_________________________________________________________________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
June 11, 1999
INDIANA ENERGY, INC.
(Exact name of registrant as specified in its charter)
Indiana 01-9091 35-1654378
(State of incorporation)(Commission File Number)(I.R.S. Employer
Identification No.)
1630 N. Meridian Street 46202
Indianapolis, Indiana (Zip Code)
(Address of principal
executive offices)
Registrant's telephone number, including area code (317) 926-3351
_________________________________________________________________
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Item 5. Other Events.
On June 14, 1999, Indiana Energy, Inc. and SIGCORP, Inc. jointly
announced the signing of an Agreement and Plan of Merger. Pursuant to
General Instruction F to Form 8-K, the following information is
incorporated herein by reference and is attached hereto: (i) Agreement
and Plan of Merger among Indiana Energy, Inc., Vectren Corporation and
SIGCORP, Inc. dated June 11, 1999 (Exhibit 2); (ii) Indiana Energy, Inc.
Stock Option Agreement dated as of June 11, 1999 (Exhibit 4.1); (iii)
SIGCORP, Inc. Stock Option Agreement dated as of June 11, 1999 (Exhibit
4.2); and (iv) press release dated June 14, 1999 (Exhibit 99.1).
Item 7. Exhibits.
(c) Exhibits.
The following exhibits are filed as a part of this report:
Exhibit
Number Description
2 Agreement and Plan of Merger dated as of June 11, 1999, among
Indiana Energy, Inc., SIGCORP, Inc. and Vectren
Corporation
4.1 Indiana Energy, Inc. Stock Option Agreement dated as of June
11, 1999
4.2 SIGCORP, Inc. Stock Option Agreement dated as of June 11,
1999
99.1 Press release dated as of June 14, 1999 announcing Merger
Agreement among Indiana Energy, Inc., Vectren
Corporation and SIGCORP, Inc.
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
INDIANA ENERGY, INC.
Dated: June 14, 1999
By: /s/ Carl L. Chapman
-----------------------------
Chief Financial Officer
By: /s/ Jerome A. Benkert
-----------------------------
Vice President and Controller
AGREEMENT AND PLAN
OF MERGER
by and among
INDIANA ENERGY, INC.
SIGCORP, INC.
and
VECTREN CORPORATION
Dated as of June 11, 1999
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.1 THE MERGER . . . . . . . . . . . . . . . . .1
Section 1.2 EFFECTIVE TIME OF THE MERGER . . . . . . . .2
Section 1.3 ARTICLES OF INCORPORATION. . . . . . . . . .2
Section 1.4 BYLAWS . . . . . . . . . . . . . . . . . . .2
Section 1.5 EFFECTS OF MERGER. . . . . . . . . . . . . .2
ARTICLE II
CONVERSION OF SHARES . . . . . . . . . . . . . . . . . . . . . .2
Section 2.1 EFFECT OF MERGER ON CAPITAL STOCK. . . . . .2
Section 2.2 EXCHANGE OF CERTIFICATES.. . . . . . . . . .3
ARTICLE III
THE CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . .5
Section 3.1 CLOSING. . . . . . . . . . . . . . . . . . .5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SIGCORP. . . . . . . . . . . .6
Section 4.1 ORGANIZATION AND QUALIFICATION . . . . . . .6
Section 4.2 SUBSIDIARIES . . . . . . . . . . . . . . . .6
Section 4.3 CAPITALIZATION . . . . . . . . . . . . . . .7
Section 4.49 AUTHORITY; NON-CONTRAVENTION; STATUTORY
APPROVALS; COMPLIANCE. . . . . . . . . . . .7
Section 4.5 REPORTS AND FINANCIAL STATEMENTS . . . . . 10
Section 4.6 ABSENCE OF CERTAIN CHANGES OR EVENTS: ABSENCE
OF UNDISCLOSED LIABILITIES . . . . . . . . 10
Section 4.7 LITIGATION . . . . . . . . . . . . . . . . 11
Section 4.8 REGISTRATION STATEMENT AND PROXY STATEMENT 11
Section 4.9 TAX MATTERS. . . . . . . . . . . . . . . . 12
Section 4.10 EMPLOYEE MATTERS: ERISA . . . . . . . . . 13
Section 4.11 ENVIRONMENTAL PROTECTION . . . . . . . . . 14
Section 4.12 REGULATION AS A UTILITY. . . . . . . . . . 17
Section 4.13 VOTE REQUIRED. . . . . . . . . . . . . . . 17
Section 4.14 ACCOUNTING MATTERS . . . . . . . . . . . . 17
Section 4.15 APPLICABILITY OF CERTAIN INDIANA LAW . . . 17
Section 4.16 OPINION OF FINANCIAL ADVISOR . . . . . . . 18
Section 4.17 INSURANCE. . . . . . . . . . . . . . . . . 18
Section 4.18 OWNERSHIP OF INDIANA COMMON STOCK. . . . . 18
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF INDIANA . . . . . . . . . . 18
Section 5.1 ORGANIZATION AND QUALIFICATION . . . . . . 18
Section 5.2 SUBSIDIARIES . . . . . . . . . . . . . . . 19
Section 5.3 CAPITALIZATION . . . . . . . . . . . . . . 19
Section 5.4 AUTHORITY; NON-CONTRAVENTION; STATUTORY
APPROVALS; COMPLIANCE. . . . . . . . . . . 20
Section 5.5 REPORTS AND FINANCIAL STATEMENTS . . . . . 22
Section 5.6 ABSENCE OF CERTAIN CHANGES OR EVENTS; ABSENCE
OF UNDISCLOSED LIABILITIES . . . . . . . . 22
Section 5.7 LITIGATION . . . . . . . . . . . . . . . . 23
Section 5.8 REGISTRATION STATEMENT AND PROXY STATEMENT 23
Section 5.9 TAX MATTERS. . . . . . . . . . . . . . . . 24
Section 5.10 EMPLOYEE MATTERS; ERISA. . . . . . . . . . 24
Section 5.11 ENVIRONMENTAL PROTECTION . . . . . . . . . 25
Section 5.12 REGULATION AS A UTILITY. . . . . . . . . . 27
Section 5.13 VOTE REQUIRED. . . . . . . . . . . . . . . 27
Section 5.14 ACCOUNTING MATTERS . . . . . . . . . . . . 27
Section 5.15 APPLICABILITY OF CERTAIN INDIANA LAW . . . 28
Section 5.16 OPINION OF FINANCIAL ADVISOR . . . . . . . 28
Section 5.17 INSURANCE. . . . . . . . . . . . . . . . . 28
Section 5.18 OWNERSHIP OF SIGCORP COMMON STOCK. . . . . 29
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER . . . . . . . . . . . . . 29
Section 6.1 ORDINARY COURSE OF BUSINESS. . . . . . . . 29
Section 6.2 DIVIDENDS. . . . . . . . . . . . . . . . . 29
Section 6.3 ISSUANCE OF SECURITIES . . . . . . . . . . 30
Section 6.4 CHARTER DOCUMENTS. . . . . . . . . . . . . 30
Section 6.5 NO ACQUISITIONS. . . . . . . . . . . . . . 30
Section 6.6 CAPITAL EXPENDITURES . . . . . . . . . . . 31
Section 6.7 NO DISPOSITIONS. . . . . . . . . . . . . . 31
Section 6.8 INDEBTEDNESS . . . . . . . . . . . . . . . 31
Section 6.9 COMPENSATION, BENEFITS . . . . . . . . . . 32
Section 6.10 1935 ACT . . . . . . . . . . . . . . . . . 32
Section 6.11 ACCOUNTING . . . . . . . . . . . . . . . . 32
Section 6.12 POOLING. . . . . . . . . . . . . . . . . . 32
Section 6.13 TAX-FREE STATUS. . . . . . . . . . . . . . 33
Section 6.14 INSURANCE. . . . . . . . . . . . . . . . . 33
Section 6.15 COOPERATION, NOTIFICATION. . . . . . . . . 33
Section 6.16 RATE MATTERS . . . . . . . . . . . . . . . 33
Section 6.17 THIRD PARTY CONSENTS . . . . . . . . . . . 34
Section 6.18 TAX-EXEMPT STATUS. . . . . . . . . . . . . 34
Section 6.19 PERMITS. . . . . . . . . . . . . . . . . . 34
Section 6.20 CERTAIN INFORMATION RELATING TO CUSTOMERS. 34
ARTICLE VII
ADDITIONAL AGREEMENTS. . . . . . . . . . . . . . . . . . . . . 34
Section 7.1 ACCESS TO INFORMATION. . . . . . . . . . . 34
Section 7.2 JOINT PROXY STATEMENT AND REGISTRATION
STATEMENT. . . . . . . . . . . . . . . . . 35
Section 7.3 REGULATORY MATTERS . . . . . . . . . . . . 36
Section 7.4 SHAREHOLDER APPROVALS. . . . . . . . . . . 37
Section 7.5 DIRECTORS' AND OFFICERS' INDEMNIFICATION . 38
Section 7.6 DISCLOSURE SCHEDULES . . . . . . . . . . . 40
Section 7.7 PUBLIC ANNOUNCEMENTS . . . . . . . . . . . 41
Section 7.8 RULE 145 AFFILIATES. . . . . . . . . . . . 41
Section 7.9 ASSUMPTION OF SIGCORP AND INDIANA AGREEMENTS
AND ARRANGEMENTS . . . . . . . . . . . . . 41
Section 7.10 INCENTIVE, STOCK AND OTHER PLANS . . . . . 41
Section 7.11 EMPLOYEE BENEFIT PLANS . . . . . . . . . . 43
Section 7.12 NO SOLICITATIONS . . . . . . . . . . . . . 43
Section 7.13 COMPANY BOARD OF DIRECTORS . . . . . . . . 44
Section 7.14 COMPANY OFFICERS . . . . . . . . . . . . . 45
Section 7.15 EMPLOYMENT CONTRACTS . . . . . . . . . . . 46
Section 7.16 CORPORATE OFFICES AND NAME . . . . . . . . 46
Section 7.17 TRANSITION MANAGEMENT. . . . . . . . . . . 46
Section 7.18 EXPENSES . . . . . . . . . . . . . . . . . 47
Section 7.19 COVENANT TO SATISFY CONDITIONS . . . . . . 47
Section 7.20 COORDINATION OF DIVIDENDS. . . . . . . . . 47
ARTICLE VIII
CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 8.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO
EFFECT THE MERGER. . . . . . . . . . . . . 47
Section 8.2 CONDITIONS TO OBLIGATION OF SIGCORP TO EFFECT
THE MERGER . . . . . . . . . . . . . . . . 48
Section 8.3 CONDITIONS TO OBLIGATION OF INDIANA TO EFFECT
THE MERGER . . . . . . . . . . . . . . . . 49
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER. . . . . . . . . . . . . . . 50
Section 9.1 TERMINATION. . . . . . . . . . . . . . . . 50
Section 9.2 EFFECT OF TERMINATION. . . . . . . . . . . 53
Section 9.3 TERMINATION DAMAGES. . . . . . . . . . . . 53
Section 9.4 AMENDMENT. . . . . . . . . . . . . . . . . 55
Section 9.5 WAIVER . . . . . . . . . . . . . . . . . . 55
ARTICLE X
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 56
Section 10.1 NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS . . . . . . . . . 56
Section 10.2 BROKERS. . . . . . . . . . . . . . . . . . 56
Section 10.3 NOTICES. . . . . . . . . . . . . . . . . . 56
Section 10.4 MISCELLANEOUS. . . . . . . . . . . . . . . 58
Section 10.5 INTERPRETATION . . . . . . . . . . . . . . 58
Section 10.6 COUNTERPARTS; EFFECT . . . . . . . . . . . 59
Section 10.7 PARTIES IN INTEREST. . . . . . . . . . . . 59
Section 10.8 SPECIFIC PERFORMANCE . . . . . . . . . . . 59
Section 10.9 FURTHER ASSURANCES . . . . . . . . . . . . 59
Exhibit 1.3. . . . . . . . . . . . . . . . . . . . . . . . . . .2
Exhibit 1.4. . . . . . . . . . . . . . . . . . . . . . . . . . .2
Exhibit 7.8. . . . . . . . . . . . . . . . . . . . . . . . . . 41
Exhibit 7.15.. . . . . . . . . . . . . . . . . . . . . . . . . 46
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of June 11, 1999 (this
"AGREEMENT"), by and among Indiana Energy, Inc., an Indiana
corporation ("INDIANA"), SIGCORP, Inc., an Indiana corporation
("SIGCORP"), and Vectren Corporation, an Indiana corporation, 50%
of whose outstanding capital stock is owned by Indiana and 50% of
whose outstanding capital stock is owned by SIGCORP (the
"COMPANY").
WHEREAS, Indiana and SIGCORP have determined to engage in a
strategic business combination and, accordingly, have formed the
Company to participate in such business combination;
WHEREAS, in furtherance thereof, the respective Boards of
Directors of Indiana, SIGCORP and the Company have approved the
merger of Indiana and SIGCORP with and into the Company (the
"MERGER"), all pursuant to the terms and conditions set forth in
this Agreement and, in connection therewith, have approved the
execution and delivery of the SIGCORP Stock Option Agreement dated
as of the date hereof between SIGCORP and Indiana (the "SIGCORP
OPTION") and the Indiana Stock Option Agreement dated as of the
date hereof between Indiana and SIGCORP (the "INDIANA OPTION");
WHEREAS, for federal income tax purposes, it is intended that
the Merger will be a reorganization described in Section 368(a) of
the Internal Revenue Code of 1986, as amended (the "CODE"), and the
regulations thereunder, and that Indiana, SIGCORP, the Company and
the shareholders of each of Indiana and SIGCORP who exchange their
shares solely for stock of the Company will recognize no gain or
loss for federal income tax purposes as a result of the
consummation of the Merger; and
WHEREAS, for accounting purposes, it is intended that the
Merger will be accounted for as a pooling of interests in
accordance with generally accepted accounting principals ("GAAP")
and applicable regulations of the Securities and Exchange
Commission (the "SEC").
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE I
THE MERGER
Section 1.1 THE MERGER. Upon the terms and subject to the
conditions of this Agreement, at the Effective Time (as defined in
Section 1.2), each of Indiana and SIGCORP shall be merged with and
into the Company in accordance with the laws of Indiana. The
Company shall be the surviving corporation in the Merger and shall
continue its existence under the laws of Indiana.
Section 1.2 EFFECTIVE TIME OF THE MERGER. On the Closing
Date (as defined in Section 3.1), articles of merger shall be
executed and filed by the Company with the Secretary of State of
Indiana pursuant to the Indiana Business Corporation Law ("IBCL").
The Merger shall become effective at such time as such articles of
merger have all been so filed, such time being herein called the
"EFFECTIVE TIME".
Section 1.3 ARTICLES OF INCORPORATION. The Articles of
Incorporation of the Company shall be amended prior to closing to
provide for those matters set forth on Exhibit 1.3, and such other
matters generally covered in such Articles of Incorporation and, as
so amended, shall be the Articles of Incorporation of the Company
after the Effective Time until duly amended.
Section 1.4 BYLAWS. The Bylaws of the company shall be
amended prior to closing to provide, for a period of three years
after Closing, for those matters set forth on Exhibit 1.4, and such
other matters as are generally covered in such By-laws and, as so
amended, shall be the Bylaws of the Company after the Effective
Time until duly amended.
Section 1.5 EFFECTS OF MERGER. The Merger shall have the
effects set forth in the IBCL.
ARTICLE II
CONVERSION OF SHARES
Section 2.1 EFFECT OF MERGER ON CAPITAL STOCK. At the
Effective Time, by virtue of the Merger and without any action on
the part of any holder of any capital stock of Indiana, SIGCORP or
the Company:
(a) CANCELLATION OF COMPANY CAPITAL STOCK. Each share of the
capital stock of the Company issued and outstanding immediately
prior to the Effective Time shall be canceled and cease to exist,
and no consideration shall be delivered in exchange therefor.
(b) CANCELLATION OF CERTAIN COMMON STOCK. Each share of
Common Stock, no par value, of Indiana (the "INDIANA COMMON
STOCK") that is owned by Indiana or any of its subsidiaries (as
defined in Section 4.1) or by SIGCORP or any of its subsidiaries
shall be canceled and cease to exist. Each share of Common Stock,
no par value, of SIGCORP (the "SIGCORP COMMON STOCK") that is owned
by SIGCORP or any of its subsidiaries or by Indiana or any of its
subsidiaries shall be canceled and cease to exist.
(c) CONVERSION OF CERTAIN COMMON STOCK. Each issued and
outstanding share of Indiana Common Stock (other than shares
canceled pursuant to Section 2.1(b)) shall be converted into the
right to receive 1.0 (the "INDIANA RATIO") duly authorized, validly
issued, fully paid and nonassessable shares of Common Stock, no par
value, of the Company (the "COMPANY COMMON STOCK"), and each issued
and outstanding share of SIGCORP Common Stock (other than shares
canceled pursuant to Section 2.1 (b)) shall be converted into the
right to receive 1.333 (the "SIGCORP RATIO") duly authorized,
validly issued, fully paid and nonassessable shares of Company
Common Stock. Upon such conversions, all such shares of Indiana
Common Stock and SIGCORP Common Stock shall be canceled and cease
to exist, and each holder of a certificate representing any such
shares shall cease to have any rights with respect thereto, except
the right to receive the number of whole shares of Company Common
Stock to be issued in consideration therefor and any cash in lieu
of fractional shares in accordance with Section 2.2.
Section 2.2 EXCHANGE OF CERTIFICATES..
(a) DEPOSIT WITH EXCHANGE AGENT. As soon as practicable
after the Effective Time, the Company shall deposit with a bank or
trust company mutually agreeable to Indiana and SIGCORP (the
"EXCHANGE AGENT") certificates representing shares of Company
Common Stock required to effect the exchanges referred to in
Section 2.1, and shares that would be issued to the holders of
Indiana and SIGCORP Common Stock but for the provisions of Section
2.2(d).
(b) EXCHANGE PROCEDURES. As soon as practicable after the
Effective Time, the Exchange Agent shall mail to each holder of
record of a certificate or certificates that, immediately prior to
the Effective Time, represented outstanding shares of Indiana
Common Stock or SIGCORP Common Stock (collectively, the
"CERTIFICATES") that were converted (collectively, the "CONVERTED
SHARES") into the right to receive shares of Company Common Stock
(collectively, the "COMPANY SHARES") pursuant to Section 2.1, (i)
a form of letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to any Certificate
shall pass, only upon actual delivery of such Certificate to the
Exchange Agent) and (ii) instructions for use in effecting the
surrender of Certificates or affecting any necessary book-entry
transfers in the case of uncertificated shares of Indiana Common
Stock or SIGCORP Common Stock in exchange for certificates
representing Company Shares. Upon surrender of a Certificate to
the Exchange Agent (or to such other agent or agents as may be
appointed by agreement of Indiana and SIGCORP) or evidence of any
necessary book-entry transfers in the case of uncertificated
shares, together with a duly executed letter of transmittal and
such other documents as the Exchange Agent shall require, the
holder of such Certificate or person on whose behalf such book-
entry transfer is made shall be entitled to receive in exchange
therefor a certificate representing the number of whole Company
Shares that such holder has the right to receive pursuant to the
provisions of this Section 2.1. In the event of a transfer of
ownership of Converted Shares that is not registered in the
transfer records of Indiana or SIGCORP, as the case may be, a
certificate representing the proper number of Company Shares may be
issued to the transferee if the Certificate representing such
Converted Shares is presented to the Exchange Agent, accompanied by
all documents required to evidence and effect such transfer. If
any Certificate shall have been lost, stolen, mislaid or destroyed,
then upon receipt of (x) an affidavit of that fact from the holder
claiming such Certificate to be lost, mislaid, stolen or destroyed,
(y) such bond, security or indemnity as the Company or the Exchange
Agent may reasonably require, and (z) any other documentation
necessary to evidence and effect the bona fide exchange thereof,
the Exchange Agent shall issue to such holder a certificate
representing the number of Company Shares into which the shares
represented by such lost, stolen, mislaid or destroyed Certificate
shall have been converted. Until surrendered as contemplated by
this Section 2.2, each Certificate shall be deemed at any time
after the Effective Time to represent only the right to receive
upon such surrender a certificate representing Company Common Stock
as contemplated by this Section 2.2.
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No
dividends or other distributions declared or made after the
Effective Time with respect to Company Shares with a record date
after the Effective Time shall be paid to the holder of any
unsurrendered Certificate with respect to the Company Shares
represented thereby, and no cash payment in lieu of fractional
shares shall be made to any such holder pursuant to Section 2.2(d),
until the holder of record of such Certificate shall surrender such
Certificate as contemplated by Section 2.3(b). Subject to the
effect of unclaimed property, escheat and other applicable laws,
following surrender of any such Certificate there shall be paid the
holder of the certificates representing whole Company Shares issued
in exchange therefor, without interest, (i) at the time of such
surrender or as soon thereafter as may be practicable, the amount
of any cash payable in lieu of a fractional Company Share to which
such holder is entitled pursuant to Section 2.2(d) and the amount
of dividends or other distributions with a record date after the
Effective Time theretofore paid with respect to such whole Company
Shares and (ii) at the appropriate payment date, the amount of
dividends or other distributions with a record date after the
Effective Time but prior to surrender and a payment date subsequent
to surrender payable with respect to such whole Company Shares.
(d) NO FRACTIONAL SECURITIES.
(i) No certificates or scrip representing fractional
Company Shares shall be issued upon the surrender for exchange
of Certificates, and such fractional share interests will not
entitle the owner thereof to vote or to any rights of a
shareholder of Company Shares.
(ii) As promptly as practicable following the Effective
Time, the Exchange Agent shall determine the excess of (x) the
number of full shares of Company Common Stock delivered to the
Exchange Agent by the Company pursuant to Section 2.2(a) over
(y) the aggregate number of whole shares of Company Common
Stock to be issued pursuant to Section 2.1, such excess being
herein called the "EXCESS SHARES." As soon after the
Effective Time as practicable, the Exchange Agent, as agent
for the holders of Indiana and SIGCORP Common Stock, shall
sell the Excess Shares at then prevailing prices on the New
York Stock Exchange, Inc. ("NYSE"), all in the manner provided
in paragraph (iii) of this Section 2.2(d).
(iii) The sale of the Excess Shares by the Exchange
Agent shall be executed on the NYSE through one or more member
firms of the NYSE and shall be executed in round lots to the
extent practicable. Until the net proceeds of such sale or
sales have been distributed to the holders of Indiana and
SIGCORP Common Stock, the Exchange Agent shall hold such
proceeds in trust for the holders of Indiana and SIGCORP
Common Stock (the "COMMON SHARES TRUST"). The company shall
pay all commissions, transfer taxes and other out-of-pocket
transfer taxes and other out-of-pocket transaction costs,
including the expenses and compensation, of the Exchange Agent
incurred in connection with such sale of the Excess Shares.
The Exchange Agent shall determine the portion of the Common
Shares Trust to which each holder of Indiana and SIGCORP
Common Stock is entitled.
(iv) As soon as practicable after the determination of
the amount of cash, if any, to be paid to holders of Indiana
and SIGCORP Common Stock in lieu of any fractional share
interests, the Exchange Agent shall distribute such amounts to
such holders of Indiana and SIGCORP Common Stock in accordance
with this Section 2.2.
(e) CLOSING OF TRANSFER BOOKS. From and after the Effective
Time, the stock transfer books of Indiana and SIGCORP shall be
closed and no further registration of transfers of shares of
Indiana and SIGCORP Common Stock shall thereafter be made. If
after the Effective Time Certificates are presented to the Company
for registration or transfer, they shall be canceled and exchanged
for certificates representing the number of whole Company Shares
and the cash amount, if any, determined in accordance with this
Article II.
(f) TERMINATION OF DUTIES OF EXCHANGE AGENT. Any
certificates representing Company Shares deposited with the
Exchange Agent pursuant to Section 2.2(a) and not exchanged within
one year after the Effective Time pursuant to this Section 2.2
shall be returned by the Exchange Agent to the Company, which shall
thereafter act as Exchange Agent. All funds held by the Exchange
Agent which are unclaimed at the end of one year from the Effective
Time shall be returned to the Company whereupon any holder of
unsurrendered Certificates shall look as a general unsecured
creditor only to the Company for payment of any funds to which such
holder may be entitled, subject to applicable law. The Company
shall not be liable to any person for such shares or funds
delivered to a public official pursuant to any applicable abandoned
property, escheat or similar law.
ARTICLE III
THE CLOSING
Section 3.1 CLOSING. The closing of the Merger (the
"CLOSING") shall take place at the offices of Sommer & Barnard,
4000 Bank One Tower, 111 Monument Circle, Indianapolis, Indiana
46204 at 10:00 A.M., local time, on the second business day
immediately following the date on which the last of the conditions
set forth in Article VIII is fulfilled or waived (or, if such
second business day immediately falls on a record date for the
payment of dividends on the SIGCORP or Indiana Common Stock, on the
first business day thereafter that is not such a record date), or
at such other time, date and place as SIGCORP and Indiana shall
mutually agree (the "CLOSING DATE").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SIGCORP
SIGCORP represents and warrants to Indiana as follows:
Section 4.1 ORGANIZATION AND QUALIFICATION.
(a) Except as set forth in Section 4.1 or 4.2 of the SIGCORP
Disclosure Schedule (as defined in Section 7.6(a)(i)), (i) SIGCORP
is a corporation duly organized and validly existing under the laws
of Indiana and (ii) each of SIGCORP's subsidiaries is a corporation
duly organized, validly existing and in good standing (if relevant)
under the laws of its jurisdiction of incorporation and each of
SIGCORP and its subsidiaries has all requisite corporate power and
authority, and is duly authorized by all necessary regulatory
approvals and orders, to own, lease and operate its assets and
properties and to carry approvals and orders, to own, lease and
operate its assets and properties and to carry on its business as
it is now being conducted, and is duly qualified and in good
standing to do business in each jurisdiction in which the nature of
its business or the ownership or leasing of its assets and
properties makes such qualification necessary, other than, in the
case of clause (ii), such failures which, when taken together with
all other such failures, will not have a material adverse effect on
the business, operations, properties, assets, condition (financial
or otherwise) or results of operations of SIGCORP and its
subsidiaries taken as a whole or on the consummation of the
transactions contemplated by this Agreement (any such material
adverse effect being hereinafter referred to as a "SIGCORP MATERIAL
ADVERSE EFFECT").
(b) As used in this Agreement the term "subsidiary" with
respect to any person shall mean any corporation or other entity
(including partnerships and other business associations) in which
such person directly or indirectly owns at least a majority of the
outstanding voting securities or other equity interests having the
power, under ordinary circumstances, to elect a majority of the
directors, or otherwise to direct the management and policies, of
such corporation or other entity.
Section 4.2 SUBSIDIARIES.
(a) Section 4.2 of the SIGCORP Disclosure Schedule sets forth
a description as of the date hereof of all subsidiaries and joint
ventures (as defined in Section 4.2(d)) of SIGCORP, including the
name of each such entity, the state or jurisdiction of its
formation, a brief description of the principal line or lines of
business conducted by each such entity and SIGCORP's interest
therein.
(b) Except as set forth in Section 4.2 of the SIGCORP
Disclosure Schedule, none of the entities listed in such Section
4.2 is a "public utility company", a "holding company", a
"subsidiary company" or an "affiliate" within the meaning of
Section 2(a)(5), 2(a)(7), 2(a)(8) or 2(a)(11) of the Public Utility
Holding Company Act of 1935, as amended (the "1935 ACT"),
respectively.
(c) Except as set forth in Section 4.2 of the SIGCORP
Disclosure Schedule, all of the issued and outstanding shares of
capital stock of each subsidiary of SIGCORP are validly issued,
fully paid, nonassessable and free of preemptive rights and are
owned directly or indirectly by SIGCORP free and clear of any
liens, claims, encumbrances, security interests, equities, charges
and options of any nature whatsoever, and there are no outstanding
subscriptions, options, calls, contracts, voting trusts, proxies or
other commitments, understandings, restrictions, arrangements,
rights or warrants, including any right of conversion or exchange
under any outstanding security, instrument or other agreement,
obligating any such subsidiary to issue, deliver or sell, or cause
to be issued, delivered or sold, additional shares of its capital
stock or obligating it to grant, extend or enter into any such
agreement or commitment.
(d) As used in this Agreement, the term "joint venture" with
respect to any person shall mean any corporation or other entity
(including partnerships and other business associations and joint
ventures) in which such person or one or more of its subsidiaries
owns an equity interest that is less than a majority of any class
of the outstanding voting securities or equity, other than equity
interests held for passive investment purposes that are less than
5% of any class of the outstanding voting securities or equity.
Section 4.3 CAPITALIZATION.
(a) As of the date hereof, the authorized capital stock of
SIGCORP consists of 75,000,000 shares of SIGCORP Common Stock and
10,000,000 shares of SIGCORP preferred stock.
(b) As of the close of business on June 10, 1999, 23,630,568
shares of SIGCORP Common Stock were issued and outstanding and no
shares of SIGCORP preferred stock were issued and outstanding.
(c) All of the issued and outstanding shares of the capital
stock of SIGCORP are validly issued, fully paid, nonassessable and
free of preemptive rights.
(d) Except for the SIGCORP Option and as set forth in Section
4.3(a) of the SIGCORP Disclosure Schedule, there are no outstanding
subscriptions, options, calls, contracts, voting trusts, proxies or
other commitments, understandings, restrictions, arrangements,
rights or warrants, including any right of conversion or exchange
under any outstanding security, instrument or other agreement,
obligating SIGCORP or any of its subsidiaries to issue, deliver or
sell, or cause to be issued, delivered or sold, additional shares
of the capital stock of SIGCORP or obligating SIGCORP or any of its
subsidiaries to grant, extend or enter into any such agreement or
commitment.
Section 4.4 AUTHORITY; NON-CONTRAVENTION; STATUTORY
APPROVALS; COMPLIANCE.
(a) AUTHORITY.
(i) SIGCORP has all requisite power and authority to
enter into this Agreement and the SIGCORP Option and, subject
in the case of this Agreement to the SIGCORP Shareholders'
Approval (as defined in Section 4.13) and the SIGCORP Required
Statutory Approval (as defined in Section 4.4(c)), to
consummate the transactions contemplated hereby and thereby.
(ii) The execution and delivery of this Agreement and the
SIGCORP Option and, subject in the case of this Agreement to
obtaining the SIGCORP Shareholders' Approval, the consummation
by SIGCORP of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate action on
the part of SIGCORP.
(iii) This Agreement and the SIGCORP Option have been
duly and validly executed and delivered by SIGCORP and,
assuming the due authorization, execution and delivery hereof
and thereof by Indiana and, in the case of this Agreement, the
Company, constitute the valid and binding obligations of
SIGCORP, enforceable against SIGCORP in accordance with their
respective terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance
or other similar laws affecting the enforcement of creditors'
rights generally, and except that the availability of
equitable remedies, including specific performance, may be
subject to the discretion of any court before which any
proceedings may be brought.
(b) NON-CONTRAVENTION. Except as set forth in Section 4.4(b)
of the SIGCORP Disclosure Schedule, the execution and delivery of
this Agreement and the SIGCORP Option by SIGCORP do not, and the
consummation of the transactions contemplated hereby and thereby
will not, violate, conflict with or result in a breach of any
provisions of, or constitute a default (with or without notice or
lapse of time or both) under, or result in the termination of, or
accelerate the performance required by, or result in a right of
termination, cancellation or acceleration of any obligation or the
loss of material benefit under, or result in the creation of any
lien, security interest, charge or encumbrance upon any of the
properties or assets (any such violation, conflict, breach,
default, right of termination, cancellation or acceleration, loss
or creation, a "VIOLATION") of, SIGCORP or any of its subsidiaries
or, to the knowledge of SIGCORP, any of its joint ventures, under
any provisions of:
(i) the articles of incorporation, bylaws or similar
governing documents of SIGCORP or any of its subsidiaries or
joint ventures;
(ii) subject in the case of this Agreement to obtaining
the SIGCORP Required Statutory Approvals and the receipt of
the SIGCORP Shareholders' Approval, any statute, law,
ordinance, rule, regulation, judgement, decree, order,
injunction, writ, permit or license of any court, governmental
or regulatory body (including a stock exchange or other self-
regulatory body) or authority, domestic or foreign (each, a
"Governmental Authority") applicable to SIGCORP or any of its
subsidiaries or joint ventures or any of their respective
properties or assets; or
(iii) subject in the case of this Agreement to
obtaining the third-party consents or other approvals set
forth in Section 4.4(b) of the SIGCORP Disclosure Schedule
(the "SIGCORP REQUIRED CONSENTS"), any note, bond, mortgage,
indenture, deed of trust, license, franchise, permit,
concession, contract, lease or other instrument, obligation or
agreement of any kind to which SIGCORP or any of its
subsidiaries or joint ventures is now a party or by which it
or any of its properties or assets may be bound or affected;
excluding from the foregoing clauses (ii) and (iii) such Violations
as would not, in the aggregate, reasonably be likely to have a
SIGCORP Material Adverse Effect.
(c) STATUTORY APPROVALS. Except as set forth in Section
4.4(c) of the SIGCORP Disclosure Schedule, no declaration, filing
or registration with, or notice to or authorization, consent or
approval of any Governmental Authority is necessary for the
execution and delivery of this Agreement or the SIGCORP Option by
SIGCORP or the consummation by SIGCORP of the transactions
contemplated hereby or thereby, the failure to obtain, make or give
which would reasonably be likely to have a SIGCORP Material Adverse
Effect (the "SIGCORP REQUIRED STATUTORY APPROVALS"), it being
understood that references in this Agreement to "obtaining" such
SIGCORP Required Statutory Approvals shall mean making such
declarations, filings or registrations; giving such notice;
obtaining such consents or approvals; and having such waiting
periods expire as are necessary to avoid a violation of law.
(d) COMPLIANCE.
(i) Except as set forth in Section 4.4(d) or 4.11 of the
SIGCORP Disclosure Schedule, or as disclosed in the SIGCORP
SEC Reports (as defined in Section 4.5), neither SIGCORP nor
any of its subsidiaries nor, to the knowledge of SIGCORP, any
of its joint ventures is in violation of or under
investigation with respect to, or has been given notice or
been charged with any violation of, any law, statute, order,
rule, regulation, ordinance or judgement (including, without
limitation, any applicable environmental law, ordinance or
regulation) of any Governmental Authority, except for
violations that do not have, and, would not reasonably likely
have, a SIGCORP Material Adverse Effect.
(ii) Except as set forth in Section 4.4(d) or 4.11 of the
SIGCORP Disclosure Schedule, SIGCORP, its subsidiaries and, to
the knowledge of SIGCORP, its joint ventures have all permits,
licenses, franchises and other governmental authorizations,
consents and approvals necessary to conduct their respective
businesses as currently conducted, except those the failure to
obtain which would not reasonably be likely to have a SIGCORP
Material Adverse Effect.
