FIRST AMENDMENT TO AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
This Amendment (the "Amendment") is made and entered into as of November
16, 1998 by and among NIPSCO Industries, Inc., an Indiana corporation
("Nipsco"), Acquisition Gas Company, Inc., a Massachusetts corporation
("Acquisition"), and Bay State Gas Company, a Massachusetts corporation (the
"Company").
RECITALS
1. This Amendment amends that certain Amended and Restated Agreement and
Plan of Merger, dated as of December 18, 1997, and amended and restated as of
March 4, 1998, between Nipsco and the Company (as may be further amended, the
"Agreement") pursuant to which Nipsco and the Company agreed, subject to the
satisfaction or waiver of certain conditions, to effect the Merger. Unless
otherwise expressly indicated in this Amendment, capitalized terms used in this
Amendment have the meanings assigned to such terms in the Agreement.
2. Acquisition is a wholly-owned subsidiary of Nipsco organized for the
purpose of effecting the Merger. The Board of Directors of Acquisition has
determined that the Merger is in its shareholder's best interests and has
approved the Merger.
3. Acquisition desires to join and become a party to the Agreement and the
parties thereto agree to such joinder.
4. The parties hereto desire to amend the Agreement with respect to the
matters set forth herein.
In consideration of the mutual covenants set forth in this Amendment, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree that the Agreement is hereby amended
as follows:
1. Acquisition. (a) Upon execution of this Amendment, Acquisition joins and
becomes a party to the Agreement and shall be fully bound by and subject to all
of the terms and conditions of the Agreement as though an original party
thereto. Acquisition agrees to adopt the Agreement and perform its obligations
under the Agreement.
(b) Acquisition hereby represents and warrants to the Company as follows:
(A) Organization, Standing and Corporate Power. Acquisition is a
corporation duly organized and validly existing under the laws of the
Commonwealth of Massachusetts. Acquisition has delivered to the Company
complete and correct copies of its Articles of Organization and
by-laws, as amended to the date of this Amendment.
(B) Acquisition Capital Structure. As of the date hereof, the
authorized capital stock of Acquisition consists of 1,000 common
shares, without par value, all of which are issued and outstanding and
owned by Nipsco. All such outstanding common shares are duly
authorized, validly issued, fully paid and nonassessable and not
subject to preemptive rights.
(C) Authority; Noncontravention. Acquisition has all requisite
corporate power and authority to enter into the Agreement and to carry
out its obligations thereunder. The execution and delivery of the
Agreement by Acquisition and the consummation by it of the transactions
contemplated under the Agreement have been duly authorized by all
necessary corporate action on the part of Acquisition. The Agreement
has been duly executed and delivered by Acquisition and Nipsco, and
assuming this Agreement has been duly executed and delivered by the
Company, constitutes a valid and binding obligation of each of Nipsco
and Acquisition, enforceable against each of them in accordance with
its terms, except that the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws now
or hereafter in effect relating to creditors' rights generally and by
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). The execution and
delivery of this Agreement do not, and the consummation of the
transactions contemplated by this Agreement will not, (i) conflict with
any of the provisions of the Articles of Organization or Bylaws of
Acquisition or, (ii) subject to the governmental filings and other
matters referred to in the following sentence, contravene any law, rule
or regulation of any state or the United States or any political
subdivision thereof or therein, or any order, writ, judgment,
injunction, decree, determination or award currently in effect which
contravention would, individually or in the aggregate, have a Nipsco
Material Adverse Effect or materially or adversely affect Acquisition's
ability to consummate the transactions contemplated hereby. No consent,
approval or authorization of, or declaration or filing with, or notice
to, any Governmental Entity which has not been received or made is
required by or with respect to Acquisition in connection with the
execution and delivery of the Agreement by Acquisition or the
consummation by it of the transactions contemplated hereby, except for
(i) the filing of articles of merger with the Massachusetts Secretary
and the filing of a copy of the articles of merger, certified by the
Massachusetts Secretary, in the registry of deeds in each district in
Massachusetts in which real property of the Company is situated; (ii)
filing with the SEC for authorization of the Merger under Section
9(a)(2) of the 1935 Act; and (iii) such other consents, approvals,
authorizations, filings or notices as are set forth in Section 4.4 of
the Nipsco Disclosure Schedule or as in the aggregate could not
reasonably be expected to have a Nipsco Material Adverse Effect.
(D) Acquisition Not to Engage in Operations. As of the date
hereof and prior to the Effective Time, Acquisition has not and will
not engage in any business or incur any liabilities or be a party to
any contract or agreement, other than as contemplated by this Agreement
or as specifically agreed to in writing by the Company.
2. Articles of Organization. Section 1.5 of the Agreement, "Articles of
Organization," is hereby amended to add the following at the end thereof: ",
except that at the Effective Time, Article I of the Charter shall be amended to
change the name of the Surviving Corporation to "Bay State Gas Company."
3. Directors. Schedule l.7 of the Agreement is hereby deleted in its
entirety and replaced with the attached revised Schedule l.7.
4. Form of Election. Section 2.2.4 of the Agreement, "Form of Election," is
hereby amended to delete the following parenthetical from the first sentence
thereof: "(or by an appropriate guarantee of delivery of such Company
Certificate signed by a firm that is a member of any registered national
securities exchange or a member of the National Association of Securities
Dealers, Inc. or a bank, broker, dealer, credit union, savings association or
other entity that is a member in good standing of the Securities Transfer
Agent's Medallion Program, the New York Stock Exchange Medallion Signature
Guaranty Program or the Stock Exchange Medallion Program)".
