=====================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________
SCHEDULE 14D-1/A
(Amendment No. 32)
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
____________________________________
COLUMBIA ENERGY GROUP
(Name of Subject Company)
CEG ACQUISITION CORP.
NISOURCE INC.
(Bidders)
COMMON STOCK, $.01 PER SHARE
(Title of Class of Securities)
197648108
(CUSIP Number of Class of Securities)
Stephen P. Adik
Senior Executive Vice President,
Chief Financial Officer And Treasurer
NiSource Inc.
801 East 86th Avenue
Merrillville, Indiana 46410-6272
(219) 853-5200
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of Bidder)
____________________________________
COPIES to:
Peter V. Fazio, Jr., Esq. Alan G. Schwartz, Esq.
Schiff Hardin & Waite Simpson Thacher & Bartlett
6600 Sears Tower 425 Lexington Avenue
Chicago, Illinois 60606 New York, New York 10017
Telephone: (312) 258-5500 Telephone: (212) 455-2000
=====================================================
This Amendment No. 32 (this "Amendment") amends and supplements
the Tender Offer Statement on Schedule 14D-1, as amended, originally
filed with the Securities and Exchange Commission on June 25, 1999
(the "Schedule 14D-1") by CEG Acquisition Corp., a Delaware
corporation (the "Offeror") and a wholly owned subsidiary of NiSource
Inc., an Indiana corporation ("Parent"). The Schedule 14D-1 and this
Amendment relate to a tender offer by the Offeror to purchase all of
the outstanding shares of common stock, par value $.01 per share (the
"Shares"), of Columbia Energy Group, a Delaware corporation (the
"Company"), at an amended purchase price of $74 per Share, net to the
seller in cash, without interest thereon, upon the terms and subject
to the conditions set forth in the Offer to Purchase, dated June 25,
1999 (the "Offer to Purchase"), as amended and supplemented by the
Supplement thereto, dated October 18, 1999, and in the related Letter
of Transmittal (which, as either may be amended or supplemented from
time to time, collectively constitute the "Offer"), copies of which
are filed with the Schedule 14D-1 as Exhibits (a)(1), (a)(38) and
(a)(39), respectively.
2
Item 3. Past Contacts, Transactions or Negotiations With the Subject
Company.
Item 3(b) of the Schedule 14D-1 is hereby amended and
supplemented as follows:
On November 19, 1999, Parent and the Company entered
into a confidentiality agreement. The full text of the
agreement is set forth as Exhibit 11(c)(1) and is
incorporated herein by reference.
Item 7. Contracts, Arrangements, Understandings or Relationships
With Respect to the Subject Company's Securities.
Item 7 of the Schedule 14D-1 is hereby amended and supplemented
as follows:
The information provided in this Amendment No. 32 under
Item 3 is incorporated herein by reference.
Item 11. Material to be Filed as Exhibits.
