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EXHIBIT 7
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of June 30, 2000, by and between Black Hills Corporation, a
South Dakota corporation (the "Company"), and Xxxxxx X. Xxxxxxxx, an individual
("X. Xxxxxxxx"), Xxxx X. Xxxxxx, Xx., an individual ("Xxxxxx"), Xxxxxxxx X.
Xxxxxxx, an individual ("Xxxxxxx"), Xxxxxx Xxxxxxxx, an individual ("Xxxxxxxx"),
Xxxxxxx X. Xxxxxxxx, an individual ("X. Xxxxxxxx"), and Xxxxxx Xxxxxxx, an
individual ("Xxxxxxx," and collectively with X. Xxxxxxxx, Salyer, Fawcett,
Xxxxxxxx and X. Xxxxxxxx, the "Investors").
Background. The Company, Indeck Capital, Inc. and the Investors are
parties to the Merger Agreement (as defined below) pursuant to which the Company
is issuing to the Investors shares of the Company's common stock and preferred
stock.
In consideration of the transactions effected pursuant to the Merger
Agreement and the mutual covenants and agreements herein set forth, the parties
to this Agreement hereby agree, subject to the terms and conditions hereinafter
set forth, as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
Common Stock: The common stock, $ 1.00 par value, of the Company.
Demand Notice: See Section 3(b) hereof.
Demand Registrations: See Section 3(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Investor Representative: The person or his or her successor designated
from time to time by the Investors as its representative with respect to the
making of written requests for Demand Registrations. The initial Investor
Representative shall be X. Xxxxxxxx. In the event of X. Xxxxxxxx'x resignation,
incapacity or death, the Investor Representative shall be Xxxxxx. In the event
of Xxxxxx'x resignation, incapacity or death, each of Fawcett, Fournier, X.
Xxxxxxxx and Xxxxxxx, by order of birth, shall act as successor Investor
Representative, unless otherwise agreed among the Investors.
Losses: See Section 8 hereof.
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Merger Agreement: That certain Agreement and Plan of Merger, dated as of
January 1, 2000, by and among Indeck Capital, Inc., a Delaware corporation, the
Investors, the Company and Black Hills Energy Capital, Inc., a Delaware
corporation and a wholly-owned subsidiary of the Company.
Notice: See Section 3(h) hereof.
Person: An individual, partnership, joint venture, limited liability
company, corporation, trust, or any other entity or organization, including a
government or political subdivision or a department, agency or instrumentality
thereof.
Preferred Stock: The shares of cumulative preferred stock, no par value,
of the Company, designated by the Company's Board of Directors as Series 2000-A.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by such Registration Statement and all
other amendments and supplements to the prospectus, including post-effective
amendments, and all material incorporated or deemed to be incorporated by
reference in such prospectus.
Registrable Securities: (a) Any shares of Common Stock issued to the
Investors pursuant to the Merger Agreement, (b) any shares of Common Stock
issued or issuable upon conversion of any shares of Preferred Stock issued to
the Investors pursuant to the Merger Agreement, and (c) any shares of Common
Stock issued as a dividend or other distribution with respect to, or in exchange
for or in replacement of, the Shares. As to any particular Registrable
Securities, once issued, such securities shall cease to be Registrable
Securities when (v) a Registration Statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such Registration
Statement, (w) they shall become freely tradeable under Rule 144(k) under the
Securities Act, (x) they shall have been transferred pursuant to Rule 144 or
Rule 144A (or any successor provision) under the Securities Act, (y) they shall
have been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
under the Securities Act or any similar state law then in force, or (z) they
shall have ceased to be outstanding. For purposes of calculation of percentages
of Registrable Securities, all shares of Preferred Stock shall be treated as the
number of shares of Common Stock into which they are convertible.
Registration Expenses: See Section 7 hereof.
Registration Statement: Any registration statement of the Company which
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus,
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amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated or deemed
to be incorporated by reference in such registration statement.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Selling Notice: See Section 6 hereof.
Shares: The shares of Common Stock and Preferred Stock of the Company
issued to the Investors pursuant to the Merger Agreement.
Shelf Registration: See Section 3(b) hereof.
Shelf Suspension: See Section 3(h) hereof.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Securities Subject to this Agreement.
(a) Subject Securities. The securities entitled to the benefits of this
Agreement are the Registrable Securities pursuant to the provisions of this
Agreement.
(b) Holders of Registrable Securities. A Person is deemed to be a holder
of Registrable Securities whenever such Person owns Registrable Securities or
has the right to acquire such Registrable Securities, whether or not such
acquisition has actually been effected and disregarding any legal restrictions
upon the exercise of such right.
3. Demand Registrations.
(a) Demand Registrations. At any time after two (2) years after the date
of this Agreement, the Investors shall have the right, by written notice
delivered to the Company, to require the Company to register (the "Demand
Registrations") under the Securities Act not less than 10% and up to 100% of the
number of shares of Common Stock then outstanding which are Registrable
Securities. The number of Demand Registrations (within the meaning of Section
3(f) hereof) pursuant to this Section 3(a) shall not exceed three (3), one of
which may be a demand for a Shelf Registration (as defined below).
