NISOURCE INC. 21,100,000 Shares of Common Stock TERMS AGREEMENT
EXHIBIT 1.1
EXECUTION VERSION
NISOURCE INC.
21,100,000 Shares of Common Stock
September 8, 2010
To:
|
Credit Suisse Securities (USA) LLC | |
| Barclays Capital Inc. | ||
| Citigroup Global Markets Inc. | ||
| X.X. Xxxxxx Securities LLC |
As Representatives of the several Underwriters
c/o
|
Credit Suisse Securities (USA) LLC | |
| Eleven Madison Avenue — 0xx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
NiSource Inc., a Delaware corporation (“NiSource” or the “Company”), and Credit Suisse
Securities (USA) LLC, in its capacity as agent for the Forward Purchaser (defined below) (the
“Forward Seller”), at the request of the Company in connection with the Forward Agreement (defined
below), subject to the terms and conditions set forth in this Agreement (including the provisions
of the Underwriting Agreement), confirm their respective agreements with the several Underwriters
listed in the table below (the “Underwriters”), for whom you are acting as representatives (the
“Representatives”), with respect to (a) the sale by the Forward Seller, and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of shares of common
stock, par value $0.01 per share (the “Common Stock”), of the Company, set forth in the table below
under the heading “Number of Borrowed Base Shares to be Purchased and Sold” (subject to reduction
for any Standby Base Shares (defined below) (the “Borrowed Base Shares”) and (b) the purchase by
the Underwriters, acting severally and not jointly, and the sale by the Company of any shares of
Common Stock issued and sold by the Company in connection therewith pursuant to the paragraph
captioned “Issuance and Sale of Standby Base and Option Shares by the Company” below (the “Standby
Base Shares” and, collectively with the Borrowed Base Shares, the “Base Shares”).
In addition, to the extent that the option discussed below under the caption “Over-allotment
Option” is exercised, the Company and the Forward Seller, at the request of the Company in
connection with the Forward Agreement, subject to the terms and conditions set forth in this
Agreement (including the provisions of the Underwriting Agreement), confirm their respective
agreements with the Underwriters, for whom you are acting as Representatives, with respect to (a)
the sale by the Forward Seller, and the purchase by the Underwriters, acting severally and not
jointly, of up to the respective numbers of shares of Common Stock set forth in the table below
under the heading “Maximum Number of Borrowed Option Shares to be Purchased and Sold” (subject to
reduction for any shares of Common Stock issued and sold by the Company in connection therewith
under the paragraph captioned “Issuance and Sale of
Standby Base and Option Shares by the Company” below) (the “Borrowed Option Shares”), and (b)
the purchase by the Underwriters, acting severally and not jointly, and the sale by the Company of
any shares of Common Stock pursuant to the paragraph captioned “Issuance and Sale of Standby Base
and Option Shares by the Company” below (the “Standby Option Shares” and, collectively with the
Borrowed Option Shares, the “Option Shares”).
As used herein, “Shares” means, collectively, the Base Shares and the Option Shares; “Company
Shares” means, collectively, the Standby Base Shares and the Standby Option Shares; “Forward
Agreement” means the letter agreements dated the date hereof and the date the option discussed
below under the caption “Over-allotment Option” is exercised (if applicable) between the Company
and Credit Suisse International (the “Forward Purchaser”) relating to the sale by the Company,
subject to the right of the Company to elect cash settlement of such agreement, of a number of
shares of Common Stock equal to the number of Shares to be borrowed and sold by the Forward Seller
pursuant to this terms agreement (this “Agreement”); and “Transaction Documents” means this
Agreement (including the provisions of the Underwriting Agreement referred to below) and the
Forward Agreement.