Section 4.5 REPORTS AND FINANCIAL STATEMENTS.
(a) Since January 1, 1997, the filings required to be made by
SIGCORP and its subsidiaries under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), applicable Indiana laws and
regulations, the Federal Power Act (the "POWER ACT"), the Natural
Gas Act (the "GAS ACT"), the Federal Communications Act (the
"Communications Act") or the 1935 Act have been filed with the SEC,
the Indiana Utility Regulatory Commission (the "IURC"), or the
Federal Energy Regulatory Commission (the "FERC"), as required by
each such law or regulation, including all forms, statements,
reports, agreements and all documents, exhibits, amendments and
supplements appertaining thereto, and complied in all material
respects with all applicable requirements of the appropriate act
and the rules and regulations thereunder.
(b) SIGCORP has made available to Indiana a true and complete
copy of each report, schedule, registration statement and
definitive proxy statement filed by SIGCORP with the SEC since
January 1, 1996 (as such documents have since the time of their
filing been amended, the "SIGCORP SEC REPORTS").
(c) The SIGCORP SEC Reports, including without limitation any
financial statements or schedules included therein, at the time
filed, and any forms, reports or other documents filed by SIGCORP
with the SEC after the date hereof, did not and will not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(d) The audited consolidated financial statements and
unaudited interim financial statements of SIGCORP included in the
SIGCORP SEC Reports (collectively, the "SIGCORP FINANCIAL
STATEMENTS") have been prepared, and will be prepared, in
accordance with GAAP applied on a consistent basis (except as may
be indicated therein or in the notes thereto and except with
respect to unaudited statements as permitted by Form 10-Q) and
fairly present in all material respects the financial position of
SIGCORP as of the respective dates thereof or the results of
operations and cash flows for the respective periods then ended, as
the case may be, subject, in the case of the unaudited interim
financial statements, to normal, recurring audit adjustments.
(e) True, accurate and complete copies of the Articles of
Incorporation and Bylaws of SIGCORP, as in effect on the date
hereof, have been delivered to Indiana.
Section 4.6 ABSENCE OF CERTAIN CHANGES OR EVENTS: ABSENCE
OF UNDISCLOSED LIABILITIES.
(a) Except as set forth in the SIGCORP SEC Reports or Section
4.6 of the SIGCORP Disclosure Schedule, from December 31, 1998
through the date hereof each of SIGCORP and each of its
subsidiaries has conducted its business only in the ordinary course
of business consistent with past practice and there has not been,
and no fact or condition exists that would reasonably likely have,
a SIGCORP Material Adverse Effect.
(b) Neither SIGCORP nor any of its subsidiaries has any
liabilities or obligations (whether absolute, accrued, contingent
or otherwise) of a nature required by GAAP to be reflected in a
consolidated corporate balance sheet, except liabilities,
obligations or contingencies that are accrued or reserved against
in the consolidated financial statements of SIGCORP or reflected in
the notes thereto for the year ended December 31, 1998 or that were
incurred after December 31, 1998 in the ordinary course of business
and would not reasonably be likely to have a SIGCORP Material
Adverse Effect.
Section 4.7 LITIGATION. Except as set forth in the SIGCORP
SEC Reports or as set forth in Section 4.7 or 4.11 of the SIGCORP
Disclosure Schedule, there are no:
(a) claims, suits, actions or proceedings, pending or,
to the knowledge of SIGCORP, threatened, nor are there, to the
knowledge of SIGCORP, any investigations or reviews pending or
threatened against, relating to or affecting SIGCORP or any of
its subsidiaries or joint ventures; or
(b) judgements, decrees, injunctions, rules or orders of
any court, governmental department, commission, agency,
instrumentality or authority or any arbitrator applicable to
SIGCORP or any of its subsidiaries or joint ventures;
that would reasonably be likely to have a SIGCORP Material Adverse
Effect.
Section 4.8 REGISTRATION STATEMENT AND PROXY STATEMENT.
(a) None of the information supplied or to be supplied by or
on behalf of SIGCORP for inclusion or incorporation by reference
in:
(i) the registration statement on Form S-4 to be filed
with the SEC by the Company in connection with the issuance of
shares of Company Common Stock in the Merger (the
"REGISTRATION STATEMENT") will, at the time the Registration
Statement becomes effective under the Securities Act, contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading; and
(ii) the joint proxy statement in definitive form
relating to the meetings of the shareholders of Indiana and
SIGCORP to be held in connection with the Merger and the
prospectus relating to the Company Common Stock (the "JOINT
PROXY STATEMENT") will, at the date mailed to such
shareholders and, as the same may be amended or supplemented,
at the times of such meetings, contain any untrue statement of
a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(b) Each of the Registration Statement and the Joint Proxy
Statement, as of their respective dates, will comply as to form in
all material respects with the applicable provisions of the
Securities Act and the Exchange Act and the rules and regulations
thereunder.
Section 4.9 TAX MATTERS.
(a) Except as set forth on Schedule 4.9(a) of the SIGCORP
Disclosure Schedule, SIGCORP and each of its subsidiaries, and any
consolidated, combined, unitary or aggregate group for tax purposes
of which SIGCORP or any of its subsidiaries is or has been a
member, has:
(i) filed all material Tax Returns required to be filed
by it within the time and in the manner prescribed by law;
(ii) paid all material Taxes that are shown on such Tax
Returns as due and payable within the time and in the manner
prescribed by law; and
(iii) paid all material Taxes otherwise required to
be paid.
(b) Except as set forth on Schedule 4.9(b) of the SIGCORP
Disclosure Schedule, as of the date hereof there are no material
claims, assessments, audits or administrative or court proceedings
pending against SIGCORP or any of its subsidiaries for any alleged
deficiency in Taxes.
(c) SIGCORP has established adequate accruals for Taxes and
for any liability for deferred Taxes in the SIGCORP Financial
Statements in accordance with GAAP.
(d) "TAXES", as used in this Agreement, means, including but
not limited to, any federal, state, county, local or foreign taxes,
charges, fees, levies or other assessments, including, without
limitation, all net income, gross income, sales and use, ad
valorem, transfer, gains, profits, excise, franchise, real and
personal property, gross receipt, capital stock, production,
business and occupation, disability, employment, payroll, license,
estimated, stamp, custom duties, severance or withholding taxes or
charges imposed by any governmental entity, and includes any
interest and penalties (civil or criminal) on or additions to any
such taxes, charges, fees, levies or other assessments, and any
expenses incurred in connection with the determination, settlement
or litigation of any liability for any of the foregoing.
(e) "TAX RETURN", as used in this Agreement, means any
report, return or other information required to be supplied to any
governmental entity with respect to Taxes, including, where
permitted or required, combined or consolidated returns for any
group of entities that includes SIGCORP or any of its subsidiaries
on the one hand, or Indiana or any of its subsidiaries on the other
hand.
Section 4.10 EMPLOYEE MATTERS: ERISA.
(a) BENEFIT PLANS. Section 4.10(a) of the SIGCORP Disclosure
Schedule contains a true and complete list of each material
employee benefit plan, program or arrangement, including, but not
limited to, any employee benefit plan within the meaning of Section
3(3) of ERISA and any vacation, severance, change-in-control, stock
purchase or stock option plan, program or arrangement maintained or
contributed to by SIGCORP, any of the SIGCORP Subsidiaries or any
other entity which would be treated under Section 414 of the Code
as a single employer with SIGCORP (collectively, with SIGCORP
Subsidiaries, a "SIGCORP COMMONLY CONTROLLED ENTITY") for the
benefit of any current or former employee, officer or director or
their dependents or beneficiaries (collectively, the "SIGCORP
PLANS") and each employment, consulting, severance, change-in-
control, termination, compensation, collective bargaining or
indemnification agreement, arrangement or understanding between
SIGCORP or any of the SIGCORP Commonly Controlled Entities (or by
which they are bound) and any current or former employee, officer
or director of SIGCORP or any of the SIGCORP Subsidiaries
(collectively, the "SIGCORP EMPLOYMENT ARRANGEMENTS").
(b) Except as set forth in the SIGCORP SEC Reports or in
Section 4.10(b) of the SIGCORP Disclosure Schedule and except as
could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect:
(i) QUALIFICATION; COMPLIANCE. Each SIGCORP Plan intended to
be qualified under Section 401(a) of the Code has
received a favorable determination letter from the IRS
that it is so qualified. Each SIGCORP Plan and each
SIGCORP Employment Arrangement has been operated in all
respects in accordance with its terms and the
requirements of applicable laws, rules and regulations.
There are no pending or, to the knowledge of SIGCORP,
threatened or anticipated claims under or with respect to
any SIGCORP Plan or SIGCORP Employment Arrangement by or
on behalf of any current employee, officer or director,
or dependent or beneficiary thereof, or otherwise (other
than routine claims for benefits);
(ii) LIABILITIES. Neither SIGCORP nor any of the SIGCORP
Commonly Controlled Entities has incurred any direct or
indirect liability under, arising out of or by operation
of the Code, Title IV of ERISA, or any other applicable
law (other than for premium payments and contributions in
the ordinary course of business), and no fact or event
exists that could reasonably be expected to give rise to
such liability.
(iii) PAYMENTS RESULTING FROM THE MERGER. No SIGCORP
Plan or SIGCORP Employment Arrangement exists which
could result in the payment to any current, former
or future director, officer or employee of SIGCORP,
any SIGCORP Commonly Controlled Entity or to any
trustee under any "rabbi trust" or similar
arrangement of any money or other property or
rights or accelerate, vest or provide any other
rights or benefits to or in any such employee or
director as a result of the consummation,
announcement of or other action relating to the
transactions contemplated by this Agreement,
whether or not such payment, acceleration, vesting
or provision would constitute a "parachute payment"
(within the meaning of Section 280G of the Code) or
whether or not some other subsequent action or
event would be required to cause such payment,
acceleration, vesting or provision to be triggered.
(iv) LABOR AGREEMENTS. Neither SIGCORP nor any of the SIGCORP
Subsidiaries is a party to any collective bargaining
agreements. Since January 1, 1995, neither SIGCORP nor
any of the SIGCORP Subsidiaries has had any employee
strikes, work stoppages, slowdowns or lockouts or
received any requests for collective bargaining. There
is no unfair labor practice, employment discrimination or
other complaint against SIGCORP or any of the SIGCORP
Subsidiaries pending or, to the best knowledge of
SIGCORP, threatened.
Section 4.11 ENVIRONMENTAL PROTECTION.
(a) COMPLIANCE.
(i) Except as set forth in Section 4.11(a) of the
SIGCORP Disclosure Schedule, each of SIGCORP and each of its
subsidiaries is in compliance with all applicable
Environmental Laws (as hereinafter defined), except where the
failure to be so in compliance would not reasonably be likely
to have a SIGCORP Material Adverse Effect.
(ii) Except as set forth in Section 4.11(a) of the
SIGCORP Disclosure Schedule, neither SIGCORP nor any of its
subsidiaries has received any written communication from any
person or Governmental Authority that alleges that SIGCORP or
any of its subsidiaries is not in compliance with applicable
Environmental Laws, except where the failure to be so in
compliance would not reasonably be likely to have a SIGCORP
Material Adverse Effect.
(b) ENVIRONMENTAL PERMITS. Except as set forth in Section
4.11(b) of the SIGCORP Disclosure Schedule, SIGCORP and each of its
subsidiaries has obtained or applied for all environmental, health
and safety permits and authorizations (collectively, "ENVIRONMENTAL
PERMITS") necessary for the construction of their facilities and
the conduct of their operations, and all such permits are in good
standing or, where applicable, a renewal application has been
timely filed and is pending agency approval, and SIGCORP and its
subsidiaries are in compliance with all terms and conditions of all
such Environmental Permits and are not required to make any
expenditure in order to obtain or renew any Environmental Permits,
except where the failure to obtain or be in such compliance and the
requirement to make such expenditures would not reasonably be
likely to have a SIGCORP Material Adverse Effect.
(c) ENVIRONMENTAL CLAIMS. Except as set forth in Section
4.11(c) of the SIGCORP Disclosure Schedule, there is no
Environmental Claim (as hereinafter defined) pending, or to the
knowledge of SIGCORP and its subsidiaries, threatened
(i) against SIGCORP or any of its subsidiaries or joint
ventures,
(ii) against any person or entity whose liability for any
Environmental Claim SIGCORP or any of its subsidiaries or
joint ventures has or may have retained or assumed either
contractually or by operation of law, or
(iii) against any real or personal property or
operations that SIGCORP or any of its subsidiaries or joint
ventures owns, leases or manages, in whole or in part,
that, if adversely determined, would reasonably be likely to have
a SIGCORP Material Adverse Effect.
(d) RELEASES. Except as set forth in Section 4.11(c) or
4.11(d) of the SIGCORP Disclosure Schedule, SIGCORP has no
knowledge of any Release (as hereinafter defined) of any Hazardous
Material (as hereinafter defined) that would be reasonably likely
to form the basis of any Environmental Claim against SIGCORP or any
subsidiaries or joint ventures of SIGCORP, or against any person or
entity whose liability for any Environmental Claim SIGCORP or any
subsidiaries or joint ventures of SIGCORP has or may have retained
or assumed either contractually or by operation of law, except for
Releases of Hazardous Materials the liability for which would not
reasonably be likely to have a SIGCORP Material Adverse Effect.
(e) PREDECESSORS. Except as set forth in Section 4.11(c) of
the SIGCORP Disclosure Schedule, SIGCORP has no knowledge, with
respect to any predecessor of SIGCORP or any subsidiary or joint
venture of SIGCORP, of any Environmental Claims pending or
threatened, or of any Release of Hazardous Materials that would be
reasonably likely to form the basis of any Environmental Claims
that would have, or that SIGCORP reasonably believes would be
reasonably likely to have, a SIGCORP Material Adverse Effect.
(f) DISCLOSURE. To SIGCORP's knowledge, SIGCORP has
disclosed to Indiana all material facts that SIGCORP reasonably
believes form the basis of a SIGCORP Material Adverse Effect
arising from:
(i) the cost of pollution control equipment currently
required or known to be required in the future;
(ii) current remediation costs or remediation costs known
to be required in the future; or
(iii) any other environmental matter affecting
SIGCORP or its subsidiaries that would have, or that SIGCORP
reasonably believes would reasonably be likely to have, a
SIGCORP Material Adverse Effect.
As used in this Agreement:
(iv) "Environmental Claim" means
(A) any and all administrative, regulatory
or judicial actions, suits, demands, demand letters,
directives, claims, liens, investigations,
proceedings or notices of noncompliance or
violation in writing by any person or entity
(including any Governmental Authority) or
(B) any oral information provided to SIGCORP
(or to Indiana, for purposes of Section 5.11) by a
Governmental Authority that written action of the
type described in clause (A) above is in process,
alleging potential liability (including, without limitation,
potential liability for enforcement, investigatory costs,
cleanup costs, governmental response costs, removal costs,
remedial costs, natural resources damages, property damages,
personal injuries, or penalties) arising out of, based on or
resulting from (a) the presence, or Release or threatened
Release into the environment, of any Hazardous Materials at
any location, whether or not owned, operated, leased or
managed by SIGCORP or any of its subsidiaries or joint
ventures (for purposes of this Section 4.11), or by Indiana or
any of its subsidiaries or joint ventures (for purposes of
Section 5.11), (b) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law or
(c) any and all claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence or Release of
any Hazardous Materials.
(v) "Environmental Laws" means all federal, state and
local laws, rules and regulations relating to pollution or
protection of human health or the environment (including,
without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata), including, without
limitation, laws and regulations relating to Releases or
threatened Releases of Hazardous Materials or otherwise
relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
Hazardous Materials.
(vi) "Hazardous Materials" means (a) any petroleum or
petroleum products, radioactive materials, asbestos in any
form that is or could become friable, urea formaldehyde foam
insulation, and transformers or other equipment that contain
dielectric fluid containing polychlorinated biphenyls, (b) any
chemicals, materials or substances which are now defined as or
included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely
hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", or words, of similar import,
under any Environmental Law and (c) any other chemical,
material, substance or waste, exposure to which is now
prohibited, limited or regulated under Environmental Law in a
jurisdiction in which SIGCORP or any of its subsidiaries or
joint ventures operates (for purposes of this Section 4.11) or
in which Indiana or any of its subsidiaries or joint ventures
operates (for purposes of Section 5.11).
(vii) "Release" means any release, spill, emission,
leaking, injection, deposit, disposal, discharge, dispersal,
leaching or migration into the atmosphere, soil, surface
water, groundwater or property.
Section 4.12 REGULATION AS A UTILITY.
(a) SIGCORP is a public utility holding company as defined in
the 1935 Act exempt from all provisions of the 1935 Act except
section 9(a)(2), by order of the SEC pursuant to section 3(a)(1) of
the 1935 Act. SIGCORP is not regulated as a public utility in any
state.
(b) Except as set forth in Section 4.12 of the SIGCORP
Disclosure Schedule, no subsidiary company or affiliate of SIGCORP
is subject to regulation as a public utility or public service
company (or similar designation) by any state in the United States
or by any foreign country.
(c) As used in this Section 4.12 and in Section 5.12, the
terms "subsidiary company" and "affiliate" shall have the
respective meanings ascribed to them in the 1935 Act.
Section 4.13 VOTE REQUIRED. The approval of the Merger by
a majority of all votes entitled to be cast by all holders of
SIGCORP Common Stock (the "SIGCORP SHAREHOLDERS' APPROVAL") is the
only votes of the holders of the capital stock of SIGCORP or any
subsidiaries of SIGCORP required to approve this Agreement, the
Merger and the other transactions contemplated hereby.
Section 4.14 ACCOUNTING MATTERS. SIGCORP has not, through
the date hereof, in contemplation of the Merger, taken or agreed to
take any action that would prevent the Company from accounting for
the business combination to be effected by the Merger as a pooling-
of-interests in accordance with GAAP and applicable SEC
regulations.
Section 4.15 APPLICABILITY OF CERTAIN INDIANA LAW.
(a) Assuming the accuracy of the representation by Indiana
set forth in Section 5.18, neither the control share acquisition
provisions of Chapter 40 of the IBCL nor the business combination
provisions of Chapter 41 of the IBCL or any similar provisions of
the IBCL, the Articles of Incorporation or Bylaws of SIGCORP are
applicable to the transactions contemplated by this Agreement or
the SIGCORP Option.
(b) SIGCORP shall take all action requested in writing by
Indiana to render the rights granted to the holders of SIGCORP
Common Stock (the "SIGCORP RIGHTS") pursuant to the Rights
Agreement dated as of December 31, 1995 between SIGCORP and
Continental Stock Transfer Company, as Rights Agent, as amended
(the "SIGCORP RIGHTS AGREEMENT"), inapplicable to the Merger and
the other transactions contemplated by this Agreement and the
SIGCORP Option. Except as approved in writing by Indiana, the
Board of SIGCORP shall not (i) amend the SIGCORP Rights Agreement,
(ii) redeem the SIGCORP Rights, or (iii) take action with respect
to, or make any determination under, the SIGCORP Rights Agreement,
provided, that nothing contained in this Section 4.15(b) shall
require the Board of Directors of SIGCORP to take any action or
refrain from taking any action that a majority of such Board
determines in good faith, based upon the written opinion of outside
counsel, would result in a breach of its fiduciary duties under
applicable law. If any Distribution Date or Shares Acquisition
Date occurs under the SIGCORP Rights Agreement at any time during
the period from the date of this Agreement to the Effective Time,
SIGCORP and Indiana shall make such adjustment to the Indiana Ratio
as SIGCORP and Indiana shall mutually agree so as to preserve the
economic benefits that SIGCORP and Indiana each reasonably expected
on the date of this Agreement to receive as a result of the
consummation of the Merger and the other transactions contemplated
by this Agreement.
Section 4.16 OPINION OF FINANCIAL ADVISOR. SIGCORP has
received the opinion of Goldman Sachs & Co., dated the date hereof,
to the effect that, as of the date hereof, the SIGCORP Ratio is
fair from a financial point of view to the holders of SIGCORP
Common Stock.
Section 4.17 INSURANCE.
(a) Except as set forth in Section 4.17 of the SIGCORP
Disclosure Schedule, each of SIGCORP and each of its subsidiaries
is, and has been continuously since January 1, 1995, insured in
such amounts and against such risks and losses as are customary for
companies conducting the respective businesses conducted by SIGCORP
and its subsidiaries during such time period.
(b) Except as set forth in Section 4.17 of the SIGCORP
Disclosure Schedule, neither SIGCORP nor any of its subsidiaries
has received any notice of cancellation or termination with respect
to any material insurance policy thereof.
(c) To the knowledge of SIGCORP, all material insurance
policies of SIGCORP and its subsidiaries are valid and enforceable
policies.
Section 4.18 OWNERSHIP OF INDIANA COMMON STOCK. SIGCORP
does not "beneficially own" (as such term is defined in Rule 13d-3
under the Exchange Act) any shares of Indiana Common Stock.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF INDIANA
Indiana Energy represents and warrants to SIGCORP as follows:
Section 5.1 ORGANIZATION AND QUALIFICATION. Except as set
forth in Section 5.1 or 5.2 of the Indiana Disclosure Schedule (as
defined in Section 7.6(a)(ii)), (i) Indiana is a corporation duly
organized and validly existing under the laws of Indiana and
(ii) each of Indiana's subsidiaries is a corporation duly
organized, validly existing and in good standing (if relevant)
under the laws of its jurisdiction of incorporation and each of
Indiana and its subsidiaries has requisite corporate power and
authority, and is duly authorized by all necessary regulatory
approvals and orders, to own, lease and operate its assets and
properties and to carry on its business as it is now being
conducted, and is duly qualified and in good standing to do
business in each jurisdiction in which the nature of its business
or the ownership or leasing of its assets and properties makes such
qualification necessary, other than, in the case of clause
(ii) such failures, which, when taken together with all other such
failures, will not have a material adverse effect on the business,
operations, properties, assets, condition (financial or otherwise)
or results of operations of Indiana and its subsidiaries taken as
a whole or on the consummation of the transactions contemplated by
this Agreement (any such material adverse effect being hereinafter
referred to as an "INDIANA MATERIAL ADVERSE EFFECT").
Section 5.2 SUBSIDIARIES.
(a) Section 5.2 of the Indiana Disclosure Schedule sets forth
a description as of the date hereof of all subsidiaries and joint
ventures of Indiana, including the name of each such entity, the
state or jurisdiction of its formation, a brief description of the
principal line or lines of business conducted by each such entity
and Indiana's interest therein.
(b) Except as set forth in Section 5.2 of the Indiana
Disclosure Schedule, none of the entities listed in Section 5.2 is
a "public utility company", a "holding company", a "subsidiary
company" or an "affiliate" within the meaning of Section 2(a)(5),
2(a)(7), 2(a)(8) or 2(a)(ll) of the 1935 Act, respectively.
(c) Except as set forth in Section 5.2 of the Indiana
Disclosure Schedule, all of the issued and outstanding shares of
capital stock of each subsidiary of Indiana are validly issued,
fully paid, nonassessable and free of preemptive rights and are
owned directly or indirectly by Indiana free and clear of any
liens, claims, encumbrances, security interests, equities, charges
and options of any nature whatsoever, and there are no outstanding
subscriptions, options, calls, contracts, voting trusts, proxies or
other commitments, understandings, restrictions, arrangements,
rights or warrants, including any right of conversion or exchange
under any outstanding security, instrument or other agreement,
obligating any such subsidiary to issue, deliver or sell, or cause
to be issued, delivered or sold, additional shares of its capital
stock or obligating it to grant, extend or enter into any such
agreement or commitment.
Section 5.3 CAPITALIZATION.
(a) As of the date hereof, the authorized capital stock of
Indiana consists of 200,000,000 shares of Indiana Common Stock and
4,000,000 shares of Indiana preferred stock.
(b) As of the close of business on June 10, 1999, 29,786,555
shares of Indiana Common Stock were issued and outstanding and no
shares of preferred stock were issued and outstanding.
(c) All of the issued and outstanding shares of the capital
stock of Indiana are validly issued, fully paid, nonassessable and
free of preemptive rights.
(d) Except for the Indiana Option and as set forth in Section
5.3(a) of the Indiana Disclosure Schedule, there are no outstanding
subscriptions, options, calls, contracts, voting trusts, proxies or
other commitments, understandings, restrictions, arrangements,
rights or warrants, including any right of conversion or exchange
under any outstanding security, instrument or other agreement,
obligating Indiana or any of its subsidiaries to issue, deliver or
sell, or cause to be issued, delivered or sold, additional shares
of the capital stock of Indiana or obligating Indiana or any of its
subsidiaries to grant, extend or enter into any such agreement or
commitment.
Section 5.4 AUTHORITY; NON-CONTRAVENTION; STATUTORY
APPROVALS; COMPLIANCE.
(a) AUTHORITY.
(i) Indiana has all requisite power and authority to
enter into this Agreement and the Indiana Option and, subject
in the case of this Agreement to the Indiana Shareholders'
Approval (as defined in Section 5.13(c)) (and the Indiana
Required Statutory Approvals (as defined in Section 5.4(c)),
to consummate the transactions contemplated hereby and
thereby;
(ii) The execution and delivery of this Agreement and the
Indiana Option and, subject in the case of this Agreement to
obtaining the Indiana Shareholders' Approval, the consummation
by Indiana of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate action on
the part of Indiana;
(iii) This Agreement and the Indiana Option have been
duly and validly executed and delivered by Indiana and,
assuming the due authorization, execution and delivery hereof
and thereof by SIGCORP and, in the case of this Agreement, the
Company, constitute the valid and binding obligations of
Indiana, enforceable against Indiana in accordance with their
respective terms, except as would be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance
or other similar laws affecting the enforcement of creditors'
rights generally and except that the availability of equitable
remedies, including specific performance, may be subject to
the discretion of any court before which any proceeding
therefor may be brought;
(b) NON-CONTRAVENTION. Except as set forth in Section 5.4(b)
of the Indiana Disclosure Schedule, the execution and delivery of
this Agreement and the Indiana Option by Indiana do not, and the
consummation of the transactions contemplated hereby and thereby
will not result in any Violation by Indiana or any of its
subsidiaries or, to the knowledge of Indiana, any of its joint
ventures, under any provisions of
(i) the articles of incorporation, bylaws or similar
governing documents of Indiana or any of its subsidiaries or
joint ventures;
(ii) subject in the case of this Agreement to obtaining
the Indiana Required Statutory Approvals and the receipt of
the Indiana Shareholders' Approval, any statute, law,
ordinance, rule, regulation, judgment, decree, order,
injunction, writ, permit or license of any Government
Authority applicable to Indiana or any of its subsidiaries or
joint ventures or any of their respective properties or
assets; or
(iii) subject in the case of this Agreement to
obtaining the third-party consents or other approvals set
forth in Section 5.4(b) of the Indiana Disclosure Schedule
(the "INDIANA REQUIRED CONSENTS"), any note, bond, mortgage,
indenture, deed of trust, license, franchise, permit,
concession, contract, lease or other instrument, obligation or
agreement of any kind to which Indiana or any of its
subsidiaries or joint ventures is now a party or by which it
or any of its properties or assets may be bound or affected;
excluding from the foregoing clauses (ii) and (iii) such Violations
as would not, in the aggregate, reasonably be likely to have an
Indiana Material Adverse Effect.
(c) STATUTORY APPROVALS. Except as set forth in Section
5.4(c) of the Indiana Disclosure Schedule, no declaration, filing
or registration with, or notice to or authorization, consent or
approval of any Governmental Authority is necessary for the
execution and delivery of this Agreement or the Indiana Option by
Indiana or the consummation by Indiana of the transactions
contemplated hereby or thereby, the failure to obtain, make or give
which would reasonably be likely to have an Indiana Material
Adverse Effect (the "INDIANA REQUIRED STATUTORY APPROVALS"), it
being understood that references in this Agreement to "obtaining"
such Indiana Required Statutory Approvals shall mean making such
declarations, filings or registrations; giving such notice;
obtaining such consents or approvals; and having such waiting
periods expire as are necessary to avoid a violation of law.
(d) COMPLIANCE.
(i) Except as set forth in Section 5.4(d) or 5.11 of the
Indiana Disclosure Schedule or as disclosed in the Indiana SEC
Reports (as defined in Section 5.5), neither Indiana nor any
of its subsidiaries nor, to the knowledge of Indiana, any of
its joint ventures, is in violation of or under investigation
with respect to, or has been given notice or been charged with
any violation of, any law, statute, order, rule, regulation,
ordinance or judgment (including, without limitation, any
applicable environmental law, ordinance or regulation) of any
Governmental Authority, except for violations that do not
have, and, would not reasonably likely have, an Indiana
Material Adverse Effect.
(ii) Except as set forth in Section 5.4(d) or 5.11 of the
Indiana Disclosure Schedule, Indiana, its subsidiaries and, to
the knowledge of Indiana, its joint ventures have all permits,
licenses, franchises and other governmental authorizations,
consents and approvals necessary to conduct their respective
businesses as currently conducted, except those the failure to
obtain which would not reasonably be likely to have an Indiana
Material Adverse Effect.
Section 5.5 REPORTS AND FINANCIAL STATEMENTS.
(a) Since October 1, 1996, the filings required to be made by
Indiana and its subsidiaries under the Securities Act, the Exchange
Act, applicable Indiana laws and regulations, the Power Act, the
Gas Act, the Telecommunications Act or the 1935 Act have been filed
with the SEC, the IURC, the Federal Communications Commission or
the FERC, as required by each such law or regulation, including all
forms, statements, reports, agreements and all documents, exhibits,
amendments and supplements appertaining thereto, and complied in
all material respects with all applicable requirements of the
appropriate act and the rules and regulations thereunder.
(b) Indiana has made available to SIGCORP a true and complete
copy of each report, schedule, registration statement and
definitive proxy statement filed by Indiana with the SEC since
October 1, 1996 (as such documents have since the time of their
filing been amended, the "Indiana SEC Reports").
(c) The Indiana SEC Reports, including without limitation any
financial statements or schedules included therein, at the time
filed, and any forms, reports or other documents filed by Indiana
with the SEC after the date hereof, did not and will not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(d) The audited consolidated financial statements and
unaudited interim financial statements of Indiana included in the
Indiana SEC Reports (collectively, the "INDIANA FINANCIAL
STATEMENTS") have been prepared, and will be prepared in accordance
with GAAP applied on a consistent basis (except as may be indicated
therein or in the notes thereto and except with respect to
unaudited statements as permitted by Form 10-Q) and fairly present
in all material respects the financial position of Indiana as of
the respective dates thereof or the results of operations and cash
flows for the respective periods then ended, as the case may be,
subject, in the case of the unaudited interim financial statements,
to normal, recurring audit adjustments.
(e) True, accurate and complete copies of the Articles of
Incorporation and Bylaws of Indiana, as in effect on the date
hereof, have been delivered to SIGCORP.
Section 5.6 ABSENCE OF CERTAIN CHANGES OR EVENTS;
ABSENCE OF UNDISCLOSED LIABILITIES.
(a) Except as set forth in the Indiana SEC Reports or Section
5.6 of the Indiana Disclosure Schedule, from December 31, 1998
through the date hereof each of Indiana and each of its
subsidiaries has conducted its business only in the ordinary course
of business consistent with past practice and there has not been,
and no fact or condition exists that would reasonably likely have,
an Indiana Material Adverse Effect.
(b) Neither Indiana nor any of its subsidiaries has any
liabilities or obligations (whether absolute, accrued, contingent,
or otherwise) of a nature required by GAAP to be reflected in a
consolidated corporate balance sheet, except liabilities,
obligations or contingencies that are accrued or reserved against
in the consolidated financial statements of Indiana or reflected in
the notes thereto for the year ended September 30, 1998, or that
were incurred after September 30, 1998, in the ordinary course of
business and would not reasonably be likely to have an Indiana
Material Adverse Effect.
Section 5.7 LITIGATION. Except as set forth in the Indiana
SEC Reports or as set forth in Section 5.7 or 5.11 of the Indiana
Disclosure Schedule, there are no:
(i) claims, suits, actions or proceedings, pending or,
to the knowledge of Indiana, threatened, nor are there, to the
knowledge of Indiana, any investigations or reviews pending or
threatened against, relating to or affecting Indiana or any of
its subsidiaries or joint ventures;
(ii) judgments, decrees, injunctions, rules or orders of
any court, governmental department, commission, agency,
instrumentality or authority or any arbitrator applicable to
Indiana or any of its subsidiaries or joint ventures;
that would have, or would reasonably likely have, an Indiana
Material Adverse Effect.
Section 5.8 REGISTRATION STATEMENT AND PROXY STATEMENT.
(a) None of the information supplied or to be supplied by or
on behalf of Indiana for inclusion or incorporation by reference
in:
(i) the Registration Statement will, at the time the
Registration Statement becomes effective under the Securities
Act, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; and
(ii) the Joint Proxy Statement will, at the date mailed
to the shareholders of Indiana and SIGCORP and, as the same
may be amended or supplemented, at the times of the meetings
of such shareholders to be held in connection with the Merger,
contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in light of the circumstances under which
they are made, not misleading.
(b) Each of the Registration Statement and the Joint Proxy
Statement, as of their respective dates, will comply as to form in
all material respects with the applicable provisions of the
Securities Act and the Exchange Act and the rules and regulations
thereunder.
Section 5.9 TAX MATTERS.
(a) Except as set forth on Schedule 5.9(a) of the Indiana
Disclosure Schedule, Indiana and each of its subsidiaries, and any
consolidated combined, unitary or aggregate group for tax purposes
of which Indiana or any of its subsidiaries is or has been a member
has:
(i) filed all material Tax Returns required to be filed
by it within the time and in the manner prescribed by law;
(ii) paid all material Taxes that are shown on such Tax
Returns as due and payable within the time and in the manner
prescribed by law, and
(iii) paid all material Taxes otherwise required to
be paid.
(b) Except as set forth on Schedule 5.9(b) of the Indiana
Disclosure Schedule, as of the date hereof there are no material
claims, assessments, audits or administrative or court proceedings
pending against Indiana or any of its subsidiaries for any alleged
deficiency in Taxes.
(c) Indiana has established adequate accruals for Taxes and
for any liability for deferred Taxes in the Indiana Financial
Statements in Accordance with GAAP.
Section 5.10 EMPLOYEE MATTERS; ERISA.