(b) Filing and Effectiveness. The Company shall file each of the Demand
Registrations within 60 days and shall use its reasonable best efforts to cause
the same to be declared effective by
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the SEC within 120 days of the date on which the Investors first gave the
written notice (a "Demand Notice") required by Section 3(a) hereof with respect
to such Demand Registration. The Company shall keep the Registration Statement
filed in respect of any Demand Registration effective for a period of 90 days,
or nine months if a Demand Registration is requested to be a shelf registration
(a "Shelf Registration") from the date on which the SEC declares such
Registration Statement effective or such shorter period which will terminate
when the distribution of all registered Registrable Securities pursuant to such
Registration Statement ends.
(c) Request for Demand Registrations. Subject to the conditions set
forth in Section 3(a) hereof, the Investor Representative may, at any time, make
a written request for a Demand Registration. All requests made pursuant to this
Section 3 will specify the number of the Registrable Securities to be registered
and will also specify the intended methods of disposition thereof. If the
Investors specify one particular type of Underwritten Offering, such method of
disposition shall be such type of Underwritten Offering or a series of such
Underwritten Offerings (as the Investors may elect) during the time period the
Registration Statement is effective.
(d) Piggy-Back by Other Shareholders. Subject to the provisions of
Section 3(e) and Section 4(c), the Company may include in a Demand Registration
shares of Common Stock ("Piggy-Back Shares") for the account of other holders
thereof exercising contractual piggy-back rights ("Piggy-Back Holders"), on the
same terms and conditions as the Registrable Securities to be included therein
for the account of the Investors. The Company shall not have the right to
include any securities of the Company in any Demand Registration for its own
account.
(e) Reduction of Offering. If any of the Registrable Securities
registered pursuant to any Demand Registration are to be sold in one or more
firm commitment underwritten offerings, and the managing underwriter or
underwriters advise the Company and the Investors in writing that in its opinion
the total amount of securities proposed to be sold in the offering is such as to
materially and adversely affect the success of such offering, then the number of
Piggy-Back Shares to be offered for the account of any Piggy-Back Holders shall
be reduced (to zero, if necessary), pro rata in proportion to the respective
number of Piggy-Back Shares requested to be registered to the extent necessary
to reduce the total securities requested to be included in such offering to the
amount, if any, recommended by such managing underwriters. If the Piggy-Back
Shares have been reduced to zero and the number of Registrable Securities
requested to be registered by the Investors exceeds the number of Registrable
Securities recommended by the managing underwriter, then the number of
Registrable Securities to be offered for the account of the Investors may be
reduced.
(f) Effected Registration Statement. A Demand Registration pursuant to
this Section 3 shall be deemed to have been effected (i) if a Registration
Statement with respect thereto has become effective, (ii) if the Registration
Statement is withdrawn prior to its effectiveness pursuant to the request of all
of the holders of the Registrable Securities who have requested the inclusion in
such Registration Statement of some or all of their Registrable Securities,
unless one or more of the holders of Registrable Securities have elected to pay
(and shall actually have paid) the Registration Expenses relating thereto, (iii)
if, after the Registration Statement has become effective, such
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registration is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court for any reason and
such stop order, injunction or other order or requirement results from any
action or inaction of a holder or holders of Registrable Securities, or (iv) if
the conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied or
waived and such conditions are not satisfied due to a failure by a holder of
Registrable Securities to satisfy a condition required to be satisfied by such
holder pursuant to the purchase agreement or underwriting agreement, unless one
or more of the holders of Registrable Securities have elected to pay (and shall
actually have paid) the Registration Expenses relating thereto.
(g) Company's Right to Delay Registration. Notwithstanding the foregoing
provisions of this Section 3, (i) the Company shall not be obliged to effect a
registration pursuant to this Section 3 within a period of 120 days after the
effective date of a Registration Statement previously filed as a result of a
request pursuant to this Section 3; (ii) if the Company has issued and sold to
the public, pursuant to a registration statement filed under the Securities Act,
any of its securities within three months prior to the date of its receipt of a
Demand Notice pursuant to this Section 3 and the Company's investment banker has
advised the Company in writing that the registration of Registrable Securities
would adversely affect the market for the Company's securities covered by such
registration statement, the Company shall have the right to delay the requested
registration of Registrable Securities for such period as the investment banker
may so advise, but no more than 90 days after the date on which such Demand
Notice was made; and (iii) the Company shall be entitled to postpone for a
reasonable period of time but in no event more than 90 days the filing of any
Registration Statement otherwise required to be prepared and filed by it
pursuant to this Section 3 if, at the time it receives a Demand Notice pursuant
to this Section 3, the Company determines, in its reasonable judgment, that such
registration and offering would materially interfere with any financing,
acquisition, corporate reorganization or other material transaction involving
the Company or any of its affiliates and promptly gives the holders of
Registrable Securities written notice of such determination, provided that the
Company may exercise its rights under this Section 3(g)(iii) no more than one
time during any three hundred and sixty five (365) day period.
