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EXHIBIT 3.3
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FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NEW NISOURCE INC.
As Filed with the Delaware Secretary of State on March 29, 2000, and amended and
restated effective as of ______________, _____.
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FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NEW NISOURCE INC.
New NiSource Inc., a corporation organized and existing under the laws
of the State of Delaware, hereby certifies as follows: The name of the
corporation is New NiSource Inc. New NiSource Inc. was incorporated and the
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on March 29, 2000. This Amended and
Restated Certificate of Incorporation was duly adopted pursuant to Sections 103,
242 and 245 of the General Corporation Law of the State of Delaware. Upon filing
with the Secretary of State, in accordance with Section 103, this Amended and
Restated Certificate of Incorporation amends and restates and shall henceforth
supersede the original Certificate of Incorporation and shall, as it may
thereafter be amended in accordance with its terms and applicable law, be the
Certificate of Incorporation of the Corporation. The text of the Certificate of
Incorporation as heretofore amended or supplemented is hereby amended and
restated to read in its entirety as follows:
Article I
Name
The name of this Corporation is New NiSource Inc.
Article II
Registered Office
The registered office of the Corporation in the State of Delaware is
located at Corporation Service Company, 1013 Centre Road, in the City of
Wilmington, County of New Castle. The name of its registered agent is
Corporation Service Company, and the address of said registered agent is 1013
Centre Road, in said city.
Article III
Statement of Purpose
The nature of the business to be conducted and the purposes of the
Corporation are to engage in any lawful act or activity for which corporations
may be organized under the Delaware General Corporation Law, as amended.
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Article IV
Classes of Capital Stock
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Four hundred twenty million
(420,000,000), of which Twenty million (20,000,000) shares of the par value $.01
each are to be of a class designated Preferred Stock and Four hundred million
(400,000,000) shares of the par value of $.01 each are to be of a class
designated Common Stock.
A. Common Stock
1. Subject to the powers, preferences and other special rights afforded
Preferred Stock by the provisions of this Article IV or resolutions adopted
pursuant hereto, the holders of the Common Stock shall be entitled to receive to
the extent permitted by Delaware law, such dividends as may from time to time be
declared by the Board of Directors.
2. Except as otherwise required by Delaware law and as otherwise
provided in this Article IV and resolutions adopted pursuant hereto with respect
to Preferred Stock, and subject to the provisions of the Bylaws of the
Corporation, as from time to time amended, with respect to the closing of the
transfer books and the fixing of a record date for the determination of
stockholders entitled to vote, the holders of the Common Stock shall exclusively
possess voting power for the election of directors and for all other purposes,
and the holders of the Preferred Stock shall have no voting power and shall not
be entitled to any notice of any meeting of stockholders.
3. Except as may otherwise be required by law, this Certificate of
Incorporation or the provisions of the resolution or resolutions as may be
adopted by the Board of Directors pursuant to this Article IV, each holder of
Common Stock, and each holder of Preferred Stock, if entitled to vote on such
matter, shall be entitled to one vote in respect of each share of Common Stock
or Preferred Stock, as the case may be, held by such holder on each matter voted
upon by stockholders, and any such right to vote shall not be cumulative.
4. Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at an annual or special meeting of stockholders
of the Corporation and may not be effected by any consent in writing by such
stockholders. Except as otherwise required by law and subject to the rights of
the holders of any class or any series of Preferred Stock, special meetings of
stockholders of the Corporation may be called only by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized
directorships at the time any such resolution is presented to the Board for
adoption).
5. In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up of the Corporation, after
distribution in full of the preferential amounts, if
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any, to be distributed to the holders of Preferred Stock, as set forth in the
resolutions adopted with respect to such series under this Article IV, holders
of Common Stock shall be entitled to receive all of the remaining assets of the
Corporation of whatever kind available for distribution to the stockholders
ratably and in proportion to the number of shares of Common Stock held by them
respectively. The Board of Directors may distribute in kind to the holders of
Common Stock such remaining assets of the Corporation or may sell, transfer,
otherwise dispose of all or any part of such remaining assets to any other
corporation, trust or other entity and receive payment therefor in cash, stock
or obligations of such other corporation, trust or other entity, or a
combination thereof, and may set all or make any part of the consideration so
received and distributed or any balance thereof in kind to holders of Common
Stock. The merger or consolidation of the Corporation into or with any other
corporation, or the merger of any other corporation into it, or any purchase or
redemption of shares of stock of the Corporation of any class, shall not be
deemed to be a dissolution, liquidation, or winding-up of the Corporation for
the purposes of this Article IV.
