EXHIBIT 3(a)
NIPSCO INDUSTRIES, INC.
BY-LAWS
Effective April 9, 1997
ARTICLE I.
OFFICES.
SECTION 1.1. REGISTERED OFFICE. The registered office of the
Corporation in the State of Indiana shall be at 5265 Hohman Avenue, in
the City of Hammond, County of Lake.
SECTION 1.2. PRINCIPAL BUSINESS OFFICE. The principal business
office of the Corporation shall be at 801 East 86th Avenue, in the Town of
Merrillville, County of Lake, in the State of Indiana.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 2.1. PLACE OF MEETINGS. Meetings of the shareholders of the
Corporation shall be held at such place, within or without the State of
Indiana, as may be specified by the Board of Directors in the notice of such
meeting, but if no such designation is made, then at the principal business
office of the Corporation.
SECTION 2.2. ANNUAL MEETINGS. The annual meeting of the shareholders
shall be held in each year on the second Wednesday in the month of April,
if not a legal holiday, and if a legal holiday, then on the next succeeding
business day that is not a legal holiday or on such other day as the Board
of Directors may determine; at the hour of ten o'clock a.m. or at such other
time as the Board of Directors may determine, for the purpose of electing
Directors and for the transaction of such other business as may legally
come before the meeting.
If for any reason any annual meeting shall not be held at the time
herein provided, the same may be held at any time thereafter, upon notice
as hereinafter provided, or the business thereof may be transacted at any
special meeting of shareholders called for that purpose.
SECTION 2.3. SPECIAL MEETINGS. Special meetings of the shareholders,
for any purpose or purposes, unless otherwise prescribed by statute, may be
called by the Chairman, the President, or the Board of Directors, and shall
be called by the Chairman at the request in writing of a majority of the
Board of Directors, or at the request in writing of the shareholders holding
at least one-fourth of all the shares outstanding and entitled to vote on
the business proposed to be transacted thereat. All requests for special
meetings of
shareholders shall state the time, place and the purpose or purposes thereof.
SECTION 2.4. NOTICE OF SHAREHOLDERS' MEETINGS. Notice of each meeting
of shareholders, stating the date, time and place, and, in the case of special
meetings, the purpose or purposes for which such meeting is called, shall be
given to each shareholder entitled to vote thereat not less than 10 nor more
than 60 days before the date of the meeting unless otherwise prescribed by
statute.
SECTION 2.5. RECORD DATES. (a) In order that the Corporation may
determine the shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any rights,
or entitled to exercise any rights in respect of any change, conversion or
exchange of shares or for the purpose of any other lawful action, the
Board of Directors may fix, in advance, a future date as the record date,
which shall not be more than 60 nor less than 10 days before the date of
such meeting or any other action requiring a determination by shareholders.
(b) If a record date has not been fixed as provided in preceding
subsection (a), then:
(i) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the close
of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held; and
(ii) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
(c) Only those who shall be shareholders of record on the record date
so fixed as aforesaid shall be entitled to such notice of, and to vote at,
such meeting and any adjournment thereof, or to receive payment of such
dividend or other distribution, or to receive such allotment of rights, or
to exercise such rights, as the case may be, notwithstanding the transfer
of any shares on the books of the Corporation after the applicable record
date; provided, however, the Corporation shall fix a new record date if a
meeting is adjourned to a date more than 120 days after the date originally
fixed for the meeting.
SECTION 2.6. QUORUM AND ADJOURNMENT. The holders of a majority of
all the capital shares issued and outstanding and entitled to vote at
any meeting of the shareholders, represented by the holders thereof in
person or by proxy, shall be requisite at all meetings of the
shareholders to constitute a quorum for the election of Directors or
for the transaction of other business, unless otherwise
provided by law or by the Corporation's Articles of Incorporation, as amended
(the "Articles of Incorporation"). Whether or not there is such a quorum, the
chairman of the meeting or the shareholders present or represented by proxy
representing a majority of the shares present or represented may adjourn the
meeting from time to time without notice other than an announcement at the
meeting. At such adjourned meeting at which the requisite number of voting
shares shall be present or represented, any business may be transacted which
might have been transacted at the meeting originally called.