(a)(1) Offer to Purchase, dated June 25, 1999.*
(a)(2) Letter of Transmittal.*
(a)(3) Letter dated June 25, 1999, from Dealer Manager to
brokers, dealers, commercial banks, trust companies and
other nominees.*
(a)(4) Letter dated June 25, 1999, to be sent by brokers,
dealers, commercial banks, trust companies and other
nominees to their clients.*
(a)(5) Notice of Guaranteed Delivery.*
(a)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
(a)(7) Form of Summary Advertisement, dated June 25, 1999.*
(a)(8) Press Release issued by Parent on June 24, 1999.*
(a)(9) Form of letter dated June 28, 1999 from Gary L. Neale,
Chairman, President and Chief Executive Officer of
Parent, to investors of the Company.*
(a)(10) Press Release issued by Parent on June 28, 1999.*
(a)(11) "NiSource/Columbia StraightTalk" communication to
stockholders of the Company issued by Parent on July 2,
1999.*
3
(a)(12) Form of letter dated July 2, 1999, from Gary L. Neale,
Chairman, President and Chief Executive Officer of
Parent, to directors of the Company.*
(a)(13) Press Release issued by Parent on July 6, 1999.*
(a)(14) Form of letter dated July 12, 1999, from Gary L. Neale,
Chairman, President and Chief Executive Officer of
Parent, to shareholders of Parent.*
(a)(15) "NiSource/Columbia StraightTalk" communication to
stockholders of the Company issued by Parent on
July 14, 1999.*
(a)(16) Press Release issued by Parent on July 14, 1999.*
(a)(17) Press Release issued by Parent on July 19, 1999.*
(a)(18) Press Release issued by Parent on July 20, 1999.*
(a)(19) Form of letter dated July 21, 1999, from Gary L. Neale,
Chairman, President and Chief Executive Officer of
Parent, to directors of the Company.*
(a)(20) Form of letter dated July 26, 1999, from Gary L. Neale,
Chairman, President and Chief Executive Officer of
Parent, to stockholders of the Company.*
(a)(21) "NiSource/Columbia StraightTalk" communication to
stockholders of the Company issued by Parent on July
26, 1999.*
(a)(22) Information published by Parent on July 30, 1999,
available via the Internet at
http://www.yes2nisource.com.*
(a)(23) Press Release issued by Parent on July 30, 1999.*
(a)(24) Press Release issued by Parent on August 9, 1999.*
(a)(25) "NiSource/Columbia StraightTalk" communication to
stockholders of the Company issued by Parent on August
13, 1999.*
(a)(26) Form of letter dated August 13, 1999, from Gary L.
Neale, Chairman, President and Chief Executive Officer
of Parent, to directors of the Company.*
(a)(27) Form of letter dated August 13, 1999, from Gary L.
Neale, Chairman, President and Chief Executive Officer
of Parent, to Oliver G. Richard III, Chairman,
President and Chief Executive Officer of the Company.*
4
(a)(28) Form of letter dated August 26, 1999, from Gary L.
Neale, Chairman, President and Chief Executive Officer
of Parent, to stockholders of the Company.*
(a)(29) Opinion/editorial articles by Gary L. Neale, Chairman,
President and Chief Executive Officer of Parent,
submitted to various newspapers on September 9, 1999.*
(a)(30) Opinion/editorial articles by Gary L. Neale, Chairman,
President and Chief Executive Officer of Parent,
submitted to various newspapers on September 10, 1999.*
(a)(31) Opinion/editorial article by Gary L. Neale, Chairman,
President and Chief Executive Officer of Parent,
submitted to The Appalachian News-Express on September
13, 1999.*
(a)(32) Opinion/editorial article by Gary L. Neale, Chairman,
President and Chief Executive Officer of Parent,
submitted to The Winchester Sun on September 14,
1999.*
(a)(33) Form of Letter dated September 23, 1999, from Gary L.
Neale, Chairman, President and Chief Executive Officer
of Parent, to officers, directors and managers of
Parent.*
(a)(34) "Energy News - Oct. 1999" communication to customers of
Northern Indiana Public Service Company first issued by
Parent on October 1, 1999.*
(a)(35) Materials made available by Parent at a meeting among
officials of Parent, officials of the Kentucky Public
Service Commission and members of the public on October
5, 1999.*
(a)(36) Letter dated October 5, 1999, from Gary L. Neale,
Chairman, President and Chief Executive Officer of
Parent, to shareholders of the Company.*
(a)(37) Letter dated October 18, 1999, from Gary L. Neale,
Chairman, President and Chief Executive Officer of
Parent, to shareholders of the Company.*
(a)(38) Supplement to the Offer to Purchase, dated October 18,
1999.*
(a)(39) Letter of Transmittal.*
(a)(40) Letter dated October 18, 1999, to be sent by brokers,
dealers, commercial banks, trust companies and other
nominees to their clients.*
5
(a)(42) Notice of Guaranteed Delivery.*
(a)(43) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
(a)(44) Press Release issued by Parent on October 17, 1999.*
(a)(45) Letter dated October 18, 1999, from Credit Suisse First
Boston and Barclays Bank, PLC, to the directors of the
Company.*
(a)(46) Materials made available by Parent to analysts at a
meeting among officers and representatives of Parent
and analysts on October 18, 1999.*
(a)(47) Text of advertisement appearing in various newspapers
beginning on October 19, 1999, issued by Parent on
October 19, 1999.*
(a)(48) Press Release issued by Parent on October 19, 1999.*
(a)(49) Testimony of Parent before the Ohio House Public
Utilities Committee delivered on October 19, 1999.*
(a)(50) Letter dated October 19, 1999, from directors of Parent
to the directors of the Company.*
(a)(51) Press Release issued by Parent on November 11, 1999.*
(b)(1) Commitment Letter dated June 23, 1999 to Parent from
Credit Suisse First Boston and Barclays Bank PLC.*
(b)(2) Amended and Restated Commitment Letter dated October
15, 1999 to Parent from Credit Suisse First Boston and
Barclays Bank PLC.*
(c)(1) Confidentiality Agreement dated November 19, 1999
between Parent and the Company.