(a) BENEFIT PLANS. Section 5.10(a) of the Indiana Disclosure
Schedule contains a true and complete list of each material
employee benefit plan, program or arrangement, including, but not
limited to, any employee benefit plan within the meaning of Section
3(3) of ERISA and any vacation, severance, change-in-control, stock
purchase or stock option plan, program or arrangement maintained or
contributed to by Indiana, any of the Indiana Subsidiaries or any
other entity which would be treated under Section 414 of the Code
as a single employer with Indiana (collectively, with Indiana
Subsidiaries, an "INDIANA COMMONLY CONTROLLED ENTITY") for the
benefit of any current or former employee, officer or director or
their dependents or beneficiaries (collectively, the "INDIANA
PLANS") and each employment, consulting, severance, change-in-
control, termination, compensation, collective bargaining or
indemnification agreement, arrangement or understanding between
Indiana or any of the Indiana Commonly Controlled Entities (or by
which they are bound) and any current or former employee, officer
or director of Indiana or any of the Indiana Subsidiaries
(collectively, the "INDIANA EMPLOYMENT ARRANGEMENTS").
(b) Except as set forth in the Indiana SEC Reports or in
Section 5.10(b) of the Indiana Disclosure Schedule and except as
could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect:
(i) QUALIFICATION; COMPLIANCE. Each Indiana Plan intended to
be qualified under Section 401(a) of the Code has
received a favorable determination letter from the IRS
that it is so qualified. Each Indiana Plan and each
Indiana Employment Arrangement has been operated in all
respects in accordance with its terms and the
requirements of applicable laws, rules and regulations.
There are no pending or, to the knowledge of Indiana,
threatened or anticipated claims under or with respect to
any Indiana Plan or Indiana Employment Arrangement by or
on behalf of any current employee, officer or director,
or dependent or beneficiary thereof, or otherwise (other
than routine claims for benefits);
(ii) LIABILITIES. Neither Indiana nor any of the Indiana
Commonly Controlled Entities has incurred any direct or
indirect liability under, arising out of or by operation
of the Code, Title IV of ERISA, or any other applicable
law (other than for premium payments and contributions in
the ordinary course of business), and no fact or event
exists that could reasonably be expected to give rise to
such liability.
(iii) PAYMENTS RESULTING FROM THE MERGER. No Indiana
Plan or Indiana Employment Arrangement exists which
could result in the payment to any current, former
or future director, officer or employee of Indiana,
any Indiana Commonly Controlled Entity or to any
trustee under any "rabbi trust" or similar
arrangement of any money or other property or
rights or accelerate, vest or provide any other
rights or benefits to or in any such employee or
director as a result of the consummation,
announcement of or other action relating to the
transactions contemplated by this Agreement,
whether or not such payment, acceleration, vesting
or provision would constitute a "parachute payment"
(within the meaning of Section 280G of the Code) or
whether or not some other subsequent action or
event would be required to cause such payment,
acceleration, vesting or provision to be triggered.
(iv) LABOR AGREEMENTS. Neither Indiana nor any of the Indiana
Subsidiaries is a party to any collective bargaining
agreements. Since January 1, 1995, neither Indiana nor
any of the Indiana Subsidiaries has had any employee
strikes, work stoppages, slowdowns or lockouts or
received any requests for collective bargaining. There
is no unfair labor practice, employment discrimination or
other complaint against Indiana or any of the Indiana
Subsidiaries pending or, to the best knowledge of
Indiana, threatened.
Section 5.11 ENVIRONMENTAL PROTECTION.
(a) COMPLIANCE.
(i) Except as set forth in Section 5.11(a) of the
Indiana Disclosure Schedule, each of Indiana and each of its
subsidiaries and joint ventures is and has been in compliance
with all applicable Environmental Laws, except where the
failure to be so in compliance would not reasonably be likely
to have an Indiana Material Adverse Effect.
(ii) Except as set forth in Section 5.11(a) of the
Indiana Disclosure Schedule, neither Indiana nor any of its
subsidiaries and joint ventures has received any written
communication from any person or Governmental Authority that
alleges that Indiana or any of its subsidiaries and Joint
ventures is not in compliance with applicable Environmental
Laws, except where the failure to be so in compliance would
not reasonably be likely to have an Indiana Material Adverse
Effect.
(b) ENVIRONMENTAL PERMITS. Except as set forth in Section
5.11(b) of the Indiana Disclosure Schedule, Indiana and each of its
subsidiaries and Joint ventures has obtained or has applied for all
Environmental Permits necessary for the construction of their
facilities and the conduct of their operations, and all such
permits are in good standing or, where applicable, a renewal
application has been timely filed and is pending agency approval,
and Indiana and its subsidiaries and Joint ventures are in
compliance with all terms and conditions of all such Environmental
Permits and are not required to make any expenditure in order to
obtain or renew any Environmental Permits, except where the failure
to obtain or be in such compliance and the requirement to make such
expenditures would not reasonably be likely to have an Indiana
Material Adverse Effect.
(c) ENVIRONMENTAL CLAIMS. Except as set forth in Section
5.11(c) of the Indiana Disclosure Schedule, there is no
Environmental Claim pending, or to the knowledge of Indiana and its
subsidiaries, threatened:
(i) against Indiana or any of its subsidiaries or joint
ventures;
(ii) against any person or entity whose liability for any
Environmental Claim Indiana or any of its subsidiaries or
joint ventures has or may have retained or assumed either
contractually or by operation of law; or
(iii) against any real or personal property or
operations that Indiana or any of its subsidiaries or joint
ventures owns, leases or manages, in whole or in part;
that, if adversely determined, would reasonably be likely to have
an Indiana Material Adverse Effect.
(d) RELEASES. Except as set forth in Section 5.11(c) or
5.11(d) of the Indiana Disclosure Schedule, Indiana has no
knowledge of any Release of any Hazardous Material that would be
reasonably likely to form the basis of any Environmental Claim
against Indiana or any of its subsidiaries or joint ventures of
Indiana, or against any person or entity whose liability for any
Environmental Claim Indiana or any subsidiaries or joint ventures
of Indiana has or may have retained or assumed either contractually
or by operation of law, except for Releases of Hazardous Materials
the liability for which would not reasonably be likely to have an
Indiana Material Adverse Effect.
(e) PREDECESSORS. Except as set forth in Section 5.11(e) of
the Indiana Disclosure Schedule, Indiana has no knowledge, with
respect to any predecessor of Indiana or any subsidiary or joint
venture of Indiana, of any Environmental Claims pending or
threatened, or of any Release of Hazardous Materials that would be
reasonably likely to form the basis of any Environmental Claims
that would have, or that Indiana reasonably believes would
reasonably be likely to have an Indiana Material Adverse Effect.
(f) DISCLOSURE. To Indiana's knowledge, Indiana has
disclosed to SIGCORP all material facts that Indiana reasonably
believes form the basis of an Indiana Material Adverse Effect
arising from:
(i) the cost of pollution control equipment currently
required or known to be required in the future;
(ii) current remediation costs or remediation costs known
to be required in the future; or
(iii) any other environmental matter affecting
Indiana or its subsidiaries that would have, or that Indiana
reasonably believes would reasonably be likely to have an
Indiana Material Adverse Effect.
Section 5.12 REGULATION AS A UTILITY.
(a) Indiana is a public utility holding company as defined in
the 1935 Act exempt from all provisions of the 1935 Act except
section 9(a)(2), by order of the SEC pursuant to section 3(a)(1) of
the 1935 Act. Indiana is not regulated as a public utility in any
state.
(b) Except as set forth in Section 5.12 of the Indiana
Disclosure Schedule, no subsidiary company or affiliate of Indiana
is subject to regulation as a public utility or public service
company (or similar designation) by any other state in the United
States or by any foreign country.
Section 5.13 VOTE REQUIRED. The approval of the Merger by
a majority of all votes entitled to be cast by all holders of
Indiana Common Stock ( the "INDIANA SHAREHOLDERS' APPROVAL") is the
only vote of the holders of any class or series of the capital
stock of Indiana or any subsidiaries of Indiana required to approve
this Agreement, the Merger and the other transactions contemplated
hereby.
Section 5.14 ACCOUNTING MATTERS. Indiana has not, through
the date hereof, in contemplation of the Merger, taken or agreed to
take any action that would prevent the Company from accounting for
the business combination to be effected by the Merger as a pooling-
of-interests in accordance with GAAP and applicable SEC
regulations.
Section 5.15 APPLICABILITY OF CERTAIN INDIANA LAW.
(a) Assuming the accuracy of the representation by SIGCORP
set forth in Section 4.18, neither the control share acquisition
provisions of Chapter 40 of the IBCL nor the business combination
provisions of Chapter 41 of the IBCL or any similar provisions of
the IBCL, the Articles of Incorporation or Bylaws of Indiana are
applicable to the transactions contemplated by this Agreement or
the Indiana Option.
(b) Indiana shall take all action requested in writing by
SIGCORP to render the rights granted to the holders of Indiana
Common Stock (the "INDIANA RIGHTS") pursuant to the Rights
Agreement dated as of July 30, 1986 between Indiana and First
Chicago Trust Company of New York, as Rights Agent, as amended (the
"Indiana Rights Agreement"), inapplicable to the Merger and the
other transactions contemplated by this Agreement and the Indiana
Option. Except as approved in writing by SIGCORP, the Board of
Indiana shall not (i) amend the Indiana Rights Agreement, (ii)
redeem the Indiana Rights, or (iii) take action with respect to, or
make any determination under, the Indiana Rights Agreement,
provided, that nothing contained in this Section 5.15(b) shall
require the Board of Directors of Indiana to take any action or
refrain from taking any action that a majority of such Board
determines in good faith, based upon the written opinion of outside
counsel, would result in a breach of its fiduciary duties under
applicable law. If any Distribution Date or Shares Distribution
Date occurs under the Indiana Rights Agreement at any time during
the period from the date of this Agreement to the Effective Time,
Indiana and SIGCORP shall make such adjustment to the SIGCORP Ratio
as Indiana and SIGCORP shall mutually agree so as to preserve the
economic benefits that Indiana and SIGCORP each reasonably expected
on the date of this Agreement to receive as a result of the
consummation of the Merger and the other transactions contemplated
by this Agreement.
Section 5.16 OPINION OF FINANCIAL ADVISOR. Indiana has
received the opinion of Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as of the date hereof, to the effect that, as of the
date hereof, the Indiana Ratio is fair to the holders of Indiana
Common Stock.
Section 5.17 INSURANCE.
(a) Except as set forth in Section 5.17 of the Indiana
Disclosure Schedule, each of Indiana and each of its subsidiaries
is, and has been continuously since January 1, 1995, insured in
such amounts and against such risks and losses as are customary for
companies conducting the respective businesses conducted by Indiana
and its subsidiaries during such time period.
(b) Except as set forth in Section 5.17 of the Indiana
Disclosure Schedule, neither Indiana nor any of its subsidiaries
has received any notice of cancellation or termination with respect
to any material insurance policy thereof.
(c) To the knowledge of Indiana, all material insurance
policies of Indiana and its subsidiaries are valid and enforceable
policies.
Section 5.18 OWNERSHIP OF SIGCORP COMMON STOCK. Indiana
does not "beneficially own" (as such term is defined in Rule 13d-3
under the Exchange Act) any shares of SIGCORP Common Stock.
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
Prior to the date hereof, each of SIGCORP and Indiana has
delivered to the other a five-year plan and a strategic plan
(respectively, the "SIGCORP Financial Plan" and the "Indiana
Financial Plan"). After the date hereof and prior to the Effective
Time or earlier termination of this Agreement, each of Indiana and
SIGCORP agrees, as to itself and their respective subsidiaries, to
comply with the provisions of this Article VI. Notwithstanding the
foregoing, Section 6.1 through Section 6.8 (inclusive except for
Section 6.2(a) and Section 6.5) shall not apply in the case of
actions by SIGCORP or Indiana that are (i) in the case of SIGCORP,
contemplated by the SIGCORP Financial Plan or consented to in
writing by Indiana, or (ii) in the case of Indiana, contemplated by
the Indiana Financial Plan or consented to in writing by SIGCORP.
Section 6.1 ORDINARY COURSE OF BUSINESS. Each of SIGCORP
and Indiana shall, and shall cause their respective subsidiaries
to, conduct their respective businesses in the usual, regular and
ordinary course in substantially the same manner as heretofore
conducted and use all commercially reasonable efforts to preserve
their respective business organizations and goodwill, preserve the
goodwill and relationships with customers, suppliers, distributors
and others having business dealings with them and, subject to
prudent management of workforce needs and ongoing programs
currently in force, keep available the services of their present
officers and employees.
Section 6.2 DIVIDENDS. Neither SIGCORP nor Indiana shall,
nor shall either permit any of its subsidiaries to:
(a) declare or pay any dividends or make other distributions
in respect of any of their capital stock other than to such party
or its subsidiaries and other than regular quarterly dividends on
SIGCORP and Indiana Common Stock with usual record and payment
dates not, during any calendar year, in excess of dividends
consistent with prior practice subject to increases that do not
result in a dividend rate in excess of the indicated annual
dividend rate agreed to by SIGCORP and Indiana for the Company
following the Effective Time;
(b) split, combine or reclassify any of their capital stock
or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of, or in substitution for,
shares of its capital stock; or
(c) redeem, repurchase or otherwise acquire any shares of
their capital stock, other than:
(i) redemptions, purchases or acquisitions required by
the respective terms of any series of preferred stock of any
subsidiary of either SIGCORP or Indiana;
(ii) in connection with refunding of any preferred stock
with preferred or preference stock or debt at a lower cost of
funds;
(iii) intercompany acquisitions of capital stock; or
(iv) in connection with the administration of employee
benefit and dividend reinvestment plans as in effect on the
date hereof in the ordinary course of the operation of such
plans.
Section 6.3 ISSUANCE OF SECURITIES. Except as set forth on
Schedule 6.3 of the SIGCORP Disclosure Schedule or the Indiana
Disclosure Schedule, neither SIGCORP nor Indiana shall, nor shall
either permit any of its subsidiaries to, issue, agree to issue,
deliver or sell, or authorize or propose the issuance, delivery or
sale of, any shares of their capital stock or any class or any
securities convertible into or exchangeable for, or any rights,
warrants or options to acquire, any such shares or convertible or
exchangeable securities except for:
(a) the issuance of capital stock upon the conversion of
convertible securities or the exercise of employee stock options
outstanding on the date hereof or permitted to be issued under the
terms hereof;
(b) the issuance of common stock, employee stock options or
other securities by Indiana or SIGCORP pursuant to the employee
benefit plans listed on Schedule 6.3 of the Indiana Disclosure
Schedule or the SIGCORP Disclosure Schedule, in each case in the
ordinary course of the operation of such programs or plans in
accordance with their present terms; or
(c) issuances by a wholly owned subsidiary of its capital
stock to a direct or indirect parent.
Section 6.4 CHARTER DOCUMENTS. Except as set forth in
Section 6.4 of the SIGCORP Disclosure Schedule or the Indiana
Disclosure Schedule, neither SIGCORP nor Indiana shall amend or
propose to amend its respective articles of incorporation or bylaws
in any way adverse to the other party except as contemplated
herein.
Section 6.5 NO ACQUISITIONS. Except as set forth in
Section 6.5 of the SIGCORP Disclosure Schedule or the Indiana
Disclosure Schedule, neither SIGCORP nor Indiana shall, nor shall
either permit any of its subsidiaries to, acquire, or publicly
propose to acquire, or agree to acquire, by merger or
consolidation, by purchase or otherwise, an equity interest in or
any assets of any business of any corporation, partnership,
association or other business organization or division thereof,
except for:
(a) the purchase of assets from suppliers or vendors in the
ordinary course of business and consistent with past practice; and
(b) acquisitions by SIGCORP and its subsidiaries on the one
hand, and Indiana and its subsidiaries on the other, within
existing lines of business, of less than $5.0 million in the
aggregate.
Section 6.6 CAPITAL EXPENDITURES. Except as set forth in
Section 6.6 of the SIGCORP Disclosure Schedule or the Indiana
Disclosure Schedule or as required by law, neither SIGCORP nor
Indiana shall, nor shall either permit any of its subsidiaries to
make or obligate itself to make any capital expenditures, except
for:
(a) capital expenditures to repair or replace facilities
destroyed or damaged due to casualty or accident (whether or not
covered by insurance), or
(b) additional capital expenditures that in the aggregate do
not exceed $10.0 million.
Section 6.7 NO DISPOSITIONS. Except as set forth on
Schedule 6.7 of the SIGCORP Disclosure Schedule or the Indiana
Disclosure Schedule, neither SIGCORP nor Indiana shall, nor shall
either permit any of its subsidiaries to, sell, lease, license,
encumber or otherwise dispose of, any significant amount of assets,
or become obligated to sell, lease, license, encumber or otherwise
dispose of such assets, except for:
(a) dispositions not exceeding $5.0 million in the aggregate,
in the case of SIGCORP and its subsidiaries on the one hand, and
Indiana and its subsidiaries on the other hand, which dispositions
do not have a SIGCORP Material Adverse Effect or an Indiana
Material Adverse Effect, as the case may be;
(b) subject to the provisions of Section 7.3, as may be
required by law to consummate the transactions contemplated hereby;
or
(c) in the ordinary course of business consistent with prior
practice.
Section 6.8 INDEBTEDNESS. Except as set forth in Section
6.8 of the SIGCORP Disclosure Schedule or the Indiana Disclosure
Schedule, no party shall, nor shall any party permit any of its
subsidiaries to, incur or guarantee any indebtedness (including any
debt borrowed or guaranteed or otherwise assumed, including,
without limitation, the issuance of debt securities), except for:
(a) short-term indebtedness in the ordinary course of
business consistent with past practice;
(b) long-term indebtedness in connection with the refinancing
of existing indebtedness either at its stated maturity or at a
lower cost of funds;
(c) additional long-term indebtedness aggregating not more
than $10.0 million in the case of SIGCORP and its subsidiaries, on
one hand, and $10.0 million in the case of Indiana and its
subsidiaries, on the other hand; or
(d) in connection with the refunding of any subsidiary
preferred stock as permitted in Section 6.3.
Section 6.9 COMPENSATION, BENEFITS. Except as set forth on
Schedule 6.9 of the SIGCORP Disclosure Schedule or the Indiana
Disclosure Schedule, as may be required by applicable law to
facilitate or obtain a determination from the IRS that a plan is
"qualified within the meaning of Section 401(a) of the Code or as
contemplated by this Agreement, no party shall, nor shall any party
permit any of its subsidiaries to, enter into, adopt or amend or
increase the amount of or accelerate the payment or vesting of any
benefit or amount payable under any employee benefit plan or any
other contract, agreement, commitment, arrangement, plan or policy
maintained by, contributed to or entered into by such party or any
of its subsidiaries, or increase, or enter into any contract,
agreement, commitment or arrangement to increase in any manner, the
compensation or fringe benefits, or otherwise to extend, expand or
enhance the engagement, employment or any related rights, of any
director, officer or other employee of such party or any of its
subsidiaries, except for normal increases in the ordinary course of
business consistent with past practice that, in the aggregate, do
not result in a material increase in benefits or compensation
expense to such party or any of its subsidiaries, or enter into or
amend any employment, severance, or special pay arrangement with
respect to the termination of employment or other similar contract,
agreement or arrangement with any director or officer or other
employee.
Section 6.10 1935 ACT. Except as required or contemplated
by this Agreement:
(a) SIGCORP shall not, nor shall SIGCORP permit any of its
subsidiaries to engage in any activities that cause it to lose its
exemption from registration as a "holding company" under the 1935
Act; and
(b) Indiana shall not, nor shall Indiana permit any of its
subsidiaries to engage in any activities that cause it to lose its
exemption from registration as a "holding company" under the 1935
Act.
Section 6.11 ACCOUNTING. No party shall, nor shall any
party permit any of its subsidiaries to make any changes in its or
their accounting methods, except as required by law, rule,
regulation or GAAP.
Section 6.12 POOLING. No party shall, nor shall any party
permit any of its subsidiaries to, take or become obligated to take
any actions that would, or would be reasonably likely to, prevent
the Company from accounting for the business combination to be
effected by the Merger as a pooling-of-interests in accordance with
GAAP and applicable SEC regulations. If any impediments to
accounting for the business combination as a pooling-of-interests
are discovered at any time, each party shall use all commercially
reasonable efforts to achieve pooling-of-interests accounting
(including taking such actions as may be necessary to cure any
facts or circumstances that could prevent such transactions from
qualifying for pooling-of-interests accounting treatment).
Section 6.13 TAX-FREE STATUS. No party shall, nor shall any
party permit any of its subsidiaries to, take any actions that
would, or would be reasonably likely to, adversely affect the
status of the Merger as a tax-free reorganization under Code
Section 368(a) (except as to shareholders of Indiana or SIGCORP who
receive cash in lieu of fractional shares) and each party shall use
all commercially reasonable efforts to achieve such result.
Section 6.14 INSURANCE. Each of SIGCORP and Indiana shall,
and shall cause its respective subsidiaries to, maintain with
financially responsible insurance companies (or through self-
insurance not inconsistent with such party's past practice)
insurance in such amounts and against such risks and losses as are
customary for companies engaged in the electric and gas utility
industry and such other businesses as conducted by such party and
its subsidiaries and employing methods of generating electric power
and fuel sources similar to those methods employed and fuels used
by the respective party or such party's subsidiaries.
Section 6.15 COOPERATION, NOTIFICATION. Each of SIGCORP and
Indiana shall and shall cause its subsidiaries (directly or acting
through its parent company representative) to:
(a) confer on a regular and frequent basis with one or more
representatives of the other party to discuss material operational
matters and the general status of its ongoing operations;
(b) promptly notify the other party of any significant
changes in its business, properties, assets, condition (financial
or otherwise) or results of operations;
(c) advise the other party of any change or event that has
had or, to the knowledge of such party, would reasonably be likely
to have a SIGCORP Material Adverse Effect or an Indiana Material
Adverse Effect; and
(d) consult with each other prior to making any filings with
any state or federal court, administrative agency, commission or
other Governmental Authority in connection with this Agreement and
the transactions contemplated hereby, and promptly after each such
filing provide the other with a copy thereof.
Section 6.16 RATE MATTERS. (a) No party shall make any
filing to change its or any of its utility subsidiaries' rates on
file with any Governmental Authority nor, except as set forth in
Section 6.16 of the SIGCORP Disclosure Schedule, shall SIGCORP
consent to any change by any Governmental Authority in the
methodology used to compute any fuel adjustment from the
methodology applied in computing any fuel adjustment applied in the
normal course consistent with prior practice that could have a
material adverse effect on the benefits associated with the
business combination provided herein.
Section 6.17 THIRD PARTY CONSENTS. Each of SIGCORP and
Indiana shall, and shall cause its subsidiaries to, use all
commercially reasonable efforts to obtain all SIGCORP Required
Consents or Indiana Required Consents, as the case may be. Each
party shall promptly notify the other party of any failure or
prospective failure to obtain any such consents and, if requested
by the other party, shall provide to the other party copies of all
SIGCORP Required Consents or Indiana Required Consents, as the case
may be, obtained by such party.
Section 6.18 TAX-EXEMPT STATUS. No party shall, nor shall
any party permit any subsidiary to, take any action that would
likely jeopardize the exclusion from gross income, for purposes of
federal income taxation, of the interest on the outstanding revenue
bonds issued for the benefit of any subsidiary of SIGCORP or
Indiana, as the case may be, which qualify on the date hereof under
Code Section 142(a) as "exempt facility bonds" or as tax-exempt
industrial development bonds under Section 103(b)(4) of the
Internal Revenue Code of 1954, as amended prior to the Tax Reform
Act of 1986.
Section 6.19 PERMITS. Each of SIGCORP and Indiana shall use
commercially reasonable efforts to maintain in effect all existing
material permits pursuant to which such party operates.
Section 6.20 CERTAIN INFORMATION RELATING TO CUSTOMERS.
Without limiting the application of the Confidentiality Agreement,
dated April 7, 1999, between SIGCORP and Indiana (the
"CONFIDENTIALITY AGREEMENT") no party shall, nor shall any party
permit any of its subsidiaries to, use any Evaluation Material (as
defined in the Confidentiality Agreement) in connection with any
solicitation, inquiry, proposal, arrangement, understanding or
agreement with any person relating to the provision of electric or
gas utility service by SIGCORP or any of its subsidiaries, on the
one hand, or Indiana or any of its subsidiaries, on the other hand,
to commercial and industrial customers in the service territory of
the other party.
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1 ACCESS TO INFORMATION.
(a) Upon reasonable notice and during normal business hours,
each of SIGCORP and Indiana shall, and shall cause its subsidiaries
to, afford to the officers, directors, employees, accountants,
counsel, investment bankers, financial advisors and other
representatives of the other (collectively, "REPRESENTATIVES")
reasonable access, during normal business hours throughout the
period prior to the Effective Time, to all of its properties,
books, contracts, commitments and records (including, but not
limited to, Tax Returns) and, during such period, each shall, and
shall cause its subsidiaries to, furnish promptly to the other:
(i) a copy of each report, schedule and other document
filed by it or any of its subsidiaries with the SEC and any
other document pertaining to the transactions contemplated
hereby filed with any Governmental Authority that is not filed
as an exhibit to an SEC filing or described in an SEC filing;
and
(ii) all information concerning themselves, their
subsidiaries, directors, officers and shareholders and such
matters as may be reasonably requested by the other party in
connection with any filings, applications or approvals
required or contemplated by this Agreement.
(b) Without limiting the application of the Confidentiality
Agreement, all documents and information furnished pursuant to
Section 7.1(a) shall be subject to the Confidentiality Agreement.
Section 7.2 JOINT PROXY STATEMENT AND REGISTRATION
STATEMENT.
(a) PREPARATION AND FILING.
(i) As promptly as reasonably practicable after the date
hereof, the parties shall prepare and file with the SEC the
Registration Statement and the Joint Proxy Statement (together
the "JOINT PROXY/REGISTRATION STATEMENT").
(ii) The parties shall take such actions as may be
reasonably required to cause the Registration Statement to be
declared effective under the Securities Act as promptly as
practicable after such filing.
(iii) The parties shall also take such action as may
be reasonably required to cause the shares of Company Common
Stock issuable in connection with the Merger to be registered
or to obtain an exemption from registration under applicable
state "blue sky" or securities laws; PROVIDED, HOWEVER, that
none of the Company, SIGCORP or Indiana shall be required to
register or qualify as a foreign corporation or to take any
other action that would subject it to general service of
process in any jurisdiction in which it will not, following
the Merger, be so subject.
(iv) Each of the parties shall furnish all information
concerning itself that is required or customary for inclusion
in the Joint Proxy/Registration Statement.
(v) No representation, covenant or agreement contained
in this Agreement is made by any party hereto with respect to
information supplied by any other party hereto for inclusion
in the Joint Proxy/Registration Statement.
(vi) The Joint Proxy/Registration Statement shall comply
as to form in all material respects with the Securities Act,
the Exchange Act and the rules and regulations thereunder.
(vii) The parties shall take such action as may be
reasonably required to cause the shares of Company Common
Stock to be approved for listing on the NYSE and to cause such
shares to be approved for listing on such other national and
international securities exchanges as the parties may select
upon official notice of issuance.
(b) LETTER OF INDIANA'S ACCOUNTANTS. Following receipt by
Arthur Andersen, L.L.P. ("AA"), Indiana's independent auditors, of
an appropriate request from SIGCORP pursuant to SAS No. 72, Indiana
shall use commercially reasonable efforts to cause to be delivered
to the Company and SIGCORP a letter of AA, dated a date within two
business days before the effective date of the Registration
Statement, and addressed to the Company and SIGCORP, in form and
substance reasonably satisfactory to the Company and SIGCORP and
customary in scope and substance for "cold comfort" letters
delivered by independent public accountants in connection with
registration statements and proxy statements similar to the Joint
Proxy/Registration Statement.
(c) LETTER OF SIGCORP'S ACCOUNTANTS. Following receipt by
AA, SIGCORP's independent auditors, of an appropriate request from
Indiana pursuant to SAS No. 72, SIGCORP shall use commercially
reasonable efforts to cause to be delivered to the Company and
Indiana a letter of AA, dated a date within two business days
before the effective date of the Registration Statement, and
addressed to the Company and Indiana, in form and substance
reasonably satisfactory to the Company and Indiana and customary in
scope and substance for "cold comfort" letters delivered by
independent public accountants in connection with registration
statements and proxy statements similar to the Joint
Proxy/Registration Statement.
Section 7.3 REGULATORY MATTERS.
(a) HSR FILINGS. Each party hereto shall file or cause to
be filed with the Federal Trade Commission and the Department of
Justice any notifications required to be filed by their respective
"ultimate parent" companies under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR ACT"), and the rules
and regulations promulgated thereunder with respect to the
transactions contemplated hereby, and shall respond promptly to any
requests for additional information made by either of such
agencies.
(b) OTHER REGULATORY APPROVALS.
(i) Each party hereto shall cooperate and use its
reasonable best efforts to promptly prepare and file all
necessary documentation, to effect all necessary applications,
notices, petitions, filings and other documents, and to use
all commercially reasonable efforts to obtain all necessary
permits, consents, approvals and authorizations of all
Governmental Authorities and all other persons necessary or
advisable to consummate the transactions contemplated by this
Agreement, including, without limitation, the Indiana Required
Statutory Approvals and the SIGCORP Required Statutory
Approvals.
(ii) SIGCORP shall have the right to review and approve
in advance all characterizations of the information relating
to SIGCORP, on the one hand, and Indiana shall have the right
to review and approve in advance all characterizations of the
information relating to Indiana, on the other hand, in either
case, which appear in any filing made in connection with the
transactions contemplated by this Agreement or the Merger.
(iii) Indiana and SIGCORP shall each consult with the
other with respect to the obtaining of all such necessary or
advisable permits, consents, approvals and authorizations of
Governmental Authorities.
Section 7.4 SHAREHOLDER APPROVALS.
(a) APPROVAL OF SIGCORP SHAREHOLDERS. SIGCORP shall, as
promptly as reasonably practicable after the date hereof:
(i) take all steps reasonably necessary to duly call,
give notice of, convene and hold a special meeting of its
shareholders (the "SIGCORP SPECIAL MEETING") for the purpose
of securing the SIGCORP Shareholders' Approval;
(ii) distribute to its shareholders the Joint Proxy
Statement in accordance with applicable federal and state law
and its Articles of Incorporation and Bylaws;
(iii) recommend to its shareholders the approval of
the Merger, this Agreement and the transactions contemplated
hereby; and
(iv) cooperate and consult with Indiana with respect to
each of the foregoing matters;
PROVIDED, that nothing contained in this Section 7.4(a) shall
require the Board of Directors of SIGCORP to take any action or
refrain from taking any action that a majority of such Board
determines in good faith based upon the written opinion of outside
counsel would result in a breach of its fiduciary duties under
applicable law.
(b) APPROVAL OF INDIANA SHAREHOLDERS. Indiana shall, as
promptly as reasonably practicable after the date hereof:
(i) take all steps reasonably necessary to duly call,
give notice of, convene and hold a special meeting of its
shareholders (the "INDIANA SPECIAL MEETING") for the purpose
of securing the Indiana Shareholders' Approval;
(ii) distribute to its shareholders the Joint Proxy
Statement in accordance with applicable federal and state law
and its Articles of Incorporation and Bylaws;
(iii) recommend to its shareholders the approval of
the Merger, this Agreement and the transactions contemplated
hereby; and
(iv) cooperate and consult with SIGCORP with respect to
each of the foregoing matters;
PROVIDED that nothing contained in this Section 7.4(b) shall
require the Board of Directors of Indiana to take any action or
refrain from taking any action that a majority of such Board
determines in good faith based upon the written opinion of outside
counsel would result in a breach of its fiduciary duties under
applicable law.
(c) MEETING DATE. The Indiana Special Meeting and the
SIGCORP Special Meeting shall be held on the same day unless
otherwise agreed by Indiana and SIGCORP.
Section 7.5 DIRECTORS' AND OFFICERS' INDEMNIFICATION.
(a) INDEMNIFICATION.
(i) To the extent, if any, not provided by an existing
right to indemnification or other agreement or policy, from
and after the Effective Time, the Company shall, to the
fullest extent not prohibited by applicable law, indemnify,
defend and hold harmless the present and former directors,
officers and employees of the parties hereto and their
respective subsidiaries (each an "INDEMNIFIED PARTY" and,
collectively, the "INDEMNIFIED PARTIES") against
(A) all losses, expenses (including
reasonable attorneys' fees and expenses), claims,
damages, costs, liabilities, judgments or amounts
that are paid in settlement of or in connection
with any claim, action, suit, proceeding or
investigation (collectively, "INDEMNIFIED
LIABILITIES") (x) based in whole or in part on or
arising in whole or in part out of the fact that
such person is or was a director, officer or
employee of such party or any subsidiary thereof,
and (y) pertaining to any matter existing or
occurring at or prior to the Effective Time,
whether asserted or claimed prior to, at or after
the Effective Time; and
(B) all Indemnified Liabilities based in
whole or in part on, or arising in whole or in part
out of, or pertaining to this Agreement, the
SIGCORP Option, the Indiana Option or the
transactions contemplated hereby or thereby;
(ii) In the event of any such loss, expense, claim,
damage, cost, liability, judgment or settlement (whether or
not arising before the Effective Time):
(A) the Company shall pay the reasonable fees
and expenses of counsel selected by the Indemnified
Parties, which counsel shall be reasonably
satisfactory to the Company, promptly after
statements therefor are received, and otherwise
advance to the Indemnified Parties upon request
reimbursement of documented expenses reasonably
incurred, in either case to the extent not
prohibited by applicable law;
(B) the Company shall cooperate in the
defense of any such matter; and
(C) any determination required to be made
with respect to whether an Indemnified Party's
conduct complies with the standards under
applicable law or as set forth in the Company's
Articles of Incorporation or Bylaws shall be made
by independent counsel mutually acceptable to the
Company and the Indemnified Party;
PROVIDED, HOWEVER, that the Company shall not be liable for any
settlement effected without its written consent (which consent
shall not be unreasonably withheld).
(iii) The Indemnified Parties as a group may retain
only one law firm (other than local counsel) with respect to
each related matter except to the extent there is, in the sole
opinion of counsel to an Indemnified Party, under applicable
standards of professional conduct, a conflict on any
significant issue between positions of any two or more
Indemnified Parties, in which case each Indemnified Party with
a conflicting position on a significant issue shall be
entitled to separate counsel.
(b) INSURANCE. For a period of six (6) years after the
Effective Time, the Company shall cause to be maintained in effect
the policies of directors' and officers' liability insurance
maintained by Indiana and SIGCORP; provided that the Company may
substitute therefor policies of at least the same coverage
containing terms that are no less advantageous with respect to
matters occurring prior to the effective Time to the extent such
liability insurance can be maintained annually at a cost to the
Company not greater than 200 percent of the current aggregate
annual premiums for the policies currently maintained by Indiana
and SIGCORP for their directors' and officers' liability insurance;
provided, further, that if such insurance cannot be so maintained
or obtained at such cost, the Company shall maintain or obtain as
much of such insurance can be so maintained or obtained at a cost
equal to 200 percent of the current aggregate annual premiums of
each of Indiana and SIGCORP for their directors' and officers'
liability insurance.