SECTION 2.7. VOTING BY SHAREHOLDERS; PROXIES. Every shareholder shall
have the right at every shareholders' meeting to one vote for each share
standing in his name on the books of the Corporation, except as otherwise
provided by law or by the Articles of Incorporation, and except that no
share shall be voted at any meeting upon which any installment is due and
unpaid, or which belongs to the Corporation. Election of directors at all
meetings of the shareholders at which directors are to be elected shall
be by ballot, and a plurality of the votes cast thereat shall be necessary
to elect any Director. If a quorum exists, action on a matter (other
than the election of directors) submitted to shareholders entitled to vote
thereon at any meeting shall be approved if the votes cast favoring the
action exceed the votes cast opposing the action, unless a greater
number of affirmative votes is required by law or by the Articles of
Incorporation. A shareholder may vote either in person or by proxy
executed in writing by the shareholder or a duly authorized attorney in
fact. No proxy shall be valid after eleven months from the date of its
execution unless a longer time is expressly provided therein. All voting
at meetings of shareholders shall be by ballot, except that the presiding
officer of the meeting may call for a viva voce vote on any matter other
than the election of directors, unless the holder or holders of ten
percent (10%) or more of the shares entitled to vote demands or demand
a vote by ballot.
SECTION 2.8. LIST OF SHAREHOLDERS. The Secretary shall make, or
cause the agent having charge of the stock transfer books of the
Corporation to make, at least five (5) days before each meeting of
shareholders, a complete list of the shareholders entitled by the
Articles of Incorporation to vote at said meeting, arranged in
alphabetical order, with the address and number of shares so entitled
to vote held by each, which list shall be on file at the principal business
office of the Corporation and subject to inspection by any shareholder
within the usual business hours during said five (5) days either at the
principal business office of the corporation or a place in the city
where the meeting is to be held, which place shall be specified in the
notice of meeting, or, if not so specified, at the place where said
meeting is to be held. Such list shall be produced and kept open at
the time and place of the meeting and subject to the inspection of
any shareholder during the holding of such meeting.
SECTION 2.9. CONDUCT OF BUSINESS. (a) PRESIDING OFFICER. The Chairman,
when present, and in the absence of the Chairman the President, shall be the
presiding officer at all meetings of shareholders, and in the absence of the
Chairman and the President, the Board of Directors shall choose a presiding
officer. The presiding officer of the meeting shall have plenary power to
determine procedure and rules of order and make definitive rulings at meetings
of the shareholders.
(b) ANNUAL MEETINGS OF SHAREHOLDERS. (i) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the shareholders may be made at an annual meeting
of shareholders (A) pursuant to the Corporation's notice of meeting, (B) by or
at the direction of the Board of Directors or (C) by any shareholder of the
Corporation who was a shareholder of record at the time of giving of notice
provided for in this Section 2.9, who is entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section 2.9.
(ii) For nominations or other business to be properly brought before any
annual meeting by a shareholder pursuant to clause (C) of paragraph (b)(i) of
this Section 2.9, the shareholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a shareholder's
notice shall be delivered to the Secretary at the principal business office of
the Corporation not later than 150 days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is advanced by more than 30 days or delayed by more
than 60 days from such anniversary date, notice by the shareholder to be
timely must be so delivered not later than the 150th day prior to such
annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made. Such shareholder's
notice shall set forth (A) as to each person whom the shareholder proposes
to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations
of proxies for election of directors, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (B) as to any other business that the shareholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose behalf the proposal
is made; and (C) as to the shareholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (x)
the name and address of such shareholder, as they appear on the
Corporation's books, and of such beneficial owner and (y)the class and
number of shares of the Corporation which are owned beneficially
and of record by such shareholder and such beneficial owner.
(iii) The notice procedures of this Section 2.9 shall not apply
to any annual meeting if (A) with respect to annual meetings of shareholders
subsequent to the 1994 annual meeting of shareholders, the Corporation shall
not have set forth in its proxy statement for the preceding annual meeting
of shareholders the date by which notice of nominations by shareholders of
persons for election as directors or of other business proposed to be
brought by shareholders at the next annual meeting of shareholders must be
received by the Corporation to be considered timely pursuant to this Section
2.9 or (B) with respect to the 1994 annual meeting of shareholders, the
Corporation shall have failed to issue a public announcement setting forth
such information not less than 30 days prior to the date by which a
shareholder's notice must be received by the Corporation
to be considered timely pursuant to this Section 2.9.
(c) SPECIAL MEETINGS OF SHAREHOLDERS. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting.
