EXHIBIT 3.1
NIPSCO INDUSTRIES, INC.
BY-LAWS
Effective June 23, 1998
BY-LAWS
OF
NIPSCO INDUSTRIES, INC.
ARTICLE I.
OFFICES.
SECTION 1.1. Registered Office. The registered office of the Corporation
in the State of Indiana shall be at 5265 Hohman Avenue, in the City of Hammond,
County of Lake.
SECTION 1.2. Principal Business Office. The principal business office of
the Corporation shall be at 801 East 86th Avenue, in the Town of Merrillville,
County of Lake, in the State of Indiana.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 2.1. Place of Meetings. Meetings of the shareholders of the
Corporation shall be held at such place, within or without the State of Indiana,
as may be specified by the Board of Directors in the notice of such meeting, but
if no such designation is made, then at the principal business office of the
Corporation.
SECTION 2.2. Annual Meetings. The annual meeting of the shareholders
shall be held in each year on the second Wednesday in the month of April, if not
a legal holiday, and if a legal holiday, then on the next succeeding business
day that is not a legal holiday or on such other day as the Board of Directors
may determine; at the hour of ten o'clock a.m. or at such other time as the
Board of Directors
may determine, for the purpose of electing Directors and for the transaction of
such other business as may legally come before the meeting.
If for any reason any annual meeting shall not be held at the time herein
provided, the same may be held at any time thereafter, upon notice as
hereinafter provided, or the business thereof may be transacted at any special
meeting of shareholders called for that purpose.
SECTION 2.3. Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be called
by the Chairman, the President, or the Board of Directors, and shall be called
by the Chairman at the request in writing of a majority of the Board of
Directors, or at the request in writing of the shareholders holding at least
one-fourth of all the shares outstanding and entitled to vote on the business
proposed to be transacted thereat. All requests for special meetings of
shareholders shall state the time, place and the purpose or purposes thereof.
SECTION 2.4. Notice of Shareholders' Meetings. Notice of each meeting of
shareholders, stating the date, time and place, and, in the case of special
meetings, the purpose or purposes for which such meeting is called, shall be
given to each shareholder entitled to vote thereat not less than 10 nor more
than 60 days before the date of the meeting unless otherwise prescribed by
statute.
SECTION 2.5. Record Dates. (a) In order that the Corporation may
determine the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of shares
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a future date as the record date, which shall not be
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more than 60 nor less than 10 days before the date of such meeting or any other
action requiring a determination by shareholders.
(b) If a record date has not been fixed as provided in preceding subsection
(a), then:
(i) The record date for determining shareholders entitled to notice of
or to vote at a meeting of shareholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held; and
(ii) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
(c) Only those who shall be shareholders of record on the record date so
fixed as aforesaid shall be entitled to such notice of, and to vote at, such
meeting and any adjournment thereof, or to receive payment of such dividend or
other distribution, or to receive such allotment of rights, or to exercise such
rights, as the case may be, notwithstanding the transfer of any shares on the
books of the Corporation after the applicable record date; provided, however,
the Corporation shall fix a new record date if a meeting is adjourned to a date
more than 120 days after the date originally fixed for the meeting.
SECTION 2.6. Quorum and Adjournment. The holders of a majority of all the
capital shares issued and outstanding and entitled to vote at any meeting of the
shareholders, represented by the holders thereof in person or by proxy, shall be
requisite at all meetings of the shareholders to constitute a quorum for the
election of Directors or for the transaction of other business, unless otherwise
provided by law or
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by the Corporation's Articles of Incorporation, as amended (the "Articles of
Incorporation"). Whether or not there is such a quorum, the chairman of the
meeting or the shareholders present or represented by proxy representing a
majority of the shares present or represented may adjourn the meeting from time
to time without notice other than an announcement at the meeting. At such
adjourned meeting at which the requisite number of voting shares shall be
present or represented, any business may be transacted which might have been
transacted at the meeting originally called.
SECTION 2.7. Voting by Shareholders; Proxies. Every shareholder shall
have the right at every shareholders' meeting to one vote for each share
standing in his name on the books of the Corporation, except as otherwise
provided by law or by the Articles of Incorporation, and except that no share
shall be voted at any meeting upon which any installment is due and unpaid, or
which belongs to the Corporation. Election of directors at all meetings of the
shareholders at which directors are to be elected shall be by ballot, and a
plurality of the votes cast thereat shall be necessary to elect any Director.
