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Exhibit 4.47
SUPPLEMENTAL AGREEMENT
SUPPLEMENTAL AGREEMENT (this "Supplemental Agreement"), dated as of
November 1, 2000, among New NiSource Inc., a Delaware corporation ("New
NiSource"), NiSource Inc., an Indiana corporation formerly named NIPSCO
Industries, Inc. ("NiSource"), The Chase Manhattan Bank, a New York corporation,
as purchase contract agent ("Agent") under the Purchase Contract Agreement (as
defined below), and Bank One Trust Company, National Association (successor in
interest to The First National Bank of Chicago), as collateral agent
("Collateral Agent") and as securities intermediary ("Securities Intermediary")
under the Pledge Agreement (as defined below). All capitalized terms used herein
which are defined in the Purchase Contract Agreement shall have the meanings
given therein.
WITNESSETH:
WHEREAS, NiSource and the Agent have heretofore executed the Purchase
Contract Agreement, dated as of February 16, 1999 (the "Purchase Contract
Agreement"), to provide for the issuance of Securities; and
WHEREAS, under the Purchase Contract included in each Security, the
Holder is obligated to purchase from NiSource, for an amount equal to $50, a
number of shares of Common Stock equal to the Settlement Rate; and
WHEREAS, NiSource, the Collateral Agent, the Securities Intermediary
and the Agent have heretofore executed the Pledge Agreement, dated as of
February 16, 1999 (the "Pledge Agreement"), to secure the Holders' obligations
to purchase such shares of NiSource Common Stock under the Purchase Contracts;
and
WHEREAS, New NiSource, NiSource, Columbia Energy Group, a Delaware
corporation ("Columbia"), Parent Acquisition Corp., an Indiana corporation,
Company Acquisition Corp., a Delaware corporation, and NiSource Finance Corp.,
an Indiana corporation, have entered into the Agreement and Plan of Merger,
dated as of February 27, 2000, as amended and restated as of March 31, 2000 (the
"Merger Agreement"), pursuant to which, among other things, NiSource and
Columbia will become wholly owned subsidiaries of New NiSource, and the former
stockholders of NiSource and certain of the former stockholders of Columbia will
become stockholders of New NiSource (the "Acquisition Merger"); and
WHEREAS, immediately following the Acquisition Merger, NiSource will
merge with and into New NiSource, with New NiSource being the surviving
corporation (the "Subsequent Merger"); and
WHEREAS, in connection with the Acquisition Merger and the Subsequent
Merger, New NiSource will change its name to "NiSource Inc." and will assume all
of the obligations and liabilities of NiSource, including all obligations and
liabilities of NiSource under the Purchase
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Contract Agreement, the Purchase Contracts and the Pledge Agreement; and
WHEREAS, pursuant to Section 9.1 of the Purchase Contract Agreement,
NiSource desires that New NiSource assume, and NewNiSource desires to assume,
all of NiSource's covenants, obligations and liabilities under the Purchase
Contract Agreement, the Purchase Contracts and the Pledge Agreement; and
WHEREAS, pursuant to Section 8.1(1) of the Purchase Contract Agreement,
NiSource desires that this Supplemental Agreement evidence the succession of New
NiSource to NiSource, and the assumption by New NiSource of the covenants,
obligations and liabilities of NiSource, under the Purchase Contract Agreement
and the Certificates; and
WHEREAS, pursuant to Section 10.1(1) of the Pledge Agreement, NiSource
desires that this Supplemental Agreement evidence the succession of New NiSource
to NiSource, and the assumption by New NiSource of the covenants, obligations
and liabilities of NiSource, under the Pledge Agreement; and
WHEREAS, pursuant to Section 5.6(b) of the Purchase Contract Agreement,
in the event of a merger of NiSource into another Person, the Settlement Rate
will be adjusted to provide that each Holder of Securities will receive on the
Purchase Contract Settlement Date the kind and amount of securities receivable
in such merger by holders of the common stock of NiSource; and
WHEREAS, all things necessary to make this Supplemental Agreement a
valid, binding and legal instrument according to its terms have been done.