(d) Not Applicable.
(e) Not Applicable.
(f) Not Applicable.
(g)(1) Complaint in NiSource Inc. and CEG Acquisition Corp.
vs. Columbia Energy Group et al., Delaware Chancery
Court, New Castle County.*
(g)(2) Complaint in NiSource Inc. and CEG Acquisition Corp.
vs. Columbia Energy Group et al., United States
District Court, District of Delaware.*
6
(g)(3) First Amended Complaint in NiSource Inc. and CEG
Acquisition Corp. vs. Columbia Energy Group et al.,
United States District Court, District of Delaware.*
(g)(4) Complaint in NiSource Inc., NiSource Capital Markets
Inc. and CEG Acquisition Corp. vs. Columbia Energy
Group et al., Delaware Chancery Court, New Castle
County.*
__________________
*Previously Filed
7
SIGNATURE
After due inquiry and to the best of its knowledge and belief,
each of the undersigned certifies that the information set forth in
this statement is true, complete and correct.
CEG ACQUISITION CORP.
By: /s/ Gary L. Neale
-------------------------------
Name: Gary L. Neale
Title: President
NISOURCE INC.
By: /s/ Gary L. Neale
-------------------------------
Name: Gary L. Neale
Title: Chief Executive Officer
Date: November 19, 1999
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
11(a)(1) Offer to Purchase, dated June 25, 1999.*
11(a)(2) Letter of Transmittal.*
11(a)(3) Letter dated June 25, 1999, from Credit Suisse
First Boston Corporation to brokers, dealers,
commercial banks, trust companies and other
nominees.*
11(a)(4) Letter dated June 25, 1999, to be sent by brokers,
dealers, commercial banks, trust companies and
other nominees to their clients.*
11(a)(5) Notice of Guaranteed Delivery.*
11(a)(6) Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.*
11(a)(7) Form of Summary Advertisement, dated June 25,
1999.*
11(a)(8) Press Release issued by Parent on June 24, 1999.*
11(a)(9) Form of letter dated June 28, 1999 from Gary L.
Neale, Chairman, President and Chief Executive
Officer of Parent, to investors of the Company.*
11(a)(10) Press Release issued by Parent on June 28, 1999.*
11(a)(11) "NiSource/Columbia StraightTalk" communication to
stockholders of the Company issued by Parent on
July 2, 1999.*
11(a)(12) Form of letter dated July 2, 1999, from Gary L.
Neale, Chairman, President and Chief Executive
Officer of Parent, to directors of the Company.*
11(a)(13) Press Release issued by Parent on July 6, 1999.*
11(a)(14) Form of letter dated July 12, 1999, from Gary L.
Neale, Chairman, President and Chief Executive
Officer of Parent, to shareholders of Parent.*
11(a)(15) "NiSource/Columbia StraightTalk" communication to
stockholders of the Company issued by Parent on
July 14, 1999.*
11(a)(16) Press Release issued by Parent on July 14, 1999.*
11(a)(17) Press Release issued by Parent on July 19, 1999.*
11(a)(18) Press Release issued by Parent on July 20, 1999.*
11(a)(19) Form of letter dated July 21, 1999, from Gary L.