Nominations of persons for election to the Board of Directors may be
made at a special meeting
of shareholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (A) by or at the direction of the Board of
Directors or (B) by any shareholder of the Corporation who is a shareholder
of record at the time of giving of notice provided for in this Section 2.9,
who is entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 2.9. Nominations by shareholders of
persons for election to the Board of Directors may be made at such a
special meeting of shareholders if a shareholder's notice containing the
information set forth in paragraph (b)(ii) of this Section 2.9 shall be
delivered to the Secretary at the principal executive offices of the
Corporation not later than the 150th day prior to such Special Meeting or the
10th day following the date on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
(d) GENERAL. (i) Only such persons who are nominated in accordance
with the procedures set forth in this Section 2.9 shall be eligible to
serve as directors and only such business shall be conducted at a meeting
of shareholders as shall have been brought before the meeting in accordance
with the procedures
set forth in this Section 2.9. The presiding officer at the meeting shall
have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made in accordance with
the procedures set forth in this Section 2.9 and, if any proposed
nomination or business is not in compliance with this Section 2.9,
to declare that such defective proposal shall be disregarded.
(ii) For purposes of this Section 2.9, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section 2.9,
a shareholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect
to the matters set forth in this Section 2.9. Nothing in this Section 2.9
shall be deemed to affect any rights of shareholders to request inclusion
of proposals in the Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act.
SECTION 2.10. ORGANIZATION OF MEETINGS. The Secretary, who may call
on any officer or officers of the Corporation for assistance, shall make all
necessary and appropriate arrangements for all meetings of shareholders,
receive all proxies and ascertain and report to each meeting of
shareholders the number of shares present, in person and by proxy.
In the absence of the Secretary, the Assistant Secretary shall perform
the foregoing duties. The certificate and report of the Secretary or
Assistant Secretary, as to the regularity of such proxies and as to
the number of shares present, in person and by proxy, shall be
received as prima facie evidence of the number of shares present in person and
by proxy for the purpose of establishing the presence of a quorum at such
meeting and for organizing the same, and for all other purposes.
SECTION 2.11. INSPECTORS. At every meeting of shareholders it
shall be the duty of the presiding officer to appoint three (3) shareholders
of the Corporation inspectors of election to receive and count the votes of
shareholders. Each inspector shall take an oath to fairly and impartially
perform the duties of a inspector of the election and to honestly and truly
report the results thereof. Such inspectors shall be responsible for tallying
and certifying the vote taken on any matter at each meeting which is
required to be tallied and certified by them in the resolution of the
Board of Directors appointing them or the appointment of the presiding
officer at such meeting as the case may be. Except as otherwise provided
by these By-Laws or by law, such inspectors shall also decide all questions
touching upon the qualification of voters, the validity of proxies and
ballots, and the acceptance and rejection of votes. The Board of Directors
shall have the authority to make rules establishing presumptions as to the
validity and sufficiency of proxies.
SECTION 2.12. MINUTES OF SHAREHOLDER MEETINGS. The presiding officer,
secretary, and inspectors of election serving at a shareholders' meeting
shall constitute a committee to correct and approve the minutes of such
meeting. The approval thereof shall be evidenced by an endorsement thereon
signed by a majority of the committee.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 3.1. POWERS. The Board of Directors shall have the general
direction, management and control of all the property, business and affairs of
the Corporation and shall exercise all the powers that may be exercised or
performed by the Corporation, under the statutes, the Articles of
Incorporation, and these By-Laws.
SECTION 3.2. NUMBER, ELECTION AND TERM OF OFFICE. The Board of
Directors shall consist of ten (10) members, classified with respect to
the time for which they shall severally hold office by dividing them
into three classes, and after being so classified one-third (1/3) of
the Directors, or as near as may be shall be elected annually for a
term of three (3) years.
SECTION 3.3. VACANCIES. Any vacancy in the Board of Directors caused by
death, resignation or other reason shall be filled for the remainder of the
Director's term by a majority vote of the remaining Directors although less
than a quorum, or by the sole remaining director, and any director so
chosen shall hold office for a term expiring at the annual meeting of
shareholders at which the term of office of the class of directors to
which such director has been elected expires. All Directors of the
Corporation shall hold office until their successors are duly elected
and qualified.
SECTION 3.4. ANNUAL MEETINGS. A meeting of the Directors whose
terms have not expired and the newly elected Directors, to be known as
the annual meeting of the Board of Directors, for the election of
officers and for the transaction of such other business as may
properly come before the meeting, shall be held on the same day as the
annual meeting of the shareholders, at that time and place determined
by the Board of Directors or at such date, time and place otherwise
set by the Chairman.
SECTION 3.5. REGULAR MEETINGS. Regular monthly meetings of the Board of
Directors shall be held from time to time (either within or without the state)
as the Board may by resolution determine, without call and without notice, and
unless otherwise determined all such regular monthly meetings shall be held at
the principal business office of the Corporation on the fourth Tuesday of each
and every month at 10:30 a.m.
