EXHIBIT 99.8
CERTIFICATE OF DESIGNATIONS
of the
SERIES A PREFERRED STOCK
of
NORTHERN NATURAL GAS COMPANY
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
NORTHERN NATURAL GAS COMPANY, a Delaware corporation (the
"Corporation"), HEREBY CERTIFIES that resolutions were duly adopted by the Board
of Directors of the Corporation in accordance with Section 151(g) of the General
Corporation Law of the State of Delaware pursuant to the authority conferred
upon the Board of Directors of the Corporation by the provisions of the Restated
Certificate of Incorporation of the Corporation as follows:
RESOLVED, that a series of the Corporation's Preferred Stock,
par value $0.01 per share ("Preferred Stock"), designated as Series A Preferred
Stock be and hereby is created and that the designation and number of shares
thereof and the powers, preferences and rights thereof are as follows:
SERIES A PREFERRED STOCK
1. Designation and Amount; No Fractional Shares. There shall
be a series of Preferred Stock designated as "Series A Preferred Stock" (the
"Series A Preferred Stock") and the authorized number of shares constituting
such series shall be 1,000. The Series A Preferred Stock is issuable in whole
shares only.
2. Dividends. Holders of shares of Series A Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of Directors
or a duly authorized committee thereof out of funds of the Corporation legally
available for payment of dividends, cumulative cash dividends at the rate of 6%
per annum, compounded quarterly, per share on the initial liquidation preference
of $1,500,000 per share (equivalent to $90,000 per annum per share of Series A
Preferred Stock). Dividends on the Series A Preferred Stock shall be payable
annually in arrears on January 31 of each year (each an "Annual Dividend Payment
Date") commencing on January 31, 2003; provided, however, the Corporation may
pay accrued dividends at any time that is not an Annual Dividend Payment Date at
its election (the date of the first dividend payment that is not an Annual
Dividend Payment Date is referred to herein as the "Initial Dividend Payment
Date"). After the Initial Dividend Payment Date, dividends on the Series A
Preferred Stock shall be payable quarterly in arrears commencing on the last day
of the calendar quarter immediately following the Initial Dividend Payment Date
(each such quarterly dividend
payment date is referred to herein as a "Quarterly Dividend Payment Date" and,
together with the Annual Dividend Payment Date, a "Dividend Payment Date"). If
any date on which dividends would otherwise be payable is a Saturday, Sunday or
a day on which banking institutions in the State of Texas are authorized or
obligated by law or executive order to close, then the dividends otherwise
payable on such date shall instead be payable on the next succeeding business
day. Dividends on shares of the Series A Preferred Stock shall be fully
cumulative and shall accumulate (whether or not declared and whether or not the
Corporation has funds legally available for the payment of dividends), on a
daily basis, without interest, from the previous Dividend Payment Date, except
that the first dividend shall accrue, without interest, from the date of initial
issuance of the Series A Preferred Stock. Dividends shall be payable, in
arrears, to holders of record as they appear in the records of the Corporation
at the close of business on the applicable record date, which shall be the 15th
day of the calendar month in which the applicable Dividend Payment Date falls or
such other date designated by the Board of Directors of the Corporation for the
payment of dividends that is not more than 30 nor less than 10 days prior to
such Dividend Payment Date. Any dividend payable on the Series A Preferred Stock
for any dividend period that is shorter or longer than a full quarterly or
annual period, as the case may be, shall be computed on the basis of the ratio
of the actual number of days in such partial period to the actual number of days
in such full quarterly or annual period. Additional dividends shall accrue with
respect to any dividends (including dividends payable pursuant to this sentence)
not paid by the Dividend Payment Date on which such dividend accrues; such
additional dividends shall accrue whether or not declared, at a rate of 6% per
annum compounded quarterly, and shall be payable in the same manner and at such
times as provided in this Section 2 with respect to dividends on each
outstanding share of Series A Preferred Stock.