Neale, Chairman, President and Chief Executive
Officer of Parent, to directors of the Company.*
11(a)(20) Form of letter dated July 26, 1999, from Gary L.
Neale, Chairman, President and Chief Executive
Officer of Parent, to stockholders of the
Company.*
11(a)(21) "NiSource/Columbia StraightTalk" communication to
stockholders of the Company issued by Parent on
July 26, 1999.*
11(a)(22) Information published by Parent on July 30, 1999,
available via the Internet at
http://www.yes2nisource.com.*
11(a)(23) Press Release issued by Parent on July 30, 1999.*
11(a)(24) Press Release issued by Parent on August 9, 1999*.
11(a)(25) "NiSource/Columbia StraightTalk" communication to
stockholders of the Company issued by Parent on
August 13, 1999.*
11(a)(26) Form of letter dated August 13, 1999, from Gary L.
Neale, Chairman, President and Chief Executive
Officer of Parent, to directors of the Company.*
11(a)(27) Form of letter dated August 13, 1999, from Gary L.
Neale, Chairman, President and Chief Executive
Officer of Parent, to Oliver G. Richard III,
Chairman, President and Chief Executive Officer of
the Company.*
11(a)(28) Form of letter dated August 26, 1999, from Gary L.
Neale, Chairman, President and Chief Executive
Officer of Parent, to stockholders of the
Company.*
11(a)(29) Opinion/editorial articles by Gary L. Neale,
Chairman, President and Chief Executive Officer of
Parent, submitted to various newspapers on
September 9, 1999.*
11(a)(30) Opinion/editorial articles by Gary L. Neale,
Chairman, President and Chief Executive Officer of
Parent, submitted to various newspapers on
September 10, 1999.*
11(a)(31) Opinion/editorial article by Gary L. Neale,
Chairman, President and Chief Executive Officer of
Parent, submitted to The Appalachian News-Express
on September 13, 1999.*
11(a)(32) Opinion/editorial article by Gary L. Neale,
Chairman, President and Chief Executive Officer of
Parent, submitted to The Winchester Sun on
September 14, 1999.*
11(a)(33) Form of Letter dated September 23, 1999, from Gary
L. Neale, Chairman, President and Chief Executive
Officer of Parent, to officers, directors and
managers of Parent.*
11(a)(34) "Energy News - Oct. 1999" communication to
customers of Northern Indiana Public Service
Company first issued by Parent on October 1,
1999.*
11(a)(35) Materials made available by Parent at a meeting
among officials of Parent, officials of the
Kentucky Public Service Commission and members of
the public on October 5, 1999.*
11(a)(36) Letter dated October 5, 1999, from Gary L. Neale,
Chairman, President and Chief Executive Officer of
Parent, to shareholders of the Company.*
11(a)(37) Letter dated October 18, 1999, from Gary L. Neale,
Chairman, President and Chief Executive Officer
of Parent, to shareholders of the Company.*
11(a)(38) Supplement to the Offer to Purchase, dated October
18, 1999.*
11(a)(39) Letter of Transmittal.*
11(a)(40) Letter dated October 18, 1999, to be sent by
brokers, dealers, commercial banks, trust
companies and other nominees to their clients.*
11(a)(42) Notice of Guaranteed Delivery.*
11(a)(43) Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.*
11(a)(44) Press Release issued by Parent on October 17,
1999.*
11(a)(45) Letter dated October 18, 1999, from Credit Suisse
First Boston and Barclays Bank, PLC, to the
directors of the Company.*
11(a)(46) Materials made available by Parent to analysts at
a meeting among officers and representatives of
Parent and analysts on October 18, 1999.*
11(a)(47) Text of advertisement appearing in various
newspapers beginning on October 19, 1999, issued
by Parent on October 19, 1999.*
11(a)(48) Press Release issued by Parent on October 19,
1999.*
11(a)(49) Testimony of Parent before the Ohio House Public
Utilities Committee delivered on October 19,
1999.*
11(a)(50) Letter dated October 19, 1999, from directors of
Parent to the directors of the Company.*
11(a)(51) Press Release issued by Parent on November 11,
1999.*
11(b)(1) Commitment Letter dated June 23, 1999 to Parent
from Credit Suisse First Boston and Barclays Bank
PLC.*
11(b)(2) Amended and Restated Commitment Letter dated
October 15, 1999 to Parent from Credit Suisse
First Boston and Barclays Bank PLC.*
11(c)(1) Confidentiality Agreement dated November 19, 1999
between Parent and the Company.
