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EXHIBIT 3-A
RESTATED
CERTIFICATE OF INCORPORATION
OF
THE COLUMBIA GAS SYSTEM, INC.
The Columbia Gas System, Inc., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows: The name of the
corporation is The Columbia Gas System, Inc. The Columbia Gas System, Inc. was
originally incorporated under the name Columbia Gas & Electric Corporation and
the original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on September 30, 1926. This
Restated Certificate of Incorporation was duly adopted pursuant to Sections
103, 242 and 245 of the General Corporation Law of the State of Delaware. Upon
filing with the Secretary of State, in accordance with Section 103, this
Restated Certificate of Incorporation amends and restates and shall henceforth
supersede the original Certificate of Incorporation and shall, as it may
thereafter be amended in accordance with its terms and applicable law, be the
Certificate of Incorporation of the Corporation. The text of the Certificate
of Incorporation as heretofore amended or supplemented is hereby amended and
restated to read in its entirety as follows:
ARTICLE I
Name
The name of this Corporation is THE COLUMBIA GAS SYSTEM, INC.
ARTICLE II
Registered Office
The registered office of the Corporation in the State of Delaware is
located at The Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent is The
Corporation Trust Company, and the address of said registered agent is
Corporation Trust Center, 1209 Orange Street, in said city.
ARTICLE III
Statement of Purpose
The nature of the business to be conducted and the purposes of the
Corporation are to engage in any lawful act or activity for which corporations
may be organized under the Delaware General
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Corporation Law, as amended.
ARTICLE IV
Classes of Capital Stock
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is One hundred forty million
(140,000,000), of which Forty million (40,000,000) shares of the par value of
Ten dollars ($10.00) each are to be of a class designated Preferred Stock and
One hundred million (100,000,000) shares of the par value of Ten dollars
($10.00) each are to be of a class designated Common Stock.
To the extent required by Section 1123(a)(6) of the U.S. Bankruptcy
Code (11 U.S.C Section 1123(a)(6)) no nonvoting equity securities of the
Corporation shall be issued. This provision shall have no further force and
effect beyond that required by Section 1123(a)(6) and is applicable only for so
long as such Section is in effect and applicable to the Corporation.
A. Common Stock
1. Subject to the powers, preferences and other special rights
afforded Preferred Stock by the provisions of this Article IV or resolutions
adopted pursuant hereto, the holders of the Common Stock shall be entitled to
receive to the extent permitted by Delaware law, such dividends as may from
time to time be declared by the Board of Directors.
2. Except as otherwise required by Delaware law and as otherwise
provided in this Article IV and resolutions adopted pursuant hereto with
respect to Preferred Stock, and subject to the provisions of the Bylaws of the
Corporation, as from time to time amended, with respect to the closing of the
transfer books and the fixing of a record date for the determination of
stockholders entitled to vote, the holders of the Common Stock shall
exclusively possess voting power for the election of directors and for all
other purposes, and the holders of the Preferred Stock shall have no voting
power and shall not be entitled to any notice of any meeting of stockholders.
3. At all elections of directors by stockholders of the Corporation,
each holder of Common Stock, and each holder of Preferred Stock, if entitled to
vote at such election, shall be entitled to as many votes as shall equal the
number of his shares of Common Stock or Preferred Stock, as the case may be,
multiplied by the number of directors for whom he as such holder shall then be
entitled to vote, and he may cast all of such votes for one of such directors
or may distribute them among any two or more of them as he may see fit.
4. Any action required or permitted to be taken by the stockholders
of the Corporation must be effected at an annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders. Except as otherwise required by law and subject
to the rights of the holders of any class or any series of Preferred Stock,
special meetings of stockholders of the Corporation may be called only by the
Board of Directors pursuant to a resolution adopted by a majority of the total
number of authorized directors (whether or not there
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exist any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption).
5. In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up of the Corporation, after
distribution in full of the preferential amounts, if any, to be distributed to
the holders of shares of Preferred Stock, as set forth in the resolutions
adopted with respect to such series under this Article IV, holders of Common
Stock shall be entitled to receive all of the remaining assets of the
Corporation of whatever kind available for distribution to the stockholders
ratably and in proportion to the number of shares of Common Stock held by them
respectively. The Board of Directors may distribute in kind to the holders of
Common Stock such remaining assets of the Corporation or may sell, transfer,
otherwise dispose of all or any part of such remaining assets to any other
corporation, trust or other entity and receive payment therefor in cash, stock
or obligations of such other corporation, trust or other entity, or a
combination thereof, and may set all or make any part of the consideration so
received and distributed or any balance thereof in kind to holders of Common
Stock. The merger or consolidation of the Corporation into or with any other
corporation, or the merger of any other corporation into it, or any purchase or
redemption of shares of stock of the Corporation of any class, shall not be
deemed to be a dissolution, liquidation, or winding-up of the Corporation for
the purposes of this Article IV.
