1
Exhibit 3-D
================================================================================
RESTATED
CERTIFICATE OF INCORPORATION
Of
COLUMBIA ENERGY GROUP
[COLUMBIA ENERGY GROUP LOGO]
As Filed with the Delaware Secretary of State on November 28, 1995, and amended
and restated effective as of January 16, 1998.
================================================================================
2
2
RESTATED
CERTIFICATE OF INCORPORATION
OF
COLUMBIA ENERGY GROUP
Columbia Energy Group, a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows: The name of
the corporation is Columbia Energy Group. Columbia Energy Group 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 Columbia Energy Group.
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 Corporation Law,
as amended.
3
3
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 (S10.00) 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 (S10.00) each are to be of a class designated Common Stock.
To the extent required by Section 1123(aX6) 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
1
4
(whether or not there 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 herein above 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
2
5
Board of Directors is expressly authorized to determine with respect to
each series of Preferred Stock:
(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
3
6
(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;
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.
4
7
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 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
5
8
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 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.
6
9
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 Energy Group 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:
(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
7
10
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
8
11
(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 nova 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)
9
12
payment of indemnification is not made within five (5) days
after a determination of 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 preemptions 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
10
13
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 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
11
14
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 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.
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 as of this 16th day of
January, 1998.
COLUMBIA ENERGY GROUP
Attest: /s/C. M. Afshar BY: /s/ M. W. O'Donnell
----------------- ------------------------------
Secretary Senior Vice President and Chief
Financial Officer
[SEAL]
12