Supplemental Terms
The purchases and sales, or issuances and sales, as applicable, described above, of the Shares
(the “Offered Securities”) shall be on and subject to the terms and conditions of the Underwriting
Agreement of the Company dated as of December 1, 2009 (the “Underwriting Agreement”) as
supplemented or modified as provided below:
Listing: New York Stock Exchange
Delayed Delivery Contracts: None
Purchase Price: $15.9638 per Share
Public Offering Price: $16.50 per Share
Underwriting Discount: $0.5362 per Share
Additional Terms Relating to Purchase of Shares by the Underwriters:
Section 3 of the Underwriting Agreement (Purchase and Offering of Offered Securities) is
hereby modified and supplemented as follows:
Agreement to Purchase Base Shares. On the basis of the representations, warranties and
covenants contained in this Agreement (including the provisions of the Underwriting Agreement), and
subject to the conditions set forth in this Agreement (including the provisions of the Underwriting
Agreement), the Forward Seller agrees to sell to the several Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Forward Seller (or from the Company to the
extent of any Standby Base Shares), at the Purchase Price set forth above, the respective numbers
of Shares set forth opposite such Underwriter’s name in the table below under the heading “Number
of Borrowed Base Shares to be Purchased and Sold”.
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Limitations on Agreement to Purchase. If any of the conditions to effectiveness set forth in
the Forward Agreement is not satisfied on or prior to the Closing Date (defined below), the Forward
Seller, in its sole judgment, may choose not to borrow and deliver for sale the Borrowed Base
Shares to be sold by the Forward Seller hereunder. In addition, if the Forward Purchaser
determines, in its commercially reasonable judgment, that the Forward Seller is unable to borrow
and deliver for sale on the Closing Date the number of Borrowed Base Shares to which the Forward
Agreement relates, or if the Forward Purchaser determines, in its commercially reasonable judgment,
that it is either impracticable to do so or that the Forward Seller is unable to borrow, at a stock
loan rate not greater than the amount specified in the Forward Agreement, and deliver for sale on
the Closing Date the number of Borrowed Base Shares to which the Forward Agreement relates, then
the Forward Seller shall only be required to deliver for sale the aggregate number of shares of
Common Stock that such Forward Seller is able to borrow. In such event, the Forward Seller shall
use its commercially reasonable efforts to notify the Company no later than 5:00 p.m., New York
City time, on the business day immediately preceding the Closing Date.
Payment and Delivery of Shares. Payment for the Borrowed Base Shares shall be made by wire
transfer in immediately available funds to the accounts at banks acceptable to the Representatives
specified by the Forward Seller to the Representatives at the offices of Xxxxxxxx & Xxxxxxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M., New York City time, on September 14, 2010, or
at such other time or place on the same or such other date, not later than the fifth business day
thereafter, as the Representatives, the Forward Seller and the Company may agree upon in writing.
Payment for any Borrowed Option Shares shall be made by wire transfer in immediately available
funds to the accounts at banks acceptable to the Representatives specified by the Forward Seller to
the Representatives at the offices of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
at 10:00 A.M., New York City time, on the date and at the time and place specified by the
Representatives in the written notice of the Underwriters’ election to purchase such Option Shares.
Payment for any Company Shares shall be made by wire transfer in immediately available funds to
the account at a bank acceptable to the Representatives specified by the Company to the
Representatives, in the case of the Standby Base Shares, at the offices of Xxxxxxxx & Xxxxxxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M., New York City time, on September 14, 2010, or
at such other time or place on the same or such other date, not later than the fifth business day
thereafter, as the Representatives and the Company may agree upon in writing or, in the case of any
Standby Option Shares, on the date and at the time and place specified by the Representatives in
the written notice of the Underwriters’ election to purchase such Option Shares. The time and date
of such payment for the Base Shares is referred to herein as the “Closing Date”, and the time and
date for such payment for any Option Shares, if other than the Closing Date, is herein referred to
as the “Additional Closing Date”.