B. Preferred Stock
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, of the classes of stock of
the Corporation which are fixed by the Certificate of Incorporation, and the
express grant of authority to the Board of Directors of the Corporation to fix
by resolution or resolutions the designations and the powers, preferences and
rights, and the qualifications, limitations or restrictions thereof, of the
shares of Preferred Stock, which are not fixed by the Certificate of
Incorporation, are as follows:
1. The Preferred Stock may be issued from time to time in any amount,
not exceeding in the aggregate the total number of shares of Preferred Stock
hereinabove authorized, as Preferred Stock of one or more series, as
hereinafter provided. All shares of any one series of Preferred Stock shall be
alike in every particular, each series thereof shall be distinctively
designated by letter or descriptive words, and all series of Preferred Stock
shall rank equally and be identical in all respects except as permitted by the
provisions of Subsection B.2 of this Article IV.
2. Authority is hereby expressly granted to and vested in the Board
of Directors from time to time to issue the Preferred Stock as Preferred Stock
of any series and in connection with the creation of each such series to fix,
by the resolution or resolutions providing for the issue of shares thereof, the
voting powers, designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or restrictions
thereof, if any, of such series, to the full extent now or hereafter permitted
by the laws of the State of Delaware. Pursuant to the foregoing general
authority vested in the Board of Directors, but not in limitation of the powers
conferred on the Board of Directors thereby and by the laws of the State of
Delaware, the Board of Directors is expressly authorized to determine with
respect to each series of Preferred Stock:
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(a) the designation of such series and number of shares
constituting such series;
(b) the dividend rate or amount of such series, the payment
dates for dividends on shares of such series, the status
of such dividends as cumulative or non-cumulative, the
date from which dividends on shares of such series, if
cumulative, shall be cumulative, and the status of such as
participating or non-participating after the payment of
dividends as to which such shares are entitled to any
preference;
(c) the price or prices (which amount may vary under different
conditions or at different dates) at which, and the times,
terms and conditions on which, the shares of such series
may be redeemed at the option of the Corporation;
(d) whether or not the shares of such series shall be made
optionally or mandatorily convertible into, or
exchangeable for, shares of any other class or classes or
of any other series of the same or any other class or
classes of stock of the Corporation or other securities
and, if made so convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and
the adjustments thereof, if any, at which such conversion
or exchange may be made and any other terms and conditions
of such conversion or exchange;
(e) whether or not the shares of such series shall be entitled
to the benefit of a retirement or sinking fund to be
applied to the purchase or redemption of shares of such
series, and if so entitled, the amount of such fund and
the manner of its application, including the price or
prices at which shares of such series may be redeemed or
purchased through the application of such fund;
(f) whether or not the issue of any additional shares of such
series or any future series in addition to such series or
of any shares of any other class of stock of the
Corporation shall be subject to restrictions and, if so,
the nature thereof;
(g) the rights and preferences, if any, of the holders of such
series of Preferred Stock upon the voluntary or
involuntary liquidation, dissolution or winding-up of the
Corporation, and the status of the shares of such series
as participating or non-participating after the
satisfaction of any such rights and preferences;
(h) the full or limited voting rights, if any, to be provided
for shares of such series, in addition to the voting
rights provided by law; and
(i) any other relative powers, preferences and participating,
optional or other special rights and the qualifications,
limitations or restrictions thereof, of shares of such
series;
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in each case, so far as not inconsistent with the
provisions of this Certificate of Incorporation or the
Delaware General Corporation Law then in effect.