(c) SUCCESSORS. In the event the Company or any of its
successor or assigns:
(i) consolidates with or merges into any other person
and shall not be the continuing or surviving corporation or
entity of such consolidation or merger; or
(ii) transfers all or substantially all of its properties
and assets to any person;
then and in either such case, proper provision shall be made so
that the successors and assigns of the Company shall assume the
obligations set forth in this Section 7.5.
(d) SURVIVAL OF INDEMNIFICATION. To the fullest extent, not
prohibited by law, from and after the Effective Time, all rights to
indemnification now existing in favor of the employees, agents,
directors or officers of Indiana, SIGCORP and their respective
subsidiaries and joint ventures with respect to their activities as
such prior to the Effective Time, as provided in their respective
Articles of Incorporation or Bylaws in effect on the date of such
activities or otherwise in effect on the date hereof, shall survive
the Merger and shall continue in full force and effect for a period
of six years from the Effective Time.
(e) The provisions of this Section 7.5 are intended to be for
the benefit of, and shall be enforceable by, each Indemnified
Party, his or her heirs and his or her representatives.
Section 7.6 DISCLOSURE SCHEDULES.
(a) On or before the date of this Agreement:
(i) SIGCORP shall deliver to Indiana a schedule (the
"SIGCORP DISCLOSURE SCHEDULE"), which shall be accompanied by
a certificate signed by the chief financial officer or other
principal financial officer of SIGCORP stating that the
Disclosure Schedule is being delivered pursuant to this
Section 7.6(a)(i); and
(ii) Indiana shall deliver to SIGCORP a schedule (the
"INDIANA DISCLOSURE SCHEDULE"), which shall be accompanied by
a certificate signed by the chief financial officer of Indiana
stating that the Indiana Disclosure Schedule is being
delivered pursuant to this Section 7.6(a)(ii).
(b) The Disclosure Schedules shall constitute an integral
part of this Agreement and shall modify or otherwise affect the
respective representations, warranties, covenants or agreements of
the parties hereto contained herein to the extent that such
representations, warranties, covenants or agreements expressly
refer to the Disclosure Schedules.
(c) Any and all statements, representations, warranties or
disclosures set forth in the Disclosure Schedules shall be deemed
to have been made on and as of the date of this Agreement.
(d) The SIGCORP Disclosure Schedule and the Indiana
Disclosure Schedule are collectively referred to herein as the
"DISCLOSURE SCHEDULES."
(e) Without limiting the application of the Confidentiality
Agreement, the parties shall use their best efforts to keep the
Disclosure Schedules confidential.
Section 7.7 PUBLIC ANNOUNCEMENTS. Indiana and SIGCORP
shall cooperate with each other in the development and distribution
of all news releases and other public information disclosures with
respect to this Agreement or any of the transactions contemplated
hereby and shall not issue any public announcement or statement
prior to consultation with the other party; provided, that
however, each party recognizes the other party's obligations
imposed by law or any applicable national securities exchange, and
will endeavor to accommodate such obligations.
Section 7.8 RULE 145 AFFILIATES. SIGCORP shall identify in
a letter to Indiana, and Indiana shall identify in a letter to
SIGCORP, all persons who are, at the Closing Date, "affiliates" of
SIGCORP and Indiana, respectively, as such term is used in Rule 145
under the Securities Act. SIGCORP and Indiana shall use their
respective reasonable best efforts to cause their respective
affiliates to deliver to the Company on or prior to the Closing
Date a written agreement substantially in the form of Exhibit 7.8.
Section 7.9 ASSUMPTION OF SIGCORP AND INDIANA AGREEMENTS
AND ARRANGEMENTS.
(a) Subject to Section 7.10, Section 7.11, and Section 7.14,
the Company shall honor and perform, without modification, all
contracts, agreements, collective bargaining agreements and
commitments of SIGCORP and Indiana in effect prior to the date
hereof (or as established or amended in accordance with or
permitted by this Agreement), including, but not limited to the
SIGCORP Plans, the SIGCORP Employment Arrangements, the Indiana
Plans and the Indiana Employment Arrangements, which apply to any
current or former employee, or current or former director of the
parties hereto or any of their subsidiaries; provided, however,
that this undertaking is not intended to prevent the Company from
enforcing such contracts, agreements, collective bargaining
agreements and commitments in accordance with their terms,
including any reserved right to amend, modify, suspend, revoke or
terminate any such contract, agreement, collective bargaining
agreement or commitment.
(b) Each of SIGCORP and Indiana shall promptly furnish to the
other, upon reasonable request by the other, detailed information,
together with underlying documentation, with respect to all
existing or proposed individual employment or severance agreements
or amendments thereto.
Section 7.10 INCENTIVE, STOCK AND OTHER PLANS.
With respect to each of the plans and programs of SIGCORP and
Indiana identified in Section 6.3 of the SIGCORP and Indiana
Disclosure Schedules that the parties later determine shall survive
the Closing and each other employee benefit plan, program or
arrangement of the Company under which the delivery of SIGCORP
Common Stock, Indiana Common Stock or Company Common Stock, as the
case may be, is required to be used for purposes of the payment of
benefits, grant of awards or exercise of options (each a "STOCK
PLAN"),
(i) Indiana and SIGCORP shall take such action as may be
necessary so that, after the Effective Time, such Stock Plan
shall provide for the issuance only of Company Common Stock
such that:
(A) with respect to options to purchase
SIGCORP Common Stock ("SIGCORP STOCK OPTION"), the
number of shares of Company Common Stock
purchasable upon exercise of such SIGCORP Stock
Option shall be equal to that number of shares of
Company Common Stock determined by multiplying the
number of shares of SIGCORP Common Stock subject to
such SIGCORP Stock Option by the SIGCORP Ratio,
rounded, if necessary, to the nearest whole share
of Company Common Stock, at a price per share
(rounded to the nearest one-hundredth of a cent)
equal to the per share exercise price specified in
such SIGCORP Stock Option divided by the SIGCORP
Ratio; provided, however, that in the case of any
SIGCORP Stock Option to which Section 421 of the
Code applies by reason of its qualification under
Section 422 of the Code, the option price, the
number of shares subject to such option and the
terms and conditions of exercise of such option
shall be determined in a manner consistent with the
requirements of Section 424(a) of the Code; and
(B) with respect to any restricted stock plan
of Indiana (the "INDIANA RESTRICTED STOCK PLANS"),
Indiana and the Company shall take such actions as
may be necessary so that, at the Effective Time,
all restrictions on any restricted stock granted
pursuant to the Indiana Restricted Stock Plans
shall lapse on the date immediately prior to the
Effective Time; provided, further, that upon the
Effective Time, all shares of stock issued pursuant
to the Indiana Restricted Stock Plans shall be
treated in accordance with Section 2.1 herein.
(ii) The Company shall:
(A) take all corporate action necessary or
appropriate to obtain shareholder approval with
respect to such Stock Plan to the extent such
approval is required for purposes of the Code or
other applicable law or stock exchange regulation,
or, to the extent the Company deems it desirable,
to enable such Stock Plan to comply with Rule 16b-3
promulgated under the Exchange Act;
(B) reserve for issuance under such Stock
Plan or otherwise provide a sufficient number of
shares of Company Common Stock for delivery upon
payment of benefits, grants of awards or exercise
of options under such Stock Plan; and
(C) as soon as practicable after the
Effective Time, file one or more registration
statements under the Securities Act with respect to
the shares of Company Common Stock subject to such
Stock Plan to the extent such filing is required
under applicable law and use its best efforts to
maintain the effectiveness of such registration
statement(s) (and the current status of the
prospectuses contained therein or related thereto)
so long as such benefits, grants or awards remain
payable or such options remain outstanding, as the
case may be.
Section 7.11 EMPLOYEE BENEFIT PLANS. Each of the Indiana
Plans and SIGCORP Plans and Indiana Employment Arrangements and
SIGCORP Employment Arrangements, in effect on the date hereof (or
as amended or established in accordance with or as permitted by
this Agreement) shall be maintained in effect (except as otherwise
provided in Section 7.14), with respect to the employees, former
employees, directors or former directors of Indiana and any of its
subsidiaries and of SIGCORP and any of its subsidiaries,
respectively, who are covered by such plans or arrangements
immediately prior to the Effective Time until the Company
determines otherwise on or after the Effective Time and the Company
shall assume as of the Effective Time each SIGCORP Plan and Indiana
Plan or SIGCORP Employment Arrangement maintained by SIGCORP
immediately prior to the Effective Time and Indiana Employment
Arrangement maintained by Indiana immediately prior to the
Effective Time and perform such plan or arrangement in the same
manner and to the same extent that SIGCORP and Indiana would,
respectively, be required to perform thereunder; provided, however,
that nothing herein contained, other than the provisions of Section
6.9, shall limit any reserved right contained in any such Indiana
Benefit Plan or Indiana Employment Arrangement or SIGCORP Benefit
Plan or SIGCORP Employment Arrangement to amend, modify, suspend,
revoke or terminate any such plan or arrangement. Without limiting
the foregoing, each participant in any Indiana Benefit Plan or
SIGCORP Benefit Plan shall receive credit for purposes of
eligibility to participate, vesting and eligibility to receive
benefits under any benefit plan of the Company or any of its
subsidiaries or affiliates for service credited for the
corresponding purpose under any such benefit plan; provided,
however, that such crediting of service shall not operate to cause
any such plan or arrangement to fail to comply with the applicable
provisions of the Code and ERISA. Indiana and SIGCORP will
cooperate on and after the date hereof to develop appropriate
employee benefit plans, programs and arrangements, including but
not limited to, executive and incentive compensation, stock option
and supplemental executive retirement plans, for employees and
directors of the Surviving Company and its subsidiaries from and
after the Effective Time. However, no provision contained in this
Section 7.11 shall be deemed to constitute an employment contract
between the Company and any individual, or a waiver of the
Company's right to discharge any employee at any time, with or
without cause.
Section 7.12 NO SOLICITATIONS.
(a) No party hereto shall, and each such party shall cause
its subsidiaries not to, permit any of its Representatives to, and
shall use its best efforts to cause such persons not to, directly
or indirectly, initiate, solicit or encourage, or take any action
to facilitate the making of any offer or proposal that constitutes
or is reasonably likely to lead to any Takeover Proposal (as
defined below), or, in the event of any unsolicited Takeover
Proposal, engage in negotiations, discussions or provide any
confidential information or data to any person relating to any
Takeover Proposal.
(b) SIGCORP and Indiana shall notify the other orally and in
writing of any such inquiries, offers or proposals (including,
without limitation, the terms and conditions of any such proposal
and the identity of the person making it) within 24 hours of the
receipt thereof and shall give the other ten days' advance notice
of any agreement to be entered into with or any information to be
supplied to any person making such inquiry, offer or proposal.
(c) Each party hereto shall immediately cease and cause to be
terminated all existing discussions and negotiations, if any, with
any other persons conducted heretofore with respect to any Takeover
Proposal.
(d) Notwithstanding anything in this Section 7.12 to the
contrary, unless the Indiana Shareholders' Approvals or the SIGCORP
Shareholders' Approvals, as the case may be, have been obtained,
Indiana or SIGCORP may, subject to (b) above, to the extent that a
majority of the Board of Directors of such party determines in good
faith on the basis of the written opinion of outside counsel that
a failure to do so would result in a breach of its fiduciary duties
under applicable law, participate in discussions or negotiations
with, furnish information to, and afford access to the properties,
books and records of such party and its subsidiaries to any person
in connection with a written bona fide Takeover Proposal with
respect to such party by such person. Prior to providing any
information or data to any person in connection with a Takeover
Proposal by such person, the Indiana Board of Directors or the
SIGCORP Board of Directors as the case may be, shall receive from
such person an executed confidentiality agreement containing
customary terms and provisions.
(e) As used in this Section 7.12, "TAKEOVER PROPOSAL" shall
mean any tender or exchange offer, proposal for a merger,
reorganization, share exchange, recapitalization, consolidation or
other business combination involving SIGCORP, Indiana or any of
their respective material subsidiaries, or any proposal or offer to
acquire in any manner an equity interest of 10% or more in, or a
significant portion of the assets of, SIGCORP, Indiana or any of
their respective material subsidiaries, other than pursuant to the
transactions contemplated by this Agreement.
Section 7.13 COMPANY BOARD OF DIRECTORS.
Indiana Energy's and SIGCORP's Boards of Directors shall take
such action as may be necessary to cause the number of directors
comprising the full Board of Directors of the Company (the "COMPANY
BOARD") at the Effective Time to be 16 persons, consisting of 8
persons designated by Indiana prior to the Effective Time and 8
persons designated by SIGCORP prior to the Effective Time;
provided, however, that if, prior to the Effective Time, any of
such designees shall decline or be unable to serve, the party that
designated such person shall designate another person to serve in
such person's stead. In the event one or more of the designees
dies, retires, resigns or otherwise becomes unable or unwilling to
serve within the first three years following the Effective Time,
the designees of the then majority may, to maintain the equal
allocation as nearly as practicable among SIGCORP and Indiana
designees, reduce their representation on the Company Board through
removal or resignation. Such decision must be made as promptly as
practicable, and in no event later than the next meeting of the
Company Board members. Should the majority fail to reduce the
number of designees serving on the Company Board, the minority may
designate a successor director who shall be elected to the Company
Board as soon as practicable.
(a) The initial designation of directors among the three
classes of the Company Board shall be allocated among SIGCORP and
Indiana designees.
(b) The initial Company Board committees and committee
memberships shall be determined by the Company Board; provided,
however that as nearly as practical an equal number of committees
shall be chaired by a designee of the SIGCORP Board; on the one
hand and by a designee of the Indiana Board on the other hand.
Each such committee shall have, as near as is practicable, an equal
number of members designated by SIGCORP and by Indiana.
(c) From the Effective Time until three years after the
Closing Date, a vote of sixty six and two thirds percent (66 2/3%)
of the members of the Company Board shall be required to approve a
change in the Company's name or the location of its headquarters or
principal executive offices, to amend the employment contracts
identified in Section 7.15 or otherwise change any of the titles or
functions of the particular individuals referred to in Section 7.14
as set forth in such employment contracts as in effect at the
Effective Time or to amend any bylaw provisions corresponding to
the provisions of this Section 7.13(d) adopted pursuant to Section
1.4.
Section 7.14 COMPANY OFFICERS.
(a) From the Effective Time until the earlier of his
resignation or removal by the Company Board of Directors, Mr. Niel
C. Ellerbrook shall serve as Chairman of the Board and Chief
Executive Officer. If Mr. Ellerbrook is not available at the
Effective Time to serve as Chief Executive Officer, then Indiana
shall designate a new Chief Executive Officer of the Company (the
"REPLACEMENT CEO"), subject to the approval of SIGCORP.
(b) From the Effective Time until the earlier of his
resignation or removal by the Company Board of Directors, Mr.
Andrew E. Goebel shall serve as President and Chief Operating
Officer of the Company. If Mr. Goebel is not available at the
Effective Time to serve as President and Chief Operating Officer of
the Company, then SIGCORP shall designate a new President and Chief
Operating Officer of the Company (the "REPLACEMENT COO"), subject
to the approval of Indiana.
(c) The provisions of this Section 7.14 are subject to the
fiduciary duties of the Company Board and to the specific terms of
the employment contracts referred to in Section 7.15, and the
duties and responsibilities attributable to the positions referred
to in this Section 7.14 shall be as set forth in such contracts.
Section 7.15 EMPLOYMENT CONTRACTS.
The Company shall, as of or prior to the Effective Time, use
its reasonable best efforts to enter into employment contracts
with the individuals set forth in Exhibit 7.15.
Section 7.16 CORPORATE OFFICES AND NAME.
As soon as reasonably possible after the Effective Time, the
corporate headquarters and principal executive offices of the
Company shall be located in Evansville, Indiana, and the Company
shall maintain significant operations in Indianapolis, Indiana.
The corporate headquarters and principal offices of Indiana Gas
Company, Inc. shall be located in Indianapolis, Indiana.
Section 7.17 TRANSITION MANAGEMENT.
(a) As promptly as practicable after the date hereof, Indiana
and SIGCORP shall create special transition management task forces
(the "TASK FORCES") that shall comprise representatives from each
of the primary business functions of each company and headed by Mr.
Niel C. Ellerbrook (or an individual designated by him) and Mr.
Andrew E. Goebel (or an individual designated by him).
(b) The functions of the Task Forces shall include (i) to
serve as a conduit for the flow of information and documents
between the companies and their subsidiaries as contemplated by
Section 6.15, (ii) to review and evaluate proposed exceptions to
the restrictions on the conduct of business pending the Merger set
forth in Article VI, (iii) development of regulatory plans and
proposals, corporate organizational and management plans, workforce
combination proposals, and such other matters as they deem
appropriate, and (iv) to evaluate and recommend the manner in which
best to organize and manage the business of the Company after the
Effective Time. A consent by either SIGCORP or Indiana to an
exception to the restrictions set forth in Article VI shall be
effective only if set forth in a writing that describes in
reasonable detail the actions proposed to be taken and that is
signed by Mr. Ellerbrook (or his designee) or Mr. Goebel (or his
designee), as the case may be.
(c) After the date hereof and prior to the Effective Time,
Mr. Goebel shall be invited to attend meetings of Indiana's Board
of Directors and Mr. Ellerbrook shall be invited to attend meetings
of SIGCORP's Board of Directors as appropriate in consultation with
each other.
(d) In connection with their responsibilities as co-heads of
the Task Force, Messrs. Ellerbrook and Goebel shall together
recommend organizational matters and candidates to serve as the
officers of the Company who are not otherwise designated by this
Agreement to their respective boards. All such organizational
matters and appointment of officers shall be subject to final
approval by a majority of the members of the Board of Directors of
the Company.
Section 7.18 EXPENSES. Except as disclosed in Section 7.18
of the Disclosure Schedules and subject to Section 9.3, all costs
and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such expenses, except that those expenses incurred in
connection with printing the Joint Proxy/Registration Statement, as
well as the filing fee relating thereto, shall be shared equally by
Indiana, on the one hand, and SIGCORP, on the other.
Section 7.19 COVENANT TO SATISFY CONDITIONS.
(a) Each of SIGCORP and Indiana shall take all reasonable
actions necessary to comply promptly with all legal requirements
that may be imposed on it with respect to this Agreement.
(b) Subject to the terms and conditions hereof, and taking
into account the circumstances and giving due weight to the
materiality of the matter involved or the action required, SIGCORP
and Indiana shall each use its commercially reasonable efforts to
take or cause to be taken all actions, and to do or cause to be
done all things, necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the Merger
and the other transactions contemplated hereby (subject to the
votes of its shareholders described in Sections 4.13 and 5.13,
respectively), including fully cooperating with the other in
obtaining the SIGCORP Required Statutory Approvals, the Indiana
Required Statutory Approvals and all other approvals and
authorizations of any Governmental Authorities necessary or
advisable to consummate the transactions contemplated hereby.
Section 7.20 COORDINATION OF DIVIDENDS. Each of Indiana and
SIGCORP shall coordinate with the other regarding the declaration
and payment of any dividends in respect of the Company Common Stock
and Indiana and SIGCORP Common Stock and the record dates and the
payment dates relating thereto, it being the intention of Indiana
and SIGCORP that holders of the Company Common Stock shall not
receive two dividends, or fail to receive one dividend, for any
single calendar quarter with respect to their shares of Indiana or
SIGCORP Common Stock and/or any shares of Company Common Stock that
any such holder receives in exchange therefor pursuant to the
Merger.
ARTICLE VIII
CONDITIONS
Section 8.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT
THE MERGER. The respective obligations of each party to effect the
Merger shall be subject to the satisfaction on or prior to the
Closing Date of the following conditions, except, to the extent
permitted by applicable law, that such conditions may be waived in
writing pursuant to Section 9.5.
(a) SHAREHOLDER APPROVALS. The SIGCORP Shareholders'
Approvals and the Indiana Shareholders' Approvals shall have been
obtained.
(b) NO INJUNCTION. No temporary restraining order or
preliminary or permanent injunction or other order by any federal
or state court preventing consummation of the Merger shall have
been issued and continuing in effect, and the Merger and the other
transactions contemplated hereby shall not have been prohibited
under any applicable federal or state law or regulation.
(c) REGISTRATION STATEMENT. The Registration Statement shall
have become effective in accordance with the provisions of the
Securities Act, and no stop order suspending such effectiveness
shall have been issued and remain in effect.
(d) LISTING OF SHARES. The shares of Company Common Stock
issuable in the Merger pursuant to Article II shall have approved
for listing on the NYSE upon official notice of issuance.
(e) POOLING. Each of Indiana and SIGCORP shall have received
a letter of its independent public accountants, dated the Closing
Date, in form and substance reasonably satisfactory to SIGCORP and
Indiana, respectively, stating that each of Indiana and SIGCORP is
a "poolable entity" under GAAP and applicable SEC regulations and
Company shall have received a letter of its independent public
accountants, dated the Closing Date and in form and substance
reasonably satisfactory to it, stating that the Merger will qualify
as a pooling-of-interests transaction under GAAP and applicable SEC
regulations.
(f) STATUTORY APPROVALS. The Indiana Required Statutory
Approvals and the SIGCORP Required Statutory Approvals shall have
been obtained at or prior to the Effective Time, such approvals
shall have become Final Orders (as hereinafter defined), and no
Final Order shall impose terms or conditions that would have, or
would be reasonably likely to have, a material adverse effect on
the business, operations, properties, assets, condition (financial
or otherwise) or results of operations of the Company (a "COMPANY
MATERIAL ADVERSE EFFECT"). A "FINAL ORDER" means action by the
relevant regulatory authority that has not been reversed, stayed,
enjoined, set aside, annulled or suspended, with respect to which
any waiting period prescribed by law before the transactions
contemplated hereby may be consummated has expired, and as to which
all conditions to the consummation of such transactions prescribed
by law, regulation or order have been satisfied, and as to which
all opportunities for rehearing are exhausted (whether or not any
appeal thereof is pending).
(g) INDIANA INCORPORATION. The Company shall continue to be
validly existing as a domestic corporation of the State of Indiana.
Section 8.2 CONDITIONS TO OBLIGATION OF SIGCORP TO EFFECT
THE MERGER. The obligation of SIGCORP to effect the Merger shall
be further subject to the satisfaction, on or prior to the Closing
Date, of the following conditions, except as may be waived by
SIGCORP in writing pursuant to Section 9.5:
(a) PERFORMANCE OF OBLIGATIONS OF INDIANA. Indiana shall
have performed in all material respects its agreements and
covenants contained in or contemplated by this Agreement required
to be performed by it at or prior to the Effective Time;
(b) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties of Indiana contained in this
Agreement that is qualified as to materiality shall be true and
correct in all respects and each of those that is not so qualified
as to materiality shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing as
though made again at and as of the Closing (except for
representations and warranties that expressly speak only as of a
specific date or time other than the date hereof or the Closing
Date which need only be true and correct as of such date);
(c) CLOSING CERTIFICATES. SIGCORP shall have received a
certificate signed by the Chief Executive Officer and Chief
Financial Officer of Indiana, dated the Closing Date, to the effect
that, to each such officer's knowledge, the conditions set forth in
Sections 8.2(a) and (b) have been satisfied;
(d) TAX OPINION. SIGCORP shall have received an opinion of
counsel, in form and substance reasonably satisfactory to SIGCORP,
dated the Closing Date, which opinion may be based on appropriate
representations of Indiana, SIGCORP and the Company, in form and
substance reasonably satisfactory to such counsel, to the effect
that the Merger will be a tax-free reorganization under Code
Section 368(a) and that SIGCORP, the Company and the shareholders
of SIGCORP who exchange their shares solely for stock of the
Company will recognize no gain or loss for federal income tax
purposes as a result of the consummation of the Merger;
(e) INDIANA REQUIRED CONSENTS. The Indiana Required Consents
shall have been obtained, except those that in the aggregate would
not result in and would not reasonably likely result in a Company
Material Adverse Effect.
Section 8.3 CONDITIONS TO OBLIGATION OF INDIANA TO EFFECT
THE MERGER. The obligation of Indiana to effect the Merger shall
be further subject to the satisfaction, on or prior to the Closing
Date, of the following conditions, except as may be waived by
Indiana in writing pursuant to Section 9.5:
(a) PERFORMANCE OF OBLIGATIONS OF SIGCORP. SIGCORP shall
have performed in all material respects its agreements and
covenants contained in or contemplated by this Agreement required
to be performed by it at or prior to the Effective Time;
(b) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties of SIGCORP contained in this
Agreement that is qualified as to materiality shall be true and
correct in all respects and each of those that is not so qualified
as to materiality shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing as
though made again at and as of the Closing (except for
representations and warranties that expressly speak only as of a
specific date or time other than the date hereof or the Closing
Date which need only be true and correct as of such date);
(c) CLOSING CERTIFICATES. Indiana shall have received a
certificate signed by the Chief Executive Officer and Chief
Financial Officer of SIGCORP, dated the Closing Date, to the effect
that, to each such officer's knowledge, the conditions set forth in
Sections 8.3(a) and (b) have been satisfied;
(d) TAX OPINION. Indiana shall have received an opinion of
counsel, in form and substance reasonably satisfactory to Indiana,
dated the Closing Date, which opinion may be based on appropriate
representations of Indiana, SIGCORP and the Company, in form and
substance reasonably satisfactory to such counsel, to the effect
that the Merger will be a tax-free reorganization under Code
Section 368(a) and that Indiana, the Company and the shareholders
of Indiana who exchange their shares solely for stock of the
Company will recognize no gain or loss for federal income tax
purposes as a result of the consummation of the Merger;
(e) SIGCORP REQUIRED CONSENTS. The SIGCORP Required Consents
shall have been obtained except those that in the aggregate would
not result in and would not reasonably likely result in a Company
Material Adverse Effect.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 TERMINATION. This Agreement may be terminated
and the Merger abandoned at any time prior to the Closing Date,
whether before or after approval by the shareholders of the
respective parties hereto contemplated by this Agreement:
(a) by mutual written consent of the Boards of Directors of
Indiana and SIGCORP;
(b) by SIGCORP or Indiana, by written notice to the other, if
the Effective Time shall not have occurred on or before June 11,
2000; provided, however, that such date shall automatically be
changed to December 31, 2000 if, on June 11, 2000:
(i) the condition set forth in Section 8.1(f) has not
been satisfied or waived;
(ii) the other conditions to the consummation of the
transactions contemplated hereby are then satisfied or capable
of being satisfied; and
(iii) any approvals required by Section 8.1(f) that
have not yet been obtained are being pursued with diligence;
provided, however, that the right to terminate this Agreement
under this Section 9.1(b) shall not be available to any party
whose failure to fulfill any obligation under this Agreement
has been the cause of, or resulted in, the failure of the
Effective Time to occur on or before the termination date;
(c) by SIGCORP or Indiana, by written notice to the other
party if the Indiana Shareholders' Approval shall not have been
obtained at a duly held Indiana Special Meeting, including any
adjournments thereof, or the SIGCORP Shareholders' Approval shall
not have been obtained at a duly held SIGCORP Special Meeting,
including any adjournments thereof;
(d) by SIGCORP or Indiana, if any state or federal law,
order, rule or regulation is adopted or issued, that has the
effect, as supported by the written opinion of outside counsel for
such party, of prohibiting the Merger, or by SIGCORP or Indiana, if
any court of competent jurisdiction in the United States or any
State shall have issued an order, judgment or decree permanently
restraining, enjoining or otherwise prohibiting the Merger, and
such order, judgment or decree shall have become final and
nonappealable;
(e) by SIGCORP, at any time prior to the SIGCORP
Shareholders' Approval, upon five days' prior notice to Indiana,
if, as a result of a tender or exchange offer or any bona fide
written offer or proposal with respect to a merger, sale of a
material portion of its assets, voting securities or other business
combination (each, a "BUSINESS COMBINATION"), in each case by a
party other than Indiana or any of its affiliates, a majority of
the Board of Directors of SIGCORP determines in good faith that the
fiduciary obligations of such directors under applicable law
require that such tender or exchange offer or other bona fide
written offer or proposal be accepted; provided, however, that:
(i) the Board of Directors of SIGCORP shall have
received the written opinion of outside counsel to the effect
that, notwithstanding a binding commitment to consummate an
agreement of the nature of this Agreement entered into in the
proper exercise of their applicable fiduciary duties, such
fiduciary duties would also require the directors to
reconsider such commitment as a result of such tender or
exchange offer or such bona fide written offer or proposal;
(ii) SIGCORP shall have complied with Section 7.12; and
(iii) prior to any such termination, SIGCORP shall,
and shall cause its respective financial and legal advisors
to, negotiate with Indiana to make such adjustments in the
terms and conditions of this Agreement as would enable SIGCORP
to proceed with the transactions contemplated herein;
(f) by Indiana, at any time prior to the Indiana
Shareholders' Approval, upon five days' prior notice to SIGCORP,
if, as a result of a tender or exchange offer or any bona fide
written offer or proposal with respect to a Business Combination,
in each case by a party other than SIGCORP or any of its
affiliates, a majority of the Board of Directors of Indiana
determines in good faith that the fiduciary obligations of such
directors under applicable law require that such tender or exchange
offer or other bona fide written offer or proposal be accepted;
provided, however, that:
(i) the Board of Directors of Indiana shall have
received the written opinion of outside counsel to the effect
that, notwithstanding a binding commitment to consummate an
agreement of the nature of this Agreement entered into in the
proper exercise of their applicable fiduciary duties, such
fiduciary duties would also require the directors to
reconsider such commitment as a result of such tender or
exchange offer or such bona fide written offer or proposal;
(ii) Indiana shall have complied with Section 7.12; and
(iii) prior to any such termination, Indiana shall,
and shall cause its respective financial and legal advisors
to, negotiate with SIGCORP to make such adjustments in the
terms and conditions of this Agreement as would enable Indiana
to proceed with the transactions contemplated herein;
(g) by SIGCORP, by written notice to Indiana, if:
(i) there shall have been any material breach of any
material representation or warranty, or any material breach of
any covenant or agreement, of Indiana hereunder, and such
breach shall not have been remedied within thirty days after
receipt by Indiana of notice in writing from SIGCORP,
specifying the nature of such breach and requesting that it be
remedied; or
(ii) the Board of Directors of Indiana shall (A) withdraw
or modify in any manner materially adverse to SIGCORP its
approval or recommendation of this Agreement or the Merger,
(B) fail to reaffirm such approval or recommendation upon
SIGCORP's request, (C) approve or recommend a Business
Combination, or (D) resolve to take any of the actions
specified in clauses (A), (B) or (C); or
(h) by Indiana, by written notice to SIGCORP, if:
(i) there shall have been any material breach of any
material representation or warranty, or any material breach of
any covenant or agreement, of SIGCORP hereunder, and such
breach shall not have been remedied within thirty days after
receipt by SIGCORP of notice in writing from Indiana,
specifying the nature of such breach and requesting that it be
remedied; or
(ii) the Board of Directors of SIGCORP shall (A) withdraw
or modify in any manner materially adverse to Indiana its
approval or recommendation of this Agreement or the Merger,
(B) fail to reaffirm such approval or recommendation upon
Indiana's request, (C) approve or recommend a Business
Combination, or (D) resolve to take any of the actions
specified in clauses (A), (B) or (C).
(i) by SIGCORP or Indiana, by written notice to the other
party if:
(i) a third party acquires securities representing
greater than 25% of the voting power of the outstanding voting
securities of such other party; or
(ii) individuals who as of the date hereof constitute the
board of directors of such other party (together with any new
directors whose election by such board of directors or whose
nomination for election by the stockholders of such party was
approved by a vote of a majority of the directors of such
party then still in office who are either directors as of the
date hereof or whose election or nomination for election was
previously so approved) cease for any reason to constitute a
majority of the board of directors of such party then in
office.
(j) by SIGCORP or Indiana, by written notice to the other
party if on or before June 11, 2000 (or December 31, 2000 if the
conditions of Section 9.1(b) have been satisfied), the Replacement
CEO or the Replacement COO, as the case may be, has not been
approved pursuant to Sections 7.14(a) and (b), respectively.
Section 9.2 EFFECT OF TERMINATION. In the event of
termination of this Agreement by either Indiana or SIGCORP pursuant
to Section 9.1, there shall be no liability on the part of either
Indiana or SIGCORP or their respective officers or directors
hereunder, except that:
(i) Section 6.20, Section 7.1(b), Section 7.6(e),
Section 7.18, Section 9.3 and Section 10.2 shall survive; and
(ii) no such termination shall relieve any party from
liability by reason of any willful breach of any
representation, warranty or covenant contained in this
Agreement.
Section 9.3 TERMINATION DAMAGES.
(a) DAMAGES PAYABLE UPON TERMINATION FOR BREACH. If this
Agreement is terminated pursuant to Section 9.1(g)(i) or Section
9.1(h)(i) (breach of representation, warranty, covenant or
agreement), then the breaching party shall promptly (but not later
than five business days after receipt of notice that the amount is
due from the other party) pay to the other party, as liquidated
damages, $3 million in cash in respect of out-of-pocket expenses
and fees incurred by the other party, including, without
limitation, fees and expenses payable to all legal, accounting,
financial, public relations and other professional advisors arising
out of, in connection with or related to the Merger or the
transactions contemplated by this Agreement (collectively, "OUT-OF-
POCKET EXPENSES").
(b) DAMAGES PAYABLE IN CERTAIN OTHER EVENTS. If this
Agreement:
(i) is terminated:
(A) pursuant to 9.1(b) (expiration date);
(B) pursuant to Section 9.1(e) or Section
9.1(f) (fiduciary out);
(C) pursuant to Section 9.1(c) (failure to
obtain shareholder approval), following a failure
of the shareholders of SIGCORP or Indiana to grant
the necessary approvals described in Section 4.13
or Section 5.13, as the case may be (a "SHAREHOLDER
DISAPPROVAL");
(D) pursuant to Section 9.1(g)(i) or Section
9.1(h)(i) (breach);
(E) pursuant to Section 9.1(g)(ii) or Section
9.1(h)(ii) (board withdrawal or modification of
approval or recommendation); or
(F) pursuant to Section 9.1(i) (third party
acquisition);
(G) pursuant to 9.1(j) (replacement
officers);
and,
(ii) at the time of such termination (or, in the case of
any termination following a Shareholder Disapproval, prior to
the shareholder meeting at which such Shareholder Disapproval
occurred), there shall have been a third-party tender or
exchange offer for shares of, or a third-party offer or
proposal with respect to a Business Combination (an
"ACQUISITION PROPOSAL") involving the breaching party or party
whose board has exercised its fiduciary out or changed its
recommendation or whose voting stock has been acquired or
whose board has changed, or who has failed to approve the
Replacement CEO or the Replacement COO, as the case may be,
the ("TARGET PARTY") or the affiliates thereof which, at the
time of such termination (or of the meeting of the Target
Party's shareholders, as the case may be) shall not have been
(x) rejected by the Target Party and its Board of Directors
and (y) withdrawn by the third-party; and
(iii) within twenty-four months of any such
termination described in clause (i) above, the Target Party or
any of its affiliates accepts a written offer or enters into
a written agreement to consummate or consummates any
Acquisition Proposal, then such Target Party (jointly and
severally with its affiliates), upon the earlier of the
signing of a definitive agreement relating to such Acquisition
Proposal, or, the closing (and as a condition to the closing)
of such Target Party consummating such Business Combination,
the Target Party shall pay the other party a termination fee equal
to $35 million in cash and $3 million in cash in respect of Out-of-
Pocket Expenses.