B. Preferred Stock
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, of the classes of stock of
the Corporation which are fixed by the Certificate of Incorporation, and the
express grant of authority to the Board of Directors of the Corporation to fix
by resolution or resolutions the designations and the powers, preferences and
rights, and the qualifications, limitations or restrictions thereof, of the
shares of Preferred Stock, which are not fixed by the Certificate of
Incorporation, are as follows:
1. The Preferred Stock may be issued from time to time in any amount,
not exceeding in the aggregate the total number of shares of Preferred Stock
herein above authorized, as Preferred Stock of one or more series, as
hereinafter provided. All shares of any one series of Preferred Stock shall be
alike in every particular, each series thereof shall be distinctively designated
by letter or descriptive words, and all series of Preferred Stock shall rank
equally and be identical in all respects except as permitted by the provisions
of Subsection B.2 of this Article IV.
2. Authority is hereby expressly granted to and vested in the Board of
Directors from time to time to issue the Preferred Stock as Preferred Stock of
any series and in connection with the creation of each such series to fix, by
the resolution or resolutions providing for the issue of shares thereof, the
voting powers, designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or restrictions
thereof, if any, of such series, to the full extent now or hereafter permitted
by the laws of the State of Delaware. Pursuant to the foregoing general
authority vested in the Board of Directors, but not in limitation of the powers
conferred on the Board of Directors thereby and by the laws of the State of
Delaware, the Board of Directors is expressly authorized to determine with
respect to each series of Preferred Stock:
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(a) the designation of such series and number of shares
constituting such series;
(b) the dividend rate or amount of such series, the payment dates
for dividends on shares of such series, the status of such
dividends as cumulative or non-cumulative, the date from
which dividends on shares of such series, if cumulative, shall
be cumulative, and the status of such as participating or
non-participating after the payment of dividends as to which
such shares are entitled to any preference;
(c) the price or prices (which amount may vary under different
conditions or at different dates) at which, and the times,
terms and conditions on which, the shares of such series may
be redeemed at the option of the Corporation;
(d) whether or not the shares of such series shall be made
optionally or mandatorily convertible into, or exchangeable
for, shares of any other class or classes or of any other
series of the same or any other class or classes of stock of
the Corporation or other securities and, if made so
convertible or exchangeable, the conversion price or prices,
or the rates of exchange, and the adjustments thereof, if any,
at which such conversion or exchange may be made and any other
terms and conditions of such conversion or exchange;
(e) whether or not the shares of such series shall be entitled to
the benefit of a retirement or sinking fund to be applied to
the purchase or redemption of shares of such series, and if so
entitled, the amount of such fund and the manner of its
application, including the price or prices at which shares of
such series may be redeemed or purchased through the
application of such fund;
(f) whether or not the issue of any additional shares of such
series or any future series in addition to such series or of
any shares of any other class of stock of the Corporation
shall be subject to restrictions and, if so, the nature
thereof;
(g) the rights and preferences, if any, of the holders of such
series of Preferred Stock upon the voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, and
the status of the shares of such series as participating or
non-participating after the satisfaction of any such rights
and preferences;
(h) the full or limited voting rights, if any, to be provided for
shares of such series, in addition to the voting rights
provided by law; and
(i) any other relative powers, preferences and participating,
optional or other special rights and the qualifications,
limitations or restrictions thereof, of shares of such series;
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in each case, so far as not inconsistent with the provisions of this Certificate
of Incorporation or the Delaware General Corporation Law then in effect.
