Equity Forward Confirmation Agreement between Credit Suisse International and NiSource Inc. dated September 8, 2010
This agreement confirms the terms of an equity forward transaction between Credit Suisse International (Party A) and NiSource Inc. (Party B), referencing NiSource's common stock. The agreement sets out the purchase and sale of up to 21,100,000 shares, with settlement terms, pricing, and key dates specified. The transaction is governed by the 2002 ISDA Master Agreement and New York law, and includes provisions for physical, cash, or net share settlement at NiSource's election, subject to certain conditions. The agreement is effective from September 14, 2010, and matures by September 10, 2012 or earlier if all shares are settled.
![]() | EXECUTION COUNTERPART |
To: | NiSource Inc. | |
801 East 86th Avenue | ||
Merrillville, Indiana 46410 | ||
Attention: | David J. Vajda | |
Telephone: | 219 ###-###-#### | |
Facsimile: | 219 ###-###-#### | |
Attention: | Robert E. Smith | |
Telephone: | 219 ###-###-#### | |
Facsimile: | 219 ###-###-#### | |
From: | Credit Suisse International. | |
c/o Credit Suisse Securities (USA) LLC | ||
Eleven Madison Avenue | ||
New York, NY 10010 | ||
Attention: | Documentation | |
Telephone: | 212 ###-###-#### | |
Facsimile: | 917 ###-###-#### |
1. | The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the 2002 Definitions), as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between the 2002 Definitions and this Confirmation, this Confirmation will govern. |
This Confirmation evidences a complete and binding agreement between Party A and Party B as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the Agreement) as if Party A and Party B had executed an agreement in such form on the Trade Date (but without any |
Schedule except for the election of the laws of the State of New York as the governing law). In the event of any inconsistency between provisions of that Agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no Transaction other than the Transaction to which this Confirmation relates shall be governed by the Agreement. For purposes of the 2002 Definitions, this Transaction is a Share Forward Transaction. |
Party A and Party B each represents to the other that it has entered into this Transaction in reliance upon such tax, accounting, regulatory, legal, and financial advice as it deems necessary and not upon any view expressed by the other. |
2. | The terms of the particular Transaction to which this Confirmation relates are as follows: |
General Terms: |
Party A: | Credit Suisse International. | |
Party B: | NiSource Inc. | |
Buyer: | Party A | |
Seller: | Party B | |
Trade Date: | September 8, 2010 | |
Effective Date: | September 14, 2010 | |
Base Amount: | Initially, 21,100,000 Shares. On each Settlement Date, the Base Amount shall be reduced by the number of Settlement Shares for such Settlement Date. | |
Maturity Date: | The earlier of (a) September 10, 2012 (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day) and (b) the date the Base Amount is reduced to zero. | |
Forward Price: | On the Effective Date, the Initial Forward Price, and on any other day, the Forward Price as of the immediately preceding calendar day, multiplied by the sum of (i) 1 and (ii) the Daily Rate for such day; provided that on each Forward Price Reduction Date, the Forward Price in effect on such date shall be the Forward Price otherwise in effect on such date, minus the Forward Price Reduction Amount for such Forward Price Reduction Date. | |
Initial Forward Price: | USD 15.9638 per Share. | |
Daily Rate: | For any day, (i)(A) USD-Federal Funds Rate for such day, minus (B) the Spread, divided by (ii) 365. | |
USD-Federal Funds Rate: | For any day, the rate set forth for such day opposite the caption Federal funds, as such rate is displayed on Bloomberg Screen FedsOpen <Index> <GO>, or any successor page; provided that if no rate appears for any day on such page, the rate for the immediately preceding day for which a rate appears shall be used for such day. |
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Spread: | 0.60% | |
Forward Price Reduction Date: | October 27, 2010, January 27, 2011, April 27, 2011, July 27, 2011, October 27, 2011, January 27, 2012, April 26, 2012, July 27, 2012 and October 29, 2012. | |
Forward Price Reduction Amount: | For each Forward Price Reduction Date, the Forward Price Reduction Amount set forth opposite such date on Schedule I. | |
Shares: | Common stock, $0.01 par value per share, of Party B (also referred to herein as the Issuer) (Exchange identifier: NI). | |
Exchange: | The New York Stock Exchange | |
Related Exchange(s): | All Exchanges. | |
Clearance System: | The Depository Trust Company | |
Calculation Agent: | Party A |