11(g)(1) Complaint in NiSource Inc. and CEG Acquisition
Corp. vs. Columbia Energy Group et al., Delaware
Chancery Court, New Castle County.*
11(g)(2) Complaint in NiSource Inc. and CEG Acquisition
Corp. vs. Columbia Energy Group et al., United
States District Court, District of Delaware*.
11(g)(3) First Amended Complaint in NiSource Inc. and CEG
Acquisition Corp. vs. Columbia Energy Group et
al., United States District Court, District of
Delaware.*
11(g)(4) Complaint in NiSource Inc., NiSource Capital
Markets Inc. and CEG Acquisition Corp. vs.
Columbia Energy Group et al., Delaware Chancery
Court, New Castle County.*
EXHIBIT 11(c)(1)
----------------
[logo - Columbia Energy Group
Service Corporation]
Michael W. O'Donnell
Senior Vice President and
Chief Financial Officer
13880 Dulles Corner Lane
Herndon, Virginia 20171-4600
(703) 561-6074
(703) 561-7326 Fax
[email protected]
November 18, 1999
NiSource Inc.
801 East 86th Avenue
Merrillville, Indiana 46410-6272
Attention: Stephen P. Adik
Senior Executive Vice President,
Chief Financial Officer and Treasurer
Ladies and Gentlemen:
You have requested information from Columbia Energy Group
(the "COMPANY") in connection with your consideration of (a) the
possible negotiated purchase by you of (x) a material amount of the
issued and outstanding shares of common stock of the Company, or (y) a
material amount of assets of the Company; and (b) a merger transaction
between you and the Company (collectively, "TRANSACTIONS"). The
Company is willing to furnish such information to you solely for the
purpose of your evaluation of such Transactions and pursuant to the
terms of this letter agreement (this "AGREEMENT"). You agree that
such information and any other information the Company, its affiliates
or any of its Representatives (as hereinafter defined) furnish to you
or your Representatives, whether before or after the date of this
Agreement and including any information furnished directly to you or
your Representatives by the Company, its affiliates or any of its
Representatives, together with any reports, analyses, compilations,
memoranda, notes and any other writings prepared by you or your
Representatives which contain, reflect or are based upon such
information (collectively, the "EVALUATION MATERIAL"), will be kept
confidential; PROVIDED, HOWEVER, that (i) any of such information may
be disclosed to officers, directors, employees, counsel, investment
bankers and other representatives (such persons being generally
referred to herein as "REPRESENTATIVES") of yours who need to know
such information for the purpose of evaluating Transactions between us
(it being understood that you will cause your Representatives to treat
such information confidentially and its accordance with the terms
hereof and be responsible for any violation by them of the terms
hereof), and (ii) any disclosure of such information may be made to
which the Company consents in writing. You agree that all Evaluation
Material will be used solely for the purpose of evaluating a possible
Transaction.
You agree that neither you, your affiliates nor any of your
or your affiliates' Representatives will, without the prior written
consent of the Company, directly or indirectly, (i) enter into any
agreement, arrangement or understanding or any discussions that might
lead to such agreement, arrangement or understanding with any other
person regarding a possible Transaction involving the Company or its
affiliates, (ii) disclose to any other person either the fact that
discussions or negotiations are taking place concerning a possible
Transaction or any of the terms, conditions or other facts with
respect to any such transactions, including the status thereof or
(iii) disclose to any other person that you have received or produced
Evaluation Material; PROVIDED, HOWEVER, that you may make such
disclosure to the extent you have received the opinion of your counsel
that such disclosure is required to be made by you in order to avoid
violating the federal securities laws and you are otherwise not in
breach of this agreement. The term "person" as used in this Agreement
shall be broadly interpreted to include, without limitation, the media
and any corporation, company, group, partnership or individual.