NOW, THEREFORE, for and in consideration of the premises, it is
mutually covenanted and agreed as follows:
1. Assumption of Covenants, Obligations and Liabilities. New NiSource
hereby expressly assumes all of the covenants, obligations and liabilities of
NiSource under the Purchase Contract Agreement, the Purchase Contracts, the
Certificates and the Pledge Agreement. Pursuant to Section 9.2 of the Purchase
Contract Agreement, New NiSource shall succeed to and be substituted for
NiSource with the same effect as if New NiSource had been originally named as
the "Company" in the Purchase Contract Agreement, the Purchase Contracts, the
Certificates and the Pledge Agreement.
2. Substitution of Common Stock. References in the Purchase Contract
Agreement, the Pledge Agreement, the Purchase Contracts and the Certificates to
"Common Stock" shall mean shares of the common stock, par value $.01 per share,
of New NiSource.
3. Adjustment of the Settlement Rate. New NiSource hereby agrees that
the Holders of each Outstanding Security shall have the rights provided in
Section 5.6(b) of the Purchase Contract Agreement. Pursuant to Section 5.6(b) of
the Purchase Contract Agreement, the Settlement Rate will be adjusted to provide
that each Holder of Securities shall receive on the Purchase Contract Settlement
Date with respect to each Purchase Contract held by such Holder
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shares of common stock of New NiSource on a one-for-one basis for the shares of
NiSource such Holder would have received had the Acquisition Merger and
Subsequent Merger not taken place. Except for this one- for-one substitution of
the common stock of New NiSource for the common shares of NiSource, there shall
be no other adjustment to the Settlement Rate. The Settlement Rate shall
continue to be calculated in accordance with Section 5.1 of the Purchase
Contract Agreement.
4. Notice. New NiSource hereby agrees to provide to the Holders of the
Securities pursuant to Section 5.7(a)(ii) of the Purchase Contract Agreement
within ten Business Days after consummation of the Acquisition Merger written
notice of the Acquisition Merger and a statement setting forth any adjustments
to the Settlement Rate.
5. Rights as Successor. After the execution and delivery of this
Supplemental Agreement, any act or proceeding required by the Purchase Contract
Agreement, the Purchase Contracts, the Certificates or the Pledge Agreement to
be done or performed by any board or officer of NiSource may be done or
performed with like force and effect by the comparable board or officer of New
NiSource.
6. Agreements Ratified. The Purchase Contract Agreement, the Purchase
Contracts, the Certificates and the Pledge Agreement, each supplemented as
hereinabove set forth, are in all respects ratified and confirmed, and the terms
and conditions thereof, supplemented as hereinabove set forth, shall be and
remain in full force and effect.
7. Effectiveness. This Supplemental Agreement shall become effective as
of the date first above written upon the execution and delivery hereof by each
of the parties hereto.
8. Choice of Law. This Supplemental Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of laws.
9. Counterparts. This Supplemental Agreement may be executed in one or
more counterparts, each of which shall constitute an original but all of which,
when taken together, shall constitute only one legal instrument.
10. Agent. The Agent shall not be responsible in any manner whatsoever
for or with respect to any of the recitals or statements contained herein, all
of which recitals or statements are made solely by NiSource and by New NiSource,
or for or with respect to the validity or sufficiency of this Supplemental
Agreement or any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Agreement to be executed by their respective representatives thereunto duly
authorized.
NISOURCE INC.
By /s/ Xxxx X. Xxxxx
Its Chief Executive Officer
NEW NISOURCE INC.
By /s/ Xxxx X. Xxxxx
Its Chief Executive Officer
THE CHASE MANHATTAN BANK, as Purchase
Contract Agent
By /s/ Xxxxxxx Xxxxxxxx
Its Assistant Vice President
BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION, as Collateral Agent
By /s/ Xxxxx Xxxxx
Its Authorized Officer
BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION, as Securities Intermediary
By /s/ Xxxxx Xxxxx
Its Authorized Officer