If a quorum exists, action on a matter (other than the election of directors)
submitted to shareholders entitled to vote thereon at any meeting shall be
approved if the votes cast favoring the action exceed the votes cast opposing
the action, unless a greater number of affirmative votes is required by law or
by the Articles of Incorporation. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or a duly authorized attorney in
fact. No proxy shall be valid after eleven months from the date of its
execution unless a longer time is expressly provided therein. All voting at
meetings of shareholders shall be by ballot, except that the presiding officer
of the meeting may call for a viva voce vote on any matter other than the
election of directors, unless the holder or holders of ten percent (10%) or more
of the shares entitled to vote demands or demand a vote by ballot.
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SECTION 2.8. List of Shareholders. The Secretary shall make, or cause the
agent having charge of the stock transfer books of the Corporation to make, at
least five (5) days before each meeting of shareholders, a complete list of the
shareholders entitled by the Articles of Incorporation to vote at said meeting,
arranged in alphabetical order, with the address and number of shares so
entitled to vote held by each, which list shall be on file at the principal
business office of the Corporation and subject to inspection by any shareholder
within the usual business hours during said five (5) days either at the
principal business office of the corporation or a place in the city where the
meeting is to be held, which place shall be specified in the notice of meeting,
or, if not so specified, at the place where said meeting is to be held. Such
list shall be produced and kept open at the time and place of the meeting and
subject to the inspection of any shareholder during the holding of such meeting.
SECTION 2.9. Conduct of Business. (a) Presiding Officer. The Chairman,
when present, and in the absence of the Chairman the President, shall be the
presiding officer at all meetings of shareholders, and in the absence of the
Chairman and the President, the Board of Directors shall choose a presiding
officer. The presiding officer of the meeting shall have plenary power to
determine procedure and rules of order and make definitive rulings at meetings
of the shareholders.
(b) Annual Meetings of Shareholders. (i) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the shareholders may be made at an annual meeting
of shareholders (A) pursuant to the Corporation's notice of meeting, (B) by or
at the direction of the Board of Directors or (C) by any shareholder of the
Corporation who was a shareholder of record at the time of giving of notice
provided for in this Section 2.9, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 2.9.
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(ii) For nominations or other business to be properly brought before
any annual meeting by a shareholder pursuant to clause (C) of paragraph (b)(i)
of this Section 2.9, the shareholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a shareholder's
notice shall be delivered to the Secretary at the principal business office of
the Corporation not later than 150 days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is advanced by more than 30 days or delayed by more
than 60 days from such anniversary date, notice by the shareholder to be timely
must be so delivered not later than the 150th day prior to such annual meeting
or the 10th day following the day on which public announcement of the date of
such meeting is first made. Such shareholder's notice shall set forth (A) as to
each person whom the shareholder proposes to nominate for election or reelection
as a director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (B) as to any other business that the shareholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (C) as to
the shareholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (x) the name and address of such
shareholder, as they appear on the Corporation's books, and of such beneficial
owner and (y) the class and number of shares of the Corporation which are owned
beneficially and of record by such shareholder and such beneficial owner.
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(iii) The notice procedures of this Section 2.9 shall not apply to any
annual meeting if (A) with respect to annual meetings of shareholders subsequent
to the 1994 annual meeting of shareholders, the Corporation shall not have set
forth in its proxy statement for the preceding annual meeting of shareholders
the date by which notice of nominations by shareholders of persons for election
as directors or of other business proposed to be brought by shareholders at the
next annual meeting of shareholders must be received by the Corporation to be
considered timely pursuant to this Section 2.9 or (B) with respect to the 1994
annual meeting of shareholders, the Corporation shall have failed to issue a
public announcement setting forth such information not less than 30 days prior
to the date by which a shareholder's notice must be received by the Corporation
to be considered timely pursuant to this Section 2.9.
(c) Special Meetings of Shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of shareholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (A) by or at the direction of the Board of
Directors or (B) by any shareholder of the Corporation who is a shareholder of
record at the time of giving of notice provided for in this Section 2.9, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section 2.9. Nominations by shareholders of persons for election
to the Board of Directors may be made at such a special meeting of shareholders
if a shareholder's notice containing the information set forth in paragraph
(b)(ii) of this Section 2.9 shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the 150th day prior to such
Special Meeting or the 10th day following the date on which public announcement
is first made of the date of the special meeting and of the nominees proposed by
the Board of Directors to be elected at such meeting.
