EXHIBIT 3.1
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NEW NISOURCE INC.
It is hereby certified that:
1. The present name of the corporation (hereinafter the
"Corporation") is New NiSource Inc., which is the name under which the
Corporation was originally incorporated; and the date of the filing of
the original certificate of incorporation of the Corporation with the
Secretary of State of the State of Delaware is March 29, 2000.
2. This Amended and Restated Certificate of Incorporation has
been duly adopted and approved in accordance with the provisions of
Sections 242 and 245 of the General Corporation Law of the State of
Delaware. Stockholder approval of this Amended and Restated
Certificate of Incorporation was given by written consent pursuant to
Section 228 of the General Corporation Law of the State of Delaware.
3. Pursuant to Section 103(d) of the General Corporation Law of
the State of Delaware, the effective date and time of this Amended and
Restated Certificate of Incorporation shall be October 31, 2000, at
11:59 p.m. Eastern Standard Time.
4. The certificate of incorporation of the Corporation, as
amended and restated herein, shall at the effective time of this
amended and restated certificate of incorporation supersede the
original certificate of incorporation and shall 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, 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
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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 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.
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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.
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
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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;
(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
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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
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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 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
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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:
(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
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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 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
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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.
(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
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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 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
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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
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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 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
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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).
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
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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 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
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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).
(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,
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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)
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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, 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
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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 "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.
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(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 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.
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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.
Signed on October 27, 2000
/s/ Nina M. Rausch
---------------------------------------
Name: Nina M. Rausch
Title: Secretary
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CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
OF
NEW NISOURCE INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"Corporation") is New NiSource Inc.
2. The certificate of incorporation of the Corporation is
hereby amended by striking out Article First thereof
and by substituting in lieu of said Article the
following new Article:
"FIRST. The name of this corporation is NiSource Inc."
3. The amendment of the certificate of incorporation
herein certified has been duly adopted and a written
consent has been given in accordance with the
provisions of Sections 228 and 242 of the General
Corporation Law of the State of Delaware.
Dated as of November 1, 2000
/s/ Stephen P. Adik
---------------------------------
Stephen P. Adik
Vice Chairman
