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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): May 8, 2025

 

 

Black Hills Corporation

(Exact name of Registrant as Specified in Its Charter)

 

 

South Dakota   001-31303   46-0458824
(State or Other Jurisdiction
of Incorporation)
  (Commission File Number)    (IRS Employer
Identification No.)  

 

7001 Mount Rushmore Road 
Rapid City, South Dakota57702
(Address of Principal Executive Offices)(Zip Code)

 

Registrant’s Telephone Number, Including Area Code: 605 721-1700

 

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading
Symbol(s)
  Name of each exchange on which registered
Common stock of $1.00 par value   BKH   The New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 

 

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

As previously disclosed, on June 16, 2023, Black Hills Corporation, a South Dakota corporation (the “Company”), entered into an Equity Distribution Sales Agreement (the “Existing Sales Agreement”), by and among (a) the Company, (b) each of Bank of Montreal, Bank of America, N.A., MUFG Securities EMEA plc, Mizuho Markets Americas LLC, and Royal Bank of Canada (each a “Forward Purchaser” and together, the “Forward Purchasers”), (c) each of BMO Capital Markets Corp., BofA Securities, Inc., MUFG Securities Americas Inc., Mizuho Securities USA LLC, and RBC Capital Markets, LLC (each in its capacity as sales agent and/or principal, an “Agent” and together, the “Agents”), and (d) each of BMO Capital Markets Corp., BofA Securities, Inc., MUFG Securities Americas Inc., Mizuho Securities USA LLC, and RBC Capital Markets, LLC (each in its capacity as agent for its affiliated Forward Purchaser (each, a “Forward Seller” and together, the “Forward Sellers”), with respect to the offering and sale from time to time through the Agents of shares of the Company’s common stock, par value $1.00, having an aggregate gross sales price of up to $400,000,000 (the “Shares”), through an “at-the-market” equity offering program (the “ATM Program”) utilizing the Company’s shelf Registration Statement on Form S-3 originally filed on June 16, 2023 (Registration No.  333-272739) (the “Shelf”).

 

On May 8, 2025, the Company entered into a First Amendment to Equity Distribution Sales Agreement (the “First Amendment”), dated May 8, 2025, by and among the Company, the Forward Purchasers, the Agents and the Forward Sellers (the Existing Sales Agreement as amended by the First Amendment, the “Sales Agreement”). The First Amendment, among other things provides for the continuation of the ATM Program using the Shelf and resets the size of the ATM Program to an aggregate gross sale price of up to $400,000,000. For the avoidance of doubt, the First Amendment aggregate gross sales price limitation supersedes and replaces the aggregate gross sales price limitation provided in the Existing Sales Agreement. The offering of the Shares will be made pursuant to the Shelf, a base prospectus dated June 16, 2023, and Prospectus Supplement dated May 8, 2025. Except as modified by the First Amendment, the Sales Agreement and the form of master forward confirmation included therein remain in full force and effect.

 

In the ordinary course of business, certain of the parties to the Sales Agreement or their respective affiliates have provided and may in the future provide commercial, financial advisory or investment banking services for the Company and its subsidiaries for which they have received or will receive customary compensation. For example, affiliates of certain of the parties to the Sales Agreement are lenders and/or agents under certain of our existing credit facilities. To the extent that we use the net proceeds from the offering to repay amounts we have borrowed, may borrow or re-borrow in the future under such facilities, those lenders will receive their pro rata portion of the proceeds from this offering we use to pay any such amounts.

 

The summary of the First Amendment in this report does not purport to be complete and is qualified by reference to the full text of the First Amendment, which is filed as Exhibit 1.1 hereto.

 

In connection with the issuance and sale of the Shares, the Company is also filing a legal opinion regarding the validity of the Shares as Exhibit 5.1 for the purpose of incorporating the opinion into the Registration Statement.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

The following exhibits are being filed herewith:

 

Number   Exhibit
     
1.1   First Amendment to Equity Distribution Sales Agreement dated May 8, 2025 among Black Hills Corporation and the Agents, Forward Purchasers and Forward Sellers named therein.
     