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(d) General. (i) Only such persons who are nominated in accordance with
the procedures set forth in this Section 2.9 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of shareholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 2.9. The presiding officer at the meeting shall have
the power and duty to determine whether a nomination or any business proposed to
be brought before the meeting was made in accordance with the procedures set
forth in this Section 2.9 and, if any proposed nomination or business is not in
compliance with this Section 2.9, to declare that such defective proposal shall
be disregarded.
(ii) For purposes of this Section 2.9, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Sections 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section 2.9, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 2.9. Nothing in this Section 2.9 shall be deemed to affect
any rights of shareholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
SECTION 2.10. Organization of Meetings. The Secretary, who may call on
any officer or officers of the Corporation for assistance, shall make all
necessary and appropriate arrangements for all meetings of shareholders, receive
all proxies and ascertain and report to each meeting of shareholders the number
of shares present, in person and by proxy. In the absence of the Secretary, the
Assistant Secretary shall perform the foregoing duties. The certificate and
report of the Secretary or Assistant Secretary, as
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to the regularity of such proxies and as to the number of shares present, in
person and by proxy, shall be received as prima facie evidence of the number of
shares present in person and by proxy for the purpose of establishing the
presence of a quorum at such meeting and for organizing the same, and for all
other purposes.
SECTION 2.11. Inspectors. At every meeting of shareholders it shall be
the duty of the presiding officer to appoint three (3) shareholders of the
Corporation inspectors of election to receive and count the votes of
shareholders. Each inspector shall take an oath to fairly and impartially
perform the duties of a inspector of the election and to honestly and truly
report the results thereof. Such inspectors shall be responsible for tallying
and certifying the vote taken on any matter at each meeting which is required to
be tallied and certified by them in the resolution of the Board of Directors
appointing them or the appointment of the presiding officer at such meeting as
the case may be. Except as otherwise provided by these By-Laws or by law, such
inspectors shall also decide all questions touching upon the qualification of
voters, the validity of proxies and ballots, and the acceptance and rejection of
votes. The Board of Directors shall have the authority to make rules
establishing presumptions as to the validity and sufficiency of proxies.
SECTION 2.12. Minutes of Shareholder Meetings. The presiding officer,
secretary, and inspectors of election serving at a shareholders' meeting shall
constitute a committee to correct and approve the minutes of such meeting. The
approval thereof shall be evidenced by an endorsement thereon signed by a
majority of the committee.
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ARTICLE III.
BOARD OF DIRECTORS.
SECTION 3.1. Powers. The Board of Directors shall have the general
direction, management and control of all the property, business and affairs of
the Corporation and shall exercise all the powers that may be exercised or
performed by the Corporation, under the statutes, the Articles of Incorporation,
and these By-Laws.
SECTION 3.2. Number, Election and Term of Office. The Board of Directors
shall consist of ten (10) members, classified with respect to the time for which
they shall severally hold office by dividing them into three classes, and after
being so classified one-third (1/3) of the Directors, or as near as may be,
shall be elected annually for a term of three (3) years.
SECTION 3.3. Vacancies. Any vacancy in the Board of Directors caused by
death, resignation or other reason shall be filled for the remainder of the
Director's term by a majority vote of the remaining Directors although less than
a quorum, or by the sole remaining director, and any director so chosen shall
hold office for a term expiring at the annual meeting of shareholders at which
the term of office of the class of directors to which such director has been
elected expires. All Directors of the Corporation shall hold office until their
successors are duly elected and qualified.
SECTION 3.4. Annual Meetings. A meeting of the Directors whose terms
have not expired and the newly elected Directors, to be known as the annual
meeting of the Board of Directors, for the election of officers and for the
transaction of such other business as may properly come before the meeting,
shall be held on the same day as the annual meeting of the shareholders, at that
time and place determined by the Board of Directors or at such date, time and
place otherwise set by the Chairman.
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SECTION 3.5. Regular Meetings. Regular monthly meetings of the Board of
Directors shall be held from time to time (either within or without the state)
as the Board may by resolution determine, without call and without notice, and
unless otherwise determined all such regular monthly meetings shall be held at
the principal business office of the Corporation on the fourth Tuesday of each
and every month at 10:30 a.m.