ARTICLE V
Board of Directors
A. Election and Removal of Directors
1. The Board of Directors shall consist of not less than thirteen
(13) or more than eighteen (18) persons, the exact number to be fixed from time
to time exclusively by the Board of Directors pursuant to a resolution adopted
by a majority of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption), provided, however, this
provision shall not act to limit Board size in the event a class or classes of
Preferred Stock are entitled to elect directors to the exclusion of holders of
Common Stock. The directors shall be classified, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible, as may be provided in the manner specified in the Bylaws, Class I
Directors to hold office initially for a term expiring at the annual meeting of
stockholders to be held in 1997, Class II Directors to hold office initially
for a term expiring at the annual meeting of stockholders to be held in 1998,
and Class III Directors to hold office initially for a term expiring at the
annual meeting of stockholders to be held in 1999, with the members of each
class to hold office until their successors are duly elected and qualified. At
each annual meeting of the stockholders of the Corporation, the successors to
the class of directors whose term expires at that meeting shall be elected to
hold office for a term expiring at the annual meeting of stockholders held in
the third year following the year of their election.
2. Notwithstanding the foregoing and except as otherwise provided by
law, whenever the holders of any series of the Preferred Stock shall have the
right (to the exclusion of holders of Common Stock) to elect directors of the
Corporation pursuant to the provisions of Article IV and any resolution adopted
pursuant thereto, the election of such directors of the Corporation shall be
governed by the terms and provisions of said resolutions and such directors so
elected shall not be divided into classes pursuant to this Subsection A.2 of
Article V and shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the first year following their election or, if
such right of the holders of the Preferred Stock is terminated, for a term
expiring in accordance with the provisions of such resolutions.
3. Newly-created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause may be filled only by a majority vote of the directors
then in office, even though less than a quorum of the Board of Directors,
acting at a regular or special meeting. If any applicable provision of the
Delaware General Corporation Law or any
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resolution adopted pursuant to Article IV expressly confers power on
stockholders to fill such a directorship at a special meeting of stockholders,
such a directorship may be filled at such a meeting only by the affirmative
vote of at least 80 percent of the combined voting powers of the outstanding
shares of stock of the Corporation entitled to vote generally; provided,
however, that when (a) pursuant to the provisions of Article IV or any
resolutions adopted pursuant thereto, the holders of any series of Preferred
Stock have the right (to the exclusion of holders of the Common Stock), and
have exercised such right, to elect directors and (b) Delaware General
Corporation Law or any such resolution expressly confers on stockholders voting
rights as aforesaid, if the directorship to be filled had been occupied by a
director elected by the holders of Common Stock, then such directorship shall
be filled by an 80 percent vote as aforesaid, but if such directorship to be
filled had been elected by holders of Preferred Stock, then such directorship
shall be filled in accordance with the applicable resolutions adopted under
Article IV. Any director elected in accordance with the two preceding
sentences shall hold office for the remainder of the full term of the class of
directors in which the new directorship was created or the vacancy occurred and
until such director's successor shall have been elected and qualified unless
such director was elected by holders of Preferred Stock (acting to the
exclusion of the holders of Common Stock), in which case such director's term
shall expire in accordance with the applicable resolutions adopted pursuant to
Article IV. No decrease in the number of authorized directors constituting the
entire Board of Directors shall shorten the term of any incumbent director,
except, as otherwise provided in the applicable resolutions adopted pursuant to
Article IV, with respect to directorships created pursuant to one or more
series of Preferred Stock.
4. Subject to the rights of the holders of any class or series of
Preferred Stock to elect directors under specified circumstances, any director
or directors may be removed from office at any time, but only for cause and
only by the affirmative vote of the holders of at least 80 percent of the
combined voting power of all of the then-outstanding shares of stock of the
Corporation entitled to vote generally, voting together as a single class (it
being understood that for all purposes of this Article V, each share of
Preferred Stock shall have the number of votes, if any, granted to it pursuant
to this Certificate of Incorporation or any designation of terms of any class
or series of Preferred Stock made pursuant to this Certificate of
Incorporation).
5. Notwithstanding any other provision of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser
vote or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the stock of the Corporation required by law,
this Certificate of Incorporation or any Preferred Stock certificate of
designation, the affirmative vote of at least 80 percent of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such alteration, amendment or repeal
is presented to the Board for adoption), shall be required to alter, amend or
repeal this Article V, or any provision hereof.