5.1   Opinion of Todd Brink, Esq.
     
23.1   Consent of Todd Brink, Esq. (included in Exhibit 5.1).
     
104   Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  BLACK HILLS CORPORATION
   
  By: /s/ Kimberly F. Nooney
    Kimberly F. Nooney
    Senior Vice President and Chief Financial Officer

 

Date: May 8, 2025

 

 

 

Exhibit 1.1

 

FIRST AMENDMENT TO EQUITY DISTRIBUTION SALES AGREEMENT

 

This First Amendment (the “Amendment”), entered into as of May 8, 2025, to that certain Equity Distribution Sales Agreement (the “Sales Agreement”), dated as of June 16, 2023, among Black Hills Corporation, a South Dakota corporation (the “Company”) and each of Bank of Montreal, Bank of America, N.A., MUFG Securities EMEA plc, Mizuho Markets Americas LLC and Royal Bank of Canada (each in its capacity as purchaser under any Confirmation (as defined therein), a “Forward Purchaser” and together, the “Forward Purchasers”), and each of BMO Capital Markets Corp., BofA Securities Inc., MUFG Securities Americas Inc., Mizuho Securities USA LLC, and RBC Capital Markets, LLC (each in its capacity as sales agent and/or principal in connection with the offering and sale of Issuance Shares (as defined therein), an “Agent” and together, the “Agents”) and each in its capacity as agent for its affiliated Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares (as defined therein) (each, a “Forward Seller” and together, the “Forward Sellers”). Capitalized terms used herein and not defined herein shall have the meanings assigned to them in the Sales Agreement.

 

WHEREAS, each of the parties hereto wishes to amend the Sales Agreement in the manner set forth below;

 

NOW, THEREFORE, the parties hereby agree as follows:

 

1.The first two paragraphs of the preamble to the Sales Agreement is hereby deleted in its entirety and replaced with the following:

 

This Equity Distribution Agreement (this “Agreement”) is made by and among Black Hills Corporation, a South Dakota corporation (the “Company”), each of Bank of Montreal, Bank of America, N.A., MUFG Securities EMEA plc, Mizuho Markets Americas LLC, and Royal Bank of Canada (each in its capacity as purchaser under any Confirmation (as defined below), a “Forward Purchaser” and together, the “Forward Purchasers”), and each of BMO Capital Markets Corp., BofA Securities, Inc., MUFG Securities Americas Inc., Mizuho Securities USA LLC, and RBC Capital Markets, LLC (each in its capacity as sales agent and/or principal in connection with the offering and sale of Issuance Shares (as defined below), an “Agent” and together, the “Agents”), and each in its capacity as agent for its affiliated Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares (as defined below) (each, a “Forward Seller” and together, the “Forward Sellers”), as amended by that certain First Amendment (the “Amendment”) to the Agreement, dated May 8, 2025 among the Company, the Forward Purchasers, the Agents and the Forward Sellers. Prior to the Amendment, the Company, the Forward Purchasers, the Agents and the Forward Sellers initially entered the Agreement on June 16, 2023 (the “Prior Agreement”).

 

 

 

 

Pursuant to this Agreement, the Company proposes, subject to the terms and conditions stated herein, to issue and sell, or cause the sale (as the case may be), from time to time to or through the Agents, the Forward Sellers or the Forward Purchasers, as the case may be, Issuance Shares or Forward Hedge Shares (together, as applicable, the “Shares”) of the Company’s common stock, $1.00 par value (the “Common Stock”), having an aggregate gross sales price not to exceed $400,000,000, on the terms set forth in this Agreement. For the avoidance of doubt, such aggregate gross price limitation supersedes and replaces the aggregate gross sales price limitation provided in the Prior Agreement (i.e., the $400,000,000 aggregate gross sales price of Shares issuable under this Agreement is in lieu of, and not in addition to, the approximately $99.4 million aggregate gross sales price that were issuable under the Prior Agreement immediately prior to execution of this Agreement and the $99.4 million in aggregate gross sales price that were issuable under the Prior Agreement is included in the $400,000,000 aggregate gross price limitation established through the Amendment).

