid City, SD 57709-1400
Re: Opinion of Counsel
500,000 Additional Shares of Common Stock of Black Hills Corporation under the
2005 Omnibus Incentive Plan
Ladies and Gentlemen:
With respect to the Registration Statement on Form S-8 (the “Registration Statement”) of Black Hills Corporation (the “Company”), relating to the issuance of up to 500,000 additional shares of Common Stock of the par value $1.00 per share (the “Shares”) of the Company in connection with the Black Hills Corporation 2005 Omnibus Incentive Plan, as amended (the “Plan”), as described in the Registration Statement, I wish to advise you as follows:
I am of the opinion that the Company is a corporation validly incorporated and existing under the laws of the State of South Dakota and is fully qualified to carry on the business in which it is now engaged.
I am further of the opinion that subject to compliance with the Securities Act of 1933, as amended, and the offering and sale of the Shares in accordance with the Plan and the issuance and sale of, and payment for, the Shares in the manner and at the price set forth in the Plan, the Shares will be duly authorized, legally and validly issued, fully paid and nonassessable.
I am a member of the bar of the State of South Dakota. My opinion expressed above is limited to the laws of the State of South Dakota and the federal laws of the United States of America, and I do not express any opinion herein concerning the laws of any other jurisdiction.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, I do not thereby admit that I am in a category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission issued thereunder.
Sincerely,
/s/ STEVEN J. HELMERS
Steven J. Helmers
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated February 26, 2010, relating to the consolidated financial statements and financial statement schedules of Black Hills Corporation and subsidiaries (the “Company”), and the effectiveness of the Company’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2009.
/S/ DELOITTE & TOUCHE LLP
Minneapolis, Minnesota
November 4, 2010
Exhibit 23.3
CONSENT OF INDEPENDENT PETROLEUM ENGINEER AND GEOLOGIST
As petroleum engineers, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of the information included in Black Hills Corporation’s Form 10-K filed on February 26, 2010, with respect to the oil and gas reserves of Black Hills Exploration and Production, Inc., the future net revenues from such reserves, and the present value thereof, which information has been included within the Form 10-K in reliance upon the report of this firm and upon the authority of this firm as experts in petroleum engineering.
Cawley, Gillespie & Associates, Inc.
/s/ Cawley, Gillespie & Associates, Inc.
Fort Worth, TX
November 5, 2010