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representatives for the respective accounts
of the several Underwriters of the Shares to be purchased on such date or the Additional Closing
Date, as the case may be, with any transfer taxes payable in connection with the sale of such
Shares duly paid by the Company. Delivery of the Shares shall be made through the facilities of
The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct. The
certificates for the Shares will be made available for inspection and
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packaging by the Representatives at the office of DTC or its designated custodian not later
than 1:00 P.M., New York City time, on the business day prior to the Closing Date or the Additional
Closing Date, as the case may be.
Over-Allotment Option:
Grant of Over-Allotment Option. In addition, the Underwriters, on the basis of the
representations, warranties and covenants contained in this Agreement (including the provisions of
the Underwriting Agreement), and subject to the conditions set forth in this Agreement (including
the provisions of the Underwriting Agreement), shall have the option to purchase, severally and not
jointly, from the Forward Seller (or, if the following paragraph is applicable, from the Company
instead of the Forward Seller to the extent of any Standby Option Shares) the respective numbers of
Shares set forth opposite such Underwriter’s name in the table below under the heading “Maximum
Number of Borrowed Option Shares to be Purchased and Sold”, and the Forward Seller shall sell the
Borrowed Option Shares to the several Underwriters as provided below in this Agreement, and at the
Purchase Price set forth above less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Base Shares but not payable on the Option Shares.
Limitations on Purchase in Over-Allotment Option. If any of the conditions to effectiveness
set forth in the Forward Agreement is not satisfied on or prior to any Additional Closing Date, the
Forward Seller, in its sole judgment, may choose not to borrow and deliver for sale the Borrowed
Option Shares to be sold by the Forward Seller hereunder. In addition, if the Forward Purchaser
determines, in its commercially reasonable judgment, that the Forward Seller is unable to borrow
and deliver for sale on any Additional Closing Date the number of Borrowed Option Shares to which
the Forward Agreement relates, or if the Forward Purchaser determines, in its commercially
reasonable judgment, that it is either impracticable to do so or that the Forward Seller is unable
to borrow, at a stock loan rate not greater than the amount specified in the Forward Agreement, and
deliver for sale on any Additional Closing Date the number of Borrowed Option Shares to which the
Forward Agreement relates, then the Forward Seller shall only be required to deliver for sale the
aggregate number of shares of Common Stock that such Forward Seller is able to borrow. In such
event, the Forward Seller shall use its commercially reasonable efforts to notify the Company no
later than 5:00 p.m., New York City time, on the business day immediately preceding such Additional
Closing Date.
Number of Option Shares to be Purchased. If any Option Shares are to be purchased, the number
of Option Shares to be purchased by each Underwriter shall be the number of Option Shares which
bears the same ratio to the aggregate number of Option Shares being purchased as the number of Base
Shares set forth opposite the name of such Underwriter in the table below bears to the aggregate
number of Base Shares being purchased by the several Underwriters, subject, however, to such
adjustments to eliminate any fractional Shares as the Representatives in their sole discretion
shall make.
Exercise of Over-Allotment Option. The Underwriters may exercise the option to purchase Option
Shares at any time in whole, or from time to time in part, on or before the thirtieth day following
the date of the Prospectus Supplement, by written notice from the Representatives to the Company.
Such notice shall set forth the aggregate number of Option
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Shares as to which the option is being exercised and the date and time when the Option Shares
are to be delivered and paid for, which may be the same date and time as the Closing Date (as
hereinafter defined) but shall not be earlier than the Closing Date or later than the tenth full
business day after the date of such notice (unless such time and date are postponed in accordance
with the provisions of hereof). Any such notice shall be given at least two business days prior to
the date and time of delivery specified therein.