 

2.The first paragraph of the Form of Placement Note on page D-1 of the Sales Agreement is hereby deleted in its entirety and replaced with the following:

 

Reference is made to that certain Equity Distribution Agreement among Black Hills Corporation (the “Company”), {__________} (the “Forward Purchaser”) and {__________}, in its capacity as agent for the Company in connection with the offering and sale of any Issuance Shares thereunder (the “Agent”), and in its capacity as agent for the Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares thereunder (the “Forward Seller”), among others, dated June 16, 2023, as amended (the “Agreement”). Capitalized terms used in this Placement Notice without definition shall have the respective definitions ascribed to them in the Agreement. This Placement Notice relates to a Forward.

 

3.The first paragraph of Annex I to the Sales Agreement is hereby deleted in its entirety and replaced with the following:

 

Black Hills Corporation, a South Dakota corporation (the “Company”), proposes, on the basis of the representations and warranties, and subject to the terms and conditions, stated herein and in the Equity Distribution Sales Agreement, dated June 16, 2023 as amended (the “Sales Agreement”) between the Company and the agents party thereto, to issue and sell to [·] and [·] as principal for resale ([collectively,] the “Underwriter[s]”), and the Underwriter[s severally] agree[s] to purchase from the Company the shares of Common Stock specified in the Schedule A hereto (the “[Initial] Securities”) [, and to grant to the Underwriter[s] the option to purchase the additional shares of Common Stock specified in the Schedule A hereto (the “Option Securities”, and together with the Initial Securities, the “Securities”)]*, [in each case]* on the terms specified in Schedule A hereto. Capitalized terms but and not defined herein have the respective meanings ascribed thereto in the Sales Agreement.

 

 2 

 

 

4.On and after the date hereof, each reference in the Agreement to “this Agreement,” “hereunder,” ‘hereof’ or words of like import referring to the Agreement shall mean and be a reference to the Agreement, as amended by this Amendment.

 

5.The Sales Agreement, as specifically amended by this Amendment, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed.

 

6.This Amendment and any claim, controversy or dispute arising under or related to this Amendment shall be governed by, and construed in accordance with, the laws of the state of New York, without regard to its choice of law provisions.

 

7.This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.

 

8.No amendment or waiver of any provision of this Amendment, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.

 

[Remainder of page intentionally left blank]

 

 3 

 

 

IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the date first written above.

 

  Very truly yours,
   
   
  BLACK HILLS CORPORATION
   
   
  By: /s/ Kimberly F. Nooney
    Name: Kimberly F. Nooney
    Title: Senior Vice President and Chief Financial Officer

 

[Signature Page to First Amendment to Equity Distribution Sales Agreement]

 

 

 

 

Accepted as of the date hereof:

 

BMO Capital Markets Corp.,
as Agent and Forward Seller
 
   
By: /s/ Eric Benedict  
  Name: Eric Benedict  
  Title: Co-Head, Global Equity Capital Markets  

 

Bank of Montreal,
as Forward Purchaser
 
   
By: /s/ Brian Riley  
  Name: Brian Riley  
  Title: Managing Director, Global Markets  

 

[Signature Page to First Amendment to Equity Distribution Sales Agreement]

 

 

 

 

Accepted as of the date hereof:

 

BofA Securities, Inc.,
as Agent and Forward Seller
 
   
By: /s/ Ahmad Masud  
  Name: Ahmad Masud  
  Title: Managing Director  

 

Bank of America, N.A.,
as Forward Purchaser
 
   
By: /s/ Christine Roemer  
  Name: Christine Roemer  
  Title: Managing Director  

 

[Signature Page to Amendment to Equity Distribution Sales Agreement]

 

 