No dividends may be declared or paid or set apart for payment
on any stock of the Corporation ranking on a parity with the Series A Preferred
Stock with respect to the payment of dividends unless there shall also be or
have been declared and paid or set apart for payment on the Series A Preferred
Stock dividends for all dividend payment periods of the Series A Preferred Stock
ending on or before the dividend payment date of such parity stock, ratably in
proportion to the respective amounts of dividends (x) accumulated and unpaid or
payable on such parity stock, on the one hand, and (y) accumulated and unpaid
through the dividend payment period or periods of the Series A Preferred Stock
next preceding such dividend payment date, on the other hand.
Except as set forth in the preceding paragraph, unless full
cumulative dividends on the Series A Preferred Stock have been paid through the
most recently completed quarterly or annual dividend period, as the case may be,
for the Series A Preferred Stock, no dividends may be paid or declared and set
apart for payment or other distribution made upon the Common Stock or on any
other stock of the Corporation ranking junior to or on a parity with the Series
A Preferred Stock as to dividends, nor may any of the Corporation's common
stock, par value $1.00 per share ("Common Stock"), or any other stock of the
Corporation ranking junior to or on a parity with the Series A Preferred Stock
as to dividends be redeemed, purchased or otherwise acquired for any
consideration (or any payment be made to or available for a sinking fund for the
redemption of any shares of such stock; provided, however, that any moneys
theretofore deposited in any sinking fund with respect to any such stock in
compliance with the provisions of such sinking fund may thereafter be applied to
the purchase or redemption of such stock in accordance with the terms of such
sinking fund, regardless of whether at the time of such
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application full cumulative dividends upon shares of the Series A Preferred
Stock outstanding to the most recent Dividend Payment Date shall have been paid
or declared and set apart for payment) by the Corporation; provided that any
such junior or parity stock or Common Stock may be converted into or exchanged
for stock of the Corporation ranking junior to the Series A Preferred Stock as
to dividends. Notwithstanding anything to the contrary in this paragraph, the
Corporation may at any time pay any dividend or other distribution resulting
from the cancellation by the Corporation of Debt (as defined in Section 5) owed
by Enron Corp. ("Enron") and its Affiliates (as defined in Section 5) to the
Corporation (the "Intercompany Note Receivable") under the zero-balance cash
management program of Enron (the "Cash Management Program"); provided, that such
cancellation of Debt does not at any time reduce the amount of the Intercompany
Note Receivable to a net amount less than the sum of (a) $240 million and (b) an
amount equal to all dividends (whether or not declared) accrued and accumulated
and unpaid on the shares of Series A Preferred Stock at such time.
3. Liquidation Preference. The shares of Series A Preferred
Stock shall rank, as to rights to distributions upon liquidation, dissolution or
winding up of the Corporation, prior to the shares of Common Stock and any other
stock of the Corporation ranking junior to the Series A Preferred Stock as to
rights upon liquidation, dissolution or winding up of the Corporation, so that
in the event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Series A Preferred Stock
shall be entitled to receive out of the assets of the Corporation legally
available for distribution to its stockholders, an amount equal to $1,500,000
per share, plus an amount equal to all dividends (whether or not declared)
accrued and accumulated and unpaid on the shares of Series A Preferred Stock to
the date of payment, before any distribution of assets is made to holders of
shares of Common Stock or any other class or series of stock of the Corporation
that ranks junior to the Series A Preferred Stock as to rights to distributions
upon liquidation, dissolution or winding up. The holders of the Series A
Preferred Stock shall not be entitled to receive the preferential amounts as
aforesaid until the liquidation preference of any other stock of the Corporation
ranking senior to the Series A Preferred Stock as to rights to distributions
upon liquidation, dissolution or winding up shall have been paid (or a sum set
aside therefor sufficient to provide for payment) in full. After payment of the
full amount of the preferential amounts as aforesaid, the holders of shares of
Series A Preferred Stock will not be entitled to any further participation in
any distribution of assets by the Corporation. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of shares of Series A
Preferred Stock and any stock ranking on a parity with the Series A Preferred
Stock as to rights to distributions on liquidation, dissolution or winding up of
the Corporation shall be insufficient to pay in full the preferential amounts to
which such stock would be entitled, then such assets, or the proceeds thereof,
shall be distributable among such holders ratably in accordance with the
respective amounts which would be payable on such shares if all amounts payable
thereon were paid in full. For the purposes hereof, any sale of all or
substantially all of the assets of the Corporation and any consolidation, merger
or acquisition pursuant to which the holders of the outstanding capital stock of
the Corporation immediately prior to such acquisition, consolidation or merger
fail to hold capital stock representing 100% of the voting power of the
Corporation or surviving entity immediately following such acquisition,
consolidation or merger shall be deemed to be a liquidation, dissolution or
winding up of the Corporation.