SECTION 3.6. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called at any time by the Chairman, by the President,
or by the Chairman upon the written request of any four (4) Directors by
giving, or causing the Secretary to give, to each Director, notice in
accordance with Article IV of these By-Laws.
SECTION 3.7. QUORUM. At all meetings of the Board of Directors, a
majority of the Directors shall constitute a quorum for the transaction
of business and the act of a majority of those present shall be necessary
and sufficient for the taking of any action thereat, but a less number may
adjourn the meeting from time to time until a quorum is present.
SECTION 3.8. ACTION BY WRITTEN CONSENT. Unless otherwise restricted by
statute, the Articles of Incorporation or these By-Laws, any action required
or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if a written consent
thereto is signed by all directors or by all members of such committee,
as the case may be, and such written consent is filed with the minutes of
proceedings of the Board of Directors or of such committee.
SECTION 3.9. ATTENDANCE BY CONFERENCE TELEPHONE. Members of the Board
of Directors or any committee thereof may participate in a meeting of such
Board of Directors or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
SECTION 3.10. COMMITTEES. (a) The Board of Directors may from time to
time, in its discretion, by resolution passed by a majority of the Board,
designate, and appoint, from the directors, committees of one or more persons
which shall have and may exercise such lawfully delegable powers and duties
conferred or authorized by the resolutions of designation and appointment.
The Board of Directors shall have power at any time to change the members
of any such committee, to fill vacancies, and to discharge any such
committee.
(b) Unless the Board of Directors shall provide otherwise, the presence
of one-half of the total membership of any committee of the Board of Directors
shall constitute a quorum for the transaction of business at any meeting of
such committee and the act of a majority of those present shall be necessary
and sufficient for the taking of any action thereat.
ARTICLE IV.
NOTICES.
SECTION 4.1. NOTICES. Notices to directors and shareholders shall be in
writing and delivered personally or mailed to their addresses appearing on the
records of the Corporation or, if to directors, by telegram, cable, telephone,
telecopy, facsimile or a nationally recognized overnight delivery service.
Notice to directors of special meetings by mail shall be given at least two
days before the meeting. Notice to directors of special meetings by
telegram, cable, personal delivery, telephone, telecopy or facsimile
shall be given a reasonable time before the meeting, but in no event
less than one hour before the meeting. Notice by mail or recognized
overnight delivery service shall be deemed to be given when sent to the
director at his or her address appearing on the records of the Corporation.
Notice by telegram or cable shall be deemed to be given when the telegram
or cable addressed to the director at his or her address appearing
on the records of the Corporation is delivered to the telegraph company.
Notice
by telephone, telecopy or facsimile shall be deemed to be given when
transmitted by telephone, telecopy or facsimile to the telephone,
telecopy or facsimile number appearing on the records of the Corporation
for the director (regardless of whether the director shall have personally
received such telephone call or telecopy or facsimile message).
SECTION 4.2. WAIVER OF NOTICE. Whenever any notice is required, a
waiver thereof signed by the person entitled to such notice, whether
before or after the time stated therein, and filed with the minutes or
corporate records, shall be deemed equivalent thereto. Attendance of any
person at any meeting of shareholders or directors shall constitute a
waiver of notice of such meeting, except when such person attends only
for the express purpose of objecting, at the beginning of the meeting
(or in the case of a director's meeting, promptly upon such director's
arrival), to the transaction of any business at the meeting and
does not thereafter vote for or assent to action taken at the meeting.
ARTICLE V.
OFFICERS.
SECTION 5.1. DESIGNATION; NUMBER; ELECTION. The officers of the
Corporation shall be chosen by the Board of Directors and may consist of a
Chairman, a President, one or more Vice Presidents, a Secretary, one or more
Assistant Secretaries, a Treasurer, one or more Assistant Treasurers, a
Controller and one or more Assistant Controllers. One person may hold any two
offices except those of Chairman or President, and Secretary.
SECTION 5.2. TERM OF OFFICE; VACANCIES; REMOVAL. Such officers shall be
elected by the Board of Directors at its annual meeting, and shall hold office
for one year and/or until their respective successors shall have been duly
elected. The Board of Directors may from time to time, elect or appoint such
other officers and agents as it shall deem necessary, who shall hold their
offices for such terms and shall exercise such powers and perform such
duties as may be prescribed by the Board of Directors. Vacancies
among the officers of the Corporation shall be filled by the Board of
Directors. Any officer or agent elected or appointed by the Board of
Directors may be removed at any time by the affirmative vote of a
majority of the whole Board of Directors.
