EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NISOURCE INC.
AS AMENDED THROUGH NOVEMBER 1, 2000
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NISOURCE INC.
ARTICLE I
NAME
The name of this Corporation is NiSource Inc.
ARTICLE II
REGISTERED OFFICE
The registered office of the Corporation in the State of Delaware is
located at Corporation Service Company, 2711 Centerville Road, Suite 400, 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 2711
Centerville Road, Suite 400, 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.
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
1
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 Amended and
Restated 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 with respect to Preferred Stock, 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 any, to be distributed to
the holders of Preferred Stock, as set forth in this Article IV or 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.
2
B. PREFERRED STOCK
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 that are not fixed by this Amended and
Restated Certificate of Incorporation is 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, reduced by the number of shares of Preferred
Stock designated under Section C of this Article IV, 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 other than the series
designated under Section C of this Article IV:
(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;
3
(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;
in each case, so far as not inconsistent with the provisions of this Amended and
Restated Certificate of Incorporation or the Delaware General Corporation Law
then in effect.
C. SERIES A JUNIOR PARTICIPATING PREFERRED STOCK.
The designation and number of shares, and the powers, preferences and
rights, and the qualifications, limitations or restrictions thereof, of a series
of Preferred Stock are fixed by this Section C of ARTICLE IV as follows:
1. 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.
2. 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
4
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 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
2(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.
3. Voting Rights. The holders of Series A Preferred Stock will
have the following voting rights:
5
(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 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 in this Amended and
Restated Certificate of Incorporation, in any resolution creating a
series of Preferred Stock 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
6
"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 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.
(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.
4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock, as provided in
paragraph 2 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.
7
(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 4(a) of this Section C,
purchase or otherwise acquire such shares at such time and in
such manner.
5. Reacquired Shares. Any Series A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and, upon the
filing of any certificate that may be required by Delaware law, 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 Article IV or any resolution
providing for the creation of any series of Preferred Stock adopted pursuant
thereto or as otherwise required by law.
6. 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.
7. 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 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
8
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.
8. No Redemption. The Series A Preferred Stock shall not be
redeemable.
9. 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.
10. 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.
11. Amendment. This Amended and Restated Certificate of
Incorporation 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 the holders of one or
more series 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 2001, Class II Directors to hold
office initially for a term expiring at the annual meeting of stockholders to be
held in 2002, and Class III Directors to hold office initially for a term
expiring at the annual meeting of stockholders to be held in 2003, 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,
9
whenever the holders of any series of 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 or any resolution adopted pursuant
thereto, the election of such directors of the Corporation shall be governed by
the terms and provisions of Article IV or 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 Article IV or 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, Article IV 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, Article IV 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 Article IV or
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 Article IV or
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
Article IV or the applicable resolutions adopted pursuant to Article IV with
respect to directorships created pursuant to one or more series of Preferred
Stock.
4. Subject to the rights of the holders of any 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
Amended and Restated Certificate of Incorporation or any resolution adopted
pursuant to Article IV).
10
5. Notwithstanding any other provision of this Amended and
Restated 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 Amended and Restated Certificate of
Incorporation or any resolution adopted pursuant to Article IV, 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
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.2 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
11
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 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) 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).
12
(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 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 novo and
the Indemnitee shall not be prejudiced by reason of such
adverse determination; and (C) in any such judicial Proceeding
or arbitration the
13
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, 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
14
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 "Exchange 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 Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange 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
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 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
15
containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
7. Successor Laws, Regulations and Agencies. Reference herein to
laws, regulations or agencies shall be deemed to include all amendments thereof,
substitutions therefor and successors thereto.
ARTICLE VI
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 Amended and Restated 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 Amended and 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.
16