C. Series A Junior Participating Preferred Stock.
1. This Section C of the ARTICLE IV hereby creates a series of
Preferred Stock and hereby states the designation and number of shares, and
fixes the relative powers, preferences and rights of such series.
2. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 4,000,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
3. Dividends and Distributions.
(a) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar shares) ranking prior and
superior to the Series A Preferred Stock with respect to dividends, the
holders of Series A Preferred Stock, in preference to the holders of
Common Stock and of any other junior shares, shall be entitled to
receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable in
cash on the 20th day of February, May, August and November in each year
(each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A
Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (i) $26 or (ii) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share
amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in Common Stock or a
subdivision of the outstanding Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately
preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share
of Series A Preferred Stock or fraction of a share of Series A
Preferred Stock. In the event the Corporation shall at any time declare
or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding Common Stock (by reclassification or otherwise than by
payment of a dividend in Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount to which
holders of Series A Preferred Stock were
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entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution
on the Series A Preferred Stock as provided in paragraph 3(a) of this
Section C immediately after it declares a dividend or distribution on
the Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or distribution shall
have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $26 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of
holders of Series A Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the Series A Preferred Stock
in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of
holders of Series A Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be
not more than 60 days prior to the date fixed for the payment thereof.
4. Voting Rights. The holders of Series A Preferred Stock will have the
following voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which
holders of
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Series A Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately prior to
such event;
(b) Except as otherwise provided herein, in any other
provisions of the Certificate of Incorporation of the Corporation
creating a series of Preferred Stock or any similar shares, or by law,
the holders of Series A Preferred Stock and the holders of Common Stock
and any other capital stock of the Corporation having general voting
rights shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation;
(c) If at the time of any annual meeting of stockholders for
the election of directors a "default in preference dividends" on the
Series A Preferred Stock shall exist, the number of directors
constituting the Board of Directors of the Corporation shall be
increased by two (2), and the holders of the Preferred Stock of all
series (whether or not the holders of such series of Preferred Stock
would be entitled to vote for the election of directors if such default
in preference dividends did not exist) shall have the right at such
meeting, voting together as a single class without regard to series, to
the exclusion of the holders of Common Stock, to elect two (2)
directors of the Corporation to fill such newly created directorships.
Such right shall continue until there are no dividends in arrears upon
the Preferred Stock. Each director elected by the holders of Preferred
Stock (a "Preferred Director") shall continue to serve as such director
for the full term for which he shall have been elected, notwithstanding
that prior to the end of such term a default in preference dividends
shall cease to exist. Any Preferred Director may be removed by, and
shall not be removed except by, the vote of the holders of record of
the outstanding Preferred Stock voting together as a single class
without regard to series, at a meeting of the stockholders or of the
holders of Preferred Stock called for the purpose. So long as a default
in any preference dividends on the Preferred Stock shall exist, (i) any
vacancy in the office of a Preferred Director may be filled (except as
provided in the following clause (ii)) by an instrument in writing
signed by the remaining Preferred Director and filed with the
Corporation and (ii) in the case of the removal of any Preferred
Director, the vacancy may be filled by the vote of the holders of the
outstanding Preferred Stock voting together as a single class without
regard to series, at the same meeting at which such removal shall be
voted. Each director appointed as aforesaid by the remaining Preferred
Director shall be deemed, for all purposes hereof, to be a Preferred
Director. Whenever the term of office of the Preferred Directors shall
end and a default in preference dividends shall no longer exist, the
number of directors constituting the Board of Directors of the
Corporation shall be reduced by two (2). For the purposes hereof, a
"default in preference dividends" on the Preferred Stock shall be
deemed to have occurred whenever the amount of accrued dividends upon
any series of the Preferred Stock shall be equivalent to six (6) full
quarterly dividends or more, and, having so occurred, such
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default shall be deemed to exist thereafter until, but only until, all
accrued dividends on all Preferred Stock of each and every series then
outstanding shall have been paid to the end of the last preceding
quarterly dividend period; and
(d) Except as set forth herein, or as otherwise provided by
law, holders of Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action; and
5. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock, as provided in
paragraph 3 of this Section C, are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not
declared, on Series A Preferred Stock outstanding shall have been paid
in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A
Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, except dividends paid ratably on
the Series A Preferred Stock and all such parity shares on
which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration any shares ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares
of any such junior shares in exchange for any shares of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any Series A Preferred Stock, or any shares ranking on a
parity with the Series A Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such
stock upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or
classes.