B. Liability, Indemnification and Insurance
1. Limitation on Liability. To the fullest extent that the Delaware
General Corporation Law as it exists on the date hereof or as it may hereafter
be amended permits the limitation or elimination of the personal liability of
directors, no director of the Corporation shall be liable to the Corporation
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or its stockholders for monetary damages for breach of fiduciary duty as a
director. No amendment to or repeal of this Section B.1 shall apply to or have
any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
2. Right to Indemnification. The Corporation shall to the fullest
extent permitted by applicable law as then in effect indemnify any person (the
"Indemnitee") who was or is involved in any manner (including, without
limitation, as a party or a witness) or is threatened to be made so involved in
any threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (including
without limitation, any action, suit or proceeding by or in the right of the
Corporation to procure a judgment in its favor) (a "Proceeding") by reason of
the fact that such person is or was a director, officer, employee or agent of
the Corporation, or of the Columbia Gas System Service Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise (including, without limitation, any employee benefit plan) against
all expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such Proceeding. Such indemnification shall be a contract right and shall
include the right to receive payment of any expenses incurred by the Indemnitee
in connection with such Proceeding in advance of its final disposition,
consistent with the provisions of applicable law as then in effect.
3. Insurance, Contracts and Funding. The Corporation may purchase and
maintain insurance to protect itself and any Indemnitee against any expenses,
judgments, fines and amounts paid in settlement as specified in Subsection B.2
of this Section B or incurred by any Indemnitee in connection with any
Proceeding referred to in Subsection B.1 of this Section B, to the fullest
extent permitted by applicable law as then in effect. The Corporation may
enter into contracts with any director, officer, employee or agent of the
Corporation in furtherance of the provisions of this Section B and may create a
trust fund, grant a security interest or use other means (including, without
limitation, a letter of credit) to ensure the payment of such amounts as may be
necessary to effect indemnification as provided in this Section B.
4. Indemnification; No Exclusive Right. The right of indemnification
provided in this Section B shall not be exclusive of any other rights to which
those seeking indemnification may otherwise be entitled, and the provisions of
this Section B shall inure to the benefit of the heirs and legal
representatives of any person entitled to indemnity under this Section B and
shall be applicable to Proceedings commenced or continuing after the adoption
of this Section B, whether arising from acts or omissions occurring before or
after such adoption.
5. Advancement of Expenses; Procedures; Presumptions and Effect of
Certain Proceedings; Remedies. In furtherance, but not in limitation of the
foregoing provisions, the following procedures, presumptions and remedies shall
apply with respect to advancement of expenses and the right to indemnification
under this Section B:
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(a) Advancement of Expenses. All reasonable expenses incurred by
or on behalf of the Indemnitee in connection with any Proceeding shall
be advanced to the Indemnitee by the Corporation within twenty (20) days
after the receipt by the Corporation of a statement or statements from
the Indemnitee requesting such advance or advances from time to time,
whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the expenses incurred
by the Indemnitee and, if required by law at the time of such advance,
shall include or be accompanied by an undertaking by or on behalf of the
Indemnitee to repay the amounts advanced if it should ultimately be
determined that the Indemnitee is not entitled to be indemnified against
such expenses pursuant to this Section B .
(b) Procedure for Determination of Entitlement to Indemnification.
(i) To obtain indemnification under this Section B, an
Indemnitee shall submit to the Secretary of the Corporation a
written request, including such documentation and information as is
reasonably available to the Indemnitee and reasonably necessary to
determine whether and to what extent the Indemnitee is entitled to
indemnification (the "Supporting Documentation"). The
determination of the Indemnitee's entitlement to indemnification
shall be made not later than sixty (60) days after receipt by the
Corporation of the written request for indemnification together
with the Supporting Documentation. The Secretary of the
Corporation shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that the
Indemnitee has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under this
Section B shall be determined in one of the following ways: (A) by
a majority vote of the Disinterested Directors (as hereinafter
defined), even if they constitute less than a quorum of the Board;
(B) by a written opinion of Independent Counsel (as hereinafter
defined) if (x) a Change of Control (as hereinafter defined) shall
have occurred and the Indemnitee so requests or (y) if there are no
Disinterested Directors or a majority of such Disinterested
Directors so directs; (C) by the stockholders of the Corporation
(but only if a majority of the Disinterested Directors presents the
issue of entitlement to indemnification to the stockholders for
their determination); or (D) as provided in Section B.5(c) .
(iii) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section B.5(b)(ii), a majority of the Disinterested Directors shall
select the Independent Counsel (except that if there are no
Disinterested Directors, the Corporation's Chief Legal Officer
shall select the Independent Counsel), but only an Independent
Counsel to which the Indemnitee does not reasonably object;
provided, however, that if a Change of Control shall have occurred,
the Indemnitee shall select such Independent Counsel, but only an
Independent Counsel to which the Board of Directors does not
reasonably object.