SECTION 3.6. Special Meetings. Special meetings of the Board of Directors
may be called at any time by the Chairman, by the President, or by the Chairman
upon the written request of any four (4) Directors by giving, or causing the
Secretary to give, to each Director, notice in accordance with Article IV of
these By-Laws.
SECTION 3.7. Quorum. At all meetings of the Board of Directors, a
majority of the Directors shall constitute a quorum for the transaction of
business and the act of a majority of those present shall be necessary and
sufficient for the taking of any action thereat, but a less number may adjourn
the meeting from time to time until a quorum is present.
SECTION 3.8. Action by Written Consent. Unless otherwise restricted by
statute, the Articles of Incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if a written consent thereto is
signed by all directors or by all members of such committee, as the case may be,
and such written consent is filed with the minutes of proceedings of the Board
of Directors or of such committee.
SECTION 3.9. Attendance by Conference Telephone. Members of the Board of
Directors or any committee thereof may participate in a meeting of such Board of
Directors or committee by means of
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conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such meeting.
SECTION 3.10. Committees. (a) The Board of Directors may from time to
time, in its discretion, by resolution passed by a majority of the Board,
designate, and appoint, from the directors, committees of one or more persons
which shall have and may exercise such lawfully delegable powers and duties
conferred or authorized by the resolutions of designation and appointment. The
Board of Directors shall have power at any time to change the members of any
such committee, to fill vacancies, and to discharge any such committee.
(b) Unless the Board of Directors shall provide otherwise, the presence of
one-half of the total membership of any committee of the Board of Directors
shall constitute a quorum for the transaction of business at any meeting of such
committee and the act of a majority of those present shall be necessary and
sufficient for the taking of any action thereat.
ARTICLE IV.
NOTICES.
SECTION 4.1. Notices. Notices to directors and shareholders shall be in
writing and delivered personally or mailed to their addresses appearing on the
records of the Corporation or, if to directors, by telegram, cable, telephone,
telecopy, facsimile or a nationally recognized overnight delivery service.
Notice to directors of special meetings by mail shall be given at least two days
before the meeting. Notice to directors of special meetings by telegram, cable,
personal delivery, telephone, telecopy or facsimile
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shall be given a reasonable time before the meeting, but in no event less than
one hour before the meeting. Notice by mail or recognized overnight delivery
service shall be deemed to be given when sent to the director at his or her
address appearing on the records of the Corporation. Notice by telegram or cable
shall be deemed to be given when the telegram or cable addressed to the director
at his or her address appearing on the records of the Corporation is delivered
to the telegraph company. Notice by telephone, telecopy or facsimile shall be
deemed to be given when transmitted by telephone, telecopy or facsimile to the
telephone, telecopy or facsimile number appearing on the records of the
Corporation for the director (regardless of whether the director shall have
personally received such telephone call or telecopy or facsimile message).
SECTION 4.2. Waiver of Notice. Whenever any notice is required, a waiver
thereof signed by the person entitled to such notice, whether before or after
the time stated therein, and filed with the minutes or corporate records, shall
be deemed equivalent thereto. Attendance of any person at any meeting of
shareholders or directors shall constitute a waiver of notice of such meeting,
except when such person attends only for the express purpose of objecting, at
the beginning of the meeting (or in the case of a director's meeting, promptly
upon such director's arrival), to the transaction of any business at the meeting
and does not thereafter vote for or assent to action taken at the meeting.
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ARTICLE V.
OFFICERS.
SECTION 5.1. Designation; Number; Election. The officers of the
Corporation shall be chosen by the Board of Directors and may consist of a
Chairman, a President, one or more Vice Presidents, a Secretary, one or more
Assistant Secretaries, a Treasurer, one or more Assistant Treasurers, a
Controller, one or more Assistant Controllers, and an Auditor. One person may
hold any two offices except those of Chairman or President, and Secretary.
SECTION 5.2. Term of Office; Vacancies; Removal. Such officers shall be
elected by the Board of Directors at its annual meeting, and shall hold office
for one year and/or until their respective successors shall have been duly
elected. The Board of Directors may from time to time, elect or appoint such
other officers and agents as it shall deem necessary, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
may be prescribed by the Board of Directors. Vacancies among the officers of the
Corporation shall be filled by the Board of Directors. Any officer or agent
elected or appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the whole Board of Directors.