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(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of the Corporation unless the Corporation could, under paragraph
5(a) of this Section C, purchase or otherwise acquire such shares at
such time and in such manner.
6. Reacquired Shares. Any Series A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued Preferred Stock and may be
reissued as part of a new series of Preferred Stock subject to the conditions
and restrictions on issuance set forth in this Certificate of Incorporation of
the Corporation creating a series of Preferred Stock or any similar shares or as
otherwise required by law.
7. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (a)
to the holders of shares ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of Series A Preferred Stock shall have received
$6,000 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment,
provided that the holders of Series A Preferred Stock shall be entitled to
receive an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be distributed
per share to holders of Common Stock, or (b) to the holders of shares ranking on
a parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except distributions made ratably on the
Series A Preferred Stock and all such parity shares in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which holders of
Series A Preferred Stock were entitled immediately prior to such event under the
proviso in clause (A) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of Common Stock that were outstanding immediately prior to
such event.
8. Consolidation, Merger, etc. In case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which the shares
of Common Stock are exchanged for or changed into other shares or securities,
cash and/or any other property, then in any such case each share of Series A
Preferred Stock shall at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount of shares, securities, cash and/or any
other property (payable in kind), as the case may be, into which or for which
each share of
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Common Stock is changed or exchanged. In the event the Corporation shall at any
time declare or pay any dividend on the Common Shares payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
9. No Redemption. The Series A Preferred Stock shall not be redeemable.
10. Conversion. The Series A Preferred Stock shall not be convertible
into Common Stock or shares of any other series of any other class of Preferred
Stock.
11. Rank. The Series A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all series of any
other class of Preferred Stock, unless the terms of any such series shall
provide otherwise.
12. Amendment. This Certificate of Incorporation of the Corporation
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding Series A Preferred Stock, voting together as a
single class.
Article V
Board of Directors
A. Election and Removal of Directors
1. The Board of Directors shall consist of not less than nine (9) or
more than twelve (12) persons, the exact number to be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption), provided, however, this
provision shall not act to limit Board size in the event a class or classes of
Preferred Stock are entitled to elect directors to the exclusion of holders of
Common Stock. The directors shall be classified, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible, as may be, provided in the manner specified in the Bylaws, Class I
Directors to hold office initially for a term expiring at the annual meeting of
stockholders to be held in ____, Class II Directors to hold office initially for
a term expiring at the annual
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meeting of stockholders to be held in ____, and Class III Directors to hold
office initially for a term expiring at the annual meeting of stockholders to be
held in ____, with the members of each class to hold office until their
successors are duly elected and qualified. At each annual meeting of the
stockholders of the Corporation, the successors to the class, of directors whose
term expires at that meeting shall be elected to hold office for a term expiring
at the annual meeting of stockholders held in the third year following the year
of their election.
2. Notwithstanding the foregoing and except as otherwise provided by
law, whenever the holders of any series of the Preferred Stock shall have the
right (to the exclusion of holders of Common Stock) to elect directors of the
Corporation pursuant to the provisions of Article IV and any resolution adopted
pursuant thereto, the election of such directors of the Corporation shall be
governed by the terms and provisions of said resolutions and such directors so
elected shall not be divided into classes pursuant to this Subsection A.2 of
Article V and shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the first year following their election or, if
such right of the holders of the Preferred Stock is terminated, for a term
expiring in accordance with the provisions of such resolutions.