In the event that you or any of your Representatives are
required to disclose any Evaluation Material (i) in connection with any
judicial or administrative proceeds (by oral questions,
interrogatories, requests for information or documents, subpoena,
civil investigative demand or similar process) or (ii) in order, in
the opinion of your counsel, to avoid violating the federal securities
laws, you will in advance of such disclosure provide the Company with
prompt notice of such requirement(s). You also agree, to the extent
legally permissible, to provide the Company, in advance of any such
disclosure, with copies of any Evaluation Material you intend to
disclose (and, if applicable, the text of the disclosure language
itself) and to cooperate with the Company to the extent the Company
may seek to limit such disclosure. If, in the absence of a protective
order or receipt of a waiver from the Company after a request in
writing therefor is made by you (such request to be made as soon as
practicable to allow the Company a reasonable amount of time to
respond thereto), you or your Representatives are legally required to
disclose Evaluation Material to any tribunal or in order to comply
with the federal securities laws, you may disclose such portion of the
Evaluation Material which you are advised by opinion of your counsel
is legally required so long as you exercise your reasonable best
efforts to obtain assurances that the Evaluation Material so disclosed
will be kept confidential by any recipient(s) without liability
hereunder.
In consideration for being furnished with the Evaluation
Material, you agree that prior to March 1, 2000, you (i) will not
-2-
amend any of the terms and conditions of your tender offer for all
shares of the Company's common stock at a cash price per share of $74
on the terms and subject to the conditions of the revised Offer to
Purchase, filed as an exhibit to your Schedule 14D-1/A on October 18,
1999 (the "Tender Offer") except, at your election, to extend from
time to time the expiration date of the Tender Offer or terminate the
Tender Offer or to make amendments to terms of the Tender Offer that,
in the opinion of your counsel are required in order to avoid
violating the federal securities laws; (ii) will not, and shall cause
your Representatives, affiliates and affiliates' Representatives not
to directly or indirectly, disseminate any proxy solicitation
materials or otherwise solicit proxies from record or beneficial
stockholders of the Company for use at the Company's next annual
meeting; PROVIDED; that you shall be permitted to file (on a
confidential basis if such treatment is available) preliminary proxy
materials or any other proxy solicitation materials with the
Securities and Exchange Commission (the "SEC") or any other
governmental entity, and engage in discussions and enter into
arrangements with potential nominees for the Company's board of
directors in connection with the Company's annual meeting of
stockholders for the year 2000; (iii) will, except as otherwise
directed by a court, suspend all activities (including discovery
activities and the filing of motions and any other request for relief
from any court), in connection with all pending and prospective
litigation with the Company and its officers and directors relating to
the Tender Offer and the Company's response thereto; (iv) will not,
and shall cause your Representatives, affiliates and affiliates'
Representatives not to, directly or indirectly, without first
obtaining the written consent of the Board of Directors of the
Company, (a) except as may be required by law, take any other action
in furtherance of the Tender Offer or in any other manner seek to
acquire or offer to acquire, seek, propose or agree to acquire, by
means of a purchase, agreement, business combination, payment for
Common Stock pursuant to the Tender Offer, beneficial ownership of any
securities or assets of the Company, including rights or options to
acquire such ownership; (b) file new or amended tender offer materials
with the SEC, except for (x) amendments required to disclose the
termination of the Tender Offer or an extension of the expiration date
of the Tender Offer, and (y) amendments that, in the opinion of your
counsel, are required to be made by you in order to avoid violating
the federal securities laws; (c) in any way assist any other person to
effect or seek, offer or propose (whether publicly or otherwise) to
effect or participate in any acquisition of securities or assets of
the Company or any tender or exchange offer, merger, consolidation or
other business combination involving the Company; or (d) enter into
any discussions or arrangements with any third party with respect to
any of the foregoing or advise, assist, encourage, finance or seek to
persuade others to take any action with respect to the foregoing; (v)
will not make any public disclosure, including relating to the