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4. Voting Rights. The Series A Preferred Stock, except as
provided herein or as otherwise from time to time required by law, shall have no
voting rights. Whenever, at any time or times, two quarterly dividends, whether
or not consecutive, on the outstanding shares of Series A Preferred Stock or on
any stock ranking on a parity with the Series A Preferred Stock with respect to
the payments of dividends shall be in arrears, the holders of the Series A
Preferred Stock shall vote separately as a class upon all matters upon which
holders of the Common Stock (and of any other securities which may similarly be
entitled to vote with the holders of the Common Stock) are entitled to vote,
other than with respect to the election of directors, and, when so voting, shall
be entitled to one vote for each share of Series A Preferred Shock held, and
shall be entitled, notwithstanding any provision hereof, to notice of any
stockholders' meeting in accordance with the bylaws of the Corporation. The
voting rights set forth in the previous sentence shall continue until all
dividends accumulated on such shares of Preferred Stock on which voting rights
have been conferred, including the Series A Preferred Stock, for the past
dividend periods and the then current dividend period shall have been fully paid
or declared and a sum sufficient for the payment thereof set aside for payment,
whereupon such right shall terminate, subject to revesting in the event of each
and every subsequent default of the character above mentioned.
5. Protective Provisions. So long as any shares of any Series
A Preferred Stock remain outstanding, the Corporation shall not, without the
affirmative vote of the holders of at least a majority of the shares of such
Series A Preferred Stock:
5.1 Redemptions. Except as provided in Section 6, directly
or indirectly redeem, purchase or otherwise acquire,
any of the Corporation's or any Subsidiary's equity
securities;
5.2 Issuances. Authorize, issue, or enter into any
agreement providing for the issuance (contingent or
otherwise) of (x) any notes or debt securities
containing equity features (including, without
limitation, any notes or debt securities issued in
connection with the issuance of equity securities or
containing profit participation features) or (y) any
equity securities (or any securities convertible into
or exchangeable for any equity securities, including
any warrants or stock options);
5.3 Mergers. Merge or consolidate, or enter into an
agreement providing for any merger or consolidation,
with any Person if the holders of the Corporation's
capital stock prior to the transaction will own less
than 100% of the voting power of the surviving
corporation's capital stock after the transaction;
5.4 Sale of Assets. Except as provided in Schedule 5.4,
sell, lease or otherwise dispose of any assets of the
Corporation, other than obsolete equipment or inventory
and other than assets sales in the ordinary course of
business consistent with past practice not to exceed an
aggregate of $20 million within any 12-month period;
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5.5 Bankruptcy. Pursuant to or within the meaning of Title
11 of the United States Code or any similar federal,
state or foreign law for the relief of debtors,
commence a voluntary case, consent to the entry of an
order for relief against it in an involuntary case,
consent to the appointment of a receiver, trustee,
assignee, liquidator or similar official of it or for
all or substantially all of its property, or make a
general assignment for the benefit of its creditors;
5.6 Charter Amendments. Make any amendment to or waive any
provision of the Corporation's certificate of
incorporation or bylaws, or file any resolution of the
Board with the Secretary of State of Delaware, in
either case which materially and adversely affects the
holders of the Preferred Shares and except for any
amendment to the certificate of incorporation of the
Corporation that are intended to make the Corporation
bankruptcy remote;
5.7 Investments and Loans. Make, or permit any Subsidiary
to make, any Investment in any Person or any loans or
advances to, or guarantees for the benefit of, any
person, other than (i) loans to any wholly owned
Subsidiary, (ii) loans of a maximum amount of $1,950
million to MCTJ Holding Co. LLC, (iii) loans pursuant
to the Cash Management Program and (iv) Investments,
loans, advances and guarantees made in the Ordinary
Course of Business;
5.8 Indebtedness. Create, incur, assume or suffer to exist,
or permit any of its Subsidiaries to create, incur,
assume or suffer to exist, Debt, other than (i) the