(h) Suspension of Use of Shelf Registration. Notwithstanding anything to
the contrary contained herein, the Company may, upon giving prompt notice (the
"Notice") to the holders of Registrable Securities, suspend the use of the Shelf
Registration (a "Shelf Suspension") for a period not to exceed thirty (30) days
in any three month period for valid business reasons (not including avoidance of
the Company's obligations hereunder), including without limitation the
acquisition or disposition of assets, public filings with the Commission,
pending corporate developments and similar events. The Company shall have no
obligation to inform such holders of the reasons for such Shelf Suspension other
than to inform such holders that such action is being taken pursuant to this
Section 3(h), and, except as required by law, such holders and their affiliates
(as defined in the Securities Act) shall not make any public disclosure
regarding, and shall treat as confidential, any Shelf Suspension or Notice. In
the event of a Shelf Suspension, such holders agree to suspend use of the
Prospectus related to the Shelf Registration in connection with any sale or
purchase of or offer to sell or purchase Registrable Securities upon receipt of
the Notice. The Company shall promptly
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notify the holders upon the termination of any Shelf Suspension, promptly amend
or supplement the Shelf Registration following the termination of such Shelf
Suspension, if necessary, so it does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein in
order to make the statements therein not misleading, and furnish to such holders
such numbers of copies of the Prospectus therein as so amended or supplemented
as such holders may reasonably request. The Company agrees, if necessary, to
supplement or make amendments to the Shelf Registration, if required by the
registration form used by the Company for the Shelf Registration or by the
instructions applicable to such registration form or by the Securities Act. The
period referred to in Section 3(b) hereof during which the Shelf Registration
must be kept effective shall be extended for an additional number of business
days equal to the number of business days during which the right to sell shares
under this Agreement was suspended pursuant to this Section 3(h).
4. Piggy-Back Registration.
(a) Right to Piggy-Back. If at any time after two (2) years after the
date of this Agreement the Company proposes to file a registration statement
under the Securities Act with respect to any class of its equity securities
(other than a registration statement (i) on Form S-8 or Form S-4 or any
successor form to such Forms, (ii) filed in connection with an exchange offer or
an offering of its common stock or of securities convertible or exchangeable
into its common stock made solely to its existing shareholders in connection
with a rights offering or solely to employees and/or directors of the Company,
or (iii) pursuant to Section 3 hereof), whether or not for its own account, then
the Company shall give written notice of such proposed filing to the Investors
at least 20 days before the anticipated filing date of such registration
statement. Such notice shall offer the Investors the opportunity to register
such amount of Registrable Securities as the Investors may request (a
"Piggy-Back Registration"); provided, however, that the Investors shall be
entitled to a maximum of three (3) Piggy-Back Registrations, provided, further,
in the event the number of Registrable Securities the Investors have requested
be registered pursuant to such Piggy-Back Registration are reduced in accordance
with Section 4(b) hereof to less than 66-2/3% of the total number of
Registerable Securities the Investors requested be registered pursuant to such
Piggy-Back Registration, then such registration shall no longer constitute a
Piggy-Back Registration under this Agreement and shall not reduce the number of
Piggy-Back Registrations to which the Investors are otherwise entitled. Subject
to Section 4(b) hereof, the Company shall use its reasonable best efforts to
include in each such Piggy-Back Registration all Registrable Securities with
respect to which the Company has received from the Investors a written request
for inclusion therein within 10 days after notice has been duly given to the
Investors; provided, that if, at any time after giving written notice of its
intention to register any securities (the "Subject Securities") and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason, after consultation
with the holder or holders of Registrable Securities which have requested
inclusion in such registration, not to register or to delay registration of the
Subject Securities, the Company may, at its election, give written notice of
such determination to each such holder of Registrable Securities and, thereupon,
(i) in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration
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(but not from its obligation to pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights of any holder or holders
of Registrable Securities entitled to do so to request that such registration be
effected as a registration under Section 3 hereof, and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities for the same period as the delay in registering the
Subject Securities. The Investors shall be permitted to withdraw all or any part
of the Registrable Securities from a Piggy-Back Registration at any time prior
to the effective date of such Piggy-Back Registration. The Company shall keep
the Registration Statement that constitutes a Piggy-Back Registration effective
for a period of 30 days from the date on which the SEC declares such
Registration Statement effective or such shorter period which will terminate
when the distribution of all registered Registrable Securities pursuant to such
Registration Statement ends.