Settlement Date: | Any Scheduled Trading Day following the Effective Date and up to and including the Maturity Date, as designated by (a) Party A pursuant to Termination Settlement below or (b) Party B in a written notice (a Settlement Notice) that satisfies the Settlement Notice Requirements and is delivered to Party A at least (i) three Scheduled Trading Days prior to such Settlement Date, which may be the Maturity Date, if Physical Settlement applies, and (ii) 40 Scheduled Trading Days prior to such Settlement Date, which may be the Maturity Date, if Cash Settlement or Net Share Settlement applies; provided that (i) the Maturity Date shall be a Settlement Date if on such date the Base Amount is greater than zero and (ii) if Cash Settlement or Net Share Settlement applies and Party A shall have fully unwound its hedge during an Unwind Period by a date that is more than three Scheduled Trading Days prior to a Settlement Date specified above, Party A may, by written notice to Party B, specify any Scheduled Trading Day prior to such originally specified Settlement Date as the Settlement Date. | |
Settlement Shares: | With respect to any Settlement Date, a number of Shares, not to exceed the Base Amount, designated as such by Party B in the related Settlement Notice or by Party A pursuant to Termination Settlement below; provided that the number of Settlement Shares so designated shall (i) not exceed the Base Amount at that time and (ii) be at least equal to the lesser of 100,000 and the Base Amount at that time; provided further that on the Maturity Date the number of Settlement Shares shall be equal to the Base Amount on such date. |
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Settlement: | Physical Settlement, Cash Settlement or Net Share Settlement, at the election of Party B as set forth in a Settlement Notice that satisfies the Settlement Notice Requirements; provided that Physical Settlement shall apply (i) if no Settlement Method is validly selected, (ii) with respect to any Settlement Shares in respect of which Party A is unable, in its commercially reasonable judgment, to unwind its hedge by the end of the Unwind Period in a manner that, in the commercially reasonable judgment of Party A, is consistent with the requirements for qualifying for the safe harbor provided by Rule 10b-18 under the Exchange Act or due to the lack of sufficient liquidity in the Shares on any Exchange Business Day during the Unwind Period, (iii) to any Termination Settlement Date (as defined below under Termination Settlement) or (iv) if the Maturity Date is a Settlement Date, in respect of such Settlement Date. | |
Settlement Notice Requirements: | Notwithstanding any other provision hereof, a Settlement Notice delivered by Party B that specifies Cash Settlement or Net Share Settlement will not be effective to establish a Settlement Date or require Cash Settlement or Net Share Settlement unless Party B delivers to Party A with such Settlement Notice a representation, dated as of the date of such Settlement Notice and signed by Party B, in the form of Exhibit A hereto and containing the following language: As of the date of this Settlement Notice, Party B is not aware of any material nonpublic information concerning itself or the Shares, and is designating the date contained herein as a Settlement Date in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws. | |
Unwind Period: | Each Exchange Business Day that is not a Suspension Day during the period from, and including, the first Exchange Business Day following the date Party B validly elects Cash Settlement or Net Share Settlement in respect of a Settlement Date to, and including, the third Scheduled Trading Day preceding such Settlement Date (or the immediately preceding Exchange Business Day if such Scheduled Trading Day is not an Exchange Business Day), subject to Termination Settlement below. If any Exchange Business Day during an Unwind Period is a Disrupted Day, the Calculation Agent shall make commercially reasonable adjustments to the terms of this Transaction (including, without limitation, the Cash Settlement Amount, the number of Net Share Settlement Shares and the 10b-18 VWAP) to account for the occurrence of such Disrupted Day. | |
Market Disruption Event: | Section 6.3(a)(ii) of the 2002 Definitions is hereby amended by replacing clause (ii) in its entirety with (ii) an Exchange Disruption, or and inserting immediately following clause (iii) the phrase ; in each case that the Calculation Agent determines is material. | |
Early Closure: | Section 6.3(d) of the 2002 Definitions is hereby amended by deleting the remainder of the provision following the term |
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Scheduled Closing Time in the fourth line thereof. | ||
Suspension Day: | Any Exchange Business Day on which Party A determines in its good faith judgment that the activities required to effect Cash Settlement or Net Share Settlement may violate applicable securities laws or cause Party A to not be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures in place to meet such laws or requirements applicable to Party A. | |
Exchange Act: | The Securities Exchange Act of 1934, as amended from time to time. | |