Other Underwriting Agreement Terms:
Pricing Disclosure Package: Includes:
| 1) | Prospectus dated December 21, 2007 | ||
| 2) | Preliminary Prospectus Supplement dated September 7, 2010 (which shall be deemed to include documents incorporated therein by reference) | ||
| 3) | Free Writing Prospectus dated September 7, 2010 |
Applicable Time: 8:12 p.m. on September 8, 2010
Closing: 10:00 a.m. on September 14, 2010 at the offices of Xxxxxxxx & Xxxxxxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
The Underwriters shall purchase the number of Offered Securities shown below:
| Maximum Number of | ||||||||
| Number of Borrowed | Borrowed Option Shares | |||||||
| Base Shares to be | to be Purchased and | |||||||
| Underwriter | Purchased and Sold | Sold | ||||||
Credit Suisse Securities (USA) LLC |
5,486,000 | 822,902 | ||||||
Barclays Capital Inc. |
4,431,000 | 664,650 | ||||||
Citigroup Global Markets Inc. |
2,954,000 | 443,100 | ||||||
X.X. Xxxxxx Securities LLC |
2,954,000 | 443,100 | ||||||
Banc of America Securities LLC |
1,055,000 | 158,250 | ||||||
Xxxxx Fargo Securities LLC |
1,055,000 | 158,250 | ||||||
Deutsche Bank Securities Inc. |
791,250 | 118,687 | ||||||
BNP Paribas Securities Corp. |
791,250 | 118,687 | ||||||
KeyBanc Capital Markets, Inc. |
791,250 | 118,687 | ||||||
Mizuho Securities USA Inc. |
791,250 | 118,687 | ||||||
Modifications to Underwriting Agreement:
All provisions of the Underwriting Agreement are incorporated herein by reference, as modified
and supplemented as provided below. For purposes of incorporation into this Agreement, the
following provisions of the Underwriting Agreement are modified and supplemented as follows:
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1. Representations and Warranties.
(a) The representations and warranties in Section 2 (Representations and Warranties of
NiSource and NiSource Finance) of the Underwriting Agreement are hereby deemed to be made to
the Underwriters, the Forward Seller and the Forward Purchaser for purposes of this
Agreement by NiSource.
(b) Section 2(k) of the Underwriting Agreement is hereby replaced in its entirety with
the following for purposes of this Agreement: All outstanding shares of capital stock of
NiSource have been duly authorized and are duly and validly issued, fully paid and
nonassessable and conform to the descriptions thereof in the Registration Statement, the
Pricing Disclosure Package and the Final Supplemented Prospectus. The Company Shares have
been duly authorized and, when issued and delivered and paid for as provided herein, will be
duly and validly issued, will be fully paid and nonassessable and will conform to the
descriptions thereof in the Registration Statement, the Pricing Disclosure Package and the
Final Supplemented Prospectus; and the issuance of the Company Shares is not subject to any
preemptive or similar rights. The shares of Common Stock to be purchased by the Forward
Purchaser pursuant to the Forward Agreement, whether pursuant to Physical Settlement (as
defined in the Forward Agreement), as a result of an Acceleration Event (as defined in the
Forward Agreement) or otherwise, have been duly authorized and reserved for issuance and,
when issued and delivered by the Company to the Forward Purchaser pursuant to the Forward
Agreement against payment of the consideration set forth therein, will be duly and validly
issued, will be fully paid and nonassessable and the issuance thereof will not be subject to
any preemptive or similar rights.
(c) The representations and warranties in Sections 2(p), 2(q) and 2(v) are hereby
deemed modified to replace all references to “the Terms Agreement (including the provisions
of this Agreement)” with “the Transaction Documents”.