(b) Priority on Piggy-Back Registrations. Subject to the provisions of
this Section 4(b), in the event a registration pursuant to this Section 4
involves an underwritten offering, the Company shall cause the managing
underwriter or underwriters of such proposed underwritten offering to permit the
Investors to include all the Registrable Securities that the Investors have
requested to be included in such offering on the same terms and conditions as
any similar securities, if any, of the Company included therein.
If a registration pursuant to this Section 4 is an underwritten primary
registration on behalf of the Company, and the managing underwriter advises the
Company and the Investor Representative in writing that in its opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering, the Company will include in such
registration (i) first, the securities the Company proposes to register for
sale, (ii) second, securities requested to be included in such registration
which are Registrable Securities and securities having piggy-back registration
rights that are pari passu to those relating to the Registrable Securities pro
rata among the holders of such securities on the basis of the number of
securities so requested to be included therein, and (iii) third, other
securities requested to be included in such registration, if any.
If a registration pursuant to this Section 4 is an underwritten
secondary registration on behalf of holders of securities of the Company, and
the managing underwriter advises the Company and the Investor Representative in
writing that in its opinion the number of securities requested to be included in
such registration exceeds the number which can be sold in such offering, the
Company will include in such registration (i) first, the securities requested to
be included therein by the holders requesting such registration and the
securities which are Registrable Securities pro rata among the holders of such
securities on the basis of the number of securities so requested to be included
therein and (ii) second, other securities requested to be included in such
registration.
(c) Other Registrations. Except as provided in this Agreement, the
Company shall not grant to any Person the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, under the Securities Act
without the written consent of the holders of a majority in aggregate number of
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the Registrable Securities then outstanding; provided, that the Company may
grant rights to other Persons, to (i) participate in Piggy-Back Registrations so
long as such rights are not more favorable to the rights of the Investors with
respect to such Piggy-Back Registrations and (ii) request registrations so long
as the Investors are entitled to participate in any such registration with such
Persons pro rata among such persons and the Investors on the basis of the number
of securities so requested to be included therein.
5. Holdback Agreements.
(a) Restrictions on Public Sale by Holders of Registrable Securities.
The Investors agree, if requested by the managing underwriter or underwriters in
an Underwritten Offering (to the extent timely notified in writing by the
Company or the managing underwriter or underwriters), not to effect any public
sale or distribution of securities of the Company of any class included in a
registration statement registering the sale of Common Stock by the Company, or
any securities convertible into or exchangeable or exercisable for such
securities, including a sale pursuant to Rule 144 under the Securities Act
(except as part of such underwritten registration), during the 10-day period
prior to, and the 90-day period beginning on, the closing date of any
Underwritten Offering made pursuant to such registration statement.
(b) Restrictions on Public Sale by the Company. The Company agrees, if
requested by the managing underwriter or underwriters in an Underwritten
Offering of Registrable Securities covered by a Registration Statement filed
pursuant to Section 3 or 4 hereof, without the prior written consent of the lead
managing underwriter in such Underwritten Offering, not to effect any public
sale or distribution of its equity securities, or any securities convertible
into or exchangeable or exercisable for such securities, during the 10-day
period prior to, and the 90-day period beginning on, the effective date of any
Underwritten Offering made pursuant to such Registration Statement (except as
part of such underwritten registration or pursuant to registrations on Form S-8
or Form S-4 or any successor form to such Forms).
6. Registration Xxxxxxxxxx.Xx connection with the registration
obligations of the Company pursuant to and in accordance with Section 3 or 4 of
this Agreement, the Company shall use its reasonable best efforts to effect such
registrations to permit the sale of such Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company shall:
(a) notify the Investors and the managing underwriters, if any,
promptly, and (if requested by any such Person) confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement or post-effective amendment
related to such Registrable Securities has been filed, and, with respect to a
Registration Statement or any post-effective amendment related to such
Registrable Securities, when the same has become effective, (ii) of any request
by the SEC for amendments or supplements to such Registration Statement or
related Prospectus or for additional information, (iii) of the issuance by the
SEC of any stop order suspending the effectiveness of such Registration
Statement or the initiation of any proceedings for that purpose, (iv) if at any
time the
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representations and warranties of the Company contained in any agreement
(including any underwriting agreement) contemplated by Section 6(l) below cease
to be true and correct in any material respect, (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (vi) of the happening of any event which makes any statement made in
such Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue or which requires the
making of any changes in such Registration Statement or Prospectus so that such
documents will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (vii) of the reasonable determination of the Company that a
post-effective amendment to such Registration Statement would be appropriate;
(b) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement, or the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction, at the earliest
possible time;
(c) if requested by the managing underwriters or the Investors, (i)
promptly as is reasonably practicable incorporate in a Prospectus supplement or
post-effective amendment to the Registration Statement such information as the
managing underwriters and the Investors agree should be included therein and as
may be required by applicable law, and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as reasonably
practicable after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or such post-effective amendment;
provided, however, that the Company shall not be required to take any of the
actions in this Section 6(c) which are not, in the opinion of counsel for the
Company, in compliance with or required by applicable law;
(d) furnish to the Investors and each managing underwriter, if any,
without charge, at least one copy of each Registration Statement related to such