SECTION 5.3. Compensation of Officers. The Board of Directors or a
committee of the Board shall have the authority to fix the compensation of the
officers of the Corporation.
SECTION 5.4. Chairman. The Chairman shall be the chief executive officer
of the Company and shall have general authority and supervision over the
management and direction of the affairs of the Company, and supervision of all
departments and of all officers of the Company. The Chairman shall,
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subject to the other provisions of these by-laws, have such other powers and
perform such other duties as usually devolve upon the chief executive officer of
a company or as may be prescribed by the Board of Directors, and shall, when
present, preside at all meetings of the shareholders and of the Board of
Directors. When the Board of Directors is not in session, the Chairman shall
have authority to suspend the authority of any other officer or officers,
subject, however, to the pleasure of the Board of Directors at its next meeting.
In case of the absence, disability, death, resignation or removal from office of
the Chairman, the powers and duties of the Chairman shall for the time being
devolve upon and be exercised by the President, unless otherwise ordered by the
Board of Directors.
SECTION 5.5. President. The President shall be the chief operating
officer of the Corporation and shall have such general authority and supervision
over the management and direction of the affairs of the Corporation, subject to
the authority of the Chairman, as shall usually devolve upon a chief operating
officer of a corporation. The President shall, subject to the other provisions
of these By-Laws, have such other powers and perform such other duties as
usually devolve upon the President of a corporation, and such further duties as
may be prescribed for the President by the Chairman or the Board of Directors.
In case of the absence, disability, death, resignation or removal from office of
the President, the powers and duties of the President shall, for the time being,
devolve upon and be exercised by the Chairman, and in case of the absence,
disability, death, resignation, or removal from office of both the Chairman and
the President, the powers and duties of the President shall for the time being
devolve upon and be exercised by the Vice President so appointed by the Board
of Directors.
SECTION 5.6. Vice Presidents. Each of the Vice Presidents shall have such
powers and duties as may be prescribed by the Board of Directors, the Chairman
or the President.
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SECTION 5.7. Secretary. The Secretary shall attend and keep the minutes
of all meetings of the Board of Directors and of the shareholders. The Secretary
shall have charge and custody of the corporate records and corporate seal of the
Corporation, and shall in general perform all the duties incident to the office
of secretary of a corporation, subject at all times to the direction and control
of the Board of Directors, the Chairman and the President.
SECTION 5.8. Assistant Secretaries. Each of the Assistant Secretaries
shall have such duties and powers as may be prescribed by the Board of Directors
or be delegated by the Chairman or the President. In the absence or disability
of the Secretary, the powers and duties of the Secretary shall devolve upon such
one of the Assistant Secretaries as the Board of Directors, the Chairman or the
President may designate, or, if there be but one Assistant Secretary, then upon
such Assistant Secretary; and such Assistant Secretary shall thereupon have and
exercise such powers and duties during such absence or disability of the
Secretary.
SECTION 5.9. Treasurer. The Treasurer shall have charge of, and shall be
responsible for, the collection, receipt, custody and disbursement of the funds
of the Corporation, and shall also have the custody of all securities belonging
to the Corporation. The Treasurer shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, taking proper receipts or making
proper vouchers for such disbursements, and shall at all times preserve the same
during the term of office. When necessary or proper, the Treasurer shall
endorse, on behalf of the Corporation, all checks, notes, or other obligations
payable to the Corporation or coming into possession of the Treasurer for and on
behalf of the Corporation, and shall deposit the funds arising therefrom,
together with all other funds of the Corporation coming into possession of the
Treasurer, in the name and to the credit of the Corporation in such bank or
banks as the Board of Directors shall from time to time by resolution direct.
The Treasurer shall perform
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all duties which are incident to the office of treasurer of a corporation,
subject at all time to the direction and control of the Board of Directors, the
Chairman and the President.
The Treasurer shall give the Corporation a bond if required by the Board of
Directors in a sum, and with one or more sureties, satisfactory to the Board,
for the faithful performance of the duties of the office of Treasurer, and for
the restoration to the Corporation, in case of the death, resignation,
retirement or removal from office of the Treasurer, of all books, papers,
vouchers, money or other property of whatever kind in the possession or under
the control of the Treasurer belonging to the Corporation.