Physical Settlement: | On any Settlement Date in respect of which Physical Settlement applies to any Settlement Shares, Party B shall deliver to Party A through the Clearance System the Settlement Shares in respect of which Physical Settlement applies for such Settlement Date, and Party A shall deliver to Party B, by wire transfer of immediately available funds to an account designated by Party B, an amount in cash equal to the Physical Settlement Amount for such Settlement Date, on a delivery versus payment basis. If, on any Settlement Date, the Shares to be delivered by Party B to Party A hereunder are not so delivered (the Deferred Shares), and a Forward Price Reduction Date occurs during the period from, and including, such Settlement Date to, but excluding, the date such Shares are actually delivered to Party A, then the portion of the Physical Settlement Amount payable by Party A to Party B in respect of the Deferred Shares shall be reduced by an amount equal to the Forward Price Reduction Amount for such Forward Price Reduction Date, multiplied by the number of Deferred Shares. For the avoidance of doubt, no Forward Price Reduction Amount for a Forward Price Reduction Date shall be applied to reduce the Forward Price more than once. | |
Physical Settlement Amount: | For any Settlement Date in respect of which Physical Settlement applies to any Settlement Shares, an amount in cash equal to the product of (i) the Forward Price on such Settlement Date, and (ii) the number of Settlement Shares in respect of which Physical Settlement applies for such Settlement Date. | |
Cash Settlement: | On any Settlement Date in respect of which Cash Settlement applies to any Settlement Shares, if the Cash Settlement Amount for such Settlement Date is a positive number, Party A will pay such Cash Settlement Amount to Party B. If the Cash Settlement Amount is a negative number, Party B will pay the absolute value of such Cash Settlement Amount to Party A. Such amounts shall be paid on the Settlement Date. | |
Cash Settlement Amount: | For any Settlement Date in respect of which Cash Settlement applies to any Settlement Shares, an amount determined by the Calculation Agent equal to the difference between (1) the product of (i) (A) the average Forward Price during the applicable Unwind Period, minus (B) the average of the 10b-18 VWAP prices per Share on each Exchange Business Day that is |
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not a Suspension Day during such Unwind Period, and (ii) the number of Settlement Shares in respect of which Cash Settlement applies for such Settlement Date, and (2) the product of (i) the Forward Price Reduction Amount for any Forward Price Reduction Date that occurs during such Unwind Period, and (ii) the number of Settlement Shares with respect to which Party A has not unwound its hedge as of such Forward Price Reduction Date. | ||
Net Share Settlement: | On any Settlement Date in respect of which Net Share Settlement applies to any Settlement Shares, if the number of Net Share Settlement Shares is a (i) negative number, Party A shall deliver a number of Shares to Party B equal to the absolute value of the Net Share Settlement Shares, or (ii) positive number, Party B shall deliver to Party A the Net Share Settlement Shares; provided that if Party A determines in its commercially reasonable judgment that it would be required to deliver Net Share Settlement Shares to Party B, Party A may elect to deliver a portion of such Net Share Settlement Shares on one or more dates prior to the applicable Settlement Date. | |
Net Share Settlement Shares: | For any Settlement Date in respect of which Net Share Settlement applies to any Settlement Shares, a number of Shares equal to (a) the number of Settlement Shares in respect of which Net Share Settlement applies for such Settlement Date, minus (b) the number of Shares Party A actually purchases during the Unwind Period with an aggregate value equal to the difference between (1) the product of (i) the average Forward Price during the applicable Unwind Period, and (ii) the number of Settlement Shares in respect of which Net Share Settlement applies for such Settlement Date, and (2) the product of (i) the Forward Price Reduction Amount for any Forward Price Reduction Date that occurs during such Unwind Period, and (ii) the number of Settlement Shares with respect to which Party A has not unwound its hedge as of such Forward Price Reduction Date. | |
10b-18 VWAP: | For any Exchange Business Day during the Unwind Period that is not a Suspension Day, the volume-weighted average price at which the Shares trade as reported in the composite transactions for the Exchange on such Exchange Business Day, excluding (i) trades that do not settle regular way, (ii) opening (regular way) reported trades on the Exchange on such Exchange Business Day, (iii) trades that occur in the last ten minutes before the scheduled close of trading on the Exchange on such Exchange Business Day and ten minutes before the scheduled close of the primary trading session in the market where the trade is effected, and (iv) trades on such Exchange Business Day that do not satisfy the requirements of Rule 10b-18(b)(3), as determined in good faith by the Calculation Agent. Party B acknowledges that Party A may (x) refer to Bloomberg Screen NI <Equity> AQR SEC (or any successor thereto), in its discretion, for such Exchange Business Day to determine the 10b-18 VWAP and (y) make appropriate adjustments, as the parties agree, to the 10b-18 VWAP for any Exchange Business |