Registrable Securities and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including, if requested, those previously furnished
or incorporated by reference) at the earliest practicable time under the
circumstances before the filing of such documents with the SEC;
(e) deliver to the Investors and the underwriters, if any, without
charge, as many copies of the Prospectus or Prospectuses related to such
Registrable Securities (including each preliminary prospectus) and as many
copies of any amendment or supplement thereto as such Persons may reasonably
request; the Company consents to the use of such Prospectus or any amendment or
supplement thereto by each of the selling holders of Registrable Securities and
the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto;
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(f) prior to any public offering of Registrable Securities, use its
reasonable best efforts to register or qualify or cooperate with the Investors,
the underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as any seller or underwriter
reasonably requests in writing; keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the applicable Registration Statement;
provided, however, that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it is not then so qualified
or subject itself to taxation in any jurisdiction where it is not then so
subject to taxation or (B) take any action which would subject it to general
service of process in any such jurisdiction where it is not then so subject;
(g) in connection with an Underwritten Offering, participate, to the
extent reasonably requested by the managing underwriter for the offering or the
Investors, in customary efforts to sell the securities under the offering,
including, without limitation, participating in "road shows;"
(h) reasonably cooperate with the Investors and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends;
(i) use its reasonable best efforts to cause the Registrable Securities
covered by each Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(j) upon the occurrence of any event contemplated by paragraphs 6(a)(vi)
or 6(a)(vii) above, promptly as is reasonably practicable, prepare a supplement
or post-effective amendment to each Registration Statement or a supplement to
the related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities being sold thereunder, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(k) use its reasonable best efforts to list all Registrable Securities
covered by such a Registration Statement on the primary securities exchange on
which any of the Common Stock is then listed or on the Nasdaq National Market if
the Common Stock is listed thereon;
(l) enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings) which are
reasonably acceptable to the Company and take all such other reasonably
appropriate actions in connection therewith (including
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those reasonably requested by the managing underwriters, if any, or the
Investors) in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, if an underwriting agreement is
entered into (i) make such representations and warranties to the Investors and
the underwriters, if any, with respect to the business of the Company and its
subsidiaries, the Registration Statement, the Prospectus, and documents, if any
incorporated or deemed to be incorporated by reference in the Registration
Statement, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and the Investors)
addressed to the Investors and each of the underwriters, if any, covering the
matters customarily covered in opinions requested in underwritten offerings,
(iii) to the extent permitted by the professional standards governing the
accounting profession at the time, obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the Company (and,
if necessary, any other certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data is or is required to be included in the
Registration Statement) addressed to the Investors and each of the underwriters,
if any, such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with underwritten
offerings; (iv) use its reasonable best efforts to cause the same to contain
indemnification provisions and procedures no less favorable than those set forth
in Section 8 hereof (or such other provisions and procedures acceptable to the
Investors) with respect to all parties to be indemnified pursuant to such
Section by the Investors; and (v) deliver such documents and certificates as may
be reasonably requested by the Investors and the managing underwriters, if any,
to evidence the continued validity of the representations and warranties of the
Company made pursuant to paragraph 6(l)(i) above and to evidence compliance with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company. The above shall be done at each closing
under such underwriting or similar agreement or, as and to the extent required
thereunder;
(m) make reasonably available for inspection by the Investor
Representative, any managing underwriter participating in any disposition of
Registrable Securities pursuant to such Registration Statement, and any attorney
or accountant retained by such selling holders or managing underwriter, all
relevant financial and other records, pertinent corporate documents and
properties of the Company; and cause the officers, directors and employees of
the Company and its subsidiaries to supply all relevant information reasonably
requested by any such representative, managing underwriter, attorney or
accountant in connection with such Registration Statement as is customary for
similar due diligence examinations; provided, however, that any records,
information or documents that are designated by the Company in writing as
confidential at the time of delivery of such records, information or documents
shall be kept confidential by such Persons and their designees unless (i) such
records, information or documents are in the public domain or otherwise publicly
available through no act of such Persons, (ii) disclosure of such records,
information or documents is required by court or administrative order; provided
that, to the extent practicable, the Company shall be provided the right to
challenge the order before such disclosure, or (iii) disclosure of such records,
information or documents, in the opinion of counsel to such Person, is otherwise
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required by law (including, without limitation, pursuant to the requirements of
the Securities Act); provided that such Person shall notify the Company of same
prior to disclosure; and
(n) use its reasonable best efforts to comply with all applicable rules
and regulations of the SEC, and make generally available to its security holders
earning statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period is a
fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment or best
efforts Underwritten Offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements shall
cover such 12-month periods.
The Company may require each Investor to furnish to the Company such
information regarding such Investor and the distribution of Registrable
Securities as the Company may from time to time reasonably request in writing
and the Company may exclude from such registration the Registrable Securities if
the Investors fail to furnish such information within a reasonable time after
receiving such request.