Company's public announcement of the decision of the Company's Board
of Directors to authorize Company management to evaluate various
strategic alternatives and the resulting evaluation process, or take
any action which could require the Company to make any public
disclosure, with respect to any of the matters set forth in this
-3-
Agreement; and (vi) will not make a request to amend or waive any
provision of this paragraph or the second paragraph of this Agreement,
provided, however, that each of the restrictions set forth in this
paragraph shall terminate and be of no further force and effecting in
the event the Company or any subsidiary enters into a binding
agreement, or the Company announces or confirms that it has entered
into such binding agreement, with respect to (i) the sale of 10% or
more of the equity securities of the Company, (ii) a sale of 10% or
more of the Company's consolidated assets or (iii) a merger,
recapitalization, reorganization, business combination or similar
extraordinary corporate transaction involving the Company or any
significant subsidiary. The Company also agrees that the foregoing
restrictions shall terminate and be of no further effect if (x) the
Company amends any provisions of its Bylaws, or (y) otherwise takes
any action, in either case (x) or (y) that would preclude you from
conducting, or would materially interfere with your ability to
conduct, a proxy contest with respect to the Company's next annual
stockholders meeting if you were to remain subject to the restrictions
set forth in this paragraph. In the event that the Company enters
into a confidentiality agreement with restrictions of the type set
forth in this paragraph but which expire or terminate prior to March
1, 2000, you shall be released from the restrictions set forth in this
paragraph on such earlier expiration or termination date.
In consideration for your agreement to the terms of this
Agreement, the Company hereby agrees that (a) it will not hold its
annual meeting of stockholders for the year 2000 prior to May 10,
2000; and (b) except as otherwise directed by a court, it will suspend
all activities (including discovery activities and the filing of
motions and any other request for relief from any court), in
connection with all pending and prospective litigation involving you
and the Company and its officers and directors relating to the Tender
Offer and the Company's response thereto until March 1, 2000, as long
as you are in compliance with and subject to the terms of this
Agreement.
In the event that no Transaction is effected involving you
and the Company after you have been furnished with Evaluation
Material, you will (and you will cause your Representatives to)
promptly, upon request of the Company, deliver to the Company the
Evaluation Material, furnished by the Company, its affiliates or
Representatives and will destroy any writing prepared by you or your
Representatives, without retaining any copy thereof. If requested by
the Company, an appropriate officer of yours will certify in writing
to the Company that all such material has been so delivered or
destroyed. Notwithstanding the delivery or destruction of the
Evaluation Material required by this paragraph, any and all duties and
obligations existing under this Agreement shall remain in full force
and effect.
You agree that from the date of this Agreement until March
1, 2000, without the prior written consent of the Company, you and
your Representatives will not directly solicit or actively seek to
hire any person who at the time of such solicitation is an employee of
-4-
the Company or any of its affiliates; PROVIDED, HOWEVER, that the
foregoing provision shall not prevent you from (i) employing any such
person who first contacts you on his or her own initiative without any
prior direct solicitation from you or your Representatives and (ii)
conducting general solicitations for employees or independent
contractors which solicitations are not specifically targeted at any
of the Company's employees.
The term "Evaluation Material" does not include information
which was or becomes generally available to you on a non-confidential
basis; provided that the source of such information was not the
Company or its Representatives or bound by a confidentiality
agreement. The term "affiliate" as used in this Agreement shall have
the meaning ascribed to such term in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended.
You agree that all (i) communications regarding any
Transaction, (ii) requests for additional information, (iii) requests
for facility tours or management meetings or (iv) discussions or
questions regarding procedures will be submitted or directed only to
Daniel B. More of Morgan Stanley Dean Witter at (212) 761-8380 or
Gregg S. Polle of Salomon Smith Barney at (212) 783-6302 or a
representative designated by either of them.