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Day that is not a Suspension Day during any Unwind Period to reflect any amendments or other modifications to the provisions of Rule 10b-18 under the Exchange Act, consistent with Party As obligations under clause (b) of Covenants of Party A below. | ||
Settlement Currency: | USD. | |
Failure to Deliver: | Applicable if Party A is required to deliver Shares hereunder; otherwise, Not Applicable. |
Method of Adjustment: | Calculation Agent Adjustment; notwithstanding anything in the 2002 Definitions to the contrary, the Calculation Agent may make an adjustment pursuant to Calculation Agent Adjustment to any one or more of the Base Amount, the Forward Price and any other variable relevant to the settlement or payment terms of this Transaction. | |
Additional Adjustment: | If, in Party As commercially reasonable judgment, the actual cost to Party A (or an affiliate of Party A), over any one month period, of borrowing a number of Shares equal to the Base Amount to hedge its exposure to this Transaction exceeds a weighted average rate equal to 60 basis points per annum, the Calculation Agent shall reduce the Forward Price in order to compensate Party A for the amount by which such cost exceeded a weighted average rate equal to 60 basis points per annum during such period. The Calculation Agent shall notify Party B prior to making any such adjustment to the Forward Price and, upon the request of Party B, Party A shall provide an itemized list of its stock loan costs for the applicable one month period. |
Extraordinary Events: | In lieu of the applicable provisions contained in Article 12 of the 2002 Definitions, the consequences of any applicable Extraordinary Event (including, for the avoidance of doubt, any Nationalization, Insolvency, Delisting, or Change In Law), shall be as specified below under the headings Acceleration Events and Termination Settlement. | |
Tender Offers: | Section 12.1(d) of the 2002 Definitions is hereby amended by (i) replacing 10% with 20% in the third line thereof and (ii) replacing voting shares with Shares in the fourth line thereof. |
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Account Details: |
Payments to Party A: | To be advised under separate cover or telephone confirmed prior to each Settlement Date. | |
Payments to Party B: | To be advised under separate cover or telephone confirmed prior to each Settlement Date. | |
Delivery of Shares to Party A: | To be advised. | |
Delivery of Shares to Party B: | To be advised. |
3. | Other Provisions: | |
Conditions to Effectiveness: |
Additional Representations, Warranties and Agreements of Party B: Party B hereby represents and warrants to, and agrees with, Party A as of the date hereof that: |
(a) | Any Shares, when issued and delivered in accordance with the terms of this Transaction, will be duly authorized and validly issued, fully paid and nonassessable, and the issuance thereof will not be subject to any preemptive or similar rights. | ||
(b) | Party B has reserved and will keep available at all times, free from preemptive rights, out of its authorized but unissued Shares, solely for the purpose of issuance upon settlement of this Transaction as herein provided, the maximum number of Shares as shall be issuable at such time upon settlement of this Transaction. All Shares so issuable shall, upon such issuance, be accepted for listing or quotation on the Exchange. |
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(c) | Party B agrees to provide Party A at least 30 days written notice (an Issuer Repurchase Notice) prior to executing any repurchase of Shares by Party B or any of its subsidiaries (or entering into any contract that would require, or give the option to, Party B or any of its subsidiaries, to purchase or repurchase Shares), whether out of profits or capital or whether the consideration for such repurchase is cash, securities or otherwise (an Issuer Repurchase), that alone or in the aggregate would result in the Base Amount Percentage (as defined below) being (i) equal to or greater than 8% of the outstanding Shares or (ii) greater by 0.5% or more than the Base Amount Percentage at the time of the immediately preceding Issuer Repurchase Notice (or in the case of the first such Issuer Repurchase Notice, greater than the Base Amount Percentage as of the later of the date hereof or the immediately preceding Settlement Date, if any). The Base Amount Percentage as of any day is the fraction (1) the numerator of which is the Base Amount and (2) the denominator of which is the number of Shares outstanding on such day. | ||
(d) | No filing with, or approval, authorization, consent, license registration, qualification, order or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the execution, delivery and performance by Party B of this Confirmation and the consummation of this Transaction (including, without limitation, the issuance and delivery of Shares on any Settlement Date) except (i) such as have been obtained under the Securities Act of 1933, as amended (the Securities Act), (ii) as may be required to be obtained under state securities laws, and (iii) such filings pursuant to Rule 424 under the Securities Act and on Current Report on Form 8-K as may be required in connection with the Transaction and the transactions contemplated by the Terms Agreement. | ||