The Investors agree by acquisition of Registrable Securities that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 6(a)(ii), 6(a)(iii), 6(a)(v), 6(a)(vi) or 6(a)(vii) hereof,
the Investors shall forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus until the
Investors' receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(i) hereof, or until it is advised in writing by the
Company that the use of the applicable Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
or deemed to be incorporated by reference in such Prospectus.
Each holder of Registrable Securities further agrees that (a) prior to
any disposition of Registrable Securities pursuant to the Shelf Registration,
such holder shall give written notice of the desired disposition to the Company,
including the anticipated date thereof (a "Selling Notice"), and such holder
shall not effect such disposition until such holder either (i) has received from
the Company copies of a supplemented or amended Prospectus as contemplated in
this Agreement, or (ii) has been advised in writing by the Company that the use
of the applicable Prospectus is appropriate and has received copies of any
previous amendments or supplements thereto, provided, however, the Company must
comply with either (i) or (ii) of this subsection (a) within one business day
after receiving written notice of a desired disposition by such holder; (b) it
will notify the Company in writing upon completion of such offer or sale or at
such time as such holder no longer intends to make offers or sales under the
Shelf Registration; (c) all offers and sales by such holder under the Shelf
Registration shall be completed within 30 days after the first date on which
offers or sales can be made pursuant to clause (a) above, and upon expiration of
such 30-day period, such holder will not offer or sell any Registrable
Securities under the Shelf Registration until it has again complied with the
provisions of clause (a) above; (d) such holder and any of its officers,
directors
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or affiliates (as defined in the Securities Act), if any, will comply with the
provisions of Regulation M under the Exchange Act as applicable to them in
connection with sales of Registrable Securities pursuant to the Shelf
Registration; and (e) such holder and any of its officers, directors or
affiliates (as defined in the Securities Act), if any, will enter into such
written agreements as the Company shall reasonably request to ensure compliance
with clause (d) above. Each holder of Registrable Securities further agrees that
neither such holder nor any of such holder's affiliates (as defined in the
Securities Act) will take, directly or indirectly, during the period in which
the Shelf Registration is to be kept effective, any action designed to stabilize
(except as may be permitted by applicable law) or manipulate the price of any
security of the Company.
7. Registration Expenses.
(a) Except as provided in Section 3(f) hereof all fees and expenses
incurred by the Company incident to the Company's performance of or compliance
with this Agreement (including, without limitation, (i) all registration and
filing fees including, without limitation, reasonable fees and expenses (A) with
respect to filings required to be made with the National Association of
Securities Dealers, Inc., and (B) of compliance with securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel for
the underwriters or selling holders (subject to the provisions of Section 6(b))
in connection with Blue Sky qualifications of the Registrable Securities and
determination of the eligibility of the Registrable Securities for investment
under the laws of such jurisdictions as the managing underwriters or holders of
a majority in number of the Registrable Securities being sold may designate),
(ii) printing expenses, (iii) messenger, telephone and delivery expenses, (iv)
fees and disbursements of counsel for the Company, (v) fees and disbursements of
all independent certified public accountants referenced to in Section 6(l)(iii)
hereof (including the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) underwriter's fees and
expenses (excluding discounts, commissions or fees of underwriters, selling
brokers, dealer managers or similar securities industry professionals relating
to the distribution of Registrable Securities or legal expenses of any Person
other than the Company and the underwriters, but including the reasonable fees
and expenses of any "qualified independent underwriter" or other independent
appraiser participating in an offering pursuant to Rule 2710 of the Conduct
Rules of the National Association of Securities Dealers, Inc., (vii) Securities
Act liability insurance if the Company so desires such insurance, and (viii)
fees and expenses of all other Persons retained by the Company) (all such
expenses being referred to herein as "Registration Expenses"), shall be borne by
the Company whether or not any Registration Statement becomes effective. Except
as expressly provided herein, the Company shall not be required to pay any costs
or expenses incurred by any holder of Registrable Securities in the course of
the transactions contemplated hereby, including, without limitation, costs and
expenses relating to the underwriters' commissions and discounts in respect of
Registrable Securities to be sold by such holder, or brokerage fees, dealers'
selling concessions, transfer taxes or the fees or expenses of any counsel,
accountants or other representatives retained by the holders, individually or in
the aggregate.
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8. Indemnification.
(a) Indemnification by the Company. The Company shall, notwithstanding
termination of this Agreement and without limitation as to time, indemnify and
hold harmless, to the full extent permitted by law, the Investors, their
officers, directors, agents and employees, each Person who controls such
Investor (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act), and the officers, directors, agents or employees of any
such controlling Persons, from and against all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable costs of
preparation and attorneys' fees) and reasonable expenses (collectively,
"Losses") arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or preliminary Prospectus, or arising out of or based upon any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading except insofar as the same are (i)
based upon information furnished in writing to the Company by the Investors
expressly for use therein or (ii) caused by the Investors' failure to deliver a
copy of the Registration Statement or Prospectus or any amendments or
supplements thereto after the Company has timely furnished the Investors with a
sufficient number of copies of the same. In connection with an Underwritten
Offering, the Company shall also indemnify such underwriters participating in
the distribution, their officers, directors, agents and employees and each
Person who controls such underwriters (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the same extent as provided
above with respect to the indemnification of the Investors.