5. Deemed Non-Election. Section 2.2.5 of the Agreement is hereby deleted in
its entirety and the following new Section 2.2.5 is inserted:
"2.2.5 Deemed Non-Election. For the purposes hereof, a holder of
Company Shares who does not submit a Form of Election that is
received by the Paying Agent prior to the Election Deadline (as
defined in Section 2.2.6) shall be deemed not to have made an
effective Cash Election. If Nipsco or the Paying Agent shall
determine that any purported Cash Election was not properly made,
unless the requirement for an effective election is waived by
Nipsco in its sole discretion, such purported Cash Election shall
be deemed to be of no force and effect."
6. Election Deadline. Section 2.2.6 of the Agreement, "Election Deadline,"
is hereby deleted in its entirety and the following new Section 2.2.6 is
inserted:
"2.2.6 Election Deadline. As soon as practicable after the
Effective Time, Nipsco shall require the Paying Agent to mail a
Form of Election and an updated Prospectus Supplement to each
record holder of certificates that immediately prior to the
Effective Time represented Company Shares that have been
converted pursuant to Section 2.2. The Form of Election will set
forth the date by which it must be received by the Paying Agent
from record holders of certificates that immediately prior to the
Effective Time represented Company Shares in order for cash
elections to be effective (the "Election Deadline"). The Election
Deadline will be 5:00 p.m., New York City time, no earlier than
the tenth business day after the mailing of the Form of
Election."
7. Letter of Transmittal. Section 2.3.2, "Letter of Transmittal," is hereby
amended to delete the first parenthetical of the first sentence.
8. Representation on Nipsco Board. Section 5.14 of the Agreement,
"Representation on Nipsco Board," is hereby deleted in its entirety and the
following new Section 5.14 is inserted:
"5.14 Representation on Nipsco Board. Nipsco shall nominate and
recommend at its annual meeting in 1999 one director of the
Company for election to the Nipsco Board, who is to be mutually
determined by Nipsco and the Company and who shall, subject to
election by the Nipsco shareholders, serve on the Nipsco Board
for the term to which such director is elected."
9. Termination of Company Dividend Reinvestment Plan. Section 5.16 of the
Agreement, "Termination of Company Dividend Reinvestment Plan," is hereby
deleted in its entirety and the following new Section 5.16 is inserted:
"5.16 Company Dividend Reinvestment Plan. Nipsco shall take all
actions necessary to provide that, following the Effective Time,
each Company Share held in the Company Dividend Reinvestment and
Stock Purchase Plan for which a Cash Election has not been made
(the "DRIP Shares") shall be converted into such number of Nipsco
Shares to be enrolled in the Nipsco Automatic Dividend
Reinvestment and Share Purchase Plan as is equal to the product
of each DRIP Share multiplied by the Exchange Ratio."
10. Notices. Section 10.1 of the Agreement, "Notices," is hereby deleted in
its entirety and the following new Section 10.1 is inserted:
"10.1 Notices. Any notice or communication given pursuant to this
Agreement must be in writing and shall be deemed to have been
duly given if mailed (by registered or certified mail, postage
prepaid, return receipt requested), transmitted by facsimile or
delivered by courier, as follows:
If to the Company, to:
Bay State Gas Company
300 Friberg Parkway
Westborough, Massachusetts 01581-5039
Attention: Roger A. Young
Telephone: (508) 836-7000
Facsimile: (508) 836-7075
with a copy to:
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019-5389
Attention: Douglas W. Hawes, Esq.
Telephone: (212) 424-8000
Facsimile: (212) 424-8500
If to Nipsco or Acquisition, to:
Nipsco Industries, Inc.
801 E. 86th Avenue
Merrillville, Indiana 46410
Attention: Stephen P. Adik
Telephone: (219) 647-6012
Facsimile: (219) 647-6060
with copies to:
Schiff Hardin & Waite
6600 Sears Tower
Chicago, Illinois 60606
Attention: Peter V. Fazio, Jr.
Telephone: (312) 876-1000
Facsimile: (312) 258-5600
All notices and other communications required or permitted under
this Agreement that are addressed as provided in this Section
10.1 shall, whether sent by mail, facsimile or courier, be deemed
given upon the first Business Day after actual delivery to the
party to whom such notice or other communication is sent (as
evidenced by the return receipt or shipping invoice signed by a
representative of such party or by facsimile confirmation). Any
party from time to time may change its address for the purpose of
notices to that party by giving a similar notice specifying a new
address, but no such notice shall be deemed to have been given
until it is actually received by the party sought to be charged
with the contents thereof. For purposes of this Section 10.1,
"Business Day" shall mean a day other than Saturday, Sunday or
any day on which the principal commercial banks located in
Massachusetts are authorized or obligated to close under the laws
of Massachusetts."
Except as otherwise set forth in this Amendment, the provisions of the
Agreement shall continue in full force and effect.
* * * * *
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
by the duly authorized officers of the parties and the corporate seals have been
affixed hereto as of the date set forth above.
NIPSCO INDUSTRIES, INC.
By: /s/ Gary L. Neale
__________________________________________
Name: Gary L. Neale
Title: Chairman, President and Chief
Executive Officer
BAY STATE GAS COMPANY
By: /s/ Thomas W. Sherman
__________________________________________
Name: Thomas W. Sherman
Title: Vice President
By: /s/ Thomas W. Sherman
__________________________________________
Name: Thomas W. Sherman
Title: Treasurer
ACQUISITION GAS COMPANY, INC.
By: /s/ Jeffrey W. Yundt
__________________________________________
Name: Jeffrey W. Yundt
Title: President
By: /s/ Stephen P. Adik
__________________________________________
Name: Stephen P. Adik
Title: Treasurer