(e) | Party B agrees not to make any Issuer Repurchase if, immediately following such Issuer Repurchase, the Base Amount Percentage would be equal to or greater than 9%. | ||
(f) | Party B is not insolvent, nor will Party B be rendered insolvent as a result of this Transaction. | ||
(g) | Neither Party B nor any of its affiliated purchasers (within the meaning of Rule 10b-18 under the Exchange Act) shall take or refrain from taking any action (including, without limitation, any direct purchases by Party B or any of its affiliated purchasers or any purchases by a party to a derivative transaction with Party B or any of its affiliated purchasers), either under this Confirmation, under an agreement with another party or otherwise, that might cause any purchases of Shares by Party A or any of its affiliates in connection with any Cash Settlement or Net Share Settlement of this Transaction not to meet the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act if such purchases were made by Party B. | ||
(h) | Party B will not engage in any distribution (as defined in Regulation M under the Exchange Act (Regulation M)) that would cause a restricted period (as defined in Regulation M) to occur during any Unwind Period. | ||
(i) | In addition to any other requirements set forth herein, Party B agrees not to elect Cash Settlement or Net Share Settlement if, in the commercially reasonable judgment of either Party A or Party B, such settlement or Party As related market activity would result in a violation of the U.S. federal securities laws or any other federal or state law or regulation applicable to Party B. | ||
(j) | Party B (i) has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of entering into this Transaction; (ii) has consulted with its own legal, financial, accounting and tax advisors in connection with |
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this Transaction; and (iii) is entering into this Transaction for a bona fide business purpose. | |||
(k) | Party B is not and has not been the subject of any civil proceeding of a judicial or administrative body of competent jurisdiction that could reasonably be expected to impair materially Party Bs ability to perform its obligations hereunder. | ||
(l) | Party B will by the next succeeding New York Business Day notify Party A upon obtaining knowledge of the occurrence of any event that would constitute an Event of Default, a Potential Event of Default or a Potential Adjustment Event. | ||
(m) | The Pricing Disclosure Package (as defined in the Underwriting Agreement), as of the Applicable Time (as defined in such agreement) did not, and as of the Effective Date will not, 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 were made, not misleading; provided that Party B makes no representations or warranties as to the information contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with information furnished in writing to Party B by or on behalf of any Underwriter (as defined in such agreement) through the Representatives (as defined in such agreement) specifically for use in the Pricing Disclosure Package, which information is specified in the Terms Agreement. | ||
(n) | Without limiting the generality of Section 13.1 of the 2002 Definitions, Party B acknowledges that Party A is not making any representations or warranties or taking any position or expressing any view with respect to the treatment of this Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging Contracts in Entitys Own Equity (or any successor issue statements) or under FASBs Liabilities & Equity Project. | ||
(o) | Party B is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an investment company as such term is defined in the Investment Company Act of 1940, as amended. | ||
(p) | Party B understands no obligations of Party A to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any affiliate of Party A or any governmental agency. |
Covenant of Party B: |
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Covenants of Party A: |
(a) | Unless the provisions set forth below under Private Placement Procedures shall be applicable, Party A shall use any Shares delivered by Party B to Party A on any Settlement Date to return to securities lenders to close out open Share loans created by Party A or an affiliate of Party A in the course of Party As or such affiliates hedging activities related to Party As exposure under this Confirmation. | ||
(b) | In connection with bids and purchases of Shares in connection with any Cash Settlement or Net Share Settlement of this Transaction, Party A shall use its commercially reasonable efforts to conduct its activities, or cause its affiliates to conduct their activities, in a manner consistent with the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act, as if such provisions were applicable to such purchases. |
Insolvency Filing: |
Extraordinary Dividends: |
Acceleration Events: |
The following events shall each constitute an Acceleration Event: |
