Exhibit 3.1
AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION
OF
NRG GENERATING (U.S.) INC.
NRG Generating (U.S.) Inc. (the "Corporation"), formerly
known as O'Brien Environmental Energy, Inc., a corporation
organized and existing under the laws of the State of Delaware,
hereby files this Amended and Restated Certificate of
Incorporation to amend Article Four from the Amended and Restated
Certificate of Incorporation filed on April 30, 1996 and to
restate in its entirety its Certificate of Incorporation. The
date of filing of its original Certificate of Incorporation with
the Secretary of State, under its original name of O'Brien Energy
Systems, Inc., was December 5, 1983. The Corporation hereby
certifies as follows:
1. This Amended and Restated Certificate of Incorporation
restates the Certificate of Incorporation of the Corporation to
read as set forth herein.
2. The text of the Certificate of Incorporation as
heretofore amended or supplemented is hereby corrected to
properly restate in Article Four the total number of authorized
shares of stock of the Corporation and is hereby further restated
to read in full as follows:
FIRST: The name of the Corporation is:
NRG GENERATING (U.S.) INC.
SECOND: The address of the registered office of the
Corporation in the State of Delaware is Corporation Trust Center,
1209 Orange Street in the City of Wilmington, County of New
Castle, and the name of its registered agent at that address is
The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage
in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: (a) The total number of shares of stock which
the Corporation is authorized to issue is seventy million
(70,000,000), consisting of fifty million (50,000,000) shares of
common stock, having a par value of one cent ($0.01) per share
and twenty million (20,000,000) shares of Preferred Stock, having
a par value of one cent ($0.01) per share.
(b) The Corporation shall not issue any nonvoting
equity securities provided that this provision, which is included
in this Certificate of Incorporation in compliance with Section
1123(a)(6) of the United States Bankruptcy Code of 1978, as
amended, shall have no force or effect beyond that required by
such Section 1123(a)(6) and shall be effective only for so long
as such Section 1123(a)(6) is in effect and applicable to the
Corporation.
(c) Shares of Preferred Stock may be issued from time
to time in one or more series. The Board of Directors is hereby
authorized to fix the voting rights, designations, powers,
preferences and the relative, participating, optional or other
rights, if any, and the qualifications, limitations or
restrictions thereof, of any wholly unissued series of Preferred
Stock; and to fix the number of shares constituting such series
(but not below the number of shares thereof then outstanding).
FIFTH: (a) Except as provided below, the bylaws of
the Corporation may only be made, repealed, altered, amended or
rescinded by (i) the stockholders of the Corporation by the vote
of the holders of not less than sixty percent (60%) of the total
voting power of all outstanding shares of voting stock of the
Corporation or (ii) the directors of the Corporation by
2
the vote of a majority of the entire board of directors present
at a meeting at which a quorum is present.
(b) Section 1.7(b) (regarding action by written
consent of stockholders); Section 1.11 (regarding notice of
stockholder nominations and other stockholder business); Section
2.1(b) (regarding the number of directors); Section 2.10
(regarding Independent Directors); and Section 3.2 (regarding the
Independent Directors committee), of the bylaws of the
Corporation may only be repealed, altered, amended or rescinded
by (i) the stockholders of the Corporation by a vote of the
holders of not less than seventy-five percent (75%) of the total
voting power of all outstanding shares of voting stock of the
Corporation or (ii) the directors of the Corporation by the
affirmative vote of no fewer than the lesser of all of the
directors then in office or six (6) of the Corporation's
directors; provided however, that Section 2.10 (regarding
Independent Directors) and Section 3.2 (regarding the Independent
Directors Committee) may be altered or amended pursuant to the
provisions of subparagraph (a) of Article Fifth to the extent
necessary to comply with the provisions of the applicable listing
requirements of any exchange or market system over which the
securities of the Corporation are to be traded.
SIXTH: A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal
benefit. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director
of the Corporation
3
shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law, as so amended. Any repeal
or modification of this provision shall not adversely affect any
right or protection of a director of the Corporation existing at
the time of such repeal or modification.