3. Newly-created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause may be filled only by a majority vote of the directors
then in office, even though less than a quorum of the Board of Directors, acting
at a regular or special meeting. If any applicable provision of the Delaware
General Corporation Law or any resolution adopted pursuant to Article IV
expressly confers power on stockholders to fill such a directorship at a special
meeting of stockholders, such a directorship may be filled at such a meeting
only by the affirmative vote of at least 80 percent of the combined voting
powers of the outstanding shares of stock of the Corporation entitled to vote
generally; provided, however, that when (a) pursuant to the provisions of
Article IV or any resolutions adopted pursuant thereto, the holders of any
series of Preferred Stock have the right (to the exclusion of holders of the
Common Stock), and have exercised such right, to elect directors and (b)
Delaware General Corporation Law or any such resolution expressly confers on
stockholders voting rights as aforesaid, if the directorship to be filled had
been occupied by a director elected by the holders of Common Stock, then such
directorship shall be filled by an 80 percent vote as aforesaid, but if such
directorship to be filled had been elected by holders of Preferred Stock, then
such directorship shall be filled in accordance with the applicable resolutions
adopted under Article IV. Any director elected in accordance with the two
preceding sentences shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or the vacancy
occurred and until such director's successor shall have been elected and
qualified unless such director was elected by holders of Preferred Stock (acting
to the exclusion of the holders of Common Stock), in which case such director's
term shall expire in accordance with the applicable resolutions adopted pursuant
to Article IV. No decrease in the number of authorized directors constituting
the entire Board of Directors shall shorten the term of any incumbent director,
except, as otherwise provided in the applicable
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resolutions adopted pursuant to Article IV, with respect to directorships
created pursuant to one or more series of Preferred Stock.
4. Subject to the rights of the holders of any class or series of
Preferred Stock to elect directors under specified circumstances, any director
or directors may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least 80 percent of the combined
voting power of all of the then-outstanding shares of stock of the Corporation
entitled to vote generally, voting together as a single class (it being
understood that for all purposes of this Article V, each share of Preferred
Stock shall have the number of votes, if any, granted to it pursuant to this
Certificate of Incorporation or any designation of terms of any class or series
of Preferred Stock made pursuant to this Certificate of Incorporation).
5. Notwithstanding any other provision of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the stock of the Corporation required by law, this
Certificate of Incorporation or any Preferred Stock certificate of designation,
the affirmative vote of at least 80 percent of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized
directorships at the time any such alteration, amendment or repeal is presented
to the Board for adoption), shall be required to alter, amend or repeal this
Article V, or any provision hereof.
B. Liability, Indemnification and Insurance
1. Limitation on Liability. To the fullest extent that the Delaware
General Corporation Law as it exists on the date hereof or as it may hereafter
be amended permits the limitation or elimination of the personal liability of
directors, no director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director. No amendment to or repeal of this Section B.1 shall apply to or have
any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
2. Right to Indemnification. The Corporation shall to the fullest
extent permitted by applicable law as then in effect indemnify any person (the
Indemnitee who was or is involved in any manner (including, without limitation,
as a party or a witness) or is threatened to be made so involved in any
threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (including
without limitation, any action, suit or proceeding by or in the right of the
Corporation to procure a judgment in its favor) (a "Proceeding") by reason of
the fact that such person is or was a director, officer, employee or agent of
the Corporation, or of NiSource Corporate Services Company or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
(including, without limitation, any employee benefit plan) against all expenses
including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
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Proceeding. Such indemnification shall be a contract right and shall include the
right to receive payment of any expenses incurred by the Indemnitee in
connection with such Proceeding in advance of its final disposition, consistent
with the provisions of applicable law as then in effect.
3. Insurance, Contracts and Funding. The Corporation may purchase and
maintain insurance to protect itself and any Indemnitee against any expenses,
judgments, fines and amounts paid in settlement as specified in Subsection B.2
of this Section B or incurred by any Indemnitee in connection with any
Proceeding referred to in Subsection B.1 of this Section B, to the fullest
extent permitted by applicable law as then in effect. The Corporation may enter
into contracts with any director, officer, employee or agent of the Corporation
in furtherance of the provisions of this Section B and may create a trust fund,
grant a security interest or use other means (including, without limitation, a
letter of credit) to ensure the payment of such amounts as may be necessary to
effect indemnification as provided in this Section B.