(a) | Stock Borrow Events. In the commercially reasonable judgment of Party A (A) Party A (or an affiliate of Party A) is unable to hedge Party As exposure to this Transaction because of the lack of sufficient Shares being made available for Share borrowing by lenders, or (B) Party A (or an affiliate of Party A) would incur a cost to borrow Shares to hedge its exposure to this Transaction that is greater than a rate equal to 60 basis points per annum (each, a Stock Borrow Event); |
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(b) | Dividends and Other Distributions. On any day occurring after the Trade Date Party B declares a distribution, issue or dividend to existing holders of the Shares of (i) any cash dividend (other than an Extraordinary Dividend) to the extent all cash dividends having an ex-dividend date during the period from, and including, any Forward Price Reduction Date (with the Trade Date and the Maturity Date being Forward Price Reduction Dates for purposes of this clause (b) only) to, but excluding, the next subsequent Forward Price Reduction Date exceeds, on a per Share basis, the Forward Price Reduction Amount set forth opposite the first date of any such period on Schedule I or (ii) share capital or securities of another issuer acquired or owned (directly or indirectly) by Party B as a result of a spin-off or other similar transaction or (iii) any other type of securities (other than Shares), rights or warrants or other assets, for payment (cash or other consideration) at less than the prevailing market price as determined by Party A. To the extent the declaration of a distribution, issue or dividend contemplated by this paragraph (b) would also be considered to be the type of event to which Calculation Agent Adjustment would apply as specified under Adjustments Method of Adjustment above, the provisions of this paragraph (b) will apply and Calculation Agent Adjustment shall not apply; | ||
(c) | ISDA Early Termination Date. Party A has the right to designate an Early Termination Date pursuant to Section 6 of the Agreement; | ||
(d) | Other ISDA Events. The announcement of any event that if consummated, would result in an Extraordinary Event or the occurrence of any Change in Law or a Delisting; provided that in case of a Delisting, in addition to the provisions of Section 12.6(a)(iii) of the 2002 Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors); provided further that the definition of Change in Law provided in Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (A) replacing the phrase the interpretation in the third line thereof with the phrase or public announcement of the formal or informal interpretation and (B) immediately following the word Transaction in clause (X) thereof, adding the phrase in the manner contemplated by Party A on the Trade Date; or | ||
(e) | Ownership Event. In the commercially reasonable judgment of Party A, on any day, the Share Amount for such day exceeds the Post-Effective Limit for such day (if any applies) (each, an Ownership Event). |
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Termination Settlement: |
Private Placement Procedures: |
Rule 10b5-1: |
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Maximum Share Delivery: |
Transfer and Assignment: |
Indemnity: |
Notice: |
Non-Reliance: | Applicable |
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Additional Acknowledgments: | Applicable | |
Agreements and Acknowledgments Regarding Hedging Activities: | Applicable |
4. | The Agreement is further supplemented by the following provisions: | |
No Collateral or Setoff: |
Delivery of Cash: |
Status of Claims in Bankruptcy: |
Limit on Beneficial Ownership: |
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Designation by Party A: |
Commodity Exchange Act: |
Miscellaneous: |
(a) | Addresses for Notices. For the purpose of Section 12(a) of the Agreement: | ||
Address for notices or communications to Party A: |
Address: | Credit Suisse International | |
One Cabot Square | ||
London E14 4QJ | ||
England | ||
Attention: | Documentation | |
Telephone: | 212 ###-###-#### | |
Facsimile: | 917 ###-###-#### |
With a copy to Agent: |
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Address: | Credit Suisse Securities (USA) LLC, as Agent Eleven Madison Avenue New York, NY, 10010 | |
For payment and deliveries: | ||
Telephone: | 212 ###-###-#### | |
Facsimile: | 917 ###-###-#### | |
For all other communications: | ||
Telephone: | 212 ###-###-#### | |
Facsimile: | 917 ###-###-#### |
Address for notices or communications to Party B: |
Address: | NiSource Inc. | |
801 East 86th Avenue | ||
Merrillville, Indiana 46410 | ||
Attention: | David J. Vajda | |
Telephone | 219 ###-###-#### | |
Facsimile: | 219 ###-###-#### | |
Attention: | Robert E. Smith | |
Telephone | 219 ###-###-#### | |
Facsimile: | 219 ###-###-#### |
(b) | Waiver of Trial by Jury. EACH OF PARTY A AND PARTY B HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS TRANSACTION OR THE ACTIONS OF PARTY A OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF. | ||
(c) | Governing Law; Jurisdiction. THIS CONFIRMATION AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS. | ||