SEVENTH: (a) Until April 30, 2002, (i) any attempted
sale, transfer, assignment, conveyance, grant, pledge, gift or
other disposition of any share or shares of stock of the
Corporation (within the meaning of Section 382 of the Internal
Revenue Code of 1986 (the "Code")), or any option or right to
purchase such stock, as defined in the Treasury Regulations under
Section 382 of the Code, to any person or entity (or group of
persons or entities acting in concert) who either directly or
indirectly owns or would be treated as owning, or whose shares
are or would be attributed to any person or entity who directly
or indirectly owns or would be treated as owning, in either case
prior to the purported transfer and after giving effect to the
applicable attribution rules of the Code and applicable Treasury
Regulations, 5 percent or more of the value of the outstanding
stock of the Corporation or otherwise treated as a 5 percent
stockholder (within the meaning of Section 382 of the Code),
regardless of the percent or the value of the stock owned, shall
be void ab initio insofar as it purports to transfer ownership or
rights in respect of such stock to the purported transferee and
(ii) any attempted sale, transfer, assignment, conveyance, grant,
gift, pledge or other disposition of any share of stock of the
Corporation (within the meaning of Section 382 of the Code) or
any option or right to purchase such stock, as defined in the
Treasury Regulations under Section 382 of the Code, to any person
or entity (or group of persons or entities acting in concert) not
described in clause (i) who directly or indirectly would own, or
whose shares would be attributed to any person or entity who
directly or indirectly would own in each case as a result of the
purported transfer and after giving
4
effect to the applicable attribution rules of the Code and
applicable Treasury Regulations, 5 percent or more of the value
of any of the stock of the Corporation (or otherwise treated as a
5-percent (5%) stockholder within the meaning of Section 382 of
the Code), shall, as to that number of shares causing such person
or entity to be a 5-percent stockholder, be void ab initio
insofar as it purports to transfer ownership or rights in respect
of such stock to the purported transferee; provided, however,
that neither of the foregoing clauses (i) and (ii) shall prevent
a valid transfer if (A) the transferor obtains the written
approval of the board of directors of the Corporation which
approval shall not be unreasonably withheld and provides the
Corporation with an opinion of counsel reasonably satisfactory to
the Corporation .that (assuming, as of the date of such opinion,
the full exercise of (i) all warrants issued under, and (ii) any
options granted pursuant to any stock option plan of the
Corporation) the transfer shall not result in an ownership change
within the meaning of Section 382 of the Code and any successor
thereto or (B) a tender offer, within the meaning of the
Securities Exchange Act of 1934, as amended, and pursuant to the
rules and regulations thereof, is made by a bona fide third-party
purchaser to purchase at least sixty-six and two-thirds percent
(66-2/3%) of the issued and outstanding common stock of the
Corporation and the offeror (i) agrees to effect, within ninety
(90) days of the consummation of the tender offer, a back end
merger in which all non-tendering stockholders would receive the
same consideration as paid in the tender offer, and (ii) has
received the tender of sufficient shares to effect such merger.
Without limiting or restricting in any manner the effectiveness
of the foregoing provisions, the Corporation and any transferor
may rely and shall be protected in relying on the Corporation's
stockholder lists and stock transfer records for all purposes
relating to any opinion required hereunder.
5
(b) In the absence of specific board approval, a
purported transfer of shares in excess of the shares that can be
transferred pursuant to this Article SEVENTH (the "Prohibited
Shares") to the purported acquiror (the "Purported Acquiror") is
not effective to transfer ownership of such Prohibited Shares.
On demand by the Corporation, which demand must be made within
thirty (30) days of the time the Corporation learns of the
transfer of the Prohibited Shares, a Purported Acquiror must
transfer any certificate or other evidence of ownership of the
Prohibited Shares within the Purported Acquiror's possession or
control, together with any dividends or other distributions
("Distributions") that were received by the Purported Acquiror
from the Corporation with respect to the Prohibited Shares, to an
agent designated by the Corporation (the "Agent"). The Agent
will sell the Prohibited Shares in an arm's length transaction
(over a stock exchange, if possible), and the Purported Acquiror
will receive an amount of sales proceeds not in excess of the
price paid or consideration surrendered by the Purported Acquiror
for the Prohibited Shares (or the fair market value of the
Prohibited Shares at the time of an attempted transfer to the
Purported Acquiror by gift, inheritance, or a similar transfer).
If the Purported Acquiror has resold the Prohibited Shares prior
to receiving the Corporation's demand to surrender the Prohibited
Shares to the Agent, the Purported Acquiror shall be deemed to
have sold the Prohibited Shares as an agent for the initial
transferor, and shall be required to transfer to the Agent any
proceeds of such sale and any Distributions.