(d) NiSource, as of the Applicable Time and as of the date hereof, additionally
represents and warrants to, and agrees with, the Underwriters, the Forward Seller and the
Forward Purchaser that (i) the Forward Agreement dated the date hereof has been duly
authorized, executed and delivered by the Company and constitutes a valid and legally
binding agreement of the Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditors’ rights generally or by equitable principles relating to
enforceability (the “Enforceability Exceptions”), (ii) a Forward Agreement dated other than
the date hereof will be duly authorized, executed and delivered by the Company and will
constitute a valid and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except to the extent that enforceability thereof may
be limited by the Enforceability Exceptions, and (iii) each Transaction Document conforms or
will conform in all material respects to the description thereof contained in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(e) The Forward Seller, as of the Applicable Time and as of the date hereof, represents
and warrants to, and agrees with, the Underwriters that (i) this Agreement has
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been duly
authorized, executed and delivered by the Forward Seller, (ii) the Forward Agreement dated
the date hereof has been duly authorized, executed and delivered by the
Forward Purchaser and constitutes a valid and binding agreement of the Forward
Purchaser, enforceable against the Forward Purchaser in accordance with its terms, except to
the extent that enforceability thereof may be limited by the Enforceability Exceptions,
(iii) a Forward Agreement dated other than the date hereof will be duly authorized, executed
and delivered by the Forward Purchaser and will constitute a valid and binding agreement of
the Forward Purchaser, enforceable against the Forward Purchaser in accordance with its
terms, except to the extent that enforceability thereof may be limited by the Enforceability
Exceptions, and (iv) the Forward Seller will, at the Closing Date or the Additional Closing
Date, as applicable, have the free and unqualified right to transfer the Borrowed Shares to
be sold by the Forward Seller hereunder on such date, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind; and upon
delivery of such Borrowed Shares and payment of the purchase price therefor as herein
contemplated, assuming each of the Underwriters has no notice of any adverse claim, each of
the Underwriters will have the free and unqualified right to transfer the Borrowed Shares
purchased by it from the Forward Seller, free and clear of any security interest, mortgage,
pledge, lien, charge, claim, equity or encumbrance of any kind.
2. Certain Agreements of NiSource.
(a) The agreements of NiSource set forth in Section 5 (Certain Agreements of NiSource
and NiSource Finance) of the Underwriting Agreement that are made for the benefit of the
Representatives shall also be deemed made for purposes of this Agreement for the benefit of
the Forward Seller and the Forward Purchaser. In addition, the reference to “the Terms
Agreement (including the provisions of this Agreement)” in Sections 5(c) and 5(h) shall be
replaced with “the Transaction Documents” for purposes of this Agreement.
(b) NiSource further agrees with the Underwriters, the Forward Seller and the Forward
Purchaser that NiSource (i) will keep available at all times, free from preemptive rights,
out of its authorized but unissued shares of Common Stock, solely for the purpose of
issuance upon settlement of the transactions contemplated by the Forward Agreement, the
maximum number of shares of Common Stock as shall be issuable at such time upon settlement
of the transactions contemplated by the Forward Agreement and (ii) that all shares of Common
Stock issuable upon settlement of the transactions contemplated by the Forward Agreement
shall be approved for issuance by the New York Stock Exchange, subject to official notice of
issuance.
(c) Section 5(j) of the Underwriting Agreement is hereby replaced in its entirety with
the following for purposes of this Agreement: The Company shall not offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission
a registration statement under the Act relating to, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for any shares of Common Stock, or publicly
disclose the intention to make any offer, sale, pledge, disposition or filing, without the
prior written consent of Credit Suisse Securities (USA)
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LLC, for a period of 60 days after
the date of the Final Supplemented Prospectus, except issuances pursuant to the conversion
or exchange of convertible or exchangeable
securities or the exercise of warrants or options, in each case outstanding on the date
of this Agreement, grants of employee stock options pursuant to the terms of a plan in
effect on the date of this Agreement, or issuances pursuant to the exercise of employee
stock options outstanding on the date of this Agreement or pursuant to the Company’s
Dividend Reinvestment and Stock Purchase Plan. Notwithstanding the foregoing, in the event
that either (1) during the last 17 days of the “lock-up” period, the Company releases
earnings results or material news or a material event relating to the Company occurs or (2)
prior to the expiration of the “lock-up” period described above, the Company announces that
it will release earnings results during the 16-day period beginning on the last day of the
“lock-up” period, then in either case the expiration of the “lock-up” will be extended until
the expiration of the 18-day period beginning on the date of the release of the earnings
results or the occurrence of the material news or event, as applicable, unless Credit Suisse
Securities (USA) LLC waives, in writing, such an extension.