4. Indemnification; No Exclusive Right. The right of indemnification
provided in this Section B shall not be exclusive of any other rights to which
those seeking indemnification may otherwise be entitled, and the provisions of
this Section B shall inure to the benefit of the heirs and legal representatives
of any person entitled to indemnity under this Section B and shall be applicable
to Proceedings commenced or continuing after the adoption of this Section B,
whether arising from acts or omissions occurring before or after such adoption.
5. Advancement of Expenses; Procedures; Presumptions and Effect of
Certain Proceedings; Remedies. In furtherance, but not in limitation of the
foregoing provisions, the following procedures, presumptions and remedies shall
apply with respect to advancement of expenses and the right to indemnification
under this Section B:
(a) Advancement of Expenses. All reasonable expenses incurred
by or on behalf of the Indemnitee in connection with any Proceeding
shall be advanced to the Indemnitee by the Corporation within twenty
(20) days after the receipt by the Corporation of a statement or
statements from the Indemnitee requesting such advance or advances from
time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the
expenses incurred by the Indemnitee and, if required by law at the time
of such advance, shall include or be accompanied by an undertaking by
or on behalf of the Indemnitee to repay the amounts advanced if it
should ultimately be determined that the Indemnitee is not entitled to
be indemnified against such expenses pursuant to this Section B.
(b) Procedure for Determination of Entitlement to
Indemnification.
(i) To obtain indemnification under this Section B,
an Indemnitee shall submit to the Secretary of the Corporation
a written request, including such documentation and
information as is reasonably available to the Indemnitee and
reasonably necessary to determine whether and to what extent
the Indemnitee is
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entitled to indemnification (the "Supporting Documentation").
The determination of the Indemnitee's entitlement to
indemnification shall be made not later than sixty (60) days
after receipt by the Corporation of the written request for
indemnification together with the Supporting Documentation.
The Secretary of the Corporation shall, promptly upon receipt
of such a request for indemnification, advise the Board of
Directors in writing that the Indemnitee has requested
indemnification.
(ii) The Indemnitee's entitlement to indemnification
under this Section B shall be determined in one of the
following ways: (A) by a majority vote of the disinterested
Directors (as hereinafter defined), even if they constitute
less than a quorum of the Board; (B) by a written opinion of
Independent Counsel (as hereinafter defined) if (x) a Change
of Control (as hereinafter defined) shall have occurred and
the Indemnitee so requests or (y) if there are no
Disinterested Directors or a majority of such Disinterested
Directors so directs; (C) by the stockholders of the
Corporation (but only if a majority of the Disinterested
Directors presents the issue of entitlement to indemnification
to the stockholders for their determination); or (D) as
provided in Section B.5(c).
(iii) In the event the determination of entitlement
to indemnification is to be made by Independent Counsel
pursuant to Section B.5(b) (ii), a majority of the
Disinterested Directors shall select the Independent Counsel
(except that if there are no Disinterested Directors, the
Corporation's General Counsel shall select the Independent
Counsel), but only an Independent Counsel to which the
Indemnitee does not reasonably object; provided, however, that
if a Change of Control shall have occurred, the Indemnitee
shall select such Independent Counsel, but only an Independent
Counsel to which the Board of Directors does not reasonably
object.
(iv) The only basis upon which a finding of no
entitlement to indemnification may be made is that
indemnification is prohibited by law
(c) Presumptions and Effect of Certain Proceedings. Except as
otherwise expressly provided in this Section B, if a Change of Control
shall have occurred, the Indemnitee shall be presumed to be entitled to
indemnification under this Section B upon submission of a request for
indemnification together with the Supporting Documentation in
accordance with Section B.5 (b)(i), and thereafter the Corporation
shall have the burden of proof to overcome that presumption in reaching
a contrary determination. In any event, if the person or persons
empowered under Section B.5(b) to determine entitlement to
indemnification shall not have been appointed or shall not have made a
determination within sixty (60) days after receipt by the Corporation
of the request therefor together with the Supporting Documentation, the
Indemnitee shall be deemed to be entitled to indemnification and the
Indemnitee shall be entitled to such indemnification
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unless (A) the Indemnitee misrepresented or failed to disclose a
material fact in making the request for indemnification or in the
Supporting Documentation or (B) such indemnification is prohibited by
law. The termination of any Proceeding described in Section B.2, or of
any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, adversely affect the right of the Indemnitee to
indemnification or create a presumption that the Indemnitee did not act
in good faith and in a manner which the Indemnitee reasonably believed
to be in or not opposed to the best interests of the Corporation or,
with respect to any criminal Proceeding, that the Indemnitee had
reasonable cause to believe that the Indemnitee's conduct was unlawful.