(c) EXPENSES.
(i) The parties agree that the agreements contained in
this Section 9.3 are an integral part of the transactions
contemplated by this Agreement and constitute liquidated
damages and not a penalty.
(ii) If one party fails to promptly pay to the other any
amounts due under this Section 9.3, such defaulting party
shall pay the costs and expenses (including reasonable legal
fees and expenses) in connection with any action, including
the filing of any lawsuit or other legal action, taken to
collect payment, together with interest on the amount of any
unpaid fee at the publicly announced prime rate of The Chase
Manhattan Bank in effect from time to time from the date such
fee was required to be paid.
(d) LIMITATION OF FEES. Notwithstanding anything herein to
the contrary, the aggregate amount payable by Indiana and its
affiliates pursuant to Section 9.3(a), Section 9.3(b) and the terms
of the Indiana Stock Option Agreement shall not exceed $41.0
million and the aggregate amount payable by SIGCORP and its
affiliates pursuant to Section 9.3(a), Section 9.3(b) and the terms
of the SIGCORP Stock Option Agreement shall not exceed $41.0
million. For purposes of this Section 9.3(d), the amount payable
pursuant to the terms of the SIGCORP Option or the Indiana Option,
as the case may be, shall be the amount paid pursuant to Sections
7(a)(i) and 7(a)(ii) thereof.
Section 9.4 AMENDMENT.
(a) This Agreement may be amended by parties hereto pursuant
to action of their respective Boards of Directors, at any time
before or after approval hereof by the shareholders of Indiana and
SIGCORP and prior to the Effective Time, but after such approvals,
no such amendment shall:
(i) alter or change the amount or kind of shares, to be
received or exchanged for or on conversion of any class or
series of capital stock of either corporation as provided
under Article II;
(ii) alter or change any of the terms and conditions of
this Agreement if any of the alterations or changes, alone or
in the aggregate, would materially and adversely affect the
rights of holders of Indiana Common Stock or SIGCORP Common
Stock; or
(iii) alter or change any term of the Articles of
Incorporation of the Company, except for alterations or
changes that could otherwise be adopted by the Board of
Directors of the Company, without the further approval of such
shareholders, as applicable.
(b) This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto.
Section 9.5 WAIVER.
(a) At any time prior to the Effective Time, the parties
hereto may:
(i) extend the time for the performance of any of the
obligations or other acts of the other parties hereto;
(ii) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered
pursuant hereto; and
(iii) waive compliance with any of the agreements or
conditions contained herein.
(b) Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an
instrument in writing signed by a duly authorized officer of such
party.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS. All representations, warranties,
covenants and agreements in this Agreement shall not survive the
Merger, except the covenants and agreements contained in this
Section 10.1 and in Article II, Section 7.1(b) (Access to
Information), Section 7.5 (Directors' and Officers
Indemnification), Section 7.6(e) (Disclosure Schedules), Section
7.10 (Incentive, Stock and Other Plans), Section 7.13 (Company
Board of Directors), Section 7.14 (Company Officers), Section 7.15
(Employment Contracts), Section 7.16 (Corporate Officers and Name),
and Section 10.7 (Parties In Interest), each of which shall survive
in accordance with its terms.
Section 10.2 BROKERS.
(a) Indiana represents and warrants that, except for Merrill
Lynch, Pierce, Fenner and Smith Incorporated and Credit Suisse
First Boston, its investment banking firms, whose fees have been
disclosed to SIGCORP prior to the date hereof, no broker, finder or
investment banker is entitled to any brokerage, finder's or other
fee or commission in connection with the Merger or the transactions
contemplated by this Agreement based upon arrangements made by or
on behalf of Indiana.
(b) SIGCORP represents and warrants that, except for Goldman,
Sachs & Co., its investment banking firm, whose fees have been
disclosed to Indiana prior to the date hereof, no broker, finder or
investment banker is entitled to any brokerage, finder's or other
fee or commission in connection with the Merger or the transactions
contemplated by this Agreement based upon arrangements made by or
on behalf of SIGCORP.
Section 10.3 NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given (a) if
delivered personally, or (b) if sent by overnight courier service
(receipt confirmed in writing), or (c) if delivered by facsimile
transmission (with receipt confirmed), or (d) five days after being
mailed by registered or certified mail (return receipt requested)
to the parties, in each case to the following addresses (or at such
other address for a party as shall be specified by like notice):
(i) If to Indiana, two copies, one each to:
By Mail:
and Hand: Indiana Energy, Inc.
1630 North Meridian Street
Indianapolis, IN 46202-1496
Attention: Niel C. Ellerbrook
Fax: (317) 321-0498
with a copy to:
Sommer & Barnard, PC
111 Monument Circle
4000 Bank One Tower
Indianapolis, Indiana 46204
Attention: James A. Strain, Esq.
Fax: (317) 236-9802
and a copy to: Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Attention: James M. Cotter, Esq.
Fax: (212) 455-2502
(ii) If to SIGCORP, to:
By Mail
and Hand: SIGCORP, Inc.
20 N.W. Fourth Street
Evansville, IN 47741-001
Attention: Andrew E. Goebel
Fax: (812) 464-4554
with a copy to: Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, NY 10004-1490
Attention: Stephen R. Rusmisel, Esq.
Fax: (212) 858-1500
Section 10.4 MISCELLANEOUS.
(a) This Agreement (including the documents and instruments
referred to herein and any side letters between the parties
executed on the date hereof):
(i) constitutes the entire agreement and supersedes all
other prior agreements and understandings, both written and
oral, among the parties, or any of them, with respect to the
subject matter hereof other than the Confidentiality
Agreement;
(ii) shall not be assigned by operation of law or
otherwise; and
(iii) shall be governed by and construed in
accordance with the laws of the State of Indiana applicable to
contracts executed in and to be fully performed in such State,
without giving effect to its conflicts of laws statutes, rules
or principles.
If any provision of this Agreement, or the application thereof to
any person, place or circumstance, shall be held by a court of
competent jurisdiction to be invalid or unenforceable;
(i) such provision shall be enforced to the extent that
it is not illegal or unenforceable,
(ii) the invalidity or unenforceability of such provision
of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect, and
(iii) the parties hereto shall negotiate in good
faith to replace such provision of this Agreement so held
invalid or unenforceable with a valid provision that is as
similar as possible in substance to the invalid or
unenforceable provision.
Section 10.5 INTERPRETATION.
(a) When reference is made in this Agreement to Articles,
Sections or Exhibits, such reference shall be to an Article,
Section or Exhibit of this Agreement, as the case may be, unless
otherwise indicated.
(b) The table of contents and headings contained in this
Agreement are for reference purposes and shall not affect in any
way the meaning or interpretation of this Agreement.
(c) Whenever the words "include", "includes", or "including"
are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
Section 10.6 COUNTERPARTS; EFFECT. This Agreement may be
executed in one or more counterparts, each of which shall be deemed
to be an original, but all of which shall constitute one and the
same agreement.
Section 10.7 PARTIES IN INTEREST.
This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and, except for rights of Indemnified
Parties and their heirs and representatives as set forth in Section
7.5, nothing in this Agreement, express or implied, is intended to
confer upon any person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
Section 10.8 SPECIFIC PERFORMANCE.
(a) The parties hereto agree that irreparable damage would
occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were
otherwise breached.
(b) It is accordingly agreed that the parties hereto shall be
entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions
hereof in the Southern District of Indiana (or if such court
refuses to assert jurisdiction, then to any Indiana state court),
this being in addition to any other remedy to which they are
entitled at law or in equity.
Section 10.9 FURTHER ASSURANCES. Each party hereto shall
execute such further documents and instruments and take such
further actions as may reasonably be requested by any other party
hereto in order to consummate the Merger in accordance with the
terms hereof.
IN WITNESS WHEREOF, Indiana, SIGCORP and the Company have
caused this Agreement to be signed by their respective officers
thereunto duly authorized as of the date first written above.
INDIANA ENERGY, INC.
By:____________________________________
Niel C. Ellerbrook
President and Chief Executive Officer
SIGCORP, INC.
By:_____________________________________
Andrew E. Goebel
President and Chief Operating Officer
VECTREN CORPORATION
By:_____________________________________
Niel C. Ellerbrook
Chief Executive Officer
EXHIBIT 1.3
ARTICLES OF INCORPORATION
OF VECTREN CORPORATION
ARTICLES OF INCORPORATION
OF
VECTREN CORPORATION
ARTICLE 1
Name
The name of the Corporation is Vectren Corporation.
ARTICLE 2
Registered Office and Registered Agent
The street address of the Corporation's initial registered
office in Indiana and the name of its initial registered agent at
that office are One North Capital Avenue, Indianapolis, Indiana
46204 and CT Corporation System.
ARTICLE 3
Purpose
The Corporation is formed for the purpose of engaging in any
lawful business.
ARTICLE 4
Shares
Section 4.1. Amount. The Corporation has authority to issue
Two Hundred Million (200,000,000) shares of capital stock
("Stock").
Section 4.2. Preferred Stock. The Corporation has the
authority to issue up to Ten Million (10,000,000) of the initial
Two Hundred Million (200,000,000) shares as a separate and single
class of shares known as Preferred Stock, which may be issued in
one or more series. The Board of Directors of the Corporation
("Board") is vested with authority to determine and state the
designations and the preferences, limitations, relative rights and
voting rights, if any, of each such series by the adoption and
filing in accordance with the Act, before the issuance of any
shares of such series, of an amendment or amendments to these
Articles determining the terms of such series, which amendment need
not be approved by the shareholders or the holders of any class or
series of shares except as provided by law. All shares of
Preferred Stock of the same series shall be identical with each
other in all respects and the Board shall designate each series to
distinguish it from all other series of stock.
Section 4.3. Common Stock. Of the Two Hundred Million
(200,000,000) shares the Corporation has authority to issue, One
Hundred and Ninety Million (190,000,000) shares which constitute a
separate class of shares known as Common Stock, which shall have no
par value and may be issued in one or more series. The class of
Common Stock authorized hereby has unlimited voting rights and is
entitled to receive the net assets of the Corporation upon
dissolution. The holders of shares of Common Stock have the right,
voting separately by class, to cast one vote for each duly
authorized, issued and outstanding share of Common Stock held by
them upon each question or matter in respect of which, under the
Act, such holders are entitled to vote by class. Such holders also
have the right to cast one vote for each duly authorized, issued
and outstanding share of Common Stock held by them upon each
question or matter submitted generally to the holders of shares of
the Corporation in respect of which, under the Act, voting by class
or by series is not required.
Section 4.4. Distributions. The Board has authority to
authorize and direct in respect of the issued and outstanding
shares of Preferred Stock and Common Stock (i) the payment of
dividends and the making of other distributions by the Corporation
at such times, in such amounts and forms, from such sources and
upon such terms and conditions as it may, from time to time with
respect to each class of stock, determine subject only to the
restrictions, limitations, conditions and requirements imposed by
the Act, other applicable laws and these Articles, as the same may,
from time to time, be amended, and (ii) the making by the
Corporation of share dividends and share splits, pro rata and
without consideration, in shares of the same class or series or in
shares of any other class or series without obtaining the
affirmative vote or the written consent of the holders of the
shares of the class or series in which the payment or distribution
is to be made.
Section 4.5. Acquisition of Shares. The Board has authority
to authorize and direct the acquisition by the Corporation of the
issued and outstanding shares of Preferred Stock and Common Stock
at such times, in such amounts, from such persons, for such
considerations, from such sources and upon such terms and
conditions as it may, from time to time, determine, subject only to
the restrictions, limitations, conditions and requirements imposed
by the Act, other applicable laws and these Articles, as the same
may, from time to time, be amended.
Section 4.6. Record Ownership of Shares or Rights. The
Corporation, to the extent permitted by law, shall be entitled to
treat the person in whose name any share or right of the
Corporation is registered on the books of the Corporation as the
owner thereof, for all purposes, and shall not be bound to
recognize any equitable or other claim to, or interest in, such
share or right on the part of any other person, whether or not the
Corporation shall have notice thereof.
ARTICLE 5
Board of Directors
Section 5.1. Number. The number of directors of the
Corporation shall not be less than one (1) nor more than sixteen
(16), as may be specified in the initial Code of By-Laws of the
Corporation ("By-Laws") or by amendment to the By-Laws. The Code of
By-Laws may provide for a classified board of directors. The
number of initial directors of the Corporation shall be two (2).
Directors need not be shareholders of the Corporation. Subject to
express limitations contained in these Articles, (i) the business
and affairs of the corporation shall be managed under the direction
of the Board, and (ii) the Board shall have full, exclusive and
absolute power, control and authority over any and all property of
the Corporation. The Board may take any action as in its sole
judgment and discretion is necessary or appropriate to conduct the
business and affairs of the Corporation without any action by
shareholders of the Corporation, on behalf of the Corporation.
Section 5.2. Vacancies. Except as may be expressly provided
by law, newly created directorships resulting from any increase in
the authorized number of directors or any vacancies in the Board
resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled by a majority
vote of the directors then in office.
Section 5.3. Removal. Subject to the rights, if any, of
holders of one or more classes or series of Preferred Stock to
elect one or more directors, any director, or the entire Board, 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% of the voting
power of all of the shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single
class.
Section 5.4. Amendment, Repeal. Notwithstanding anything
contained in these Articles of Incorporation to the contrary, the
affirmative vote of the holders of at least 80% of the voting power
of all of the shares of the Corporation entitled to vote generally
in the election of directors, voting together as a single class,
shall be required to alter, amend or repeal this Article 5.
ARTICLE 6
Meetings of the Shareholders
Section 6.1. Place of Meetings. All meetings of share-
holders of the Corporation shall be held at such place, within or
without the State of Indiana, as may be specified in the respective
notices or waivers of notice thereof.
Section 6.2. Annual Meeting. The annual meeting of share-
holders for the purpose of electing directors and transacting such
other business as may properly come before the meeting shall be set
each year by resolution of the Board. Failure to hold the annual
meeting shall not work any forfeiture or a dissolution of the
Corporation or affect the validity of any corporate action.
Section 6.3. Special Meetings. Special meetings of the
shareholders may be called by the Chief Executive Officer or by the
Board.
Section 6.4. Notice of Meetings and Waiver. A written or
printed notice, stating the place, day and hour of the meeting, and
in case of a special meeting the purpose or purposes for which the
meeting is called, shall be delivered or mailed by the Secretary or
by the officers or persons calling the meeting, to each shareholder
of the Corporation at the time entitled to vote, at such address as
appears upon the records of the Corporation, no fewer than ten nor
more than sixty days before the date of the meeting. Notice of any
such meeting may be waived in writing by any shareholder, before or
after the date and time stated in the notice, if the waiver is
delivered to the Corporation for inclusion in the minutes for
filing with the corporate records. Attendance at a meeting, in
person or by proxy, waives objection to lack of notice or defective
notice of the meeting unless the shareholder at the beginning of
the meeting objects to holding the meeting or transacting the
business at the meeting. Further, a shareholder's attendance at a
meeting waives objection to consideration of a particular matter at
the meeting that is not within the purpose or purposes described in
the meeting notice unless the shareholder objects to considering
the matter when it is presented.
Section 6.5. Voting at Meetings.
Clause (a). Voting Rights. Except as otherwise
provided by law or by the provisions of the Articles of
Incorporation, every holder of Common Stock of the Corporation
shall have the right at all meetings of the shareholders of
the Corporation to one vote for each share of Common Stock
standing in his name on the books of the Corporation.
Clause (b). Proxies. A shareholder may vote, either
in person or by proxy executed as provided by the Indiana
Business Corporation Law by the shareholder or a duly
authorized attorney-in-fact. No proxy shall be valid after
eleven (11) months, unless a shorter or longer time is
expressly provided in the appointment form.
Clause (c). Quorum. At any meeting of shareholders,
a majority of the shares outstanding and entitled to vote on
the business to be transacted at such meeting, represented in
person or by proxy, shall constitute a quorum.
Section 6.6. Action by Shareholders Without Meeting. Any
action required or permitted to be taken at any meeting of the
shareholders may be taken without a meeting if the action is taken
by all shareholders entitled to vote on the action and is evidenced
by one or more written consents describing the action taken, signed
by all shareholders entitled to vote on the action and delivered to
the Corporation for inclusion in the minutes for filing with the
Corporation's records.
Section 6.7. Participation in Meetings by Means of Con-
ference or Other Similar Communications Equipment. Any shareholder
may participate in an annual or special meeting of the shareholders
by, or through the use of, any means of communication by which all
shareholders participating may simultaneously hear each other
during the meeting. A shareholder participating in such a meeting
by this means is deemed to be present in person at the meeting.
ARTICLE 7
Indemnification
Section 7.1. Definitions. Terms defined in Chapter 37 of
the Indiana Business Corporation Law (IND. CODE Section 23-1-37, et seq.)
which are used in this Article 7 shall have the same definitions
for purposes of this Article 7 they have in such chapter of the
Indiana Business Corporation Law.
Section 7.2. Indemnification of Directors and Officers. The
Corporation shall indemnify any individual who is or was a director
or officer of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, partner or trustee of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise whether
or not for profit, against liability and expenses, including
attorneys fees, incurred by him in any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, and
whether formal or informal, in which he is made or threatened to be
made a party by reason of being or having been in any such
capacity, or arising out of his status as such, except (i) in the
case of any action, suit, or proceeding terminated by judgment,
order, or conviction, in relation to matters as to which he is
adjudged to have breached or failed to perform the duties of his
office and the breach or failure to perform constituted willful
misconduct or recklessness; and (ii) in any other situation, in
relation to matters as to which it is found by a majority of a
committee composed of all directors not involved in the matter in
controversy (whether or not a quorum) that the person breached or
failed to perform the duties of his office and the breach or
failure to perform constituted willful misconduct or recklessness.
The Corporation may pay for or reimburse reasonable expenses
incurred by a director or officer in defending any action, suit, or
proceeding in advance of the final disposition thereof upon receipt
of (i) a written affirmation of the director's or officer's good
faith belief that such director or officer has met the standard of
conduct prescribed by Indiana law; and (ii) an undertaking of the
director or officer to repay the amount paid by the Corporation if
it is ultimately determined that the director or officer is not
entitled to indemnification by the Corporation.
Section 7.3. Other Employees or Agents of the Corporation.
The Corporation may, in the discretion of the Board, fully or
partially provide the same rights of indemnification and reimburse-
ment as hereinabove provided for directors and officers of the
Corporation to other individuals who are or were employees or
agents of the Corporation or who are or were serving at the request
of the Corporation as employees or agents of another foreign or
domestic corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise whether or not for profit.
Section 7.4. Nonexclusive Provision. The indemnification
authorized under this Article 7 is in addition to all rights to
indemnification granted by Chapter 37 of the Indiana Business
Corporation Law (IND. CODE Section 23-1-37, et seq.) and in no way limits
the indemnification provisions of such Chapter.
ARTICLE 8
Provisions for Certain Business Combinations
Section 8.1 Vote Required.
Clause (a). Higher Vote for Certain Business
Combinations. In addition to any affirmative vote required by
law or these Articles of Incorporation, and except as
otherwise expressly provided in Section 8.2 of this Article 8:
(1) Any merger or consolidation or any similar
transaction of the Corporation or any Subsidiary (as
hereinafter defined) with (A) any Interested Shareholder
(as hereinafter defined), or (B) any other corporation
(whether or not itself an Interested Shareholder) which
is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested
Shareholder;
(2) Any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one transaction or a
series of transactions) to or with any Interested
Shareholder or any Affiliate of any Interested
Shareholder of any assets of the Corporation or any
Subsidiary having an aggregate Fair Market Value of Ten
Million Dollars ($10,000,000) or more;
(3) The issuance or transfer by the
Corporation or any Subsidiary (in one transaction or a series of
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Shareholder or any Affiliate
of any Interested Shareholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate Fair Market Value of Ten Million
Dollars ($10,000,000) or more;
(4) The adoption of any plan or proposal for
the liquidation or dissolution of the Corporation proposed by
or on behalf of an Interested Shareholder or any
Affiliate of any Interested Shareholder; or
(5) Any reclassification of securities
(including any reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise
involving an Interested Shareholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Shareholder or any
Affiliate of any Interested Shareholder;
shall require the affirmative vote of the holders of at least
80% of the voting power of the then outstanding shares of
capital stock of the Corporation entitled to vote generally in
the election of directors (the "Voting Stock"), voting
together as a single class (it being understood that for
purposes of this Article 8, each share of the Voting Stock
shall have the number of votes granted to it pursuant to
Article 4 of these Articles of Incorporation). Such
affirmative vote shall be required, notwithstanding the fact
that no vote may be required, or that a lesser percentage may
be specified, by law or in any agreement with any national
securities exchange or otherwise.
Clause (b). Definition of "Business Combination."
The term "Business Combination" as used in this Article 8
shall mean any transaction which is referred to in any one or
more of paragraphs (1) through (5) of Clause (a) of this
Section 8.1.
Section 8.2. When Higher Vote is Not Required. The
provisions of Section 8.1 of this Article 8 shall not be applicable
to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required
by law and any other provision of these Articles of Incorporation,
if all of the conditions specified in either of the following
Clauses (a) and (b) are met:
Clause (a). Approval by Continuing Directors. The
Business Combination shall have been approved by a majority of
the Continuing Directors (as hereinafter defined).
Clause (b). Price and Procedure Requirements. All of
the following conditions shall have been met:
(1) The aggregate amount of the cash and the
Fair Market Value (as hereinafter defined) as of the date of
the consummation of the Business Combination of
consideration other than cash to be received per share by
holders of Common Stock in such Business Combination
shall be at least equal to the highest of the following:
(A) The highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Shareholders for any shares of Common Stock
acquired by it (i) within the two-year period
immediately prior to the first public announcement
of the proposal of the Business Combination (the
"Announcement Date") or (ii) in the transaction in
which it became an Interested Shareholder,
whichever is higher;
(B) The Fair Market Value Per Share
of Common Stock on the Announcement Date or on the date on
which the Interested Shareholder became an
Interested Shareholder (such latter date is
referred to in this Article 7 as the "Determination
Date"), whichever is higher; and
(C) The price per share equal to
the Fair Market Value per share of Common Stock determined
pursuant to Clause (b)(1)(B) above, multiplied by
the ratio of (i) the highest per share price
(including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the
Interested Shareholder for any shares of Common
Stock acquired by it within the two-year period
immediately prior to the Announcement Date to (ii)
the Fair Market Value per share of Common Stock on
the first day in such two-year period upon which
the Interested Shareholder acquired any shares of
Common Stock.
(2) The aggregate amount of the cash and the
Fair Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to
be received per share by holders of shares of any other
class or series of outstanding Voting Stock shall be at
least equal to the highest of the following (it being
intended that the requirements of this Clause (b)(2)
shall be required to be met with respect to every class
of outstanding Voting Stock whether or not the Interested
Shareholder has previously acquired any Shares of a
particular class of Voting Stock):
(A) The highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Shareholder for any shares of such class of Voting
Stock acquired by it (i) within the two-year period
immediately prior to the Announcement Date or (ii)
in the transaction in which it became an Interested
Shareholder, whichever is higher;
(B) The highest preferential amount
per share to which the holders of shares of such class of
Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution
or winding up of the Corporation;
(C) The Fair Market Value per share of
such class of Voting Stock on the Announcement Date
or on the Determination Date, whichever is higher; and
(D) The price per share equal to the Fair
Market Value per share of such class of Voting
Stock determined pursuant to Clause (b)(2)(C) above,
multiplied by the ratio of (i) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the
Interested Shareholder for any shares of such class
of Voting Stock acquired by it within the two-year
period immediately prior to the Announcement Date
or (ii) the Fair Market Value per share of such
class of Voting Stock on the first day in such
two-year period upon which the Interested Shareholder
acquired any shares of such class of Voting Stock;
(3) The consideration to be received by holders
of a particular class of outstanding Voting Stock (including
Common Stock) shall be in cash or in the same form as the
Interested Shareholder has previously paid for shares of
such class of Voting Stock. If the Interested
Shareholder has paid for shares of any class of Voting
Stock with varying forms of consideration, the form of
consideration for such class of Voting Stock shall be
either cash or the form used to acquire the largest
number of shares of such class of Voting Stock previously
acquired by it.
(4) After such Interested Shareholder has
become an Interested Shareholder and prior to the consummation of
such Business Combination:
(A) except as approved by a majority of the
Continuing Directors, there shall have been no
failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or
not cumulative) on any outstanding Preferred Stock;
(B) there shall have been (i) no
reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any
subdivision of the Common Stock), except as
approved by a majority of the Continuing Directors,
and (ii) an increase in such annual rate of
dividends as necessary to reflect any
reclassification (including any reverse stock
split), recapitalization, reorganization or any
similar transaction which has the effect of
reducing the number of outstanding shares of the
Common Stock, unless the failure so to increase
such annual rate is approved by a majority of the
Continuing Directors; and
(C) such Interested Shareholder
shall have not become the beneficial owner of any additional
shares of Voting Stock except as part of the
transaction which results in such Interested
Shareholder becoming an Interested Shareholder.
(5) After such Interested Shareholder has
become an Interested Shareholder, such Interested Shareholder
shall not have received the benefit, directly or indirectly
(except proportionately as a shareholder), of any loans,
advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of
or in connection with such Business Combination or
otherwise.
(6) A proxy or information statement
describing the proposed Business Combination and complying
with the requirements of the Securities Exchange Act of 1934 and
the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations)
shall be mailed to shareholders of the Corporation at
least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act
or subsequent provisions).
Section 8.3. Certain Definitions. For the purposes of this
Article 8:
Clause (a). A "person" shall include any individual,
firm, corporation or other entity. When two or more persons
act as a partnership, limited partnership, syndicate, or other
group for the purpose of acquiring voting stock of the
Company, such partnership, syndicate or group shall be deemed
a "person."
Clause (b). "Interested Shareholder" shall mean any
person (other than the Corporation or any Subsidiary) who or
which:
(1) is the beneficial owner, directly or
indirectly, of more than 10% of the voting power of the
outstanding Voting Stock;
(2) is an Affiliate of the Corporation and
at any time within the two-year period immediately prior to the
date in question was the beneficial owner, directly or
indirectly, of 10% or more of the voting power of the
then outstanding Voting Stock; or
(3) Is an assignee of or has otherwise
succeeded to any shares of Voting Stock which were at any
time within the two-year period immediately prior to the date
in question beneficially owned by any Interested
Shareholder, if such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the
meaning of the Securities Act of 1933.
Clause (c). A person shall be a "beneficial owner" of
any Voting Stock:
(1) which such person or any of its Affiliates
or Associates (as hereinafter defined) beneficially owns,
directly or indirectly;
(2) which such person or any of its Affiliates
or Associates has (A) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise, or (B) the right to vote pursuant to any
agreement, arrangement or understanding; or
(3) which are beneficially owned, directly or
indirectly, by any other person with which such person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of
Voting Stock.
Clause (d). For the purpose of determining whether a
person is an Interested Shareholder pursuant to Clause (b) of
this Section 8.3, the number of shares of Voting Stock deemed
to be outstanding shall include shares deemed owned through
application of Clause (c) of this Section 8.3, but shall not
include any other shares of Voting Stock which may be issuable
pursuant to any agreement, arrangement or understanding, or
upon exercise of conversion rights, warrants or options, or
otherwise.
Clause (e). "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended.
Clause (f). "Subsidiary" means any corporation of
which a majority of any class of equity security is owned,
directly or indirectly, by the Corporation; provided, however,
that for the purposes of the definition of Interested
Shareholders set forth in Clause (b) of this Section 8.3, the
term "Subsidiary" shall mean only a corporation of which a
majority of each class of equity security is owned, directly
or indirectly, by the Corporation.
Clause (g). "Continuing Director" means any member of
the Board of the Corporation who is unaffiliated with the
Interested Shareholder and was a member of the Board prior to
the time that the Interested Shareholder became an Interested
Shareholder, and any successor of a Continuing Director who is
unaffiliated with the Interested Shareholder and is
recommended to succeed a Continuing Director by a majority of
Continuing Directors then on the Board.
Clause (h). "Fair Market Value" means:
(1) In the case of stock, the highest closing
sale price during the 30-day period immediately preceding the
date in question of a share of such stock on the
Composite Tape for New York Stock Exchange listed stock,
or if such stock is not quoted on the Composite Tape, on
the New York Stock Exchange, or, if such stock is not
listed on such Exchange, on the principal United States
securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or,
if such stock is not listed on any such exchange, the
highest closing bid quotation with respect to a share of
such stock during the 30-day period preceding the date in
question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system
then in use, or if no such quotation of a share of such
stock as determined by the Board in good faith; and
(2) In the case of property other
than cash or stock, the fair market value of such property
on the date in question as determined by the Board in good
faith.
Clause (i). In the event of any Business
Combination in which the Corporation survives, the phrase "other
consideration to be received" as used in Clauses (b)(1) and
(2) of Section 8.2 of this Article 8 shall include the shares
of Common Stock and/or the shares of any other class of
outstanding Voting Stock by the holders of such shares.
Section 8.4. Powers of the Board. A majority of the
directors of the Corporation shall have the power and duty to
determine for the purposes of this Article 8, on the basis of
information known to them after reasonable inquiry, (a) whether a
person is an Interested Shareholder, (b) the number of shares of
Voting Stock beneficially owned by any person, (c) whether a person
is an Affiliate or Associate of another and (d) whether the assets
which are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of Ten Million
Dollars ($10,000,000) or more.
Section 8.5. No Effect on Fiduciary Obligations of
Interested Shareholders. Nothing contained in this Article 8 shall
be construed to relieve any Interested Shareholder from any
fiduciary obligation imposed by law.
Section 8.6. Amendment, Repeal, etc. Notwithstanding any
other provisions of these Articles of Incorporation or the By-Laws
of the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, these Articles of Incorporation
or the By-Laws of the Corporation), the affirmative vote of the
holders of 80% or more of the voting power of the shares of the
then outstanding Voting Stock, voting together as a single class,
shall be required to amend or repeal, or adopt provisions
inconsistent with, this Article 8 of these Articles of
Incorporation.
ARTICLE 10
Incorporator
The name and address of the incorporator of the Corporation
are James A. Strain, Sommer & Barnard, PC, 4000 Bank One Tower, 111
Monument Circle, Indianapolis, Indiana 46204-5140.
Dated June 10, 1999 /s/ James A. Strain
James A Strain
This instrument was prepared by James A. Strain.
EXHIBIT 1.4
BY-LAWS OF VECTREN CORPORATION
CODE OF BY-LAWS
OF
VECTREN CORPORATION
ARTICLE 1
Identification
Section 1.1. Name. The name of the Corporation is Vectren
Corporation (th "Corporation").
Section 1.2. Fiscal Year. The fiscal year of the Corpora-
tion shall begin at the beginning of the first day of January in
each year and end at the close of the last day of December next
succeeding.
ARTICLE 2
Shares
Section 2.1. Certificates for Shares. Pursuant to Ind. Code
' 23-1-26-7, the Board of Directors (the "Board") is authorized to
issue shares without certificates. If the Board issues share
certificates, such certificates shall be in such form as the Board
may prescribe from time to time signed (either manually or in
facsimile) by the Chief Operating Officer and President of the
Corporation and either the Secretary or an Assistant Secretary of
the Corporation.
Section 2.2. Transfer of Shares. The shares of the Corpora-
tion shall be transferable on the books of the Corporation. If
certificates are issued, the transfer of the shares shall occur
upon surrender of the certificate or certificates representing the
same, properly endorsed by the registered holder or by his duly
authorized attorney, such endorsement or endorsements to be
witnessed by one witness. The requirement for such witnessing may
be waived in writing upon the form of endorsement by the President
of the Corporation.
Section 2.3. Record Ownership of Shares or Rights. The
Corporation, to the extent permitted by law, shall be entitled to
treat the person in whose name any share or right of the
Corporation (a "Right") is registered on the books of the
Corporation as the owner thereof, for all purposes, and shall not
be bound to recognize any equitable or other claim to, or interest
in, such share or Right on the part of any other person, whether or
not the Corporation shall have notice thereof.
ARTICLE 3
Meetings of Shareholders
Section 3.1. Place of Meetings. All meetings of share-
holders of the Corporation shall be held at such place, within or
without the State of Indiana, as may be specified in the respective
notices or waivers of notice thereof.
Section 3.2. Annual Meeting. The annual meeting of share-
holders for the purpose of electing directors and transacting such
other business as may properly come before the meeting shall be set
each year by resolution of the Board. Failure to hold the annual
meeting shall not work any forfeiture or a dissolution of the
Corporation or affect the validity of any corporate action.
Section 3.3. Special Meetings. Special meetings of the
shareholders may be called by the Chief Executive Officer or by the
Board.
Section 3.4. Notice and Waiver. A written or printed notice,
stating the place, day and hour of the annual meeting, and
additionally, in case of a special meeting the purpose or purposes
for which the meeting is called, shall be delivered or mailed by
the Secretary or by the officers or persons calling the meeting, to
each shareholder of the Corporation at the time entitled to vote,
at such address as appears upon the records of the Corporation, no
fewer than ten nor more than sixty days before the date of the
meeting. Notice of any such meeting may be waived in writing by
any shareholder, before or after the date and time stated in the
notice, if the waiver is delivered to the Corporation for inclusion
in the minutes for filing with the corporate records. Attendance
at a meeting, in person or by proxy, waives objection to lack of
notice or defective notice of the meeting unless the shareholder at
the beginning of the meeting objects to holding the meeting or
transacting the business at the meeting. Further, a shareholder=s
attendance at a meeting waives objection to consideration of a
particular matter at the meeting that is not within the purpose or
purposes described in the meeting notice unless the shareholder
objects to considering the matter when it is presented.