3. Conditions of the Obligations of the Parties.
(a) The conditions set forth in Section 6 (Conditions of the Obligations of the
Underwriters) of the Underwriting Agreement (as modified by this Agreement for purposes
hereof) shall for purposes of this Agreement be conditions of the obligations of the
Underwriters to purchase the Base Shares on the Closing Date and the Option Shares on each
Additional Closing Date and conditions of the obligations of the Forward Seller to deliver
and sell the Base Shares on the Closing Date and the Option Shares on each Additional
Closing Date and all items to be received by or addressed to the Representatives shall also
be received by and addressed to the Forward Seller and the Forward Purchaser. All closing
items to be delivered in connection with an Additional Closing Date shall be dated the date
of such Additional Closing Date.
(b) In addition to the other conditions set forth herein and in the Underwriting
Agreement, the obligations of the parties hereto to consummate the transactions contemplated
hereby, including the obligations of the several Underwriters to purchase and pay for
Offered Securities, shall be subject to the execution and delivery of the Forward Agreement
and the continuing effectiveness of the Forward Agreement.
(c) The references to “the Terms Agreement (including the provisions of this
Agreement)” in clauses (v), (viii), (xii) and (xiii) of Section 6(d) shall be replaced with
“the Transaction Documents” for purposes of this Agreement.
(d) The references to Xxxxx & XxXxxxx LLP in Section 6(e) of the Underwriting Agreement
shall be deemed modified to be references to Xxxxxxxx & Xxxxxxxx LLP.
4. Indemnification and Contribution. Section 7 of the Underwriting Agreement (Indemnification
and Contribution) shall be deemed modified for purposes of this Agreement as follows: (a) the
indemnification in Sections 7(a), 7(b) and 7(e) shall also be for the benefit of the selling agents
and broker-dealer affiliates of the Underwriters, (b) the indemnification in
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Sections 7(a), 7(b)
and 7(e) shall also be for the benefit of the Forward Seller, the Forward Purchaser and their
respective partners, directors, officers and affiliates, and each person, if any,
who controls the Forward Seller or the Forward Purchaser, (c) the contribution provisions in
Section 7(d) and 7(e) shall also involve the Forward Seller and the Forward Purchaser, with the
benefit to the Company including the amounts received by the Company from the settlement of the
Forward Agreement assuming full physical settlement thereof and the benefit to the Forward Seller
and the Forward Purchaser being the spread received under the Forward Agreement, and (d) the
limitation of liability in Section 7(d) shall be deemed modified to add that neither the Forward
Seller or the Forward Purchaser shall be required to contribute an amount in excess of the spread
received under the Forward Agreement.
5. Survival of Certain Representations and Obligations. The last sentence of Section 9
(Survival of Certain Representations and Obligations) of the Underwriting Agreement is hereby
deemed modified for purposes of this Agreement to include reimbursement of the out-of-pocket
expenses of the Forward Seller and the Forward Purchaser in the event this Agreement is terminated
as provided therein.
6. Absence of Fiduciary Relationship. Section 10 (Absence of Fiduciary Relationship) of the
Underwriting Agreement is hereby deemed modified for purposes of this Terms Agreement so that its
acknowledgments and agreements cover the Forward Seller and the Forward Purchaser as well as the
Underwriters.
7. Notices. Section 11 (Notices) of the Underwriting Agreement is hereby deemed modified for
purposes of this Terms Agreement so that the notification address for NiSource is 000 Xxxx 00xx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxx X. Xxxxx, with a copy to Xxxxxx X. Xxxxxx,
Xxxxxx Xxxxxx LLP, 000 X. Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000, and the
notification address for the Underwriters is c/o Credit Suisse Securities (USA) LLC, Eleven Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000.
8. Successors. Section 12 (Successors) of the Underwriting Agreement is hereby deemed
modified for purposes of this Terms Agreement so that it includes the Forward Seller and the
Forward Purchaser and their successors and their officers, directors, affiliates and controlling
persons.