SECTION 5.3. COMPENSATION OF OFFICERS. The Board of Directors or a
committee of the Board shall have the authority to fix the compensation of the
officers of the Corporation.
SECTION 5.4. CHAIRMAN. The Chairman shall be the chief executive
officer of the Company and shall have general authority and supervision
over the management and direction of the affairs of the Company, and
supervision of all departments and of all officers of the Company. The
Chairman shall, subject to the other provisions of these by-laws, have
such other powers and perform such other duties as usually devolve
upon the chief executive officer of a company or as may be prescribed by
the Board of Directors, and shall, when present, preside at all meetings
of the shareholders and of the Board of Directors. When the
Board of Directors is not in session, the Chairman shall have authority
to suspend the authority of any other officer or officers, subject,
however, to the pleasure of the Board of Directors at its next meeting.
In case of the absence, disability, death, resignation or removal from
office of the Chairman, the powers and duties of the Chairman shall for
the time being devolve upon and be exercised by the President, unless
otherwise ordered by the Board of Directors.
SECTION 5.5. PRESIDENT. The President shall be the chief operating
officer of the Corporation and shall have such general authority and
supervision over the management and direction of the affairs of the
Corporation, subject to the authority of the Chairman, as shall
usually devolve upon a chief operating officer of a corporation. The
President shall, subject to the other provisions of these By-Laws,
have such other powers and perform such other duties as usually
devolve upon the President of a corporation, and such further duties
as may be prescribed for the President by the Chairman or the Board of
Directors. In case of the absence, disability, death, resignation or
removal from office of the President, the powers and duties of the
President shall, for the time being, devolve upon and be exercised
by the Chairman, and in case of the absence, disability, death,
resignation, or removal from office of both the Chairman and
the President, the powers and duties of the President shall for the time being
devolve upon and be exercised by the Vice President so appointed by the Board
of Directors.
SECTION 5.6. VICE PRESIDENTS. Each of the Vice Presidents shall have
such powers and duties as may be prescribed by the Board of Directors, the
Chairman or the President.
SECTION 5.7. SECRETARY. The Secretary shall attend and keep the minutes
of all meetings of the Board of Directors and of the shareholders. The
Secretary shall have charge and custody of the corporate records and
corporate seal of the Corporation, and shall in general perform all the
duties incident to the office of secretary of a corporation, subject at
all times to the direction and control of the Board of Directors, the
Chairman and the President.
SECTION 5.8. ASSISTANT SECRETARIES. Each of the Assistant Secretaries
shall have such duties and powers as may be prescribed by the Board of
Directors or be delegated by the Chairman or the President. In the
absence or disability of the Secretary, the powers and duties of the
Secretary shall devolve upon such one of the Assistant Secretaries as the
Board of Directors, the Chairman or the President may designate, or, if
there be but one Assistant Secretary, then upon such Assistant Secretary;
and such Assistant Secretary shall thereupon have and exercise such
powers and duties during such absence or disability of the Secretary.
SECTION 5.9. TREASURER. The Treasurer shall have charge of, and
shall be responsible for, the collection, receipt, custody and
disbursement of the funds of the Corporation, and shall also have the
custody of all securities belonging to the Corporation. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper receipts or making proper vouchers
for such disbursements, and shall at all times preserve the same
during the term of office. When necessary or proper, the Treasurer shall
endorse, on behalf of the Corporation, all checks, notes, or other obligations
payable to the Corporation or coming into possession of the Treasurer for
and on behalf of the Corporation, and shall deposit the funds arising
therefrom, together with all other funds of the Corporation coming into
possession of the Treasurer, in the name and to the credit of the
Corporation in such bank or banks as the Board of Directors shall from
time to time by resolution direct. The Treasurer shall perform all
duties which are incident to the office of treasurer of a corporation,
subject at all time to the direction and control of the Board of Directors,
the Chairman and the President.
The Treasurer shall give the Corporation a bond if required by the
Board of Directors in a sum, and with one or more sureties, satisfactory
to the Board, for the faithful performance of the duties of the office of
Treasurer, and for the restoration to the Corporation, in case of the
death, resignation, retirement or removal from office of the Treasurer,
of all books, papers, vouchers, money or other property of whatever .
kind in the possession or under the control of the Treasurer belonging
to the Corporation.