(d) | Disclosure. Effective from the date of commencement of discussions concerning this Transaction, each of Party A and Party B and each of their employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of this Transaction and all materials of any kind (including opinions or other tax analyses) relating to such tax treatment and tax structure. |
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Acknowledgements: |
Severability: |
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Yours faithfully, CREDIT SUISSE INTERNATIONAL | ||||
By: | /s/ Shui Wong | |||
Name: Shui Wong | ||||
Title: | Authorized Signatory | |||
By: | /s/ Bik Kwan Chung | |||
Name: | Bik Kwan Chung | |||
Title: | Authorized Signatory | |||
NISOURCE INC. | ||||
By: | /s/ David J. Vajda | |||
Title: Vice President, Treasurer and Chief Risk Officer | ||||
CREDIT SUISSE SECURITIES (USA) LLC, as Agent | ||||
By: | /s/ Shui Wong | |||
Title: Vice President |
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Forward Price Reduction Date | Forward Price Reduction Amount | |||
October 27, 2010 | USD 0.23 | |||
January 27, 2011 | USD 0.23 | |||
April 27, 2011 | USD 0.23 | |||
July 27, 2011 | USD 0.23 | |||
October 27, 2011 | USD 0.23 | |||
January 27, 2012 | USD 0.23 | |||
April 26, 2012 | USD 0.23 | |||
July 27, 2012 | USD 0.23 | |||
October 29, 2012 | USD 0.23 |
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(i) | If Party B delivers the Restricted Shares pursuant to this clause (i) (a Private Placement Settlement), then delivery of Restricted Shares by Party B shall be effected in customary private placement procedures with respect to such Restricted Shares reasonably acceptable to Party A; provided that if, on or before the date that a Private Placement Settlement would occur, Party B has taken, or caused to be taken, any action that would make unavailable either the exemption pursuant to Section 4(2) of the Securities Act for the sale by Party B to Party A (or any affiliate designated by Party A) of the Restricted Shares or the exemption pursuant to Section 4(1) or Section 4(3) of the Securities Act for resales of the Restricted Shares by Party A (or any such affiliate of Party A) or Party B fails to deliver the Restricted Shares when due or otherwise fails to perform obligations within its control in respect of a Private Placement Settlement, it shall be an Event of Default with respect to Party B and Section 6 of the Agreement shall apply. The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Party A, due diligence rights (for Party A or any designated buyer of the Restricted Shares by Party A), opinions and certificates, and such other documentation as is customary for private placement agreements, all reasonably acceptable to Party A. In the case of a Private Placement Settlement, Party A shall, in its good faith discretion, adjust the amount of Restricted Shares to be delivered to Party A hereunder in a commercially reasonable manner to reflect the fact that such Restricted Shares may not be freely returned to securities lenders by Party A and may only be saleable by Party A at a discount to reflect the lack of liquidity in Restricted Shares. Notwithstanding the Agreement or this Confirmation, the date of delivery of such Restricted Shares shall be the Clearance System Business Day following notice by Party A to Party B of the number of Restricted Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery of Restricted Shares shall be due as set forth in the previous sentence and not be due on the Settlement Date or Termination Settlement Date that would otherwise be applicable. |
(ii) | If Party B delivers any Restricted Shares in respect of this Transaction, Party B agrees that (i) such Shares may be transferred by and among Party A and its affiliates and (ii) after the minimum holding period within the meaning of Rule 144(d) under the Securities Act has elapsed after the applicable Settlement Date, Party B shall promptly remove, or cause the transfer agent for the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by Party A (or such affiliate of Party A) to Party B or such transfer agent of sellers and brokers representation letters customarily delivered by Party A or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, each without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Party A (or such affiliate of Party A). |
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To: | Credit Suisse International | |
c/o Credit Suisse Securities (USA) LLC | ||
Eleven Madison Avenue | ||
New York, NY, 10010 | ||
Attention: | ||
From: | NiSource Inc. | |
801 East 86th Avenue | ||
Merrillville, Indiana 46410 | ||
Attention: | ||
Re: | Letter agreement dated September 8, 2010 between NiSource Inc. (Party B) and Credit Suisse International (Party A) relating to the forward sale by Party B to Party A of 21,100,000 shares of NiSource Inc.s common stock, par value $0.01 per share (the Forward Agreement) |
NISOURCE INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
1 | To be included if Party B elects Cash Settlement or Net Share Settlement. |
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