Issuance and Sale of Standby Base and Option Shares by the Company:
In the event that (a) any of the conditions to effectiveness set forth in the Forward
Agreement is not satisfied on or prior to the Closing Date or an Additional Closing Date, as
applicable, and the Forward Seller elects, as set forth above, not to deliver the Borrowed Shares
to be sold by the Forward Seller hereunder or (b) the Forward Purchaser determines, in its
commercially reasonable judgment, that the Forward Seller is unable to borrow and deliver for sale
on the Closing Date or an Additional Closing Date, as applicable, the number of Borrowed Shares to
which the Forward Agreement
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relates for such date, or if the Forward Purchaser determines, in its
commercially reasonable judgment, that it is either impracticable to do so or that the Forward
Seller is unable to borrow, at a stock loan rate not greater than the amount specified in the
Forward Agreement, and deliver for sale on the Closing Date or an Additional Closing Date, as
applicable, the number of Borrowed Shares to which the Forward Agreement relates on such date, the
Company shall issue and sell a number of shares of Common Stock equal to the number of shares of
Common Stock that the Forward Seller does not deliver. In
connection with any such issuance, the Representatives may, at their election, postpone the
applicable Closing Date or Additional Closing Date for one business day in order to effect any
necessary changes to documents or arrangements. The Forward Seller shall not have any liability for
any Borrowed Shares it does not deliver to the Underwriters or any other party if the Forward
Seller (i) elects not to deliver the Borrowed Shares because any of the conditions to effectiveness
set forth in the Forward Agreement has not satisfied or (ii) is unable to borrow and deliver for
sale all of the Borrowed Shares to be sold by the Forward Seller hereunder.
For purposes of Section 7 of the Underwriting Agreement, the only information furnished to
NiSource Finance and NiSource by the Underwriters, the Forward Seller or the Forward Purchaser for
use in the Pricing Disclosure Package consists of the following information furnished on behalf of
the Underwriters: the fourth, eighth and eleventh paragraphs under the caption “Underwriting —
Underwriting Discount” in the Preliminary Prospectus Supplement and the Final Supplemented
Prospectus.
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to NiSource and the Forward Purchaser one of the counterparts hereof, whereupon it will
become a binding agreement between NiSource, the Forward Purchaser and the Underwriters in
accordance with its terms.
| Very truly yours, NISOURCE INC. |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Vice President, Treasurer and Chief Risk Officer | |||
| CREDIT SUISSE SECURITIES (USA) LLC, as agent for the Forward Purchaser |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Director | |||
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The foregoing Terms Agreement is hereby confirmed
and accepted as of the date first above written.
| CREDIT SUISSE SECURITIES (USA) LLC |
||||
| By: | /s/ Bik Xxxx Xxxxx | |||
| Name: | Bik Xxxx Xxxxx | |||
| Title: | Vice President | |||
| BARCLAYS CAPITAL INC. |
||||
| By: | /s/ Xxxxxxxx Xxxx | |||
| Name: | Xxxxxxxx Xxxx | |||
| Title: | Vice President | |||
| CITIGROUP GLOBAL MARKETS INC. |
||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Managing Director | |||
| X.X. XXXXXX SECURITIES LLC |
||||
| By: | /s/ Xxx Xxxxxxx-Xxxxx | |||
| Name: | Xxx Xxxxxxx-Xxxxx | |||
| Title: | Managing Director | |||
For themselves and as Representatives of the other Underwriters named herein.
CREDIT SUISSE INTERNATIONAL
Acting in its capacity as Forward Purchaser,
solely as the recipient and/or beneficiary of certain
representations, warranties, covenants and
indemnities set forth in this Agreement
| By: | /s/ Bik Xxxx Xxxxx | |||
| Name: | Bik Xxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
| By: | /s/ Xxxxx Xxx | |||
| Name: | Xxxxx Xxx | |||
| Title: | Authorized Signatory | |||
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