 

 

Accepted as of the date hereof:

 

Mizuho Securities USA LLC,
as Agent and Forward Seller
 
   
By: /s/ James Watts  
  Name: James Watts  
  Title: Managing Director  

 

Mizuho Markets Americas LLC,
as Forward Purchaser
 
   
By: /s/ Matthew E. Chiavaroli  
  Name: Matthew E. Chiavaroli  
  Title: Authorized Signaotry  

 

[Signature Page to Amendment to Equity Distribution Sales Agreement]

 

 

 

 

Accepted as of the date hereof:

 

MUFG Securities Americas Inc.,
as Agent and Forward Seller
 
   
By: /s/ Geoffrey Paul  
  Name: Geoffrey Paul  
  Title: Managing Director  

 

MUFG Securities EMEA plc,
as Forward Purchaser
 
   
By: /s/ Catherine Lucas  
  Name: Catherine Lucas  
  Title: Authorised Signatory  

 

[Signature Page to Amendment to Equity Distribution Sales Agreement]

 

 

 

 

Accepted as of the date hereof:

 

RBC Capital Markets, LLC,
as Agent and Forward Seller
 
   
By: /s/ Young Kim  
  Name: Young Kim  
  Title: Managing Director  

 

Royal Bank of Canada,
as Forward Purchaser
 
   
By: /s/ Brian Ward  
  Name: Brian Ward  
  Title: Managing Director  

 

[Signature Page to Amendment to Equity Distribution Sales Agreement]

 

 

 

Exhibit 5.1

 

Opinion of Todd Brink

 

May 8, 2025

 

Black Hills Corporation

7001 Mount Rushmore Road

Rapid City, South Dakota 57702

 

Re:At-the-Market Equity Offering Program

 

Gentlemen:

 

I am Interim General Counsel and Chief Legal Officer of Black Hills Corporation, a South Dakota corporation (the “Company”), and I have acted as counsel for the Company in connection with the Prospectus Supplement dated May 8, 2025 to the Prospectus dated June 16, 2023 relating to the offer and sale from time to time by the Company under the Registration Statement on Form S-3 (File No. 333-272739) (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”) of shares (the “Common Shares”) of Common Stock of the Company, par value $1.00 per share (the “Common Stock”) having an aggregate gross sales price of up to $400,000,000. Capitalized terms used herein but not defined herein have the definitions ascribed to them in the Sales Agreement (as defined below).

 

The Common Shares are to be issued under the Restated Articles of Incorporation, as amended, of the Company (the “Articles of Incorporation”) and distributed pursuant to (i) the Equity Distribution Sales Agreement dated June 16, 2023 by and among the Company and Bank of Montreal, Bank of America, N.A., MUFG Securities EMEA plc, Mizuho Markets Americas LLC, and Royal Bank of Canada (each in its capacity as purchaser and under any Confirmation (as defined below), a “Forward Purchaser” and together, the “Forward Purchasers”), and BMO Capital Markets Corp., BofA Securities, Inc., MUFG Securities Americas Inc., Mizuho Securities USA LLC, and RBC Capital Markets, LLC (each in its capacity as sales agent and/or principal in connection with the offering and sale of Issuance Shares, an “Agent” and together, the “Agents”), and each in its capacity as agent for its affiliated Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares (each, a “Forward Seller” and together, the “Forward Sellers”), as amended by the First Amendment to Equity Distribution Sales Agreement dated May 8, 2025, by and among the Company, the Forward Purchasers, the Agents and the Forward Sellers (the “Sales Agreement”) and (ii) forward-sales transactions, to be set forth in one or more agreements that may be entered into between the Company and a Forward Purchaser (each, a “Confirmation”).

 

I have examined or am otherwise familiar with the Registration Statement, the Sales Agreement, the Articles of Incorporation and the Amended and Restated Bylaws of the Company and such other documents, records and instruments as I have deemed necessary or appropriate for the purposes of the opinions set forth herein.