Debt outstanding as of the date hereof, (ii) bank Debt
incurred after the date hereof not exceeding $450
million in the aggregate on the terms contained in, or
with an interest rate and prepayment provisions not
substantially different from, the terms contained in,
that Commitment Letter dated October 31, 2001, between
the Corporation and certain banks and (iii) Permitted
Refinancing Debt;
5.9 Capital Expenditures. Make, or permit the Corporation
and its Subsidiaries, taken as a whole, to make Capital
Expenditures (including, without limitation, payments
with respect to capitalized leases), (i) during the
period from the date hereof through December 31, 2001,
totaling in excess of $40 million, (ii) during the year
ending December 31, 2002, totaling in excess of $115
million and (iii) thereafter, in excess of annual
budgeted amounts, except in each case for additional
expenditures not ordinarily classified as Capital
Expenditures that are required to be classified as
Capital Expenditures by applicable regulatory
requirements; and
5.11 Note Receivable. Allow the Intercompany Note Receivable
to be less than the sum of (a) $240 million and (b) an
amount equal to all dividends
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(whether or not declared) accrued and accumulated and
unpaid on the shares of Series A Preferred Stock at any
time.
For the purposes of this Section 5,
(a) "Affiliate" shall mean, with respect to any person, any other
person that directly or indirectly through one or more intermediaries controls,
is controlled by or is under common control with, the person in question;
provided, that none of Dynegy Inc. ("Dynegy") and its Affiliates shall be deemed
to be an Affiliate of the Corporation. For purposes of this definition of
Affiliate, "control" means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a person,
whether through ownership of voting securities or general partnership or member
interests, by contract or otherwise. Without limiting the generality of the
foregoing, a person shall be deemed to control any other person in which it or
any of its Affiliates owns, directly or indirectly, a majority of the ownership
interests.
(b) "Capital Expenditures" has the meaning ascribed to such term under
United States generally accepted accounting principles as in effect from time to
time, consistently applied.
(c) "Contingent Obligation" shall mean, as applied to any person, any
direct or indirect liability, contingent or otherwise, of that person with
respect to any indebtedness, lease, dividend, letter of credit or other similar
obligation of another, including, without limitation, any such obligation
directly or indirectly guaranteed, endorsed (other than for collection or
deposit in the ordinary course of business) co-made or discounted or sold with
recourse by that person, or in respect of which that person is otherwise
directly or indirectly liable, including, without limitation, any such
obligation for which that person is in effect liable through any agreement
(contingent or otherwise) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or to maintain the solvency or
any balance sheet, income or other financial condition of the obligor of such
obligation, or to make payment for any products, materials or supplies or for
any transportation, services or lease regardless of the non-delivery or
non-furnishing thereof, in any such case if the purpose or intent of such
agreement is to provide assurance that such obligation will be paid or
discharged, or that any agreements relating thereto will be complied with, or
that the holders of such obligation will be protected (in whole or in part)
against loss in respect thereof. The amount of any Contingent Obligation shall
be equal to the amount of the obligation, or portion thereof, so guaranteed or
otherwise supported.
(d) "Debt" shall mean, with respect to any person, the aggregate
amount, without duplication, of (i) all obligations for borrowed money; (ii) all
obligations evidenced by bonds, debentures, notes or other similar instruments;
(iii) all obligations to pay the deferred purchase price of property or
services; (iv) all capitalized lease obligations; (v) all obligations or
liabilities of others secured by a lien on any asset owned by such person
whether or not such obligation or liability is assumed, to the extent of the
lesser of such obligation or liability or the book value of such asset; (vi) all
Contingent Obligations of such person; and (vii) any other obligations or
liabilities which are required by generally accepted accounting principles to be
shown as debt on a balance sheet, other than trade payables and liabilities
pursuant to the tax allocation agreement between Enron and the Corporation.