(d) Remedies of Indemnitee.
(i) In the event that a determination is made,
pursuant to Section B.5(b) that the Indemnitee is not entitled
to indemnification under this Section B, (A) the Indemnitee
shall be entitled to seek an adjudication of his entitlement
to such indemnification either, at the Indemnitee's sole
option, in (x) an appropriate court of the State of Delaware
or any other court of competent jurisdiction or (y) an
arbitration to be conducted by a single arbitrator pursuant to
the rules of the American Arbitration Association; (B) any
such judicial Proceeding or arbitration shall be de nova and
the Indemnitee shall not be prejudiced by reason of such
adverse determination; and (C) in any such judicial Proceeding
or arbitration the Corporation shall have the burden of
proving that the Indemnitee is not entitled to indemnification
under this Section B.
(ii) If a determination shall have been made or
deemed to have been made, pursuant to Section B.5(b) or (c),
that the Indemnitee is entitled to indemnification, the
Corporation shall be obligated to pay the amounts constituting
such indemnification within five (5) days after such
determination has been made or deemed to have been made and
shall be conclusively bound by such determination unless (A)
the Indemnitee misrepresented or failed to disclose a material
fact in making the request for indemnification or in the
Supporting Documentation or (B) such indemnification is
prohibited by law. In the event that (x) advancement of
expenses is not timely made pursuant to Section B.5(a) or (y)
payment of indemnification is not made within five (5) days
after a determination of entitlement to indemnification has
been made or deemed to have been made pursuant to Section
B.5(b) or (c), the Indemnitee shall be entitled to seek
judicial enforcement of the Corporation's obligation to pay to
the Indemnitee such advancement of expenses or
indemnification. Notwithstanding the foregoing, the
Corporation may bring an action, in an appropriate court in
the State of Delaware or any other court of competent
jurisdiction, contesting the right of the Indemnitee to
receive indemnification hereunder due to the occurrence of an
event described in subclause (A) or (B) of this clause (ii) (a
"Disqualifying Event"); provided,
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however, that in any such action the Corporation shall have
the burden of proving the occurrence of such Disqualifying
Event.
(iii) The Corporation shall be precluded from
asserting in any judicial Proceeding or arbitration commenced
pursuant to this Section B.5(d) that the procedures and
preemptions of this Section B are not valid, binding and
enforceable and shall stipulate in any such court or before
any such arbitrator that the Corporation is bound by all the
provisions of this Section B.
(iv) In the event that the Indemnitee, pursuant to
this Section B.5(d), seeks a judicial adjudication of or an
award in arbitration to enforce his rights under, or to
recover damages for breach of, this Section B, the Indemnitee
shall be entitled to recover from the Corporation, and shall
be indemnified by the Corporation against, any expenses
actually and reasonably incurred by the Indemnitee if the
Indemnitee prevails in such judicial adjudication or
arbitration. If it shall be determined in such judicial
adjudication or arbitration that the Indemnitee is entitled to
receive part but not all of the indemnification or advancement
of expenses sought, the expenses incurred by the Indemnitee in
connection with such judicial adjudication or arbitration
shall be prorated accordingly.