 

 

 

 

Black Hills Corporation

May 8, 2025

Page 2

 

Based upon and subject to the foregoing and the qualifications set forth in Annex I attached hereto, I am of the opinion that the Common Shares have been duly authorized and, when delivered to and paid for pursuant to the Sales Agreement and any Confirmation will be duly and validly issued, fully paid, and nonassessable.

 

My opinions set forth herein are limited to the laws of the State of South Dakota (the “Covered Laws”), and I express no opinion as to the effect of any other laws. In rendering opinions as to the Covered Laws, I have only considered the applicability of statutes, rules, regulations and judicial decisions that a lawyer practicing in such jurisdiction (the “Opining Jurisdictions”) exercising customary professional diligence would reasonably recognize as being directly applicable to the Company or the transactions contemplated by the Sales Agreement.

 

I hereby consent to the filing of this opinion as Exhibit 5.1 to the Current Report and thereby incorporated by reference into the Registration Statement without implying or admitting that I am an “expert” within the meaning of the Act, or other rules and regulations of the Commission issued thereunder with respect to any part of the Registration Statement, including this exhibit.

 

[Remainder of Page Intentionally Blank]

 

 

 

 

  Very truly yours,
   
  /s/ Todd Brink
  Todd Brink, Interim General Counsel and Chief Legal Officer

 

[Signature Page to Exhibit 5.1 Opinion of In-House Counsel]

 

 

 

 

Annex I

 

In rendering the accompanying opinion letter, I wish to advise you of the following additional qualifications to which such opinion letter is subject:

 

(a)            I have relied upon representations made by the Company in the Sales Agreement, the assumptions set forth below as to the matters referred therein, and upon certificates of, and information provided by, officers and employees of the Company reasonably believed by me to be appropriate sources of information, as to the accuracy of such factual matters, in each case without independent verification thereof or other investigation.

 

(b)            I have relied, without investigation, upon the following assumptions: (i) natural persons who are involved on behalf of the Company have sufficient legal capacity to enter into and perform, on behalf of the Company, the transaction in question and to carry out their role in the transaction; (ii) the Sales Agreement has been, and any instruments related to delivery of the Common Shares will be, duly authorized, executed and delivered by each party thereto (other than the Company); (iii) each party having rights under the Sales Agreement (other than the Company) has satisfied those legal requirements that are applicable to it to the extent necessary to make the Sales Agreement enforceable against it and has complied with all legal requirements pertaining to its status as such status relates to its rights to enforce the Sales Agreement against it and the other parties; (iv) each document submitted to me for review is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document are genuine; (v) there has not been any mutual mistake of fact or misunderstanding, fraud, duress or undue influence; (vi) all statutes, judicial and administrative decisions, and rules and regulations of governmental agencies, constituting the Covered Laws, are publicly available to lawyers practicing in the Opining Jurisdictions; (vii) all relevant statutes, rules, regulations or agency actions are constitutional and valid unless a reported decision in the Opining Jurisdictions has specifically addressed but not resolved, or has established, its unconstitutionality or invalidity; (viii) the Company will not in the future take any discretionary action (including a decision not to act) permitted under the Sales Agreement that would result in a violation of law or constitute a breach or default under any other agreement, order or regulation; (ix) the Company will obtain all permits and governmental approvals required in the future, and take all future actions similarly required, relevant to the performance of the Sales Agreement; (x) all parties to the transaction will act in accordance with, and will refrain from taking any action that is forbidden by, the terms and conditions of the Sales Agreement; and (xi) the officers of the Company will cause the offering of the Common Shares to be conducted in accordance with the limitations imposed from time to time by or pursuant to the resolutions of the Company’s board of directors (or relevant committee thereof).

 

(c)            The opinions herein expressed are limited to the specific issues addressed and to facts and laws existing on the date hereof. In rendering these opinions, I do not undertake to advise you with respect to any other matter or of any change in such facts and laws or in the interpretation thereof which may occur after the date hereof.

 

Annex I-1