Section 3.5. Notice of Shareholder Business. At any meeting
of the shareholders, only such business may be conducted as shall
have been properly brought before the meeting, and as shall have
been determined to be lawful and appropriate for consideration by
shareholders at the meeting. To be properly brought before a
meeting, business must be (a) specified in the notice of meeting
given in accordance with Section 3.4, (b) otherwise properly
brought before the meeting by or at the direction of the board of
directors or the chief officer, or (c) otherwise properly brought
before the meeting by a shareholder. For business to be properly
brought before a meeting by a shareholder pursuant to clause (c),
the shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a shareholder=s
notice must be delivered to, or mailed and received at, the
principal office of the Corporation, not less than fifty days nor
more than ninety days prior to the meeting; provided, however, that
in the event that less than sixty days notice of the date of the
meeting is given to shareholders, notice by the shareholder to be
timely must be so received not later than the close of business on
the tenth day following the day on which such notice of the date of
the meeting was given. A shareholder=s notice to the Secretary
shall set forth as to each matter the shareholder proposes to bring
before the meeting (a) a brief description of the business desired
to be brought before the meeting, (b) the name and address, as they
appear on the Corporation=s stock records, of the shareholder
proposing such business, (c) the class and number of shares of the
Corporation which are beneficially owned by the shareholder, and
(d) any interest of the shareholder in such business.
Notwithstanding anything in these By-Laws to the contrary, no
business shall be conducted at a meeting except in accordance with
the procedures set forth in this Section 3.5. The person presiding
at the meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the
meeting in accordance with the By-Laws, or that business was not
lawful or appropriate for consideration by shareholders at the
meeting, and if he should so determine, he shall so declare to the
meeting and any such business shall not be transacted.
Section 3.6. Notice of Shareholder Nominees. Nominations of
persons for election to the Board may be made at any meeting of the
shareholders by or at the direction of the Board or by any
shareholder of the Corporation entitled to vote for the election of
directors at the meeting. Shareholder nominations shall be made
pursuant to timely notice given in writing to the Secretary of the
Corporation in accordance with Section 3.5. Such shareholder=s
notice shall set forth, in addition to the information required by
Section 3.5, as to each person whom the shareholder proposes to
nominate for election or re-election as a director, (i) the name,
age, business address and residence address of such person, (ii)
the principal occupation or employment of such person, (iii) the
class and number of shares of the Corporation which are
beneficially owned by such person, (iv) any other information
relating to such person that is required to be disclosed in
solicitation of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including, without
limitation, such person=s written consent to being named in the
proxy statement as a nominee and to serving as a director, if
elected), and (v) the qualifications of the nominee to serve as a
director of the Corporation. No shareholder nomination shall be
effective unless made in accordance with the procedures set forth
in this Section 3.6. The person presiding at the meeting shall, if
the facts warrant, determine and declare to the meeting that a
shareholder nomination was not made in accordance with the By-Laws,
and if he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded.
Section 3.7. Voting at Meetings.
(a) Voting Rights. Except as otherwise provided by law
or by the provisions of the Articles of Incorporation, every holder
of the Common Stock of the Corporation shall have the right at all
meetings of the shareholders of the Corporation to one vote for
each share of stock standing in his name on the books of the
Corporation.
(b) Proxies. A shareholder may vote, either in person
or by proxy executed as provided by the Indiana Business
Corporation Law by the shareholder or a duly authorized
attorney-in-fact. No proxy shall be valid after eleven (11)
months, unless a shorter or longer time is expressly provided in
the appointment form.
(c) Quorum. At any meeting of shareholders, a majority
of the shares outstanding and entitled to vote on the business to
be transacted at such meeting, represented in person or by proxy,
shall constitute a quorum.
Section 3.8. Action By Shareholders Without Meeting. Any
action required or permitted to be taken at any meeting of the
shareholders may be taken without a meeting if the action is taken
by all shareholders entitled to vote on the action and is evidenced
by one or more written consents describing the action taken, signed
by all shareholders entitled to vote on the action and delivered to
the Corporation for inclusion in the minutes for filing with the
Corporation=s records.
Section 3.9. Participation in Meetings by Means of Con-
ference or Other Similar Communications Equipment. Any shareholder
may participate in an annual or special meeting of the shareholders
by, or through the use of, any means of communication by which all
shareholders participating may simultaneously hear each other
during the meeting. A shareholder participating in such a meeting
by this means is deemed to be present in person at the meeting.
ARTICLE 4
Board of Directors
Section 4.1. Number and Election. The Board shall consist
of a minimum of one (1) and a maximum of twenty-five (25) members.
The actual number of directors shall be fixed from time to time by
amendment to the By-Laws adopted by a majority vote of the
directors then in office. The initial number of directors is two
(2). Initial directors shall serve until the first shareholder=s
meeting at which directors are elected. Each director shall hold
office until his successor is elected and qualified. Directors
need not be shareholders.
Section 4.2. Annual Meeting. The Board shall meet each year
immediately after the annual meeting of the shareholders at the
place established by resolution of the Board, for the purpose of
organization, election of officers, and consideration of any other
business that may be brought before the meeting. If the Board does
not establish a place for such meeting by resolution, the meeting
will be held at the place where the shareholders meeting was held.
No notice shall be necessary for the holding of this annual
meeting. If such meeting is not held as above provided, the
election of officers may be had at any subsequent meeting of the
Board specifically called in the manner provided in Section 4.3 of
this Article.
Section 4.3. Other Meetings. Regular meetings of the Board
may be held as provide for in a Board resolution, without notice of
the date, time, place or purpose of the meeting. Special meetings
of the Board may be held upon the call of the Chief Operating
Officer, or of any member of the Board, at any place within or
without the State of Indiana, upon forty-eight hours= notice,
specifying the time, place and general purposes of the meeting,
given to each director, either personally, by mailing, or by
facsimile. Such notice may be waived in writing by any director,
before or after the date stated in the notice, if the waiver is
signed by the director and filed with the Corporation=s minutes or
records. In addition, a director=s attendance at or participation
in a meeting waives any required notice of the meeting unless the
director at the beginning of the meeting (or promptly upon his
arrival) objects to holding the meeting or transacting business at
the meeting and does not thereafter vote for or assent to action
taken at the meeting.
Section 4.4. Quorum. At any meeting of the Board, the
presence of a majority of the members of the Board shall constitute
a quorum for the transaction of any business except the filling of
vacancies in the Board.
Section 4.5. Action By Directors Without Meeting. Any
action required or permitted to be taken at any meeting of the
Board, or any committee thereof, may be taken without a meeting if
the action is taken by all members of the Board and is evidenced by
one or more written consents describing the action taken, signed by
each director, and is included in the minutes or filed with the
corporate records reflecting the action taken.
Section 4.6. Compensation of Directors. The Board is
empowered and authorized to fix and determine the compensation of
directors for attendance at meetings of the Board, and additional
compensation for any additional services that the directors may
perform for the Corporation.
Section 4.7. Participation in Meetings by Means of
Conference or Other Similar Communications Equipment. A member of
the Board or of a committee designated by the Board may participate
in a regular or special meeting by, or conduct the meeting through
the use of, any means of communication by which all directors
participating may simultaneously hear each other during the
meeting. A director participating in such a meeting by this means
is deemed to be present in person at the meeting.
Section 4.8. Resignations. A director may resign at any
time by delivering notice to the Board or the Secretary of the
Corporation. A resignation is effective when the notice is
delivered unless the notice specifies a later effective date. If
a resignation is made effective at a later date and the Corporation
accepts the future effective date, the Board may fill the pending
vacancy before the effective date if the Board provides that the
successor does not take office until the effective date.
ARTICLE 5
Officers
Section 5.1. Number. The officers of the Corporation shall
consist of a Chairman and Chief Executive Officer, Chief Operating
Officer and President, Chief Financial Officer, Secretary, and such
other officers as may be chosen by the Board at such time and in
such manner and for such terms as the Board may prescribe. The
Chairman and Chief Executive Officer may appoint one or more
officers as he may deem necessary or advisable to carry on the
operations of the Corporation. The Board may appoint one or more
assistant officers as it may deem necessary or advisable to carry
on the operations of the Corporation. Such appointed officer(s) or
assistant officer(s) shall hold office until the next annual
meeting of the Board unless removed by resolution of the Board
prior to such meeting date. Any two or more offices may be held by
the same person.
Section 5.2. Election and Term of Office. The officers
shall be chosen annually by the Board. Each officer shall hold
office until his successor is chosen, or until his death, or until
he shall have resigned or shall have been removed in the manner
hereinafter provided.
Section 5.3. Removal. Any officer may be removed, either
with or without cause, at any time, by a majority vote of the
Board.
Section 5.4. Resignations. An officer may resign at any
time by delivering notice to the Board or the Secretary of the
Corporation. A resignation is effective when the notice is
delivered unless the notice specifies a later effective date. If
a resignation is made effective at a later date and the Corporation
accepts the future effective date, the Board may fill the pending
vacancy before the effective date if the Board provides that the
successor does not take office until the effective date.
Section 5.5. Chairman and Chief Executive Officer. The
Chairman and Chief Executive Officer shall be, subject to the
control of the Board, in general charge of the affairs of the
Corporation and perform such other duties as the Code of By-Laws or
the Board may prescribe. He shall also preside at all meetings of
shareholders and directors, discharge all the duties which devolve
upon a presiding officer, and shall perform such other duties as
the Code of By-Laws or Board may prescribe all meetings of the
Board of Directors.
Section 5.6. Chief Operating Officer and President. The
Chief Operating Officer and President shall be, subject to the
control of the Board, in charge of the daily affairs of the
Corporation and shall have such powers and duties as may be
determined by the Board. If no Chairman of the Board is elected or
appointed, the Chief Operating Officer shall preside at all
meetings of shareholders, discharge all the duties which devolve
upon a presiding officer, and shall perform such other duties as
the Code of By-Laws or Board may prescribe.
Section 5.7. Chief Financial Officer. The Chief Financial
Officer shall be the financial officer of the Corporation; shall
have charge and custody of, and be responsible for, all funds of
the Corporation, and deposit all such funds in the name of the
Corporation in such banks, trust companies or other depositories as
shall be selected by the Board; shall receive, and give receipts
for, monies due and payable to the Corporation from any source
whatsoever; and, in general, shall perform all the duties incident
to the office of Treasurer and such other duties as this Code of
By-Laws provides or as may, from time to time, be assigned by the
Board.
Section 5.8. The Vice Presidents. Each Vice President (if
one or more Vice Presidents be elected or appointed) shall have
such powers and perform such duties as this Code of By-Laws
provides or as the Chairman and Chief Executive Officer, from time
to time, prescribe or delegate to him.
Section 5.9. The Secretary. The Secretary shall prepare or
cause to be prepared the minutes of the meetings of the share-
holders and of the Board; shall see that all notices are duly given
in accordance with the provisions of the Code of By-Laws and as
required by law; shall be custodian and responsible for the
authentication of the records; and, in general, shall perform all
duties incident to the office of Secretary and such other duties as
this Code of By-Laws provides or as may, from time to time, be
assigned by the Board.
Section 5.10. Delegation of Authority. In case of the
absence of any officer of the Corporation, or for any other reason
that the Board may deem sufficient, the Board may delegate the
powers or duties of such officer to any other officer, for the time
being, provided a majority of the entire Board concurs therein.
Section 5.11. Salaries. The salaries of the officers shall
be fixed, from time to time, by the Board. No officer shall be
prevented from receiving such salary by reason of the fact he is
also a director of the Corporation.
ARTICLE 6
Negotiable Instruments, Deeds, Contracts and Shares
Section 6.1. Execution of Negotiable Instruments. All
checks, drafts, notes, bonds, bills of exchange and orders for the
payment of money of the Corporation shall, unless otherwise
directed by the Board, or unless otherwise required by law, be
signed by the Chief Financial Officer and one other officer, or
such other officers or employees as may be directed by the Board.
Section 6.2. Execution of Deeds, Contracts, Etc. All deeds
and mortgages made by the Corporation and other material written
contracts and agreements into which the Corporation enters other
than transactions in the ordinary course of business shall, unless
otherwise directed by the Board or required by law, be executed in
its name by any authorized officer of the Corporation, signing
singly, and, when necessary or required, shall be duly attested by
the Secretary or Assistant Secretary. Written contracts and
agreements in the ordinary course of business operations may be
executed by any officer or employee of the Corporation designated
by the Chief Financial Officer to execute such contracts and
agreements.
Section 6.3. Endorsement of Stock Certificates. Subject
always to the further orders and directions of the Board, any share
or shares of stock issued by any other corporation and owned by the
Corporation (including retired shares of stock of the Corporation)
may, for sale or transfer, be endorsed in the name of the Corpora-
tion by the Chief Operating Officer and President and the
Secretary.
Section 6.4. Voting of Stock Owned by Corporation. Subject
always to the further orders and directions of the Board, any share
or shares of stock issued by any other corporation and owned or
controlled by the Corporation may be voted at any shareholder=s
meeting of such other corporation by the Chief Operating Officer of
the Corporation or, in his absence, by the Secretary of the
Corporation. Whenever, in the judgment of the Chief Operating
Officer, it is desirable for the Corporation to execute a proxy or
give a shareholder=s consent in respect to any share or shares of
stock issued by any other corporation and owned by the Corporation,
such proxy or consent shall be executed in the name of the
Corporation and shall be attested by the Secretary of the Corpora-
tion. Any person or persons designated in the manner above stated
as the proxy or proxies of the Corporation shall have the full
right, power, and authority to vote the share or shares of stock
issued by such other corporation and owned by the Corporation the
same as such share or shares might be voted by the Corporation.
ARTICLE 7
Provisions for Regulation of Business
and Conduct of Affairs of Corporation
Section 7.1. Contracts. Any contract or other transaction
between the Corporation and one or more of its directors, or
between the Corporation and any firm of which one or more of its
directors are members or employees, or in which they are inter-
ested, or between the Corporation and any corporation or
association of which one or more of its directors are shareholders,
members, directors, officers, or employees, or in which they are
interested, shall be valid for all purposes, notwithstanding the
presence of such director or directors at the meeting of the Board
of the Corporation which acts upon, or in reference to, such
contract or transaction, and notwithstanding his or their
participation in such action, if the fact of such interest shall be
disclosed or known to the Board and the Board shall, nevertheless,
authorize, approve, and ratify such contract or transaction by a
vote of a majority of the directors on the Board who have no direct
or indirect interest in the contract or transaction or, if all
directors have such an interest, then by a vote of a majority of
the directors. If a majority of such directors vote to authorize,
approve or ratify such contract or transaction, a quorum is deemed
to be present for purposes of taking such action. This Section
shall not be construed to invalidate any contract or other
transaction which would otherwise be valid under the common and
statutory law applicable thereto.
Section 7.2. Indemnification.
(a) Definitions. Terms defined in Chapter 37 of the
Indiana Business Corporation Law (IND. CODE '' 23-1-37, et seq.)
which are used in this Article 7 shall have the same definitions
for purposes of this Article 7 as they have in such chapter of the
Indiana Business Corporation Law.
(b) Indemnification of Directors and Officers. The
Corporation shall indemnify any individual who is or was a director
or officer of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, partner or trustee of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise whether
or not for profit, against liability and expenses, including
attorneys fees, incurred by him in any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, and
whether formal or informal, in which he is made or threatened to be
made a party by reason of being or having been in any such
capacity, or arising out of his status as such, except (i) in the
case of any action, suit, or proceeding terminated by judgment,
order, or conviction, in relation to matters as to which he is
adjudged to have breached or failed to perform the duties of his
office and the breach or failure to perform constituted willful
misconduct or recklessness; and (ii) in any other situation, in
relation to matters as to which it is found by a majority of a
committee composed of all directors not involved in the matter in
controversy (whether or not a quorum) that the person breached or
failed to perform the duties of his office and the breach or
failure to perform constituted willful misconduct or recklessness.
The Corporation may pay for or reimburse reasonable expenses
incurred by a director or officer in defending any action, suit, or
proceeding in advance of the final disposition thereof upon receipt
of (i) a written affirmation of the director=s or officer=s good
faith belief that such director or officer has met the standard of
conduct prescribed by Indiana law; and (ii) an undertaking of the
director or officer to repay the amount paid by the Corporation if
it is ultimately determined that the director or officer is not
entitled to indemnification by the Corporation.
(c) Other Employees or Agents of the Corporation. The
Corporation may, in the discretion of the Board, fully or partially
provide the same rights of indemnification and reimbursement as
herein above provided for directors and officers of the Corporation
to other individuals who are or were employees or agents of the
Corporation or who are or were serving at the request of the
Corporation as employees or agents of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise whether or not for profit.
(d) Non-exclusive Provision. The indemnification
authorized under this Section 7.2 is in addition to all rights to
indemnification granted by Chapter 37 of the Indiana Business
Corporation Law (IND. CODE '' 23-1-37, et seq.) and in no way limits
the indemnification provisions of such Chapter.
ARTICLE 8
Amendments
Section 8.1. In General. The powers to make, alter, amend
or repeal this Code of By-Laws is vested exclusively in the Board,
but the affirmative vote of a majority of the number of directors
in office at the time of such vote shall be necessary to effect any
alteration, amendment or repeal of this Code of By-Laws.
EXHIBIT 7.8
RULE 145 AFFILIATE LETTER
Indiana Energy, Inc. Affiliates
AFFILIATE'S AGREEMENT
Indiana Energy, Inc.
1630 North Meridian Street
Indianapolis, IN 46202
SIGCORP, Inc.
N.W. Fourth Street
Evansville, IN 47741-001
Vectren Corporation
N.W. Fourth Street
Evansville, IN 47741-001
Ladies and Gentlemen:
The undersigned has been advised that, as of the date
hereof, the undersigned may be deemed to be an "affiliate" of
Indiana Energy, Inc., an Indiana corporation (the "Company"), as
that term is defined for purposes of paragraphs (c) and (d) of
Rule 145 of the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (the
"Securities Act").
Pursuant to the terms and subject to the conditions of that
certain Agreement and Plan of Merger by and among SIGCORP, Inc.,
an Indiana corporation ("SIGCORP"), Vectren Corporation, an
Indiana corporation whose capital stock is 50% owned by the
Company and 50% owned by SIGCORP ("Vectren") and the Company,
dated as of June 11, 1999 (the "Merger Agreement"), providing
for, among other things, the merger of the Company and SIGCORP
with and into Vectren (the "Merger"), the undersigned will be
entitled to receive shares of common stock, without par value
("Vectren Common Stock"), of Vectren in exchange for shares of
common stock, without par value ("Company Common Stock"), of the
Company owned by me at the effective time of the Merger (the
"Effective Time") as determined pursuant to the Merger Agreement.
The undersigned understands that the Merger will be treated
for financial accounting purposes as a "pooling of interests" in
accordance with generally accepted accounting principles
and that the staff of the SEC has issued certain guidelines that
should be followed to ensure the application of pooling of
interests accounting to the transaction.
In consideration of the agreements contained herein,
SIGCORP's, Vectren's and the Company's reliance on this letter in
connection with the consummation of the Merger and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned hereby represents,
warrants and agrees that the undersigned has not made and will
not make any sale, transfer or other disposition of (i) Company
Common Stock or SIGCORP Common Stock within the 30 day period
prior to the date of the consummation of the Merger or (ii)
Vectren Common Stock received by the undersigned pursuant to the
Merger or otherwise owned by the undersigned until after such
time as financial statements of Vectren that include at least 30
days of combined operations of the Company, SIGCORP and Vectren
after the Merger shall have been publicly reported, unless the
undersigned shall have delivered to Vectren, prior to any such
sale, transfer or other disposition, a written opinion from
Arthur Andersen LLP, independent public accountants for Vectren,
or a written no-action letter from the accounting staff of the
SEC, in either case in form and substance reasonably satisfactory
to Vectren, to the effect that such sale, transfer or other
disposition will not cause the Merger not to be treated as a
"pooling of interests" for financial accounting purposes in
accordance with generally accepted accounting principles and the
rules, regulations and interpretations of the SEC and (iii)
Vectren Common Stock received by the undersigned pursuant to the
Merger in violation of the Securities Act or the Rules and
Regulations. The undersigned has been advised that the offering,
sale and delivery of the shares of Vectren Common Stock pursuant
to the Merger will have been registered with the SEC under the
Securities Act on a Registration Statement on Form S-4. The
undersigned has also been advised, however, that since the
undersigned may be deemed to be an affiliate of the Company at
the time the Merger is submitted for a vote of the stockholders
of the Company, Vectren Common Stock received by the undersigned
pursuant to the Merger can be sold by the undersigned only (i)
pursuant to an effective registration statement under the
Securities Act of 1933 (the "Securities Act"), (ii) in conformity
with the volume and other limitations of Rule 145 promulgated by
the SEC under the Securities Act, or (iii) in reliance upon an
exemption from registration that is available under the
Securities Act.
The undersigned also understands that instructions will be
given to the transfer agent for Vectren Common Stock with respect
to Vectren Common Stock to be received by the undersigned
pursuant to the Merger and that there will be placed on the
certificates representing such shares of Vectren Common Stock, or
any substitutions therefor, a legend stating in substance as
follows:
"These shares were issued in a transaction to which
Rule 145 promulgated under the Securities Act of 1933
applies. These shares may only be transferred in accordance
with the terms of such Rule and an Affiliate's Agreement
between the original holder of such shares and Vectren, a
copy of which agreement is on file at the principal offices
of Vectren."
It is understood and agreed that the legend set forth above shall
be removed upon surrender of certificates bearing such legend by
delivery of substitute certificates without such legend if the
undersigned shall have delivered to Vectren an opinion of
counsel, in form and substance reasonably satisfactory to
Vectren, to the effect that (i) the sale or disposition of the
shares represented by the surrendered certificates may be
effected without registration of the offering, sale and delivery
of such shares under the Securities Act and (ii) the shares to be
so transferred may be publicly offered, sold and delivered by the
transferee thereof without compliance with the registration
provisions of the Securities Act.
By its execution hereof, Vectren agrees that it will, as
long as the undersigned owns any Vectren Common Stock to be
received by the undersigned pursuant to the Merger, take all
reasonable efforts to make timely filings with the SEC of all
reports required to be filed by it pursuant to the Securities
Exchange Act of 1934, as amended, and will promptly furnish upon
written request of the undersigned a written statement confirming
that such reports have been so timely filed.
If you are in agreement with the foregoing, please so
indicate by signing below and returning a copy of this letter to
the undersigned, at which time this letter shall become a binding
agreement between us.
Very truly yours,
By:
Name:
Title:
Date:
Address:
ACCEPTED this ____ day
of _____, 1999
INDIANA ENERGY, INC.
By: __________________________________
Name: ______________________________
Title: ____________________________
SIGCORP, INC.
By:___________________________________
Name: ______________________________
Title: _____________________________
VECTREN CORPORATION
By:___________________________________
Name: ______________________________
Title: _____________________________
SIGCORP, Inc. Affiliates
AFFILIATE'S AGREEMENT
Indiana Energy, Inc.
1630 North Meridian Street
Indianapolis, IN 46202
SIGCORP, Inc.
20 N.W. Fourth Street
Evansville, IN 47741-001
Vectren Corporation
20 N.W. Fourth Street
Evansville, IN 47741-001
Ladies and Gentlemen:
The undersigned has been advised that, as of the date hereof,
the undersigned may be deemed to be an "affiliate" of SIGCORP,
Inc., an Indiana corporation (the "Company"), as that term is
defined for purposes of paragraphs (c) and (d) of Rule 145 of the
Rules and Regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Securities Act").
Pursuant to the terms and subject to the conditions of that
certain Agreement and Plan of Merger by and among Indiana Energy,
Inc., an Indiana corporation ("Indiana"), Vectren Corporation, an
Indiana corporation whose capital stock is 50% owned by the
Company and 50% owned by Indiana ("Vectren") and the Company,
dated as of June 11, 1999 (the "Merger Agreement"), providing
for, among other things, the merger of the Company and Indiana
with and into Vectren (the "Merger"), the undersigned will be
entitled to receive shares of common stock, without par value
("Vectren Common Stock"), of Vectren in exchange for shares of
common stock, without par value ("Company Common Stock"), of the
Company owned by me at the effective time of the Merger (the
"Effective Time") as determined pursuant to the Merger Agreement.
The undersigned understands that the Merger will be treated
for financial accounting purposes as a "pooling of interests" in
accordance with generally accepted accounting principles and that
the staff of the SEC has issued certain guidelines that should be
followed to ensure the application of pooling of interests
accounting to the transaction.
In consideration of the agreements contained herein,
Indiana's, Vectren's and the Company's reliance on this letter in
connection with the consummation of the Merger and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned hereby represents,
warrants and agrees that the undersigned has not made and will
not make any sale, transfer or other disposition of (i) Company
Common Stock or Indiana Common Stock within the 30 day period
prior to the date of the consummation of the Merger or (ii)
Vectren Common Stock received by the undersigned pursuant to the
Merger or otherwise owned by the undersigned until after such
time as financial statements of Vectren that include at least 30
days of combined operations of the Company, Indiana and Vectren
after the Merger shall have been publicly reported, unless the
undersigned shall have delivered to Vectren, prior to any such
sale, transfer or other disposition, a written opinion from
Arthur Andersen LLP, independent public accountants for Vectren,
or a written no-action letter from the accounting staff of the
SEC, in either case in form and substance reasonably satisfactory
to Vectren, to the effect that such sale, transfer or other
disposition will not cause the Merger not to be treated as a
"pooling of interests" for financial accounting purposes in
accordance with generally accepted accounting principles and the
rules, regulations and interpretations of the SEC and (iii)
Vectren Common Stock received by the undersigned pursuant to the
Merger in violation of the Securities Act or the Rules and
Regulations. The undersigned has been advised that the offering,
sale and delivery of the shares of Vectren Common Stock pursuant
to the Merger will have been registered with the SEC under the
Securities Act on a Registration Statement on Form S-4. The
undersigned has also been advised, however, that since the
undersigned may be deemed to be an affiliate of the Company at
the time the Merger is submitted for a vote of the stockholders
of the Company, Vectren Common Stock received by the undersigned
pursuant to the Merger can be sold by the undersigned only (i)
pursuant to an effective registration statement under the
Securities Act of 1933 (the "Securities Act"), (ii) in conformity
with the volume and other limitations of Rule 145 promulgated by
the SEC under the Securities Act, or (iii) in reliance upon an
exemption from registration that is available under the
Securities Act.
The undersigned also understands that instructions will be
given to the transfer agent for Vectren Common Stock with respect
to Vectren Common Stock to be received by the undersigned
pursuant to the Merger and that there will be placed on the
certificates representing such shares of Vectren Common Stock, or
any substitutions therefor, a legend stating in substance as
follows:
"These shares were issued in a transaction to which Rule 145
promulgated under the Securities Act of 1933 applies. These
shares may only be transferred in accordance with the terms of
such Rule and an Affiliate's Agreement between the original
holder of such shares and Vectren, a copy of which agreement
is on file at the principal offices of Vectren."
It is understood and agreed that the legend set forth above
shall be removed upon surrender of certificates bearing such
legend by delivery of substitute certificates without such legend
if the undersigned shall have delivered to Vectren an opinion of
counsel, in form and substance reasonably satisfactory to
Vectren, to the effect that (i) the sale or disposition of the
shares
represented by the surrendered certificates may be effected
without registration of the offering, sale and delivery of such
shares under the Securities Act and (ii) the shares to be so
transferred may be publicly offered, sold and delivered by the
transferee thereof without compliance with the registration
provisions of the Securities Act.
By its execution hereof, Vectren agrees that it will, as long
as the undersigned owns any Vectren Common Stock to be received
by the undersigned pursuant to the Merger, take all reasonable
efforts to make timely filings with the SEC of all reports
required to be filed by it pursuant to the Securities Exchange
Act of 1934, as amended, and will promptly furnish upon written
request of the undersigned a written statement confirming that
such reports have been so timely filed.
If you are in agreement with the foregoing, please so indicate
by signing below and returning a copy of this letter to the
undersigned, at which time this letter shall become a binding
agreement between us.
Very truly yours,
By: _________________________________
Name: ____________________________
Title: ___________________________
Date: ____________________________
Address: _________________________
ACCEPTED this ____ day
of _____, 1999
INDIAN ENERGY, INC.
By: ________________________________
Name: ____________________________
Title: ___________________________
SIGCORP, INC.
By: ________________________________
Name: ____________________________
Title: ___________________________
VECTREN CORPORATION
By: ________________________________
Name: ____________________________
Title: ___________________________
EXHIBIT 7.15
EMPLOYMENT CONTRACTS
Jerome A. Benkert
Carl L. Chapman
Niel C. Ellerbrook
Andrew E. Goebel
Timothy E. Hewitt
J. Gordon Hurst
SIGCORP, INC. STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of June 11, 1999 by and
between Indiana Energy, Inc., an Indiana corporation ("INDIANA"),
and SIGCORP, INC., an Indiana corporation ("SIGCORP").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Indiana, SIGCORP and Vectren Corporation, an Indiana
corporation 50% of whose outstanding capital stock is owned by
Indiana and 50% of whose outstanding capital stock is owned by
SIGCORP (the "Company") are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), which
provides, among other things, upon the terms and subject to the
conditions thereof, for the merger of each of Indiana and SIGCORP
with and into the Company (the "Merger"); and
WHEREAS, as a condition to Indiana's willingness to enter into
the Merger Agreement, Indiana has requested that SIGCORP agree, and
SIGCORP has so agreed, to grant to Indiana an option with respect
to certain shares of SIGCORP's common stock, on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, to induce Indiana to enter into the Merger
Agreement, and in consideration of the mutual covenants and
agreements set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
1. GRANT OF OPTIONS. SIGCORP hereby grants Indiana an
irrevocable option (the "SIGCORP Option") to purchase up to
4,702,483 shares, subject to adjustment as provided in Section 11
(such shares being referred to herein as the "SIGCORP Shares"), of
common stock, without par value, of SIGCORP (the "SIGCORP Common
Stock") (being 19.9% of the number of shares of SIGCORP Common
Stock outstanding on the date hereof), together with the associated
purchase rights (the "SIGCORP Rights"), issued pursuant to the
SIGCORP Rights Agreement referred to in Section 5.15 of the Merger
Agreement (the "SIGCORP Rights Agreement"), in the manner set forth
below at a price (the "Exercise Price") per SIGCORP Share of
$29.70, payable at Indiana's option, (a) in cash or (b) subject to
the receipt of the approvals of any Governmental Authority required
for SIGCORP to acquire the Indiana Shares (as defined below) from
Indiana, and for Indiana to issue the Indiana Shares to SIGCORP,
which approvals SIGCORP and Indiana shall use their respective
reasonable best efforts to obtain, in shares of common stock,
without par value, of Indiana (the "INDIANA SHARES"), in either
case in accordance with Sections 3 and 4 hereof. Notwithstanding
the foregoing, in no event shall the number of SIGCORP Shares for
which the SIGCORP Option is exercisable exceed 19.9% of the number
of issued and outstanding shares of SIGCORP Common Stock. As used
herein, the "Fair Market Value" of any share shall be the average
of the daily closing sales price for such share on the New York
Stock Exchange (the "NYSE") during the five NYSE trading days prior
to the NYSE trading day preceding the date such Fair Market Value
is to be determined.
2. EXERCISE OF OPTION. The SIGCORP Option may be exercised
by Indiana, in whole or in part, at any time or from time to time
after the Merger Agreement becomes terminable by Indiana under
circumstances which could entitle Indiana to termination fees under
either Section 9.3(a) of the Merger Agreement or Section 9.3(b) of
the Merger Agreement, provided that the events specified in Section
9.3(b)(ii) of the Merger Agreement shall have occurred (regardless
of whether the Merger Agreement is actually terminated or whether
there occurs a closing of any Business Combination involving a
SIGCORP Target Party or a closing by which a SIGCORP Target Party
becomes a subsidiary), any such event by which the Merger Agreement
becomes so terminable by Indiana being referred to herein as a
"Trigger Event." SIGCORP shall notify Indiana promptly in writing
of the occurrence of any Trigger Event, it being understood that
the giving of such notice by SIGCORP shall not be a condition to
the right of Indiana to exercise the SIGCORP Option. In the event
Indiana wishes to exercise the SIGCORP Option, Indiana shall
deliver to SIGCORP a written notice (an "Exercise Notice")
specifying the total number of SIGCORP Shares it wishes to
purchase. If at the time of issuance of any SIGCORP Shares
pursuant to an exercise of all or part of the SIGCORP Option
hereunder, SIGCORP shall not have redeemed the SIGCORP Rights, or
shall have issued any similar securities, then each SIGCORP Share
issued pursuant to such exercise shall also represent SIGCORP
Rights or new rights with terms substantially the same as and at
least as favorable to Indiana as are provided under the SIGCORP
Rights Agreement or any similar agreement then in effect. Each
closing of a purchase of SIGCORP Shares (a "Closing") shall occur
at a place, on a date and at a time designated by Indiana in an
Exercise Notice delivered at least two business days prior to the
date of the Closing. The SIGCORP Option shall terminate upon the
earlier of: (i) the Effective Time; (ii) the termination of the
Merger Agreement pursuant to Section 9.1 thereof (other than upon
or during the continuance of a Trigger Event); or (iii) 180 days
following any termination of the Merger Agreement upon or during
the continuance of a Trigger Event (or if, at the expiration of
such 180 day period the SIGCORP Option cannot be exercised by
reason of any applicable judgment, decree, order, law or
regulation, ten business days after such impediment to exercise
shall have been removed or shall have become final and not subject
to appeal, but in no event under this clause (iii) later than the
third anniversary of the date hereof). Notwithstanding the
foregoing, the SIGCORP Option may not be exercised if Indiana is in
material breach of any of its material representations or
warranties, or in material breach of any of its covenants or
agreements, contained in this Agreement or in the Merger Agreement.
Upon the giving by Indiana to SIGCORP of the Exercise Notice and
the tender of the applicable aggregate Exercise Price, Indiana
shall be deemed to be the holder of record of the SIGCORP Shares
issuable upon such exercise, notwithstanding that the stock
transfer books of SIGCORP shall then be closed or that certificates
representing such SIGCORP Shares shall not then be actually
delivered to Indiana.
3. CONDITIONS TO CLOSING. The obligation of SIGCORP to
issue the SIGCORP Shares to Indiana hereunder is subject to the
conditions, which (other than the conditions described in clauses
(i), (iii) and (iv) below) may be waived by SIGCORP in its sole
discretion, that (i) all waiting periods, if any, under the HSR
Act, applicable to the issuance of the SIGCORP Shares hereunder
shall have expired or have been terminated; (ii) the SIGCORP
Shares, and any Indiana Shares which are issued in payment of the
Exercise Price, shall have been approved for listing on the NYSE
upon official notice of issuance; (iii) all consents, approvals,
orders or authorizations of, or registrations, declarations or
filings with, any federal, state or local administrative agency or
commission or other federal, state or local Governmental Authority,
if any, required in connection with the issuance of the SIGCORP
Shares or the acquisition of such SIGCORP Shares by Indiana
hereunder shall have been obtained or made, as the case may be,
including, without limitation, the approval of, if applicable, the
issuance of Indiana Shares to SIGCORP and the acquisition by
SIGCORP of the Indiana Shares constituting the Exercise Price
hereunder and approval of the SEC under the 1935 Act of the
acquisition of the SIGCORP Shares by Indiana; and (iv) no
preliminary or permanent injunction or other order by any court of
competent jurisdiction prohibiting or otherwise restraining such
issuance shall be in effect.