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(e) "Investment" as applied to any Person means (a) any direct or
indirect purchase or other acquisition by such Person of any notes, obligations,
instruments, stock, securities or ownership interest of any other Person and (b)
any capital contribution by such Person to any other Person.
(f) "Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity,
quality and frequency).
(g) "Permitted Refinancing Debt" shall mean any Debt of the Corporation
or any of its Subsidiaries issued in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund other Debt of
the Corporation or any of its Subsidiaries (other than intercompany Debt);
provided that:
(1) the principal amount of such Permitted Refinancing
Debt does not exceed the principal amount of, plus
accrued interest on, the Debt so extended,
refinanced, renewed, replaced, defeased or refunded
(plus the amount of necessary fees and expenses
incurred in connection therewith and any premiums
paid on the Debt so extended, refinanced, renewed,
replaced, defeased or refunded); and
(2) such Permitted Refinancing Debt has a final maturity
date no earlier than the final maturity date of, and
has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity
of, the Debt being extended, refinanced, renewed,
replaced, defeased or refunded.
(h) "Person" means any individual, partnership, joint venture,
corporation, limited liability company, trust, unincorporated organization or
other entity.
(i) "Subsidiary," when used with respect to any person, shall mean any
corporation, limited liability company, partnership, association or other
business entity of which (a) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by such person or
(b) if a partnership, limited liability company, association or other business
entity, a majority of the partnership or other similar ownership interest
thereof is at the time owned or controlled, directly or indirectly, by such
person. For purposes hereof, a person shall be deemed to have a majority
ownership interest in a partnership, limited liability company, association or
other business entity if such person, directly or indirectly, is allocated a
majority of partnership, limited liability company, association or other
business entity gains or losses, or is or controls the managing director or
general partner of such partnership, limited liability company, association or
other business entity.
(j) "Weighted Average Life to Maturity" shall mean, when applied to any
Debt at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a)
the amount of each then remaining installment,
sinking fund, serial maturity or other required
payments of principal, including payment at final
maturity, in respect
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thereof, by (b) the number of years (calculated to
the nearest one-twelfth) that will elapse between
such date and the making of such payment; by
(2) the then outstanding principal amount of such Debt.
6. Redemption. The shares of Series A Preferred Stock shall be
redeemable at the option of the Corporation in accordance with this Section 6:
6.1 Per share redemption payment. If one of the events
set forth in Section 6.5 gives rise to an option on
the part of the Corporation to redeem all, but not
less than all, of the outstanding shares of Series A
Preferred Stock, then at such time as the shares are
redeemed the Corporation may redeem, to the extent it
has legally available funds therefor, all, but not
less than all, shares of Series A Preferred Stock
outstanding at a redemption price per share equal to
the original liquidation preference amount of
$1,500,000 per share (the "Redemption Price");
provided, that on the date of redemption the Board of
Directors, or duly authorized committee thereof,
declares and pays accrued and accumulated and unpaid
dividends on all outstanding shares of Series A
Preferred Stock.
6.2 Notice of Redemption. If the Corporation exercises
its option to redeem all, but not less than all, of
the outstanding shares of Series A Preferred Stock,
pursuant to this Section 6 then at such time as the
Corporation shall redeem such shares, notice of such
redemption shall be given by certified mail, return
receipt requested, to each holder of record of the
shares to be redeemed, at such holder's address as
the same appears on the stock register of the
Corporation at least 30 days prior to the redemption
date. The notice shall state:
6.2.1. the redemption date;
6.2.2. the place or places in Houston, Texas where
certificates for such shares are to be
surrendered for payment of the Redemption
Price; and
6.2.3. that dividends on the shares to be redeemed
will cease to accrue on such redemption
date.