SECTION 5.10. Assistant Treasurers. Each of the Assistant Treasurers
shall have such powers and duties as may be prescribed by the Board of Directors
or be delegated by the Chairman or the President. In the absence or disability
of the Treasurer, the powers and duties shall devolve upon such one of the
Assistant Treasurers as the Board of Directors, the Chairman or the President
may designate, or, if there be but one Assistant Treasurer, then upon such
Assistant Treasurer who shall thereupon have and exercise such powers and duties
during such absence or disability of the Treasurer. Each Assistant Treasurer
shall likewise give the Corporation a bond if required by the Board of Directors
upon like terms and conditions as the bond required of the Treasurer.
SECTION 5.11. Controller. The Controller shall have control over all
accounts and records pertaining to moneys, properties, materials and supplies.
The Controller shall have executive direction of the bookkeeping and accounting
departments, and shall have general supervision over the records in all other
departments pertaining to moneys, properties, materials and supplies. The
Controller shall have charge of the preparation of the financial budget, and
such other powers and duties as are commonly
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incident to the office of controller of a corporation, subject at all times to
the direction and control of the Board of Directors, the Chairman and the
President.
SECTION 5.12. Assistant Controllers. Each of the Assistant Controllers
shall have such powers and duties as may be prescribed by the Board of Directors
or be delegated by the Chairman or the President. In the absence or disability
of the Controller, the powers and duties of the Controller shall devolve upon
such one of the Assistant Controllers as the Board of Directors, the Chairman or
the President may designate, or, if there be but one Assistant Controller, then
upon such Assistant Controller who shall thereupon have and exercise such powers
and duties during such absence or disability of the Controller.
SECTION 5.13. Auditor. The Auditor shall review and monitor the
activities of the Corporation and its subsidiaries, including development of and
compliance with policies and procedures, and shall in general perform all the
duties incident to the office of auditor of a corporation, subject at all times
to direction and control of the Board of Directors, the Chairman and the
President.
ARTICLE VI.
CONDUCT OF BUSINESS.
SECTION 6.1. Contracts, Deeds and Other Instruments. All agreements
evidencing obligations of the Corporation, including but not limited to
contracts, trust deeds, promissory notes, sight drafts, time drafts and letters
of credit (including applications therefor), may be signed by any one of the
Chairman, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary, any Assistant Secretary, any other person authorized
by a resolution of the Board of Directors, and any other person
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authorized by the Chairman, as evidenced by a written instrument of delegation.
Any such authorization by the Board of Directors or the Chairman shall remain in
effect until rescinded by action of the Board of Directors or (in the case of a
delegation by the Chairman) by the Chairman and, where it identifies the
authorized signatory by office rather than by name, shall not be rescinded
solely by virtue of a change in the person holding that office or a temporary
vacancy in that office.
A certified copy of these By-Laws and/or any authorization given hereunder
may be furnished as evidence of the authorities herein granted, and all persons
shall be entitled to rely on such authorities in the case of a specific
contract, conveyance or other transaction without the need of a resolution of
the Board of Directors specifically authorizing the transaction involved.
SECTION 6.2. Checks. Checks and other negotiable instruments for the
disbursement of Corporation funds may be signed by any one of the Chairman, the
President, any Vice President, the Treasurer, the Controller and the Secretary
in such manner as shall from time to time be determined by resolution of the
Board of Directors. Electronic or wire transfers to funds may be authorized by
any officer of the Corporation who is authorized pursuant to this Section 6.2 to
disburse Corporation funds by check or other negotiable instrument.
SECTION 6.3. Deposits. Securities, notes and other evidences of
indebtedness shall be kept in such places, and deposits of checks, drafts and
funds shall be made in such banks, trust companies or depositories, as shall be
recommended and approved by any two of the Chairman, the President, any Vice
President and the Treasurer.
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SECTION 6.4. Voting of Stock. Unless otherwise ordered by the Board of
Directors, the Chairman, the President or any Vice President shall have the
power to execute and deliver on behalf of the Corporation proxies on stock owned
by the Corporation appointing a person or persons to represent and vote such
stock at any meeting of stockholders, with full power of substitution, and shall
have power to alter or rescind such appointment. Unless otherwise ordered by
the Board of Directors, the Chairman, the President or any Vice President shall
have the power on behalf of the Corporation to attend and to act and vote at any
meeting of stockholders of any corporation in which the Corporation holds stock
and shall possess and may exercise any and all rights and powers incident to the
ownership of such stock, which, as the owner thereof, the Corporation might have
possessed and exercised if present. The Board may confer like powers upon any
other person or persons.