4. CLOSING. At any Closing, (a) SIGCORP will deliver to
Indiana or its designee a single certificate in definitive form
representing the number of the SIGCORP Shares designated by Indiana
in its Exercise Notice, such certificate to be registered in the
name of Indiana and to bear the legend set forth in Section 12 and
(b) Indiana will deliver to SIGCORP the aggregate Exercise Price
for the SIGCORP Shares so designated and being purchased by (i)
wire transfer of immediately available funds or certified check or
bank check or (ii) subject to the condition in Section 1(b), a
certificate or certificates representing the number of Indiana
Shares being issued by Indiana in consideration thereof, as the
case may be. For the purposes of this Agreement, the number of
Indiana Shares to be delivered to SIGCORP shall be equal to the
quotient obtained by dividing (i) the product of (x) the number of
SIGCORP Shares with respect to which the SIGCORP Option is being
exercised and (y) the Exercise Price by (ii) the Fair Market Value
of the Indiana Shares at the date immediately preceding the date
the Exercise Notice is delivered to SIGCORP. SIGCORP shall pay all
expenses, and any and all United States federal, state and local
taxes and other charges that may be payable in connection with the
preparation, issue and delivery of stock certificates under this
Section 4 in the name of Indiana or such of its designees as shall
have obtained appropriate regulatory approval.
5. REPRESENTATIONS AND WARRANTIES OF SIGCORP. SIGCORP
represents and warrants to Indiana that (a) SIGCORP is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Indiana and has the corporate power
and authority to enter into this Agreement and to carry out its
obligations hereunder, (b) the execution and delivery of this
Agreement by SIGCORP and the consummation by SIGCORP of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of SIGCORP and no other
corporate proceedings on the part of SIGCORP are necessary to
authorize this Agreement or any of the transactions contemplated
hereby, (c) this Agreement has been duly executed and delivered by
SIGCORP, constitutes a valid and binding obligation of SIGCORP and,
assuming this Agreement constitutes a valid and binding obligation
of Indiana, is enforceable against SIGCORP in accordance with its
terms, (d) SIGCORP has taken all necessary corporate or other
action (including the approval of the Board of Directors of
SIGCORP) to render inapplicable to this Agreement and the Merger
Agreement and the transactions contemplated hereby and thereby, the
provisions of the IBCL referred to in Section 5.15 of the Merger
Agreement and the SIGCORP Rights Agreement, (e) SIGCORP has taken
all necessary corporate action to authorize and reserve for
issuance and to permit it to issue, upon exercise of the SIGCORP
Option in accordance with its terms, and at all times from the date
hereof through the expiration of the SIGCORP Option will have
reserved, 4,702,483 authorized and unissued SIGCORP Shares, such
amount being subject to adjustment as provided in Section 11, all
of which, upon their issuance and delivery in accordance with the
terms of this Agreement, will be validly issued, fully paid and
nonassessable, (f) upon delivery of the SIGCORP Shares to Indiana
upon the exercise of the SIGCORP Option in accordance with its
terms, Indiana will acquire the SIGCORP Shares free and clear of
all claims, liens, charges, encumbrances and security interests of
any nature whatsoever, (g) except as described in Section 5.4(b) or
(c) of the Merger Agreement and subject to the satisfaction of the
conditions set forth in Section 3 hereof, the execution and
delivery of this Agreement by SIGCORP does not, and the
consummation by SIGCORP of the transactions contemplated hereby
will not, violate, conflict with, or result in a breach of any
provision of, or constitute a default (with or without notice or
lapse of time, or both) under, or result in the termination of, or
accelerate the performance required by, or result in a right of
termination, cancellation, or acceleration of any obligation or the
loss of a material benefit under, or the creation of a lien,
pledge, security interest or other encumbrance on assets (any such
conflict, violation, default, right of termination, cancellation or
acceleration, loss or creation, a "Violation") of SIGCORP or any of
its subsidiaries, pursuant to, (A) any provision of the Restated
Articles of Incorporation or bylaws of SIGCORP, (B) any provisions
of any loan or credit agreement, note, mortgage, indenture, lease,
SIGCORP benefit plan or other agreement, obligation, instrument,
permit, concession, franchise, license or (C) any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to
SIGCORP or its properties or assets, which Violation, in the case
of each of clauses (B) and (C), could reasonably be expected to
have a SIGCORP Material Adverse Effect, (h) except as described in
Section 5.4(c) of the Merger Agreement or Section 1(b) or Section
3 hereof, the execution and delivery of this Agreement by SIGCORP
does not, and the performance of this Agreement by SIGCORP will
not, require any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Authority, (i)
none of SIGCORP, any of its affiliates or anyone acting on its or
their behalf has issued, sold or offered any security of SIGCORP to
any person under circumstances that would cause the issuance and
sale of the SIGCORP Shares, as contemplated by this Agreement, to
be subject to the registration requirements of the Securities Act
as in effect on the date hereof and, assuming the representations
of Indiana contained in Section 6(h) hereof are true and correct,
the issuance, sale and delivery of the SIGCORP Shares hereunder
would be exempt from the registration and prospectus delivery
requirements of the Securities Act, as in effect on the date hereof
(and SIGCORP shall not take any action which would cause the
issuance, sale and delivery of the SIGCORP Shares hereunder not to
be exempt from such requirements), and (j) any Indiana Shares
acquired pursuant to this Agreement will be acquired for SIGCORP's
own account, for investment purposes only and will not be acquired
by SIGCORP with a view to the public distribution thereof in
violation of any applicable provision of the Securities Act.
6. REPRESENTATIONS AND WARRANTIES OF INDIANA. Indiana
represents and warrants to SIGCORP that (a) Indiana is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Indiana and has the corporate power
and authority to enter into this Agreement and to carry out its
obligations hereunder, (b) the execution and delivery of this
Agreement by Indiana and the consummation by Indiana of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Indiana and no other
corporate proceedings on the part of Indiana are necessary to
authorize this Agreement or any of the transactions contemplated
hereby, (c) this Agreement has been duly executed and delivered by
Indiana and constitutes a valid and binding obligation of Indiana,
and, assuming this Agreement constitutes a valid and binding
obligation of SIGCORP, is enforceable against Indiana in accordance
with its terms, (d) prior to any delivery of Indiana Shares in
consideration of the purchase of SIGCORP Shares pursuant hereto,
Indiana will have taken all necessary corporate action to authorize
for issuance and to permit it to issue such Indiana Shares all of
which, upon their issuance and delivery in accordance with the
terms of this Agreement, will be validly issued, fully paid and
nonassessable, and to render inapplicable to the receipt by
SIGCORP of the Indiana Shares the provisions of the IBCL referred
to in Section 4.15 of the Merger Agreement and the Indiana Rights
Agreement referred to in Section 4.15 of the Merger Agreement, (e)
upon any delivery of such Indiana Shares to SIGCORP in
consideration of the purchase of SIGCORP Shares pursuant hereto,
SIGCORP will acquire the Indiana Shares free and clear of all
claims, liens, charges, encumbrances and security interests of any
nature whatsoever, (f) except as described in Section 4.4(b) of the
Merger Agreement and subject to the satisfaction of the conditions
set forth in Section 3 hereof, the execution and delivery of this
Agreement by Indiana does not, and the consummation by Indiana of
the transactions contemplated hereby will not, violate, conflict
with, or result in the breach of any provision of, or constitute a
default (with or without notice or lapse of time, or both) under,
or result in any Violation by Indiana or any of its subsidiaries,
pursuant to (A) any provision of the Amended and Restated Articles
of Incorporation or bylaws of Indiana, (B) any provisions of any
loan or credit agreement, note, mortgage, indenture, lease, Indiana
benefit plan or other agreement, obligation, instrument, permit,
concession, franchise, license or (C) any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Indiana
or its properties or assets, which Violation, in the case of each
of clauses (B) and (C), would have an Indiana Material Adverse
Effect, (g) except as described in Section 4.4(c) of the Merger
Agreement or Section 1(b) or Section 3 hereof, the execution and
delivery of this Agreement by Indiana does not, and the
consummation by Indiana of the transactions contemplated hereby
will not, require any consent, approval, authorization or permit
of, or filing with or notification to, any Governmental Authority
and (h) any SIGCORP Shares acquired upon exercise of the SIGCORP
Option will be acquired for Indiana's own account, for investment
purposes only and will not be, and the SIGCORP Option is not being,
acquired by Indiana with a view to the public distribution thereof
in violation of any applicable provision of the Securities Act.
7. CERTAIN REPURCHASES.
(a) INDIANA PUT. At the request of Indiana by written notice
at any time during which the SIGCORP Option is exercisable pursuant
to Section 2 (the "Repurchase Period"), SIGCORP (or any successor
entity thereof) shall repurchase from Indiana all or any portion of
the SIGCORP Option, at the price set forth in subparagraph (i)
below, or, at the request of Indiana by written notice at any time
prior to the later of (I) June 11, 2000 (provided that such date
shall be extended to December 31, 2000 under the circumstances
where the date after which either party may terminate the Merger
Agreement pursuant to Section 9.1(b) of the Merger Agreement has
been extended to December 31, 2000) or (II) 180 days following any
termination of the Merger Agreement upon or during the continuance
of the Trigger Event, SIGCORP (or any successor entity thereof)
shall repurchase from Indiana all or any portion of the SIGCORP
Shares purchased by Indiana pursuant to the SIGCORP Option, at the
price set forth in subparagraph (ii) below:
(i) the difference between (x) the "Market/Offer Price"
for shares of SIGCORP Common Stock as of the date Indiana
gives notice of its intent to exercise its rights under
this Section 7 (defined as the higher of (A) the price per
share offered as of such date pursuant to any tender or
exchange offer or other offer with respect to a Business
Combination which was made prior to such date and not
terminated or withdrawn as of such date (the "Offer
Price") and (B) the Fair Market Value of SIGCORP Common
Stock as of such date (the "Market Price")) and the (y)
Exercise Price, multiplied by the number of SIGCORP
Shares purchasable pursuant to the SIGCORP Option (or
portion thereof with respect to which Indiana is exercising
its rights under this Section 7), but only if the
Market/Offer Price is greater than the Exercise Price;
(ii) the product of (x) the sum of (A) the Exercise
Price paid by Indiana per SIGCORP Share acquired pursuant
to the SIGCORP Option and (B) the difference between the
Market/Offer Price and the Exercise Price, but only if the
Market/Offer Price is greater than the Exercise Price,
and (y) the number of SIGCORP Shares so to be repurchased
pursuant to this Section 7. For purposes of this clause (ii),
the Offer Price shall be the highest price per share
offered pursuant to a tender or exchange offer or other
Business Combination offer during the Repurchase Period prior
to the delivery by Indiana of a notice of repurchase.
(b) REDELIVERY OF INDIANA SHARES. If Indiana elected to
purchase SIGCORP Shares pursuant to the exercise of the SIGCORP
Option by the issuance and delivery of Indiana Shares, then SIGCORP
shall, if so requested by Indiana, in fulfillment of its obligation
pursuant to clause (A) of Section 7(a)(ii)(x) (that is, with
respect to the Exercise Price only and without limitation to its
obligation to pay additional consideration under clause (B) of
Section 7(a)(ii)(x)), redeliver the certificate for such Indiana
Shares to Indiana, free and clear of all liens, claims, damages,
charges and encumbrances of any kind or nature whatsoever;
provided, however, that if less than all of the SIGCORP Shares
purchased by Indiana pursuant to the SIGCORP Option are to be
repurchased pursuant to this Section 7, then Indiana shall issue to
SIGCORP a new certificate representing those Indiana Shares which
are not due to be redelivered to Indiana pursuant to this Section
7 as they constituted payment of the Exercise Price for the SIGCORP
Shares not being repurchased.
(c) PAYMENT AND REDELIVERY OF SIGCORP OPTION OR SHARES. In
the event Indiana exercises its rights under this Section 7,
SIGCORP shall, within 10 business days thereafter, pay the required
amount to Indiana in immediately available funds and Indiana shall
surrender to SIGCORP the SIGCORP Option or the certificates
evidencing the SIGCORP Shares purchased by Indiana pursuant
thereto, and Indiana shall warrant that it owns the SIGCORP Option
or such shares and that the SIGCORP Option or such shares are then
free and clear of all liens, claims, damages, charges and
encumbrances of any kind or nature whatsoever.
(d) INDIANA CALL. If Indiana has elected to purchase SIGCORP
Shares pursuant to the exercise of SIGCORP Option by the issuance
and delivery of Indiana Shares, notwithstanding that Indiana may no
longer hold any such SIGCORP Shares or that Indiana elects not to
exercise its other rights under this Section 7, Indiana may
require, at any time or from time to time prior to June 11, 2000
(provided that such date shall be extended to December 31, 2000
under the circumstances where the date after which either party may
terminate the Merger Agreement pursuant to Section 9.1(b) of the
Merger Agreement has been extended to December 31, 2000), SIGCORP
sell to Indiana any such Indiana Shares at the price attributed to
such Indiana Shares pursuant to Section 4 plus interest at the rate
to 7% per annum on such amount from the Closing Date relating to
the exchange of such Indiana Shares pursuant to Section 4 to the
closing date under this Section 7(d) less any dividends on such
Indiana Shares paid during such period or declared and payable to
stockholders of record on a date during such period.
(e) REPURCHASE PRICE REDUCED AT INDIANA'S OPTION. In the
event the repurchase price specified in Section 7(a) would subject
the purchase price of the SIGCORP Option purchased by Indiana
pursuant to the SIGCORP Option to a vote of the shareholders of
SIGCORP pursuant to applicable law or SIGCORP's Restated Articles
of Incorporate, then Indiana may, at its election, reduce the
repurchase amount which would permit such repurchase without the
necessity for such a shareholder vote.
8. VOTING OF SHARES. Following the date hereof and prior to
the fifth anniversary of the date hereof (the "Expiration Date"),
each party shall vote any shares of capital stock of the other
party acquired by such party pursuant to this Agreement
("Restricted Shares"), including any Indiana Shares issued pursuant
to Section 1(b) or otherwise beneficially owned (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended the ("Exchange Act")) by such party on each matter
submitted to a vote of shareholders of such other party for and
against such matter in the same proportion as the vote of all other
shareholders of such other party are voted (whether by proxy or
otherwise) for and against such matter.
9. RESTRICTIONS ON TRANSFER.
(a) Restrictions on Transfer. Prior to the Expiration Date,
neither party shall, directly or indirectly, by operation of law or
otherwise, sell, assign, pledge, or otherwise dispose of or
transfer any Restricted Shares beneficially owned by such party,
other than (i) pursuant to Section 7, or (ii) in accordance with
Section 9(b) or Section 10.
(b) Permitted Sales. Following the termination of the Merger
Agreement, a party shall be permitted to sell any Restricted Shares
beneficially owned by it if such sale is made pursuant to a tender
or exchange offer that has been approved or recommended, or
otherwise determined to be fair to and in the best interests of the
shareholders of the other party, by a majority of the members of
the Board of Directors of such other party, which majority shall
include a majority of directors who were directors prior to the
announcement of such tender or exchange offer.
10. REGISTRATION RIGHTS. Following the termination of the
Merger Agreement, each party hereto (a "Designated Holder") may by
written notice (the "Registration Notice") to the other party (the
"Registrant") request the Registrant to register under the
Securities Act all or any part of the Restricted Shares
beneficially owned by such Designated Holder (the "Registrable
Securities") pursuant to a bona fide firm commitment underwritten
public offering in which the Designated Holder and the underwriters
shall effect as wide a distribution of such Registrable Securities
as is reasonably practicable and shall use their best efforts to
prevent any person (including any Group (as used in Rule 13d-5
under the Exchange Act)) and its affiliates from purchasing through
such offering Restricted Shares representing more than 1% of the
outstanding shares of common stock of the Registrant on a fully
diluted basis (a "Permitted Offering"). The Registration Notice
shall include a certificate executed by the Designated Holder and
its proposed managing underwriter, which underwriter shall be an
investment banking firm of nationally recognized standing (the
"Manager"), stating that (i) they have a good faith intention to
commence promptly a Permitted Offering and (ii) the Manager in good
faith believes that, based on the then prevailing market
conditions, it will be able to sell the Registrable Securities at
a per share price equal to at least 80% of the then Fair Market
Value of such shares. The Registrant (and/or any person designated
by the Registrant) shall thereupon have the option exercisable by
written notice delivered to the Designated Holder within 10
business days after the receipt of the Registration Notice,
irrevocably to agree to purchase all or any part of the Registrable
Securities proposed to be so sold for cash at a price (the "Option
Price") equal to the product of (i) the number of Registrable
Securities to be so purchased by the Registrant and (ii) the then
Fair Market Value of such shares. Any such purchase of Registrable
Securities by the Registrant (or its designee) hereunder shall take
place at a closing to be held at the principal executive offices of
the Registrant or at the offices of its counsel at any reasonable
date and time designated by the Registrant and/or such designee in
such notice within 20 business days after delivery of such notice.
Any payment for the shares to be purchased shall be made by
delivery at the time of such closing of the Option Price in
immediately available funds.
If the Registrant does not elect to exercise its option
pursuant to this Section 10 with respect to all Registrable
Securities, it shall use its best efforts to effect, as promptly as
practicable, the registration under the Securities Act of the
unpurchased Registrable Securities proposed to be so sold;
provided, however, that (i) neither party shall be entitled to more
than an aggregate of two effective registration statements
hereunder and (ii) the Registrant will not be required to file any
such registration statement during any period of time (not to
exceed 40 days after such request in the case of clause (A) below
or 90 days in the case of clauses (B) and (C) below) when (A) the
Registrant is in possession of material non-public information
which it reasonably believes would be detrimental to be disclosed
at such time and, in the opinion of counsel to the Registrant, such
information would have to be disclosed if a registration statement
were filed at that time; (B) the Registrant is required under the
Securities Act to include audited financial statements for any
period in such registration statement and such financial statements
are not yet available for inclusion in such registration statement;
or (C) the Registrant determines, in its reasonable judgment, that
such registration would interfere with any financing, acquisition
or other material transaction involving the Registrant or any of
its affiliates. The Registrant shall use its reasonable best
efforts to cause any Registrable Securities registered pursuant to
this Section 10 to be qualified for sale under the securities or
Blue-Sky laws of such jurisdictions as the Designated Holder may
reasonably request and shall continue such registration or
qualification in effect in such jurisdiction; provided, however,
that the Registrant shall not be required to qualify to do business
in, or to consent to general service of process in, any
jurisdiction by reason of this provision.
The registration rights set forth in this Section 10 are
subject to the condition that the Designated Holder shall provide
the Registrant with such information with respect to such holder's
Registrable Securities, the plans for the distribution thereof, and
such other information with respect to such holder as, in the
reasonable judgment of counsel for the Registrant, is necessary to
enable the Registrant to include in such registration statement all
material facts required to be disclosed with respect to a
registration thereunder.
A registration effected under this Section 10 shall be
effected at the Registrant's expense, except for underwriting
discounts and commissions and the fees and the expenses of counsel
to the Designated Holder, and the Registrant shall provide to the
underwriters such documentation (including certificates, opinions
of counsel and "comfort" letters from auditors) as are customary in
connection with underwritten public offerings as such underwriters
may reasonably require. In connection with any such registration,
the parties agree (i) to indemnify each other and the underwriters
in the customary manner, (ii) to enter into an underwriting
agreement in form and substance customary for transactions of such
type with the Manager and the other underwriters participating in
such offering and (iii) to take all further actions which shall be
reasonably necessary to effect such registration and sale
(including, if the Manager deems it necessary, participating in
road-show presentations).
The Registrant shall be entitled to include (at its expense)
additional shares of its common stock in a registration effected
pursuant to this Section 10 only if and to the extent the Manager
determines that such inclusion will not adversely affect the
prospects for success of such offering.
11. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. Without
limitation to any restriction on SIGCORP contained in this
Agreement or in the Merger Agreement, in the event of any change in
SIGCORP Common Stock by reason of stock dividends, splitups,
mergers (other than the Merger), recapitalizations, combinations,
exchange of shares or the like, the type and number of shares or
securities subject to the SIGCORP Option, and the purchase price
per share provided in Section 1, shall be adjusted appropriately to
restore to Indiana its rights hereunder, including the right to
purchase from SIGCORP (or its successors) shares of SIGCORP Common
Stock representing 19.9% of the outstanding SIGCORP Common Stock
for the aggregate Exercise Price calculated as of the date of this
Agreement as provided in Section 1.
12. RESTRICTIVE LEGENDS. Each certificate representing
shares of SIGCORP Common Stock issued to Indiana hereunder, and
Indiana Shares, if any, delivered to SIGCORP at a Closing, shall
include a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT
TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK
OPTION AGREEMENT, DATED AS OF JUNE 11, 1999, A COPY OF WHICH MAY BE
OBTAINED FROM THE ISSUER UPON REQUEST.
It is understood and agreed that: (i) the reference to the resale
restrictions of the Securities Act in the above legend shall be
removed by delivery of substitute certificate(s) without such
reference if Indiana or SIGCORP, as the case may be, shall have
delivered to the other party a copy of a letter from the staff of
the Securities and Exchange Commission, or an opinion of counsel,
in form and substance satisfactory to the other party, to the
effect that such legend is not required for purposes of the
Securities Act; (ii) the reference to the provisions of this
Agreement in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if the shares have
been sold or transferred in compliance with the provisions of this
Agreement and in circumstances that do not require the retention of
such reference; and (iii) the legend shall be removed in its
entirety if the conditions in the preceding clauses (i) and (ii)
are both satisfied. In addition, such certificates shall bear any
other legend as may be required by law, Certificates representing
shares sold in a registered public offering pursuant to Section 10
shall not be required to bear the legend forth in this Section 12.
13. BINDING EFFECT; No Assignment; No Third Party
Beneficiaries. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and permitted assigns. Except as expressly provided for in this
Agreement, neither this Agreement nor the rights or the obligations
of either party hereto are assignable, except by operation of law,
or with the written consent of the other party. Nothing contained
in this Agreement, expressed or implied, is intended to confer upon
any person other than the parties hereto and their respective
permitted assigns any rights or remedies of any nature whatsoever
by reason of this Agreement. Any Restricted Shares sold by a party
in compliance with the provisions of Section 10 shall, upon
consummation of such sale, be free of the restrictions imposed with
respect to such shares by this Agreement; unless and until such
party shall repurchase or otherwise become the beneficial owner of
such shares, and any transferee of such shares shall not be
entitled to the registration rights of such party.
14. SPECIFIC PERFORMANCE. The parties recognize and agree
that if for any reason any of the provisions of this Agreement are
not performed in accordance with their specific terms or are
otherwise breached, immediate and irreparable harm or injury would
be caused for which money damages would not be an adequate remedy.
Accordingly, each party agrees that, in addition to other remedies,
the other party shall be entitled to an injunction restraining any
violation or threatened violation of the provisions of this
Agreement. In the event that any action should be brought in
equity to enforce the provisions of the Agreement, neither party
will allege, and each party hereby waives the defense, that there
is adequate remedy at law.
15. ENTIRE AGREEMENT. This Agreement, the Confidentiality
Agreement and the Merger Agreement (including the exhibits and
schedules thereto) constitute the entire agreement among the
parties with respect to the subject matter, hereof and thereof and
supersede all other prior agreements and understandings, both
written and oral, among the parties or any of them with respect to
the subject matter hereof and thereof.
16. FURTHER ASSURANCES. Each party will execute and deliver
all such further documents and instruments and take all such
further action as may be necessary in order to consummate the
transactions contemplated hereby.
17. VALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of the other provisions of this Agreement, which
shall remain in full force and effect. In the event any court or
other competent authority holds any provisions of this Agreement to
be null, void or unenforceable, the parties hereto shall negotiate
in good faith the execution and delivery of an amendment to this
Agreement in order, as nearly as possible, to effectuate, to the
extent permitted by law, the intent of the parties hereto with
respect to such provision and the economic effects thereof. If for
any reason any such court or regulatory agency determines that
Indiana is not permitted to acquire, or SIGCORP is not permitted to
repurchase pursuant to Section 7, the full number of shares of
SIGCORP Common Stock provided in Section 1 hereof (as the same may
be adjusted), it is the express intention of SIGCORP to allow
Indiana to acquire or to require SIGCORP to repurchase such lesser
number of shares as may be permissible, without any amendment or
modification hereof. Each party agrees that, should any court or
other competent authority hold any provision of this Agreement or
part hereof to be null, void or unenforceable, or order any party
to take any action inconsistent herewith, or not take any action
required herein, the other party shall not be entitled to specific
performance of such provision or part hereof or to any other
remedy, including but not limited to money damages, for breach
hereof or of any other provision of this Agreement or part hereof
as the result of such holding or order.
18. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if (i) delivered
personally, or (ii) sent by reputable overnight courier service, or
(iii) telecopied (which is confirmed), or (iv) five days after
being mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
A. If to Indiana Energy, Inc., to:
Indiana Energy, Inc.
1630 North Meridian Street
Indianapolis, Indiana 46202
Attention: Niel C. Ellerbrook
Telephone: (317) 321-0510
Telecopy: (317) 321-0498
and a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: James M. Cotter, Esq.
Telephone: (212) 455-2000
Telecopy: (212) 455-2502
and a copy to:
Sommer & Barnard, PC
111 Monument Circle
4000 Bank One Tower
Indianapolis, Indiana 46204
Attention: James A. Strain, Esq.
Telephone: (317) 630-4000
Telecopy: (317) 236-9802
B. If to SIGCORP, INC., to:
SIGCORP, INC.
20 N.W. Fourth Street
Evansville, Indiana 47741-0001
Attention: Andrew E. Goebel
Telephone: (812) 465-5300
Telecopy: (812) 464-4554
with copy to:
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004-1490
Attention: Stephen A. Rusmisel, Esq.
Telephone: (212) 858-1442
Telecopy: (212) 858-1500
19. GOVERNING LAW; CHOICE OF FORUM. This Agreement shall be
governed by and construed in accordance with the laws of the State
of Indiana applicable to agreements made and to be performed
entirely within such State and without regard to its choice of law
principles. Each of the parties hereto (a) consents to submit
itself to the personal jurisdiction of any federal court located in
the State of Indiana or any Indiana state court in the event any
dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (b) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court and (c) agrees that it
will not bring any action relating to this Agreement or any of the
transactions contemplated by this Agreement in any court other than
a federal court sitting in the State of Indiana or an Indiana state
court.
20. INTERPRETATION. When a reference is made in this
Agreement to a Section such reference shall be to a Section of this
Agreement unless otherwise indicated. Whenever the words
"include", "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without
limitation". The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings set forth in the Merger Agreement.
21. COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original, but
both of which, taken together, shall constitute one and the same
instrument.
22. EXPENSES. Except as otherwise expressly provided herein
or in the Merger Agreement, all costs and expenses incurred in
connection with the transactions contemplated by this Agreement
shall be paid by the party incurring such expenses.
23. AMENDMENTS; WAIVER. This Agreement may be amended by the
parties hereto and the terms and conditions hereof may be waived
only by an instrument in writing signed on behalf of each of the
parties hereto, or, in the case of a waiver, by an instrument
signed on behalf of the party waiving compliance.
24. EXTENSION OF TIME PERIODS. The time periods for exercise
of certain rights under Sections 2 and 7 shall be extended: (i) to
the extent necessary to obtain all regulatory approvals for the
exercise of such rights, and for the expiration of all statutory
waiting periods; and (ii) to the extent necessary to avoid any
liability under Section 16(b) of the Exchange Act by reason of such
exercise.
25. REPLACEMENT OF SIGCORP OPTION. Upon receipt by SIGCORP
of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Agreement, and (in the case of
loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, SIGCORP will execute and deliver a new
Agreement of like tenor and date.
* * *
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective duly authorized
officers as of the date first above written.
INDIANA ENERGY, INC.
By: ______________________________
Name: Niel C. Ellerbrook
Title: President and Chief
Executive Officer
SIGCORP, INC.
By: ______________________________
Name: Andrew E. Goebel
Title: President and Chief
Operating Officer
INDIANA ENERGY, INC. STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of June 11, 1999 by and
between Indiana Energy, Inc., an Indiana corporation ("INDIANA"),
and SIGCORP, INC., an Indiana corporation ("SIGCORP").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Indiana, SIGCORP and Vectren Corporation, an Indiana
corporation 50% of whose outstanding capital stock is owned by
Indiana and 50% of whose outstanding capital stock is owned by
SIGCORP (the "Company") are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), which
provides, among other things, upon the terms and subject to the
conditions thereof, for the merger of each of Indiana and SIGCORP
with and into the Company (the "Merger"); and
WHEREAS, as a condition to Indiana willingness to enter into
the Merger Agreement, SIGCORP has requested that Indiana agree, and
Indiana has so agreed, to grant to SIGCORP an option with respect
to certain shares of Indiana's common stock, on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, to induce SIGCORP to enter into the Merger
Agreement, and in consideration of the mutual covenants and
agreements set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
1. GRANT OF OPTION. Indiana hereby grants SIGCORP an
irrevocable option (the "Indiana Option") to purchase up to
5,927,524 shares, subject to adjustment as provided in Section 11
(such shares being referred to herein as the "Indiana Shares"), of
common stock, without par value, of Indiana (the "Indiana Common
Stock") (being 19.9% of the number of shares of Indiana Common
Stock outstanding on the date hereof), together with the associated
purchase rights (the "Indiana Rights"), issued pursuant to the
Indiana Rights Agreement referred to in Section 4.15 of the Merger
Agreement (the "Indiana Rights Agreement"), in the manner set forth
below at a price (the "Exercise Price") per Indiana share of
$22.27, payable, at SIGCORP's option, (a) in cash or (b) subject to
the receipt of approvals of any Governmental Authority required for
Indiana to acquire the SIGCORP Shares (as defined below) from
SIGCORP, and for SIGCORP to issue the SIGCORP Shares to Indiana,
which approvals Indiana and SIGCORP shall use their respective
reasonable best efforts to obtain, in shares of common stock,
without par value, of SIGCORP (the "SIGCORP Shares"), in either
case in accordance with Sections 3 and 4 hereof. Notwithstanding
the foregoing, in no event shall the number of Indiana Shares for
which the Indiana Option is exercisable exceed 19.9% of the number
of issued and outstanding shares of Indiana Common Stock. As used
herein, the "Fair Market Value" of any share shall be the average
of the daily closing sales price for such share on the New York
Stock Exchange (the "NYSE") during the five NYSE trading days prior
to the NYSE trading day preceding the date such Fair Market Value
is to be determined.
2. EXERCISE OF OPTION. The Indiana Option may be exercised
by SIGCORP, in whole or in part, at any time or from time to time
after the Merger Agreement becomes terminable by SIGCORP under
circumstances which could entitle SIGCORP to termination fees under
either Section 9.3(a) of the Merger Agreement or Section 9.3(b) of
the Merger Agreement, provided that the events specified in Section
9.3(b)(ii) of the Merger Agreement shall have occurred (regardless
of whether the Merger Agreement is actually terminated or whether
there occurs a closing of any Business Combination involving an
Indiana Target Party or a closing by which an Indiana Target Party
becomes a subsidiary), any such event by which the Merger Agreement
becomes so terminable by SIGCORP being referred to herein as a
"Trigger Event." Indiana shall notify SIGCORP promptly in writing
of the occurrence of any Trigger Event, it being understood that
the giving of such notice by Indiana shall not be a condition to
the right of SIGCORP to exercise the Indiana Option. In the event
SIGCORP wishes to exercise the Indiana Option, SIGCORP shall
deliver to Indiana a written notice (an "Exercise Notice")
specifying the total number of Indiana Shares it wishes to
purchase. If at the time of issuance of any Indiana Shares
pursuant to an exercise of all or part of the Indiana Option
hereunder, Indiana shall not have redeemed the Indiana Rights, or
shall have issued any similar securities, then each Indiana Share
issued pursuant to such exercise shall also represent Indiana
Rights or new rights with terms substantially the same as and at
least as favorable to SIGCORP as are provided under the Indiana
Rights Agreement or any similar agreement then in effect. Each
closing of a purchase of Indiana Shares (a "Closing") shall occur
at a place, on a date and at a time designated by SIGCORP in an
Exercise Notice delivered at least two business days prior to the
date of the Closing. The Indiana Option shall terminate upon the
earlier of: (i) the Effective Time; (ii) the termination of the
Merger Agreement pursuant to Section 9.1 thereof (other than upon
or during the continuance of a Trigger Event); or (iii) 180 days
following any termination of the Merger Agreement upon or during
the continuance of a Trigger Event (or if, at the expiration of
such 180 day period the Indiana Option cannot be exercised by
reason of any applicable judgment, decree, order, law or
regulation, ten business days after such impediment to exercise
shall have been removed or shall have become final and not subject
to appeal, but in no event under this clause (iii) later than the
third anniversary of the date hereof). Notwithstanding the
foregoing, the Indiana Option may not be exercised if SIGCORP is in
material breach of any of its material representations or
warranties, or in material breach of any of its covenants or
agreements, contained in this Agreement or in the Merger Agreement.
Upon the giving by SIGCORP to Indiana of the Exercise Notice and
the tender of the applicable aggregate Exercise Price, SIGCORP
shall be deemed to be the holder of record of the Indiana Shares
issuable upon such exercise, notwithstanding that the stock
transfer books of Indiana shall then be closed or that certificates
representing such Indiana Shares shall not then be actually
delivered to SIGCORP.
3. CONDITIONS TO CLOSING. The obligation of Indiana to
issue the Indiana Shares to SIGCORP hereunder is subject to the
conditions, which (other than the conditions described in clauses
(i), (iii) and (iv) below) may be waived by Indiana in its sole
discretion, that (i) all waiting periods, if any, under the HSR
Act, applicable to the issuance of the Indiana Shares hereunder
shall have expired or have been terminated; (ii) the Indiana
Shares, and any SIGCORP Shares which are issued in payment of the
Exercise Price, shall have been approved for listing on the NYSE
upon official notice of issuance; (iii) all consents, approvals,
orders or authorizations of or registrations, declarations or
filings with, any federal, state or local administrative agency or
commission or other federal, state or local Governmental Authority,
if any, required in connection with the issuance of the Indiana
Shares or the acquisition of such Indiana Shares by SIGCORP
hereunder shall have been obtained or made, as the case may be,
including, without limitation, the approval of, if applicable, the
issuance of the SIGCORP Shares to Indiana and the acquisition by
Indiana of the SIGCORP shares constituting the Exercise Price
hereunder, and approval of the SEC under the 1935 Act of the
acquisition of the Indiana Shares by SIGCORP; and (iv) no
preliminary or permanent injunction or other order by any court of
competent jurisdiction prohibiting or otherwise restraining such
issuance shall be in effect.