(e) Definitions. For purposes of this Section B.5:
(i) "Change in Control" means (A) so long as the
Public Utility Holding Company Act of 1935 is in effect, any
"company" becoming a "holding company in respect to the
Corporation or any determination by the Securities and
Exchange Commission that any "person" should be subject to the
obligations, duties, and liabilities if imposed by said Act by
virtue of his, hers or its influence over the management or
policies of the Corporation, or (B) whether or not said Act is
in effect a change in control of the Corporation of a nature
that would be required to be reported in response to Item 6(e)
of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 (the "Act"), whether or not
the Corporation is then subject to such reporting requirement;
provided that, without limitation, such a change in control
shall be deemed to have occurred if (i) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Act) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Act), directly or indirectly, of securities of the
Corporation representing ten percent or more of the combined
voting power of the Corporation's then outstanding securities
without the prior approval of at least two-thirds of the
members of the Board of Directors in office immediately prior
to such acquisition; (ii) the Corporation is a party to a
merger, consolidation, sale of assets or other reorganization,
or a proxy contest, as a consequence of which members of the
Board of Directors in office immediately prior to such
transaction or event
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constitute less than a majority of the Board of Directors
thereafter; or (iii) during any period of two consecutive
years, individuals who at the beginning of such period
constituted the Board of Directors (including for this purpose
any new director whose election or nomination for election by
the Corporation's stockholders was approved by a vote of at
least two-thirds of the directors then still in office who
were directors at the beginning of such period) cease for any
reason to constitute at least a majority of the Board of
Directors.
(ii) "Disinterested Director" means a director of the
Corporation who is not or was not a party to the Proceeding in
respect of which indemnification is sought by the Indemnitee.
(iii) "Independent Counsel" means a law firm or a
member of a law firm that neither presently is, nor in the
past five years has been, retained to represent: (A) the
Corporation or the Indemnitee in any matter material to either
such party or (B) any other party to the Proceeding giving
rise to a claim for indemnification under this Section B.
Notwithstanding the foregoing, the term "Independent Counsel"
shall not include any person who, under the applicable
standards of professional conduct then prevailing under the
Delaware law, would have a conflict of interest in
representing either the Corporation or the Indemnitee in an
action to determine the Indemnitee's rights under this Section
B.
6. Severability. If any provision or provisions of this Section B shall
be held to be invalid, illegal or unenforceable for any reason whatsoever: (i)
the validity, legality and enforceability of the remaining provision of this
Section B (including, without limitation, all portions of any paragraph of this
Section B containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby; and (ii) to the fullest extent
possible, the provisions of this Section B (including, without limitation, all
portions of any paragraph of this Section B containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
7. Successor Laws, Regulations and Agencies. Reference herein to laws,
regulations or agencies shall be deemed to include all amendments thereof,
substitutions therefor and successors thereto.
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Article VI
General Powers of the Board of Directors
A. Bylaws
The Board of Directors shall have the power to make, alter, amend and
repeal the Bylaws of the Corporation in such form and with such terms as the
Board may determine, subject to the power granted to stockholders to alter or
repeal the Bylaws provided under Delaware law; provided, however, that,
notwithstanding any other provision of this Certificate of Incorporation or any
provision of law which might otherwise permit a lesser vote or no vote the
affirmative vote of at least 80 percent of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized
directorships at the time any such alteration, amendment or repeal is presented
to the Board for adoption), shall be required to alter, amend or repeal any
provision of the Bylaws which is to the same effect as any one or more sections
of this Article VI.
B. Charter Amendments
Subject to the provisions hereof, the Corporation, through its Board of
Directors, reserves the right at any time, and from time to time, to amend,
alter, repeal or rescind any provision contained in this Restated Certificate of
Incorporation in the manner now or hereinafter prescribed by law, and any other
provisions authorized by Delaware law at the time enforced may be added or
inserted, in the manner now or hereinafter prescribed by law, and any and all
rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other persons whomsoever by and pursuant to this
Amended and Restated Certificate of Incorporation in its present form or as
hereinafter amended are granted subject to the rights reserved in this Article.
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been signed under the Seal of the Corporation as of this ____
day of _________, _____.
NEW NISOURCE INC.
Attest: /s/ BY: /s/
--------------------------- ---------------------------------------
Secretary Vice President
[SEAL]
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