SECTION 5.10. ASSISTANT TREASURERS. Each of the Assistant Treasurers
shall have such powers and duties as may be prescribed by the Board of
Directors or be delegated by the Chairman or the President. In the
absence or disability of the Treasurer, the powers and duties shall
devolve upon such one of the Assistant Treasurers as the Board of
Directors, the Chairman or the President may designate, or, if there
be but one Assistant Treasurer, then upon such Assistant Treasurer who
shall thereupon have and exercise such powers and duties during such
absence or disability of the Treasurer. Each Assistant Treasurer shall
likewise give the Corporation a bond if required by the Board of Directors
upon like terms and conditions as the bond required of the Treasurer.
SECTION 5.11. CONTROLLER. The Controller shall have control over all
accounts and records pertaining to moneys, properties, materials and supplies.
The Controller shall have executive direction of the bookkeeping and
accounting departments, and shall have general supervision over the
records in all other departments pertaining to moneys, properties,
materials and supplies. The Controller shall have charge of the
preparation of the financial budget, and such other powers and duties
as are commonly incident to the office of controller of a corporation,
subject at all times to the direction and control of the Board of
Directors, the Chairman and the President.
SECTION 5.12. ASSISTANT CONTROLLERS. Each of the Assistant Controllers
shall have such powers and duties as may be prescribed by the Board of
Directors or be delegated by the Chairman or the President. In the
absence or disability of the Controller, the powers and duties of the
Controller shall devolve upon such one of the Assistant Controllers as the
Board of Directors, the Chairman or the President may designate, or,
if there be but one Assistant Controller, then upon such Assistant
Controller who shall thereupon have and exercise such powers and duties
during such absence or disability of the Controller.
ARTICLE VI.
CONDUCT OF BUSINESS.
SECTION 6.1. CONTRACTS, DEEDS AND OTHER INSTRUMENTS. All agreements
evidencing obligations of the Corporation, including but not limited to
contracts, trust deeds, promissory notes, sight drafts, time drafts and
letters of credit (including applications therefor), may be signed by
any one of the Chairman, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary, any Assistant Secretary,
any other person authorized by a resolution of the Board of Directors,
and any other person authorized by the Chairman, as evidenced by a
written instrument of delegation. Any such authorization by the Board of
Directors or the Chairman shall remain in effect until rescinded by
action of the Board of Directors or (in the case of a delegation by the
Chairman) by the Chairman and, where it identifies the authorized
signatory by office rather than by name, shall not be rescinded solely
by virtue of a change in the person holding that office or a temporary vacancy
in that office.
A certified copy of these By-Laws and/or any authorization given
hereunder may be furnished as evidence of the authorities herein granted,
and all persons shall be entitled to rely on such authorities in the
case of a specific contract, conveyance or other transaction without
the need of a resolution of the Board of Directors specifically
authorizing the transaction involved.
SECTION 6.2. CHECKS. Checks and other negotiable instruments for the
disbursement of Corporation funds may be signed by any one of the Chairman,
the President, any Vice President, the Treasurer, the Controller and the
Secretary in such manner as shall from time to time be determined by
resolution of the Board of Directors. Electronic or wire transfers to
funds may be authorized by any officer of the Corporation who is
authorized pursuant to this Section 6.2 to disburse Corporation funds
by check or other negotiable instrument.
SECTION 6.3. DEPOSITS. Securities, notes and other evidences of
indebtedness shall be kept in such places, and deposits of checks, drafts and
funds shall be made in such banks, trust companies or depositories, as shall
be recommended and approved by any two of the Chairman, the President, any
Vice President and the Treasurer.
SECTION 6.4. VOTING OF STOCK. Unless otherwise ordered by the Board
of Directors, the Chairman, the President or any Vice President shall
have the power to execute and deliver on behalf of the Corporation
proxies on stock owned by the Corporation appointing a person or persons
to represent and vote such stock at any meeting of stockholders, with
full power of substitution, and shall have power to alter or rescind such.
appointment. Unless otherwise ordered by the Board of Directors, the
Chairman, the President or any Vice President shall have the power on
behalf of the Corporation to attend and to act and vote at any meeting of
stockholders of any corporation in which the Corporation holds stock
and shall possess and may exercise any and all rights and powers incident to
the ownership of such stock, which, as the owner thereof, the Corporation
might have possessed and exercised if present. The Board may confer like
powers upon any other person or persons.