6.3 Effect of notice of redemption. If Notice of
Redemption is delivered as set forth above, then from
and after the redemption date (unless the Corporation
fails to pay the Redemption Price on the redemption
date) dividends on the Series A Preferred Stock so
called for redemption shall cease to accrue, and said
shares shall no longer be deemed to be outstanding,
and all rights of the holders thereof as stockholders
of the Corporation (except the right to receive from
the Corporation the Redemption Price) shall cease.
Upon surrender in accordance with said notice of the
certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board shall
so require and the notice shall so
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state), such shares shall be redeemed by the
Corporation at the Redemption Price aforesaid.
6.4 Authorized but unissued shares. Any shares of Series
A Preferred Stock that shall at any time have been
redeemed or purchased by the Corporation shall, after
such redemption, have the status of authorized but
unissued shares or Preferred Stock, without
designation as to series until such shares are once
more designated as part of a particular series by the
Board.
6.5 Events giving rise to an option to redeem.
6.5.1. Redemption option lasting six months. The
Corporation will have the option to redeem
all, but not less than all, of the
outstanding Series A Preferred Stock for a
period of six months from the date of any of
the following events:
6.5.1.1. The Merger Agreement has been
terminated pursuant to Section 9.1
thereof;
6.5.1.2. The Merger Agreement has been
terminated pursuant to Section
9.2(a) thereof;
6.5.1.3. The Merger Agreement has been
terminated pursuant to Section
9.2(d) thereof; or
6.5.1.4. The third anniversary of the date
that the Merger Agreement has been
terminated pursuant to Section
9.2(b), 9.3(c), 9.4(a) or 9.4(b)
thereof.
6.5.2. Redemption option lasting one year. The
Corporation will have the option to redeem
all, but not less than all, of the
outstanding Series A Preferred Stock for a
period of one year from the date of any of
the following events:
6.5.2.1. The Merger Agreement has been
terminated pursuant to Section
9.2(c);
6.5.2.2. Enron notifies Dynegy that it is
terminating the Merger Agreement
pursuant to Section 9.3(a) of the
Merger Agreement;
6.5.2.3. The Merger Agreement has been
terminated pursuant to Section
9.3(b); or
6.5.2.4. The Merger Agreement has been
terminated pursuant to Section
9.4(c).
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For the purposes of this Section 6, "Merger Agreement" shall
mean that certain Agreement and Plan of Merger among Dynegy, Stanford, Inc.,
Sorin, Inc., Badin, Inc. and Enron dated as of November 7, 2001.
7. Rank. Any stock of any class or classes or series of the
Corporation shall be deemed to rank:
7.1 prior to shares of the Series A Preferred Stock,
either as to dividends or upon liquidation,
dissolution or winding up, or both, if the holders of
stock of such class or classes or series shall be
entitled by the terms thereof to the receipt of
dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of
shares of the Series A Preferred Stock;
7.2 on a parity with shares of the Series A Preferred
Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, whether or not
the dividend rates, dividend payment dates, or
liquidation prices per share thereof are different
from those of the Series A Preferred Stock, if the
holders of stock of such class or classes or series
shall be entitled by the terms thereof to the receipt
of dividends or of amounts distributed upon
liquidation, dissolution or winding up, as the case
may be, in proportion to their respective dividend
rates or liquidation prices, without preference or
priority of one over the other as between the holders
of such stock and the holders of shares of Series A
Preferred Stock; and
7.3 junior to shares of the Series A Preferred Stock,
either as to dividends or upon liquidation,
dissolution or winding up, or both, if such class or
classes or series shall be Common Stock or if the
holders of the Series A Preferred Stock shall be
entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or
priority to the holders of stock of such class or
classes or series.
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IN WITNESS WHEREOF, said Northern Natural Gas Company has caused this
Certificate to be signed by Drew J. Fossum, its Vice President and General
Counsel, on November 7, 2001.
NORTHERN NATURAL GAS COMPANY
/s/ DREW J. FOSSUM
------------------------------
Name: Drew J. Fossum
Title: Vice President and
General Counsel