4. CLOSING. At any Closing, (a) Indiana will deliver to
SIGCORP or its designee a single certificate in definitive form
representing the number of Indiana Shares designated by SIGCORP in
its Exercise Notice, such certificate to be registered in the name
of SIGCORP and to bear the legend set forth in Section 12 and (b)
SIGCORP will deliver to Indiana the aggregate Exercise Price for
the Indiana Shares so designated and being purchased by (i) wire
transfer of immediately available funds or certified check or bank
check or (ii) subject to the condition in Section 1(b), a
certificate or certificates representing the number of SIGCORP
Shares being issued by SIGCORP in consideration thereof, as the
case may be. For the purposes of this Agreement, the number of
SIGCORP Shares to be delivered to Indiana shall be equal to the
quotient obtained by dividing (i) the product of (x) the number of
Indiana Shares with respect to which the Indiana Option is being
exercised and (y) the Exercise Price by (ii) the Fair Market Value
of the SIGCORP Shares at the date immediately preceding the date
the Exercise Notice is delivered to Indiana. Indiana shall pay all
expenses, and any and all United States federal, state and local
taxes and other charges that may be payable in connection with the
preparation, issue and delivery of stock certificates under this
Section 4 in the name of SIGCORP or such designee of SIGCORP as
shall have obtained appropriate regulatory approval.
5. REPRESENTATIONS AND WARRANTIES OF INDIANA. Indiana
represents and warrants to SIGCORP that (a) Indiana is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Indiana and has the corporate power
and authority to enter into this Agreement and to carry out its
obligations hereunder, (b) the execution and delivery of this
Agreement by Indiana and the consummation by Indiana of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Indiana and no other
corporate proceedings on the part of Indiana are necessary to
authorize this Agreement or any of the transactions contemplated
hereby, (c) this Agreement has been duly executed and delivered by
Indiana, constitutes a valid and binding obligation of Indiana and,
assuming this Agreement constitutes a valid and binding obligation
of SIGCORP, is enforceable against Indiana in accordance with its
terms, (d) Indiana has taken all necessary corporate or other
action (including the approval of the Board of Directors of
Indiana) to render inapplicable to this Agreement and the Merger
Agreement and the transactions contemplated hereby and thereby, the
provisions of the IBCL referred to in Section 4.15 of the Merger
Agreement and the Indiana Rights Agreement, (e) Indiana has taken
all necessary corporate action to authorize and reserve for
issuance and to permit it to issue, upon exercise of the Indiana
Option in accordance with its terms, and at all times from the date
hereof through the expiration of the Indiana Option will have
reserved, 5,927,524 authorized and unissued Indiana Shares, such
amount being subject to adjustment as provided in Section 11, all
of which, upon their issuance and delivery in accordance with the
terms of this Agreement, will be validly issued, fully paid and
nonassessable, (f) upon delivery of the Indiana Shares to SIGCORP
upon the exercise of the Indiana Option in accordance with its
terms, SIGCORP will acquire the Indiana shares free and clear of
all claims, liens, charges, encumbrances and security interests of
any nature whatsoever, (g) except as described in Section 4.4(b) or
(c) of the Merger Agreement and subject to the satisfaction of the
conditions set forth in Section 3 hereof, the execution and
delivery of this Agreement by Indiana does not, and the
consummation by Indiana of the transactions contemplated hereby
will not, violate, conflict with, or result in a breach of any
provision of, or constitute a default (with or without notice or
lapse of time, or both) under, or result in the termination of, or
accelerate the performance required by, or result in a right of
termination, cancellation, or acceleration of any obligation or the
loss of a material benefit under, or the creation of a lien,
pledge, security interest or other encumbrance on assets (any such
conflict, violation, default, right of termination, cancellation or
acceleration, loss or creation, a "Violation") of Indiana or any of
its subsidiaries, pursuant to, (A) any provision of the Amended and
Restated Articles of Incorporation or bylaws of Indiana, (B) any
provisions of any loan or credit agreement, note, mortgage,
indenture, lease, Indiana benefit plan or other agreement,
obligation, instrument, permit, concession, franchise, license or
(C) any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Indiana or its properties or assets, which
Violation, in the case of each of clauses (B) and (C), could
reasonably be expected to have an Indiana Material Adverse Effect,
(h) except as described in Section 4.4(c) of the Merger Agreement
or Section 1(b) or Section 3 hereof, the execution and delivery of
this Agreement by Indiana does not, and the performance of this
Agreement by Indiana will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any
Governmental Authority, (i) none of Indiana, any of its affiliates
or anyone acting on its or their behalf has issued, sold or offered
any security of Indiana to any person under circumstances that
would cause the issuance and sale of the Indiana Shares, as
contemplated by this Agreement, to be subject to the registration
requirements of the Securities Act as in effect on the date hereof
and, assuming the representations of SIGCORP contained in Section
6(h) hereof are true and correct, the issuance, sale and delivery
of the Indiana Shares hereunder would be exempt from the
registration and prospectus delivery requirements of the Securities
Act, as in effect on the date hereof (and Indiana shall not take
any action which would cause the issuance, sale and delivery of the
Indiana Shares hereunder not to be exempt from such requirements),
and (j) any SIGCORP Shares acquired pursuant to this Agreement will
be acquired for Indiana's own account, for investment purposes only
and will not be acquired by Indiana with a view to the public
distribution thereof in violation of any applicable provision of
the Securities Act.
6. REPRESENTATIONS AND WARRANTIES OF SIGCORP. SIGCORP
represents and warrants to Indiana that (a) SIGCORP is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Indiana and has the corporate power
and authority to enter into this Agreement and to carry out its
obligations hereunder, (b) the execution and delivery of this
Agreement by SIGCORP and the consummation by SIGCORP of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of SIGCORP and no other
corporate proceedings on the part of SIGCORP are necessary to
authorize this Agreement or any of the transactions contemplated
hereby, (c) this Agreement has been duly executed and delivered by
SIGCORP and constitutes a valid and binding obligation of SIGCORP,
and, assuming this Agreement constitutes a valid and binding
obligation of Indiana, is enforceable against SIGCORP in accordance
with its terms, (d) prior to any delivery of SIGCORP Shares in
consideration of the purchase of Indiana Shares pursuant hereto,
SIGCORP will have taken all necessary corporate action to authorize
for issuance and to permit it to issue such SIGCORP Shares all of
which, upon their issuance and delivery in accordance with the
terms of this Agreement, will be validly issued, fully paid and
nonassessable, and to render inapplicable to the receipt by Indiana
of the SIGCORP Shares the provisions of the IBCL referred to in
Section 5.15 of the Merger Agreement and the SIGCORP Rights
Agreement referred to in Section 5.15 of the Merger Agreement, (e)
upon any delivery of such SIGCORP Shares to Indiana in
consideration of the purchase of Indiana Shares pursuant hereto,
Indiana will acquire the SIGCORP Shares free and clear of all
claims, liens, charges, encumbrances and security interests of any
nature whatsoever, (f) except as described in Section 5.4(b) of the
Merger Agreement and subject to the satisfaction of the conditions
set forth in Section 3 hereof, the execution and delivery of this
Agreement by SIGCORP does not, and the consummation by SIGCORP of
the transactions contemplated hereby will not, violate, conflict
with, or result in the breach of any provision of, or constitute a
default (with or without notice or lapse of time, or both) under,
or result in any Violation by SIGCORP or any of its subsidiaries,
pursuant to (A) any provision of the Restated Articles of
Incorporation or bylaws of SIGCORP (B) any provisions of any loan
or credit agreement, note, mortgage, indenture, lease, SIGCORP
benefit plan or other agreement, obligation, instrument, permit,
concession franchise, license or (C) any judgment order, decree,
statute, law, ordinance, rule or regulation applicable to SIGCORP
or its properties or assets which Violation, in the case of each of
clauses (B) and (C), would have a SIGCORP Material Adverse Effect,
(g) except as described in Section 5.4(c) of the Merger Agreement
or Section 1(b) or Section 3 hereof, the execution and delivery of
this Agreement by SIGCORP does not, and the consummation by SIGCORP
of the transactions contemplated hereby will not, require any
consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority and (h) any Indiana
Shares acquired upon exercise of the Indiana Option will be
acquired for SIGCORP's own account, for investment purposes only
and will not be, and the Indiana Option is not being, acquired by
SIGCORP with a view to the public distribution thereof in violation
of any applicable provision of the Securities Act.
7. CERTAIN REPURCHASES.
(a) SIGCORP PUT. At the request of SIGCORP by written notice
at any time during which the Indiana Option is exercisable pursuant
to Section 2 (the "Repurchase Period"), Indiana (or any successor
entity thereof) shall repurchase from SIGCORP all or any portion of
the Indiana Option, at the price set forth in subparagraph (i)
below, or, at the request of SIGCORP by written notice at any time
prior to the later of (I) June 11, 2000 (provided that such date
shall be extended to December 31, 2000 under the circumstances
where the date after which either party may terminate the Merger
Agreement pursuant to Section 9.1(b) of the Merger Agreement has
been extended to December 31, 2000) or (II) 180 days following any
termination of the Merger Agreement upon or during the continuance
of the Trigger Event, Indiana (or any successor entity thereof)
shall repurchase from SIGCORP all or any portion of the Indiana
Shares purchased by SIGCORP pursuant to the Indiana Option, at the
price set forth in subparagraph (ii) below:
(i) the difference between (x) the "Market/Offer Price"
for shares of Indiana Common Stock as of the date SIGCORP
gives notice of its intent to exercise its rights under this
Section 7 (defined as the higher of (A) the price per share
offered as of such date pursuant to any tender or exchange
offer or other offer with respect to a Business Combination
which was made prior to such date and not terminated or
withdrawn as of such date (the "Offer Price") and (B) the Fair
Market Value of Indiana Common Stock as of such date (the
"Market Price")) and the (y) Exercise Price, multiplied by the
number of Indiana Shares purchasable pursuant to the Indiana
Option (or portion thereof with respect to which SIGCORP is
exercising its rights under this Section 7), but only if the
Market/Offer Price is greater than the Exercise Price;
(ii) the product of (x) the sum of (A) the Exercise Price
paid by SIGCORP per Indiana Share acquired pursuant to the
Indiana Option and (B) the difference between the Market/Offer
Price and the Exercise Price, but only if the Market/Offer
Price is greater than the Exercise Price, and (y) the number
of Indiana Shares so to be repurchased pursuant to this
Section 7. For purposes of this clause (ii), the Offer Price
shall be the highest price per share offered pursuant to a
tender or exchange offer or other Business Combination offer
during the Repurchase Period prior to the delivery by SIGCORP
of a notice of repurchase.
(b) REDELIVERY OF SIGCORP SHARES. If SIGCORP elected to
purchase Indiana Shares pursuant to the exercise of the Indiana
Option by the issuance and delivery of SIGCORP Shares, then Indiana
shall, if so requested by SIGCORP, in fulfillment of its obligation
pursuant to clause (A) of Section 7(a)(ii)(x) (that is, with
respect to the Exercise Price only and without limitation to its
obligation to pay additional consideration under clause (B) of
Section 7(a)(ii)(x)), redeliver the certificate for such SIGCORP
Shares to SIGCORP free and clear of all liens, claims, damages,
charges and encumbrances of any kind or nature whatsoever,
provided, however, that if less than all of the Indiana Shares
purchased by SIGCORP pursuant to the Indiana Option are to be
repurchased pursuant to this Section 7, then SIGCORP shall issue to
Indiana a new certificate representing those SIGCORP Shares which
are not due to be redelivered to SIGCORP pursuant to this Section
7 as they constituted payment of the Exercise Price for the Indiana
Shares not being repurchased.
(c) PAYMENT AND REDELIVERY OF INDIANA OPTION OR SHARES. In
the event SIGCORP exercises its rights under this Section 7,
Indiana shall, within 10 business days thereafter, pay the required
amount to SIGCORP in immediately available funds and SIGCORP shall
surrender to Indiana the Indiana Option or the certificates
evidencing the Indiana Shares purchased by SIGCORP pursuant
thereto, and SIGCORP shall warrant that it owns the Indiana Option
or such shares and that the Indiana Option or such shares are then
free and clear of all liens, claims, damages, charges and
encumbrances of any kind or nature whatsoever.
(d) SIGCORP CALL. If SIGCORP has elected to purchase Indiana
Shares pursuant to the exercise of the Indiana Option by the
issuance and delivery of SIGCORP Shares, notwithstanding that
SIGCORP may no longer hold any such Indiana Shares or that SIGCORP
elects not to exercise its other rights under this Section 7,
SIGCORP may require, at any time or from time to time prior to June
11, 2000 (provided that such date shall be extended to December 31,
2000 under the circumstances where the date after which either
party may terminate the Merger Agreement pursuant to Section 9.1(b)
of the Merger Agreement has been extended to December 31, 2000),
Indiana to sell to SIGCORP any such SIGCORP Shares at the price
attributed to such SIGCORP Shares pursuant to Section 4 plus
interest at the rate of 7% per annum on such amount from the
Closing Date relating to the exchange of such SIGCORP Shares
pursuant to Section 4 to the closing date under this Section 7(d)
less any dividends on such SIGCORP Shares paid during such period
or declared and payable to stockholders of record on a date during
such period.
(e) REPURCHASE PRICE REDUCED AT SIGCORP'S OPTION. In the
event the repurchase price specified in Section 7(a) would subject
the purchase of the Indiana Option purchased by SIGCORP pursuant to
the Indiana Option to a vote of the shareholders of Indiana
pursuant to applicable law or Indiana's Amended and Restated
Articles of Incorporation, then SIGCORP may, at its election,
reduce the repurchase amount which would permit such repurchase
without the necessity for such a shareholder vote.
8. VOTING OF SHARES. Following the date hereof and prior to
the fifth anniversary of the date hereof (the "Expiration Date"),
each party shall vote any shares of capital stock of the other
party acquired by such party pursuant to this Agreement
("Restricted Shares"), including any SIGCORP Shares issued pursuant
to Section 1(b) or otherwise beneficially owned (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) by such party on each matter
submitted to a vote of shareholders of such other party for and
against such matter in the same proportion as the vote of all other
shareholders of such other party are voted (whether by proxy or
otherwise) for and against such matter.
9. RESTRICTIONS ON TRANSFER.
(a) RESTRICTIONS ON TRANSFER. Prior to the Expiration Date,
neither party shall, directly or indirectly, by operation of law or
otherwise, sell, assign, pledge, or otherwise dispose of or
transfer any Restricted Shares beneficially owned by such party,
other than (i) pursuant to Section 7, or (ii) in accordance with
Section 9(b) or Section 10.
(b) PERMITTED SALES. Following the termination of the Merger
Agreement, a party shall be permitted to sell any Restricted Shares
beneficially owned by it if such sale is made pursuant to a tender
or exchange offer that has been approved or recommended, or
otherwise determined to be fair to and in the best interests of the
shareholders of the other party, by a majority of the members of
the Board of Directors of such other party, which majority shall
include a majority of directors who were directors prior to the
announcement of such tender or exchange offer.
10. REGISTRATION RIGHTS. Following the termination of the
Merger Agreement, each party hereto (a "Designated Holder") may by
written notice (the "Registration Notice") to the other party (the
"Registrant") request the Registrant to register under the
Securities Act all or any part of the Restricted Shares
beneficially owned by such Designated Holder (the "Registrable
Securities") pursuant to a bona fide firm commitment underwritten
public offering in which the Designated Holder and the underwriters
shall effect as wide a distribution of such Registrable Securities
as is reasonably practicable and shall use their best efforts to
prevent any person (including any Group (as used in Rule 13d-5
under the Exchange Act)) and its affiliates from purchasing through
such offering Restricted Shares representing more than 1% of the
outstanding shares of common stock of the Registrant on a fully
diluted basis (a "Permitted Offering"). The Registration Notice
shall include a certificate executed by the Designated Holder and
its proposed managing underwriter, which underwriter shall be an
investment banking firm of nationally recognized standing (the
"Manager"), stating that (i) they have a good faith intention to
commence promptly a Permitted Offering and (ii) the Manager in good
faith believes that, based on the then prevailing market
conditions, it will be able to sell the Registrable Securities at
a per share price equal to at least 80% of the then Fair Market
Value of such shares. The Registrant (and/or any person designated
by the Registrant) shall thereupon have the option exercisable by
written notice delivered to the Designated Holder within 10
business days after the receipt of the Registration Notice,
irrevocably to agree to purchase all or any part of the Registrable
Securities proposed to be so sold for cash at a price (the "Option
Price") equal to the product of (i) the number of Registrable
Securities to be so purchased by the Registrant and (ii) the then
Fair Market Value of such shares. Any such purchase of Registrable
Securities by the Registrant (or its designee) hereunder shall take
place at a closing to be held at the principal executive offices of
the Registrant or at the offices of its counsel at any reasonable
date and time designated by the Registrant and/or such designee in
such notice within 20 business days after delivery of such notice.
Any payment for the shares to be purchased shall be made by
delivery at the time of such closing of the Option Price in
immediately available funds.
If the Registrant does not elect to exercise its option
pursuant to this Section 10 with respect to all Registrable
Securities, it shall use its best efforts to effect, as promptly as
practicable, the registration under the Securities act of the
unpurchased Registrable Securities proposed to be so sold;
provided, however, that (i) neither party shall be entitled to more
than an aggregate of two effective registration statements
hereunder and (ii) the Registrant will not be required to file any
such registration statement during any period of time (not to
exceed 40 days after such request in the case of clause (A) below
or 90 days in the case of clauses (B) and (C) below) when (A) the
Registrant is in possession of material non-public information
which it reasonably believes would be detrimental to be disclosed
at such time and, in the opinion of counsel to the Registrant, such
information would have to be disclosed if a registration statement
were filed at that time; (B) the Registrant is required under the
Securities Act to include audited financial statements for any
period in such registration statement and such financial statements
are not yet available for inclusion in such registration statement;
or (C) the Registrant determines, in its reasonable judgment, that
such registration would interfere with any financing, acquisition
or other material transaction involving the Registrant or any of
its affiliates. The Registrant shall use its reasonable best
efforts to cause any Registrable Securities registered pursuant to
this Section 10 to be qualified for sale under the securities or
Blue-Sky laws of such jurisdictions as the Designated Holder may
reasonably request and shall continue such registration or
qualification in effect in such jurisdiction; provided, however,
that the Registrant shall not be required to qualify to do business
in, or to consent to general service of process in, any
jurisdiction by reason of this provision.
The registration rights set forth in this Section 10 are
subject to the condition that the Designated Holder shall provide
the Registrant with such information with respect to such holder's
Registrable Securities, the plans for the distribution thereof, and
such other information with respect to such holder as, in the
reasonable judgment of counsel for the Registrant, is necessary to
enable the Registrant to include in such registration statement all
material facts required to be disclosed with respect to a
registration thereunder.
A registration effected under this Section 10 shall be
effected at the Registrant's expense, except for underwriting
discounts and commissions and the fees and the expenses of counsel
to the Designated Holder, and the Registrant shall provide to the
underwriters such documentation (including certificates, opinions
of counsel and "comfort" letters from auditors) as are customary in
connection with underwritten public offerings as such underwriters
may reasonably require. In connection with any such registration,
the parties agree (i) to indemnify each other and the underwriters
in the customary manner, (ii) to enter into an underwriting
agreement in form and substance customary for transactions of such
type with the Manager and the other underwriters participating in
such offering and (iii) to take all further actions which shall be
reasonably necessary to effect such registration and sale
(including, if the Manager deems it necessary, participating in
road-show presentations).
The Registrant shall be entitled to include (at its expense)
additional shares of its common stock in a registration effected
pursuant to this Section 10 only if and to the extent the Manager
determines that such inclusion will not adversely affect the
prospects for success of such offering.
11. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. Without
limitation to any restriction on Indiana contained in this
Agreement or in the Merger Agreement, in the event of any change in
Indiana Common Stock by reason of stock dividends, splitups,
mergers, (other than the Merger), recapitalizations, combinations,
exchange of shares or the like, the type and number of shares or
securities subject to the Indiana Option, and the purchase price
per share provided in Section 1, shall be adjusted appropriately to
restore to SIGCORP its rights hereunder, including the right to
purchase from Indiana (or its successors) shares of Indiana Common
Stock representing 19.9% of the outstanding Indiana Common Stock
for the aggregate Exercise Price calculated as of the date of this
Agreement as provided in Section 1.
12. RESTRICTIVE LEGENDS. Each certificate representing
shares of Indiana Common Stock issued to SIGCORP hereunder, and
SIGCORP Shares, if any, delivered to Indiana at a Closing, shall
include a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT
TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK
OPTION AGREEMENT, DATED AS OF JUNE 11, 1999, A COPY OF WHICH MAY BE
OBTAINED FROM THE ISSUER UPON REQUEST.
It is understood and agreed that: (i) the reference to the resale
restrictions of the Securities Act in the above legend shall be
removed by delivery of substitute certificate(s) without such
reference if SIGCORP or Indiana, as the case may be, shall have
delivered to the other party a copy of a letter from the staff of
the Securities and Exchange Commission, or an opinion of counsel,
in form and substance satisfactory to the other party, to the
effect that such legend is not required for purposes of the
Securities Act; (ii) the reference to the provisions of this
Agreement in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if the shares have
been sold or transferred in compliance with the provisions of this
Agreement and in circumstances that do not require the retention of
such reference; and (iii) the legend shall be removed in its
entirety if the conditions in the preceding clauses (i) and (ii)
are both satisfied. In addition, such certificates shall bear any
other legend as may be required by law. Certificates representing
shares sold in a registered public offering pursuant to Section 10
shall not be required to bear the legend set forth in this Section
12.
13. BINDING EFFECT; NO ASSIGNMENT; NO THIRD PARTY
BENEFICIARIES. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and permitted assigns. Except as expressly provided for in this
Agreement, neither this Agreement nor the rights or the obligations
of either party hereto are assignable, except by operation of law,
or with the written consent of the other party. Nothing contained
in this Agreement, expressed or implied, is intended to confer upon
any person other than the parties hereto and their respective
permitted assigns any rights or remedies of any nature whatsoever
by reason of this Agreement. Any Restricted Shares sold by a party
in compliance with the provisions of Section 10 shall, upon
consummation of such sale, be free of the restrictions imposed with
respect to such shares by this Agreement, unless and until such
party shall repurchase or otherwise become the beneficial owner of
such shares, and any transferee of such shares shall not be
entitled to the registration rights of such party.
14. SPECIFIC PERFORMANCE. The parties recognize and agree
that if for any reason any of the provisions of this Agreement are
not performed in accordance with their specific terms or are
otherwise breached, immediate and irreparable harm or injury would
be caused for which money damages would not be an adequate remedy.
Accordingly, each party agrees that, in addition to other remedies,
the other party shall be entitled to an injunction restraining any
violation or threatened violation of the provisions of this
Agreement. In the event that any action should be brought in
equity to enforce the provisions of the Agreement, neither party
will allege, and each party hereby waives the defense, that there
is adequate remedy at law.
15. ENTIRE AGREEMENT. This Agreement, the Confidentiality
Agreement and the Merger Agreement (including the exhibits and
schedules thereto) constitute the entire agreement among the
parties with respect to the subject matter hereof and thereof and
supersede all other prior agreements and understandings, both
written and oral, among the parties or any of them with respect to
the subject matter hereof and thereof.
16. FURTHER ASSURANCES. Each party will execute and deliver
all such further documents and instruments and take all such
further action as may be necessary in order to consummate the
transactions contemplated hereby.
17. VALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of the other provisions of this Agreement, which
shall remain in full force and effect. In the event any court or
other competent authority holds any provisions of this Agreement to
be null, void or unenforceable, the parties hereto shall negotiate
in good faith the execution and delivery of an amendment to this
Agreement in order, as nearly as possible, to effectuate, to the
extent permitted by law, the intent of the parties hereto with
respect to such provision and the economic effects thereof. If for
any reason any such court or regulatory agency determines that
SIGCORP is not permitted to acquire, or Indiana is not permitted to
repurchase pursuant to Section 7, the full number of shares of
Indiana Common Stock provided in Section 1 hereof (as the same may
be adjusted), it is the express intention of Indiana to allow
SIGCORP to acquire or to require Indiana to repurchase such lesser
number of shares as may be permissible, without any amendment or
modification hereof. Each party agrees that, should any court or
other competent authority hold any provision of this Agreement or
part hereof to be null, void or unenforceable, or order any party
to take any action inconsistent herewith, or not take any action
required herein, the other party shall not be entitled to specific
performance of such provision or part hereof or to any other
remedy, including but not limited to money damages, for breach
hereof or of any other provision of this Agreement or part hereof
as the result of such holding or order.
18. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if (i) delivered
personally, or (ii) sent by reputable overnight courier service, or
(iii) telecopied (which is confirmed), or (iv) five days after
being mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
A. If to Indiana Energy, Inc., to:
Indiana Energy, Inc.
1630 North Meridian Street
Indianapolis, Indiana 46202
Attention: Niel C. Ellerbrook
Telephone: (317) 321-0510
Telecopy: (317) 321-0498
and a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Attention: James M. Cotter, Esq.
Telephone: (212) 455-2000
Telecopy: (212) 455-2502
and a copy to:
Sommer & Barnard, PC
111 Monument circle
4000 Bank One Tower
Indianapolis, Indiana 46204
Attention: James A. Strain, Esq.
Telephone: (317) 630-4000
Telecopy: (317) 236-9802
B. If to SIGCORP, INC., to:
New York, New York 10004-1490
Attention: Stephen R. Rusmisel, Esq.
Telephone: (212) 858-1442
Telecopy: (212) 858-1500
19. GOVERNING LAW; CHOICE OF FORUM. This Agreement shall be
governed by and construed in accordance with the laws of the State
of Indiana applicable to agreements made and to be performed
entirely within such State and without regard to its choice of law
principles. Each of the parties hereto (a) consents to submit
itself to the personal jurisdiction of any federal court located in
the State of Indiana or any Indiana state court in the event any
dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (b) agrees that it will not attempt
to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (c) agrees that it will
not bring any action relating to this Agreement or any of the
transactions contemplated by this Agreement in any court other than
a federal court sitting in the State of Indiana or an Indiana state
court.
20. INTERPRETATION. When a reference is made in this
Agreement to a Section such reference shall be to a Section of this
Agreement unless otherwise indicated. Whenever the words
"include", "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without
limitation". The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings set forth in the Merger Agreement.
21. COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original, but
both of which, taken together, shall constitute one and the same
instrument.
22. EXPENSES. Except as otherwise expressly provided herein
or in the Merger Agreement, all costs and expenses incurred in
connection with the transactions contemplated by this Agreement
shall be paid by the party incurring such expenses.
23. AMENDMENTS; WAIVER. This Agreement may be amended by the
parties hereto and the terms and conditions hereof may be waived
only by an instrument in writing signed on behalf of each of the
parties hereto, or, in the case of a waiver, by an instrument
signed on behalf of the party waiving compliance.
24. EXTENSION OF TIME PERIODS. The time periods for exercise
of certain rights under Sections 2 and 7 shall be extended: (i) to
the extent necessary to obtain all regulatory approvals for the
exercise of such rights, and for the expiration of all statutory
waiting periods; and (ii) to the extent necessary to avoid any
liability under Section 16(b) of the Exchange Act by reason of such
exercise.
25. REPLACEMENT OF INDIANA OPTION. Upon receipt by Indiana
of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Agreement, and (in the case of
loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Indiana will execute and deliver a new
Agreement of like tenor and date.
* * *
[remainder of page intentionally left blank] IN
WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective duly authorized officers as of
the date first above written.
INDIANA ENERGY, INC.
By: _______________________________
Name: Niel C. Ellerbrook
Title: President and Chief
Executive Officer
SIGCORP, INC.
By: ______________________________
Name: Andrew E. Goebel
Title: President and Chief
Operating Officer
INDIANA ENGERGY SIGCORP
FOR IMMEDIATE RELEASE
INDIANA ENERGY AND SIGCORP AGREE
TO $1.9 BILLION MERGER OF EQUALS
TO FORM VECTREN CORPORATION
INDIANAPOLIS and EVANSVILLE, Ind.--(BUSINESS WIRE)-- June 14,
1999--Indiana Energy Inc. (NYSE:IEI - news) and SIGCORP Inc.
(NYSE:SIG - news) today announced that they have signed a
definitive agreement to combine into a new holding company, to be
named Vectren Corp. Under the agreement, SIGCORP shareholders will
receive one and one-third shares of the new
company's common stock for each share of SIGCORP they currently
hold. Indiana Energy
shareholders will receive one share of the new company's common
stock for each share of Indiana
Energy they currently hold.
The tax-free stock-for-stock transaction would create a
combined company with a total enterprise value of approximately
$1.9 billion ($1.4 billion in equity; $0.5 billion in debt and
subsidiary preferred stock) based upon Indiana Energy's closing
stock price of $22.563 and SIGCORP's closing stock price of $29.50
per share on Friday, June 11, 1999. The transaction, which has been
approved by the boards of directors of both companies, is expected
to be accounted for as a pooling of interests and is anticipated to
be immediately accretive excluding one-time charges related to
combining the companies.
The merger combines two Indiana companies with strong balance
sheets, low-cost operations, growing service areas, diversified
product portfolios, and track records of delivering superior
shareholder value. Through its utility subsidiaries, Vectren will
offer gas and/or electricity to more than 650,000 customers in
adjoining service areas that cover nearly two-thirds of Indiana.
Vectren's non-utility subsidiaries will offer energy-related
products and services, fiber-optic based telecommunication
services, materials management, locating and trenching services and
energy marketing to customers throughout the surrounding region.
Niel C. Ellerbrook, Indiana Energy's president and chief
executive officer, said, "The energy industry is converging and
successful participants will be able to offer a broad array of
products and services to customers. With this combination, our
asset mix will be split evenly between gas and electric, balancing
our earnings while positioning the combined company to deliver
energy in whatever form our customers need.
"We have a lot in common,'' Ellerbrook continued. "We are a
combination of already strong companies, with histories of
delivering superior shareholder value. Our combined goal is to grow
earnings per share on average by 10% a year and for earnings from
non-regulated operations to contribute over 25% of the consolidated
total by 2003. We also expect each company's long track record of
increasing dividends to continue. SIGCORP and Indiana Energy each
boast an entrepreneurial culture, an outstanding work force, firm
Indiana roots, and a drive to aggressively pursue the opportunities
presented by the changing energy industry. Together, we can capture
those opportunities, thereby creating enhanced value for our
shareholders.''
Andrew E. Goebel, SIGCORP's president and chief operating
officer, said, "Simply put, this
combination makes sense. It's a marriage of strengths. SIGCORP has
the lowest average retail electric rate in the state and each
company has among the lowest gas rates. Furthermore, over the last
several years, our customer growth rates have exceeded the national
average.
-More-
"We have known Indiana Energy for years and, in fact, are
partners in Energy Systems Group, LLC, a joint venture formed in
1997 that provides energy-related performance contracting services.
As one company, we will serve 650,000 Indiana customers, providing
superior customer service and some of the most competitive energy
prices in the country. This combination will enable us to
cross-sell a greater array of products and services to our existing
and future customer base and to make the necessary investment in
technology to continue delivering first-class customer service and
other business applications in an increasingly competitive
environment. We believe that the combination of these two Indiana
companies will strengthen our commitment to our communities and
provide customer benefits that further enhance Indiana's economic
development efforts. We intend to be a focused, high-quality,
high-service regional player in our regulated businesses and to
seek and develop new revenue opportunities in non-regulated
businesses,'' Goebel concluded.
The companies expect to realize net merger savings of nearly
$200 million over 10 years from the elimination of duplicate
corporate and administrative programs and greater efficiencies in
operations, business processes and purchasing. Position reductions
due to the merger are expected to be less than 7 percent of the
consolidated workforce, or about 120 positions out of a total
workforce of approximately 1,850. Both companies will seek
alternatives to minimize the impact on current personnel. Available
options would include a combination of normal attrition, retraining
and retirements, as well as selective hiring and the addition of
positions in growing business areas. All union contracts will be
honored.
Following the merger, Niel Ellerbrook will be chairman and
chief executive officer of the new company and Andrew Goebel will
be president and chief operating officer. Indiana Energy's
chairman, L.A. Ferger, and SIGCORP's chairman and CEO, Ronald G.
Reherman, both will retire upon completion of the merger but will
serve on the board of directors of the new company. Vectren's board
will consist of 16 directors; in addition to Ferger, Ellerbrook,
Reherman and Goebel, Indiana Energy and SIGCORP each will designate
six directors.
Indiana Energy's and SIGCORP's utility companies will remain
separate subsidiaries of Vectren and will continue to operate under
the names Indiana Gas Company Inc. and Southern Indiana Gas and
Electric Company (SIGECO), respectively. The companies will retain
and build upon their existing brand identities and customer
loyalties in their respective service territories. Under the merger
agreement, the corporate headquarters of Vectren and of SIGECO will
be in Evansville. Indiana Gas Co. will continue to be headquartered
in Indianapolis, where it has been for over 50 years.
Vectren's board of directors will set the company's dividend
policy. However, the companies anticipate that the dividend, on an
equivalent share basis, on the combined company's stock would be
set at or above the current dividend levels at both companies.
The merger is conditioned, among other things, upon the
approvals of the shareholders of each company and customary
regulatory approvals. The companies anticipate that the regulatory
processes can be completed in six to nine months.
-More-
Merrill Lynch & Co. and Credit Suisse First Boston acted as
financial advisors to Indiana Energy. Goldman, Sachs & Co. acted
as financial advisor to SIGCORP.
Indiana Energy Inc. is the holding company of Indiana Gas Co.
Inc., IEI Services, LLC and IEI Investments Inc. Indiana Gas
provides natural gas distribution to nearly 500,000 customers in
central Indiana. Information about Indiana Energy Inc. is located
on the World Wide Web at
http://indiana-energy.com.
SIGCORP Inc. is an investor-owned energy and
telecommunications company that provides electric and gas service
to southwest Indiana and energy and telecommunication products and
services throughout the Midwest and elsewhere. SIGCORP companies
operate in four business segments: Utility Group, Energy Services
Group, Telecommunications Group and Complementary Ventures Group.
Information about SIGCORP Inc. is located on the World Wide Web at
http://sigcorpinc.com.
This press release contains certain statements about future
business operations, financial performance
and other issues which are forward looking. Actual results could
differ materially from those that have been projected. Additional
detailed information concerning a number of factors that could
cause actual results to differ materially from the information that
has been provided will be readily available on the forms 8K to be
filed by Indiana Energy Inc. and SIGCORP Inc. with the SEC.
Contacts for Indiana Energy Contacts for
SIGCORP:
Media & Investors Media
Jeffrey W. Whiteside Mary Beth Reese
Director of Investor Relations and Manager,
Public Information
Corporate Communications (812) 464-4525
(317) 321-0588
Investors:
Timothy L. Burke
Secretary and Treasurer
(812) 465-4136