SECTION 6.5. TRANSFER OF STOCK. Such form of transfer or assignment
customary or necessary to effect a transfer of stocks or other securities
standing in the name of the Corporation shall be signed by the Chairman, the
President, any Vice President or the Treasurer, and the Secretary or an
Assistant Secretary shall sign as witness if required on the form. A
corporation or person transferring any such stocks or other securities
pursuant to a form of transfer or assignment so executed shall be fully
protected and shall be under no duty to inquire whether the Board of
Directors has taken action in respect thereof.
ARTICLE VII.
SHARE CERTIFICATES AND THEIR TRANSFER.
SECTION 7.1. SHARE CERTIFICATES. Certificates for shares of the
Corporation shall be signed by the Chairman, the President or any Vice
President, and by the Secretary or any Assistant Secretary, and shall not
be valid unless so signed. Such certificates shall be appropriately
numbered and contain the name of the registered holder, the number of
shares and the date of issue. If such certificate is countersigned (a)
by a transfer agent other than the Corporation or its employee, or (b)
by a registrar other than the Corporation or its employee, any other
signature on the certificate may be a facsimile.
In case any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued,
it may be issued by the Corporation with the same effect as if he, she or
it were such officer, transfer agent, or registrar at the date of issue.
SECTION 7.2. TRANSFER OF SHARES. Upon surrender to the Corporation or a
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation and such transfer agent to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction. No certificate shall be issued in
exchange for any certificate until the former certificate for the same
number of shares of the same class and series shall have been surrendered
and cancelled, except as provided in Section 7.4.
SECTION 7.3. REGULATIONS. The Board of Directors shall have authority
to make rules and regulations concerning the issue, transfer and
registration of certificates for shares of the Corporation.
SECTION 7.4. LOST, STOLEN AND DESTROYED CERTIFICATES. The Corporation
may issue a new certificate or certificates for shares in place of any
issued certificate alleged to have been lost, stolen or destroyed upon such
terms and conditions as the Board of Directors may prescribe.
SECTION 7.5. REGISTERED SHAREHOLDERS. The Corporation shall be entitled
to treat the holder of record (according to the books of the Corporation) of
any share or shares as the holder in fact thereof and shall not be bound to
recognize any equitable or other claim to or interest in such share or
shares on the part of any other party whether or not the Corporation shall
have express or other notice thereof, except as expressly provided by law.
SECTION 7.6. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may
from time to time appoint a transfer agent and a registrar in one or more
cities, may require all certificates evidencing shares of the Corporation
to bear the signatures of a transfer agent and a registrar, may provide that
such certificates shall be transferable in more than one city, and may
provide for the functions of transfer agent and registrar to be combined in
one agency.
ARTICLE VIII.
INDEMNIFICATION.
SECTION 8.1. LITIGATION BROUGHT BY THIRD PARTIES. The Corporation 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, whether
civil, criminal, administrative or investigative, formal or informal (other
than an action by or in the right of the Corporation) (an "Action") by
reasons of the fact that he or she is or was a director, officer, employee or
agent of the Corporation (a "Corporate Person"), or is or was serving at the
request of the Corporation as a director, officer, employee, agent, partner,
trustee or member or in another authorized capacity (collectively, an
"Authorized Capacity") of or for another corporation, unincorporated
association, business trust, partnership, joint venture, trust,
individual or other legal entity, whether or not organized or formed
for profit (collectively, "Another Entity"), against expenses (including
attorneys' fees), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection
with such Action ("Expenses") if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any Action by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, that the person had
reasonable cause to believe his or her conduct was unlawful.
SECTION 8.2. LITIGATION BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any action by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact
that he or she is or was a Corporate Person, or is or was serving at
the request of the Corporation in an Authorized Capacity of or for
Another Entity against Expenses actually and reasonably incurred by
him or her in connection with that defense or settlement of such action
if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation,
except that 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 for willful negligence or misconduct in the performance of
his duty to the Corporation unless and only to the extent that a court of
equity or the court in which such action was pending shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court of equity or
other court shall deem proper.
SECTION 8.3. SUCCESSFUL DEFENSE. To the extent that a person who
is or was a Corporate Person or is or was serving in an Authorized Capacity
of Another Entity at the request of the Corporation and has been successful
on the merits or otherwise in defense of any action, referred to in Section
8.1 or 8.2 of this Article, or in defense of any claim, issue or matter
therein, he or she shall be indemnified against Expenses actually and
reasonably incurred by him or her in connection therewith.