(b) Indemnification by the Investors. In connection with any
Registration Statement in which the Investors are participating, the Investors
shall furnish to the Company in writing such information as the Company
reasonably requests for use in connection with any Registration Statement or
Prospectus shall, notwithstanding termination of this Agreement and without
limitation as to time, indemnify and hold harmless, to the full extent permitted
by law, the Company, its directors, officers, agents and employees, each Person
who controls the Company (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) and the directors, officers, agents or
employees of any such controlling Persons, from and against all Losses (i)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement, Prospectus or
preliminary Prospectus, or arising out of or based upon any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statement therein not misleading, to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission is contained in any information so furnished in writing by the
Investors to the Company expressly for use in such Registration Statement or
Prospectus and that such information was relied upon by the Company in
preparation of any Registration Statement, Prospectus or preliminary Prospectus
or (ii) caused by any failure by the Investors to comply with the legal
requirements described in Section 8(a)(ii) hereof. In no event shall the
liability of the Investors be greater in amount than the dollar amount of the
proceeds (net of the payment of all expenses of such Investors) received by such
Investors upon the sale of the Registrable Securities giving rise to such
indemnification obligation. The Company shall be entitled to receive indemnities
from underwriters, selling brokers, dealer managers and similar securities
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industry professionals participating in the distribution to the same extent as
provided above with respect to information so furnished in writing by such
Persons expressly for use in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. If any action or proceeding
(including any governmental investigation or inquiry) shall be brought or any
claim shall be asserted against any Person entitled to indemnity hereunder (an
"Indemnified Party"), such Indemnified Party shall promptly notify the party
from which such indemnity is sought (the "Indemnifying Party") in writing, and
the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all fees and expenses incurred in connection with the defense
thereof. All such fees and expenses (including any fees and expenses incurred in
connection with investigating or preparing to defend such action or proceeding)
shall be paid to the Indemnified Party, as incurred, within 5 days of written
notice thereof to the Indemnifying Party. Any such Indemnified Party shall have
the right to employ separate counsel in any such action, claim or proceeding and
to participate in the defense thereof, but the fees and expenses of such counsel
shall be the expenses of such Indemnified Party unless (a) the Indemnifying
Party has agreed in writing to pay such fees and expenses or (b) the
Indemnifying Party shall have failed to promptly assume the defense of such
action, claim or proceeding and to employ counsel reasonably satisfactory to the
Indemnified Party in any such action, claim or proceeding or (c) the named
parties to any such action, claim or proceeding (including any impleaded
parties) include both such Indemnified Party and the Indemnifying Party, and
such Indemnified Party shall have been advised by counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the Indemnifying Party (in which case, if such Indemnified
Party notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the Indemnifying
Party shall not have the right to assume the defense of such action, claim or
proceeding on behalf of such Indemnified Party, it being understood, however,
that the Indemnifying Party shall not, in connection with any one such action,
claim or proceeding or separate but substantially similar or related actions,
claims or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for all such Indemnified Parties, unless in the reasonable judgment of any
such Indemnified Party a conflict of interest may exist between such Indemnified
Party and any other of such Indemnified Parties with respect to such action,
claim or proceeding, in which event the Indemnifying Party shall be obligated to
pay the fees and expenses of such additional counsel or counsels). The
Indemnifying Party shall not be required to indemnify any Indemnified Party
against any settlement or judgment which is consented to by an Indemnified Party
without the consent of the Indemnifying Party.
(d) Contribution. If the indemnification provided for in this Section 8
is unavailable to an Indemnified Party under Section 8(a) or 8(b) hereof (other
than by reason of exceptions provided in those Sections) in respect of any
Losses, then each applicable Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall, jointly and severally, contribute to the amount paid
or payable by such Indemnified Party as a result of such Losses, in such
proportion as is appropriate
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to reflect the relative fault of the Indemnifying Party and Indemnified Party in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and such Indemnified Party shall be determined by reference
to, among other things, whether any action in question, including any untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 8(c) hereof, any legal or other fees or
expenses reasonably incurred by such party in connection with any investigation
or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provision of this Section 8(d), an Indemnifying Party which
is a selling holder of Registrable Securities shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities sold by such Indemnifying Party and distributed to
the public were offered to the public exceeds the amount of any damages which
such Indemnifying Party has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
9. Rule 144 and Rule 144A. The Company shall use its reasonable best
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of the Investors, make
available public or other information so long as necessary to permit sales of
its securities pursuant to Rules 144 and 144A promulgated under the Securities
Act. The Company further covenants that it will take such further action as the
Investors may reasonably request, all to the extent required from time to time
to enable the Investors to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rules 144 and 144A under the Securities Act. Upon the request of any of the
Investors, the Company shall deliver to such Investor a written statement as to
whether it has complied with such requirements. The Company will reasonably
cooperate to enable the Investors to sell Registrable Securities in block trades
or other similar transactions. Notwithstanding the foregoing, nothing in this
Section 9 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.