You understand and acknowledge that we do not make any
representation or warranty as to the accuracy or completeness of the
Evaluation Material and that only those representations and warranties
made by the Company in a definitive agreement, if any, and subject to
such limitations and qualifications as may be set forth herein, shall
have any legal effect. You agree that, other than as may be set forth
in such definitive agreement, neither the Company or any of its
affiliates nor their Representatives shall have any liability to you
or any of your Representatives, including, without limitation,
contract, tort or securities laws, resulting from the use of the
Evaluation Material supplied by us or our Representatives. It is
agreed that no failure or delay by the Company in exercising any
right, power or privilege hereunder shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or
privilege.
You agree that the Company, without prejudice to any rights
to judicial relief it may otherwise have, shall be entitled to seek
equitable relief, including injunctions and orders for specific
performance, in the event of any breach of the provisions of this
Agreement. You agree that you will not oppose the granting of such
relief on the basis that the Company has an adequate remedy at law and
that, in the event that the Company is successful in obtaining any
relief sought in any legal proceeding relating to this Agreement, you
will pay any fees which the Company may incur in enforcing this
Agreement. You also agree that you will not seek and will agree to
waive any requirement for the securing or posting of a bond in
connection with the Company's seeking or obtaining such relief.
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It is further understood and agreed that unless and until
the execution and delivery of a definitive agreement with respect to
any transaction referred to in the first paragraph of this Agreement,
neither the Company nor you intends to be, nor shall either of us be,
under any legal obligation of any kind whatsoever with respect to such
a Transaction or otherwise, by virtue of any written or oral
expressions by our respective Representatives with respect to such a
transaction, except for the matters specifically agreed to in this
Agreement. You further understand and agree that the Company and its
representatives shall be free to conduct the process for a Transaction
as they shall determine in their sole discretion, that the procedures
relating to a Transaction may be changed at any time without prior
notice to you or any other person.
You hereby expressly confirm that you are aware and that
your Representatives have been advised that the United States
securities laws prohibit any person who has material non-public
information about a company from purchasing or selling securities of
such company.
If at any time you cease to actively consider a possible
Transaction with the Company, you agree, promptly to notify us of such
decision in writing.
It is understood and agreed that if any provision contained
in this Agreement or the application thereof to you, the Company, or
any other person or circumstance shall be invalid, illegal or
unenforceable in any respect under any applicable law as determined by
a court of competent jurisdiction, the validity, legality and
enforceability of the remaining provisions contained in this
Agreement, or the application of such provision to such persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby. In the case of any
such invalidity, illegality or unenforceability, the parties hereto
agree to substitute a suitable and equitable provision to effect the
original intent of this provision.
This Agreement shall benefit and bind successors and assigns
of you and of the Company, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement. Any assignment of this Agreement by you without
prior written consent of the Company shall be void.
This Agreement shall be in full force and effect for a
period of two (2) years from the date first above written.
This Agreement shall be governed by, and construed in
accordance with the laws of the State of New York. The parties hereby
irrevocably submit to the jurisdiction of the courts of the State of
New York and the Federal courts of the United States of America in
either case located in The Borough of Manhattan, The City of New York
solely in respect of the interpretation and enforcement of the
-6-
provisions of this Agreement, and hereby waive, and agree not to
assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof, that it is not subject thereto
or that such action, suit or proceeding may not be brought or is not
maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement may not be enforced in or by such
courts, and irrevocably agrees to be bound by any judgment rendered
thereby in connection with such litigation, and the parties hereto
irrevocably agree that all claims with respect to such action or
proceeding shall be deemed to have arisen from the transaction of
business in the State of New York and shall be heard and determined in
such a New York State or Federal court.
If you are in agreement with the foregoing, please so
indicate by signing and returning one copy of this Agreement,
whereupon this Agreement will constitute our agreement with respect to
the subject matter hereof.
Very truly yours,
/s/ Michael W. O'Donnell
---------------------------------
Michael W. O'Donnell
Senior Vice President and
Chief Financial Officer
Columbia Energy Group
AGREED AND ACCEPTED:
NISOURCE INC.
By: /s/ Stephen P. Adik
-----------------------
Duly Authorized
Dated: November 19, 1999
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