SECTION 6.5. Transfer of Stock. Such form of transfer or assignment
customary or necessary to effect a transfer of stocks or other securities
standing in the name of the Corporation shall be signed by the Chairman, the
President, any Vice President or the Treasurer, and the Secretary or an
Assistant Secretary shall sign as witness if required on the form. A
corporation or person transferring any such stocks or other securities pursuant
to a form of transfer or assignment so executed shall be fully protected and
shall be under no duty to inquire whether the Board of Directors has taken
action in respect thereof.
ARTICLE VII.
SHARE CERTIFICATES AND THEIR TRANSFER.
SECTION 7.1. Share Certificates. Certificates for shares of the
Corporation shall be signed by the Chairman, the President or any Vice
President, and by the Secretary or any Assistant Secretary, and shall not be
valid unless so signed. Such certificates shall be appropriately numbered and
contain the name
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of the registered holder, the number of shares and the date of issue. If such
certificate is countersigned (a) by a transfer agent other than the Corporation
or its employee, or (b) by a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile.
In case any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he, she or it were
such officer, transfer agent, or registrar at the date of issue.
SECTION 7.2. Transfer of Shares. Upon surrender to the Corporation or a
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation and such transfer agent to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction. No certificate shall be issued in
exchange for any certificate until the former certificate for the same number of
shares of the same class and series shall have been surrendered and cancelled,
except as provided in Section 7.4.
SECTION 7.3. Regulations. The Board of Directors shall have authority to
make rules and regulations concerning the issue, transfer and registration of
certificates for shares of the Corporation.
SECTION 7.4. Lost, Stolen and Destroyed Certificates. The Corporation may
issue a new certificate or certificates for shares in place of any issued
certificate alleged to have been lost, stolen or destroyed upon such terms and
conditions as the Board of Directors may prescribe.
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SECTION 7.5. Registered Shareholders. The Corporation shall be entitled
to treat the holder of record (according to the books of the Corporation) of any
share or shares as the holder in fact thereof and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other party whether or not the Corporation shall have express or
other notice thereof, except as expressly provided by law.
SECTION 7.6. Transfer Agents and Registrars. The Board of Directors may
from time to time appoint a transfer agent and a registrar in one or more
cities, may require all certificates evidencing shares of the Corporation to
bear the signatures of a transfer agent and a registrar, may provide that such
certificates shall be transferable in more than one city, and may provide for
the functions of transfer agent and registrar to be combined in one agency.
ARTICLE VIII.
INDEMNIFICATION.
SECTION 8.1. Litigation Brought by Third Parties. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, formal or informal (other than
an action by or in the right of the Corporation) (an "Action") by reasons of the
fact that he or she is or was a director, officer, employee or agent of the
Corporation (a "Corporate Person"), or is or was serving at the request of the
Corporation as a director, officer, employee, agent, partner, trustee or member
or in another authorized capacity (collectively, an "Authorized Capacity") of or
for another corporation, unincorporated association, business trust,
partnership, joint venture, trust, individual or other legal entity, whether or
not organized or formed for profit (collectively, "Another Entity"), against
expenses (including
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attorneys' fees), judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such Action
("Expenses") if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any Action by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, that the person had
reasonable cause to believe his or her conduct was unlawful.
SECTION 8.2. Litigation by or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any action by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he or she is or was a Corporate
Person, or is or was serving at the request of the Corporation in an Authorized
Capacity of or for Another Entity against Expenses actually and reasonably
incurred by him or her in connection with that defense or settlement of such
action if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for willful
negligence or misconduct in the performance of his duty to the Corporation
unless and only to the extent that a court of equity or the court in which such
action was pending shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court of equity or other court shall deem proper.
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SECTION 8.3. Successful Defense. To the extent that a person who is or
was a Corporate Person or is or was serving in an Authorized Capacity of
Another Entity at the request of the Corporation and has been successful on the
merits or otherwise in defense of any action, referred to in Section 8.1 or 8.2
of this Article, or in defense of any claim, issue or matter therein, he or she
shall be indemnified against Expenses actually and reasonably incurred by him or
her in connection therewith.