(iv) The only basis upon which a finding of no entitlement to
indemnification may be made is that indemnification is prohibited
by law.
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(c) Presumptions and Effect of Certain Proceedings. Except as
otherwise expressly provided in this Section B, if a Change of Control
shall have occurred, the Indemnitee shall be presumed to be entitled to
indemnification under this Section B upon submission of a request for
indemnification together with the Supporting Documentation in accordance
with Section B.5(b)(i), and thereafter the Corporation shall have the
burden of proof to overcome that presumption in reaching a contrary
determination. In any event, if the person or persons empowered under
Section B.5(b) to determine entitlement to indemnification shall not
have been appointed or shall not have made a determination within sixty
(60) days after receipt by the Corporation of the request therefor
together with the Supporting Documentation, the Indemnitee shall be
deemed to be entitled to indemnification and the Indemnitee shall be
entitled to such indemnification unless (A) the Indemnitee
misrepresented or failed to disclose a material fact in making the
request for indemnification or in the Supporting Documentation or (B)
such indemnification is prohibited by law. The termination of any
Proceeding described in Section B.2, or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, adversely
affect the right of the Indemnitee to indemnification or create a
presumption that the Indemnitee did not act in good faith and in a
manner which the Indemnitee reasonably believed to be in or not opposed
to the best interests of the Corporation or, with respect to any
criminal Proceeding, that the Indemnitee had reasonable cause to believe
that the Indemnitee's conduct was unlawful.
(d) Remedies of Indemnitee.
(i) In the event that a determination is made, pursuant to
Section B.5(b) that the Indemnitee is not entitled to
indemnification under this Section B, (A) the Indemnitee shall be
entitled to seek an adjudication of his entitlement to such
indemnification either, at the Indemnitee's sole option, in (x) an
appropriate court of the State of Delaware or any other court of
competent jurisdiction or (y) an arbitration to be conducted by a
single arbitrator pursuant to the rules of the American Arbitration
Association; (B) any such judicial Proceeding or arbitration shall
be de novo and the Indemnitee shall not be prejudiced by reason of
such adverse determination; and (C) in any such judicial Proceeding
or arbitration the Corporation shall have the burden of proving
that the Indemnitee is not entitled to indemnification under this
Section B.
(ii) If a determination shall have been made or deemed to have
been made, pursuant to Section B.5(b) or (c), that the Indemnitee
is entitled to indemnification, the Corporation shall be obligated
to pay the amounts constituting such indemnification within five
(5) days after such determination has been made or deemed to have
been made and shall be conclusively bound by such determination
unless (A) the Indemnitee misrepresented or failed to disclose a
material fact in making the request for indemnification or in the
Supporting Documentation or (B) such indemnification is prohibited
by law. In the event that (x) advancement of expenses is not
timely made pursuant to Section B.5(a) or (y) payment of
indemnification is not made within five (5) days after a
determination of
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entitlement to indemnification has been made or deemed to have been
made pursuant to Section B.5(b) or (c), the Indemnitee shall be
entitled to seek judicial enforcement of the Corporation's obligation
to pay to the Indemnitee such advancement of expenses or
indemnification. Notwithstanding the foregoing, the Corporation may
bring an action, in an appropriate court in the State of Delaware or
any other court of competent jurisdiction, contesting the right of
the Indemnitee to receive indemnification hereunder due to the
occurrence of an event described in subclause (A) or (B) of this
clause (ii) (a "Disqualifying Event"); provided, however, that in any
such action the Corporation shall have the burden of proving the
occurrence of such Disqualifying Event.
(iii) The Corporation shall be precluded from asserting in any
judicial Proceeding or arbitration commenced pursuant to this
Section B.5(d) that the procedures and presumptions of this Section
B are not valid, binding and enforceable and shall stipulate in any
such court or before any such arbitrator that the Corporation is
bound by all the provisions of this Section B.
(iv) In the event that the Indemnitee, pursuant to this Section
B.5(d), seeks a judicial adjudication of or an award in arbitration
to enforce his rights under, or to recover damages for breach of,
this Section B, the Indemnitee shall be entitled to recover from
the Corporation, and shall be indemnified by the Corporation
against, any expenses actually and reasonably incurred by the
Indemnitee if the Indemnitee prevails in such judicial adjudication
or arbitration. If it shall be determined in such judicial
adjudication or arbitration that the Indemnitee is entitled to
receive part but not all of the indemnification or advancement of
expenses sought, the expenses incurred by the Indemnitee in
connection with such judicial adjudication or arbitration shall be
prorated accordingly.