10. Underwritten Registrations. If any Demand Registration is an
Underwritten Offering, the Investors will have the right to select the
investment banker or investment bankers and managers to administer the offering;
provided, that such investment banks or managers shall be reasonably
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satisfactory to the Company. If any Piggy-Back Registration is an Underwritten
Offering, the Company will have the right to select the investment banker or
investment bankers and managers to administer the offering.
No Person may participate in any Underwritten Registration hereunder
unless such Person (a) agrees to sell such Person's securities to be included in
the Underwritten Registration on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
11. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its obligations
under this Agreement, the Investors, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific performance in
respect of any such breach, it shall waive the defense that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. The Company shall not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
which is inconsistent with the rights granted to the Investors in this Agreement
or otherwise conflicts with the provisions hereof. The Company has not entered
into any agreement with respect to its securities granting any registration
rights to any Person other than this Agreement.
(c) Adjustments Affecting Registrable Securities. The Company shall not
take any action, or permit any change to occur, with respect to the Registrable
Securities (i) which would adversely affect the ability of the Investors to
include such Registrable Securities in a registration undertaken pursuant to
this Agreement or (ii) which would adversely affect the marketability of such
Registrable Securities in any such registration.
(d) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, except by written instrument signed by the Company and the Investors.
(e) Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including telecopier or similar writing) and
shall be given to such party at its address or telecopier number set forth
below, or such other address or telecopier number as such party may hereinafter
specify for the purpose to the party giving such notice. Each such notice,
request or other communication shall be effective (i) if given by telecopy, when
such telecopy is transmitted to the
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telecopy number specified in this Section and the appropriate electronic
confirmation is received, or (ii) if given by overnight mail, twenty-four (24)
hours after such communication is deposited with an overnight courier, addressed
as aforesaid, or (iii) if given by any other means, when delivered at the
address specified in this Section.
If to the Investors:
Xxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Indeck Capital, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxx X. Xxxxxx, Xx.
Indeck Capital, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: 000-000-0000
Telecopy: 000-000-0000
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If to the Company:
Black Hills Corporation
000 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxx Xxxx, XX 00000
Attention: Xx. Xxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxx Xxxxxx & Xxxxx, LLP
000 Xxxxx Xxxxxx, 0xx Xxxxx
X.X. Xxx 0000
Xxxxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(f) Owner of Registrable Securities. The Company will maintain, or will
cause its registrar and transfer agent to maintain, a stock book with respect to
the Common Stock, in which all transfers of Registrable Securities of which the
Company has received notice will be recorded. The Company may deem and treat the
Person in whose name Registrable Securities are registered in the stock book of
the Company as the owner thereof for all purposes, including without limitation,
the giving of notices under this Agreement.
(g) Successors and Assigns. This Agreement shall be binding upon the
Company and the Investors and their respective successors and permitted assigns.
Neither this Agreement nor any of the rights or obligations hereunder shall be
assigned by any of the parties hereto without the prior written consent of the
other parties, except, with respect to the Company, by operation of law in any
merger and with respect to any Investor, any Permitted Transferee (as defined in
that certain Shareholders Agreement dated as of even date herewith, amongst the
parties hereto) to whom Registerable Securities have been transferred. In the
event the Company reorganizes to create a holding company ("Holdco") for the
Company then this Agreement shall be assigned to and assumed by Holdco and
thereafter all references to the term "Company" herein shall be deemed to refer
to Holdco.
(h) Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts each of which, when executed and delivered, shall be an
original with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by the other parties
hereto.
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(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of South Dakota, without regard to
principles of conflict of laws.
(k) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto, in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties nor undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted herein by the Company.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
(m) Attorneys' Fees. As between the parties to this Agreement, in any
action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the prevailing
party shall be entitled to recover reasonable attorneys' fees in addition to its
costs and expenses and any other available remedy.
***
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written.
THE COMPANY:
BLACK HILLS CORPORATION,
a South Dakota corporation
By: /s/
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
INVESTORS:
/s/
---------------------------------------
XXXXXX X. XXXXXXXX
/s/
---------------------------------------
XXXX X. XXXXXX, XX.
/s/
---------------------------------------
XXXXXXXX X. XXXXXXX
/s/
---------------------------------------
XXXXXX XXXXXXXX
/s/
---------------------------------------
XXXXXXX X. XXXXXXXX
/s/
---------------------------------------
XXXXXX XXXXXXX
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