SECTION 8.4 Determination of Conduct. Any indemnification under Section
8.1 or 8.2 of this Article (unless ordered by a court) shall be made by the
Corporation only upon a determination that indemnification of the person is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in said Section 8.1 or 8.2. Such determination shall be made
(a) by the Board of Directors by a majority vote of a quorum consisting of
directors not at the time parties to such action, suit or proceeding, or (b) if
a quorum cannot be obtained, by a majority vote of a committee duly designated
by the Board of Directors (in which designation directors who are parties may
participate) consisting of two or more directors not at the time parties to such
action, suit or proceeding, or (c) by special legal counsel, or (d) by the
shareholders; provided, however, that shares owned by or voted under the control
of persons who are at the time parties to such action, suit or proceeding may
not be voted on the determination.
SECTION 8.5. Advance Payment. The Corporation shall advance Expenses
reasonably incurred by any Corporate Person in any Action in advance of the
final disposition thereof upon the undertaking of such party to repay the
advance unless it is ultimately determined that such party is entitled to
indemnification hereunder, if (a) the indemnitee furnishes the Corporation a
written affirmation of his or her good faith belief that he or she has satisfied
the standard of conduct in Section 8.1 or 8.2 and (b) a
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determination is made by those making the decision pursuant to Section 8.4 that
the facts then known would not preclude indemnification under these By-Laws.
SECTION 8.6. By-Law Not Exclusive. The indemnification provided by this
Article 8 shall not be deemed exclusive of any other rights to which any person
may be entitled under any by-law, agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
SECTION 8.7. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Corporate Person or is or was
serving at the request of the Corporation in an Authorized Capacity of or for
Another Entity against any liability asserted against him or her and incurred by
him or her in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability under the provisions of this Article 8 or the Indiana
Business Corporation Law.
SECTION 8.8. Effect of Invalidity. The invalidity or unenforceability of
any provision of this Article 8 shall not affect the validity or enforceability
of the remaining provisions of this Article 8.
SECTION 8.9. Definition of Corporation. For purposes of this Article 8,
references to "the Corporation" shall include, in addition to the surviving or
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger.
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SECTION 8.10. Change in Law. Notwithstanding the foregoing provisions of
Article 8, the Corporation shall indemnify any person who is or was a Corporate
Person or is or was serving at the request of the Corporation in an Authorized
Capacity of or for Another Entity to the full extent permitted by the Indiana
Business Corporation Law or by any other applicable law, as may from time to
time be in effect.
ARTICLE IX.
GENERAL.
SECTION 9.1. Fiscal Year. The fiscal year of the Corporation shall begin
on the 1st day of January and end on the 31st day of December in each year.
SECTION 9.2. Corporate Seal. The corporate seal shall be circular in form
and shall have inscribed thereon the words "NIPSCO Industries, Inc. - Corporate
Seal - Indiana."
SECTION 9.3. Amendments. These By-Laws may be altered, amended or
repealed in whole or in part, and new By-Laws may be adopted, at any annual,
regular or special meeting of the Board of Directors by the affirmative vote of
a majority of a quorum of the Board of Directors.
SECTION 9.4. Dividends. Subject to any provisions of any applicable
statute or of the Articles of Incorporation, dividends may be declared upon the
capital stock of the Corporation by the Board of Directors at any regular or
special meeting thereof; and such dividends may be paid in cash, property or
shares of the Corporation.
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SECTION 9.5. Control Shares. The Terms "control shares" and "control
share acquisition" used in this Section 9.5 shall have the meanings set forth
in Indiana Business Corporation Law Section 23-1-42-1, et seq. (the "Act").
Control shares of the Corporation acquired in a control share acquisition shall
have only such voting rights as are conferred by the Act.
Control shares of the Corporation acquired in a control share acquisition
with respect to which the acquiring person has not filed with the Corporation
the Statement required by the Act may, at any time during the period ending
sixty days after the last acquisition of control shares by the acquiring person,
be redeemed by the Corporation at the fair value thereof pursuant to procedures
authorized by a resolution of the Board of Directors. Such authority may be
exercised generally or confined to specific instances.
Control shares of the Corporation acquired in a control share acquisition
with respect to which the acquiring person was not granted full voting rights by
the shareholders as provided in the Act may, at any time after the shareholder
vote required by the Act, be redeemed by the Corporation at the fair value
thereof pursuant to procedures authorized by a resolution of the Board of
Directors. Such authority may be exercised generally or confined to specific
instances.
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