(e) Definitions. For purposes of this Section B.5:
(i) "Change in Control" means (A) so long as the Public Utility
Holding Company Act of 1935 is in effect, any "company" becoming a
"holding company" in respect to the Corporation or any
determination by the Securities and Exchange Commission that any
"person" should be subject to the obligations, duties, and
liabilities if imposed by said Act by virtue of his, hers or its
influence over the management or policies of the Corporation, or
(B) whether or not said Act is in effect a change in control of the
Corporation of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934 (the "Act"), whether or
not the Corporation is then subject to such reporting requirement;
provided that, without limitation, such a change in control shall
be deemed to have occurred if (i) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Corporation
representing ten percent or more of the combined voting power of
the Corporation's then outstanding securities without the prior
approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such acquisition; (ii) the
Corporation is a party to a merger, consolidation, sale of assets
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or other reorganization, or a proxy contest, as a consequence of
which members of the Board of Directors in office immediately prior
to such transaction or event constitute less than a majority of the
Board of Directors thereafter; or (iii) during any period of two
consecutive years, individuals who at the beginning of such period
constituted the Board of Directors (including for this purpose any
new director whose election or nomination for election by the
Corporation's stockholders was approved by a vote of at least two-
thirds of the directors then still in office who were directors at
the beginning of such period) cease for any reason to constitute at
least a majority of the Board of Directors.
(ii) "Disinterested Director" means a director of the
Corporation who is not or was not a party to the Proceeding in
respect of which indemnification is sought by the Indemnitee.
(iii) "Independent Counsel" means a law firm or a member of a
law firm that neither presently is, nor in the past five years has
been, retained to represent: (A) the Corporation or the Indemnitee
in any matter material to either such party or (B) any other party
to the Proceeding giving rise to a claim for indemnification under
this Section B. Notwithstanding the foregoing, the term
"Independent Counsel" shall not include any person who, under the
applicable standards of professional conduct then prevailing under
the Delaware law, would have a conflict of interest in representing
either the Corporation or the Indemnitee in an action to determine
the Indemnitee's rights under this Section B.
6. Severability. If any provision or provisions of this Section B
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (i) the validity, legality and enforceability of the remaining
provision of this Section B (including, without limitation, all portions of any
paragraph of this Section B containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (ii)
to the fullest extent possible, the provisions of this Section B (including,
without limitation, all portions of any paragraph of this Section B containing
any such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
7. Successor Laws, Regulations and Agencies. Reference herein to laws,
regulations or agencies shall be deemed to include all amendments thereof,
substitutions therefor and successors thereto.
ARTICLE VI
General Powers of the Board of Directors
A. Bylaws
The Board of Directors shall have the power to make, alter, amend and
repeal the Bylaws of the Corporation in such form and with such terms as the
Board may determine, subject to the power
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granted to stockholders to alter or repeal the Bylaws provided under Delaware
law; provided, however, that, notwithstanding any other provision of this
Certificate of Incorporation or any provision of law which might otherwise
permit a lesser vote or no vote the affirmative vote of at least 80 percent of
the total number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any such
alteration, amendment or repeal is presented to the Board for adoption), shall
be required to alter, amend or repeal any provision of the Bylaws which is to
the same effect as any one or more sections of this Article VI.
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B. Charter Amendments
Subject to the provisions hereof, the Corporation, through its Board of
Directors, reserves the right at any time, and from time to time, to amend,
alter, repeal or rescind any provision contained in this Restated Certificate
of Incorporation in the manner now or hereinafter prescribed by law, and any
other provisions authorized by Delaware law at the time enforced may be added
or inserted, in the manner now or hereinafter prescribed by law; and any and
all rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other persons whomsoever by and pursuant to this
Restated Certificate of Incorporation in its present form or as hereinafter
amended are granted subject to the rights reserved in this Article.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been
signed under the Seal of the Corporation this 28th day of November, 1995.
THE COLUMBIA GAS SYSTEM, INC.
Attest: \ s\ C. A. Afshar By: \s\ M. W. O'Donnell
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Secretary Senior Vice President and Chief
Financial Officer
[SEAL]
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