SECTION 8.4 DETERMINATION OF CONDUCT. Any indemnification under Section
8.1 or 8.2 of this Article (unless ordered by a court) shall be made by the
Corporation only upon a determination that indemnification of the person is
proper in the circumstances because he or she has met the applicable
standard of conduct set forth in said Section 8.1 or 8.2. Such
determination shall be made (a) by the Board of Directors by a majority
vote of a quorum consisting of directors not at the time parties to such
action, suit or proceeding, or (b) if a quorum cannot be obtained, by a
majority vote of a committee duly designated by the Board of Directors
(in which designation directors who are parties may participate)
consisting of two or more directors not at the time parties to such
action, suit or proceeding, or (c) by special legal counsel, or (d) by
the shareholders; provided, however, that shares owned by or voted
under the control of persons who are at the time parties to such action,
suit or proceeding may not be voted on the determination.
SECTION 8.5. ADVANCE PAYMENT. The Corporation shall advance Expenses
reasonably incurred by any Corporate Person in any Action in advance of the
final disposition thereof upon the undertaking of such party to repay the
advance unless it is ultimately determined that such party is entitled to
indemnification hereunder, if (a) the indemnitee furnishes the Corporation
a written affirmation of his or her good faith belief that he or she has
satisfied the standard of conduct in Section 8.1 or 8.2 and (b) a
determination is made by those making the decision pursuant to Section 8.4
that the facts then known would not preclude indemnification under these
By-Laws.
SECTION 8.6. BY-LAW NOT EXCLUSIVE. The indemnification provided by this
Article 8 shall not be deemed exclusive of any other rights to which any
person may be entitled under any by-law, agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 8.7. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Corporate Person or is
or was serving at the request of the Corporation in an Authorized Capacity
of or for Another Entity against any liability asserted against him or
her and incurred by him or her in any such capacity, or arising out of
his or her status as such, whether or not the Corporation would have
the power to indemnify him or her against such liability under the
provisions of this Article 8 or the Indiana Business Corporation Law.
SECTION 8.8. EFFECT OF INVALIDITY. The invalidity or
unenforceability of any provision of this Article 8 shall not affect the
validity or enforceability of the remaining provisions of this Article 8.
SECTION 8.9. DEFINITION OF CORPORATION. For purposes of this Article 8,
references to "the Corporation" shall include, in addition to the surviving or
resulting corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger.
SECTION 8.10. CHANGE IN LAW. Notwithstanding the foregoing provisions
of Article 8, the Corporation shall indemnify any person who is or was a
Corporate Person or is or was serving at the request of the Corporation
in an Authorized Capacity of or for Another Entity to the full extent
permitted by the Indiana Business Corporation Law or by any other
applicable law, as may from time to time be in effect.
ARTICLE IX.
GENERAL.
SECTION 9.1. FISCAL YEAR. The fiscal year of the Corporation shall
begin on the 1st day of January and end on the 31st day of December in
each year.
SECTION 9.2. CORPORATE SEAL. The corporate seal shall be circular in
form and shall have inscribed thereon the words "NIPSCO Industries, Inc. -
Corporate Seal - Indiana."
SECTION 9.3. AMENDMENTS. These By-Laws may be altered, amended or
repealed in whole or in part, and new By-Laws may be adopted, at any
annual, regular or special meeting of the Board of Directors by the
affirmative vote of a majority of a quorum of the Board of Directors.
SECTION 9.4. DIVIDENDS. Subject to any provisions of any applicable
statute or of the Articles of Incorporation, dividends may be declared upon
the capital stock of the Corporation by the Board of Directors at any
regular or special meeting thereof; and such dividends may be paid in cash,
property or shares of the Corporation.
SECTION 9.5. CONTROL SHARES. The Terms "control shares" and "control
share acquisition" used in this Section 9.5 shall have the meanings set
forth in Indiana Business Corporation Law Section 23-1-42-1, et seq. (the
"Act"). Control shares of the Corporation acquired in a control share
acquisition shall have only such voting rights as are conferred by the Act.
Control shares of the Corporation acquired in a control share acquisition
with respect to which the acquiring person has not filed with the Corporation
the Statement required by the Act may, at any time during the period ending
sixty days after the last acquisition of control shares by the acquiring
person, be redeemed by the Corporation at the fair value thereof pursuant
to procedures authorized by a resolution of the Board of Directors. Such
authority may be exercised generally or confined to specific instances.
Control shares of the Corporation acquired in a control share acquisition
with respect to which the acquiring person was not granted full voting
rights by the shareholders as provided in the Act may, at any time after
the shareholder vote required by the Act, be redeemed by the Corporation at
the fair value thereof pursuant to procedures authorized by a resolution of
the Board of Directors. Such authority may be exercised generally or
confined to specific instances.