(c) If the initial transferor can be identified, the
Agent will pay to it any sales proceeds in excess of those due to
the Purported Acquiror, together with any Distributions received
by the Agent. If the initial transferor cannot be identified
within ninety (90) days, the Agent may pay any such amounts to a
charity of its choosing. In no event shall amounts paid to the
Agent inure to the benefit of the Corporation or the Agent, but
such amounts may be used to
6
cover expenses of the Agent in attempting to identify the initial
transferor. If the Purported Acquiror fails to surrender the
Prohibited Shares within the next thirty (30) business days from
the demand by the Corporation, then the Corporation will
institute legal proceedings to compel the surrender. The
Corporation shall be entitled to damages, including reasonable
attorneys' fees and costs, from the Purported Acquiror, on
account of such purported transfer.
EIGHTH: The affirmative vote of the holders of
greater than sixty-six and two thirds percent (66-2/3%) of the
total voting power of all outstanding shares of voting stock of
the Corporation shall be required for the approval of any
proposal (1) that the Corporation merge or consolidate with any
corporation, person, partnership, trust or other entity
("Entity"), or (2) that the Corporation sell or exchange all or
substantially all of its assets or business, or (3) that the
Corporation issue or deliver any stock or other securities of its
issue in exchange or payment for any properties or assets of any
Entity or securities issued by any Entity, and to effect such
transaction the approval of stockholders of the Corporation is
required by law or by any agreement between the Corporation and
any national securities exchange.
NINTH: (a) Any attempted sale, transfer, assignment,
conveyance, pledge or other disposition of any share of the
Corporation's common stock to any Electric Utility Interest (as
defined below) shall be null and void ab initio. No employee or
agent, including any independent transfer agent or registrar of
this Corporation, shall be permitted to record any attempted or
purported transfer made in violation of this provision, and no
intended transferee of shares of this Corporation's common stock
attempted to be transferred in violation of this Article NINTH
shall be recognized as a holder of such shares for any purpose
whatsoever, including, but not limited to, the right to vote such
shares of common stock or to receive dividends or other
distributions in respect thereof, if any. The transferor and any
such intended transferee shall be
7
deemed to have appointed the corporation as attorney-in-fact,
with full power of substitution and full power and authority, in
the name and on behalf of the intended transferor and transferee,
to sell, assign and transfer the shares of Common Stock of the
corporation attempted to be transferred in violation of this
Article NINTH, and to do all lawful acts and execute all
documents deemed necessary or advisable to effect such sale,
assignment and transfer, in an arm's-length transaction, to
another entity or person; provided that the sale, assignment and
transfer to such other entity of person does not violate the
provisions of this Article NINTH. The Corporation shall apply
the proceeds of any such sale first, to pay the expenses of the
sale; second, to pay the intended transferee on whose behalf the
shares were sold, an amount equal to (i) the sum of the intended
transferee's cost of such shares (inclusive of brokerage fees and
expenses), plus interest on such cost at the then minimum rate of
interest which would prevent interest on a non-interest bearing
obligation from being imputed by the Internal Revenue Service,
less the amount of any dividends or other distributions
inadvertently paid to said intended transferee in respect of such
shares, or (ii) the balance of such proceeds, whichever is less;
and third, the balance of such proceeds, if any, shall be paid to
the corporation. Notwithstanding the foregoing, the Corporation
shall not provide any proceeds to the intended transferee, if
such intended transferee has received consideration from any
subsequent attempted transfer.
(b) This Corporation shall take all appropriate legal
action to enforce the provisions of this Article NINTH in every
case where there has been an attempted or purported transfer made
in violation thereof. In taking any action hereunder, this
Corporation, and its directors, officers and agents, will be
fully protected in relying upon any notice, paper or other
document reasonably believed by this Corporation or any such
person to be genuine and sufficient, and, to the extent permitted
by law, in no event shall this Corporation, or any of its
directors, officers or
8
agents, be liable for any act performed or omitted to be
performed hereunder in the absence of gross negligence or willful
misconduct. This Corporation and each of its directors, officers
and agents may consult with counsel in connection with its
respective duties hereunder and, to the extent permitted by law,
each shall be fully protected by any act taken, suffered or
permitted in good faith in accordance with the advice of such
counsel.
(c) For purposes of this Article NINTH, the term
"Electric Utility Interest" refers to an electric utility or
utilities or an electric utility holding company or companies, or
any affiliate of either, in each case as those terms are utilized
by the Federal Energy Regulatory commission ("FERC") in
regulations or orders implementing the Public Utility Regulatory
Policies Act of 1978, as amended, and its successors ("PURPA"),
if such entity's interest in this Corporation would be a utility
interest for the purposes of 10 C.F.R. 292.206.
(d) Whenever it is deemed by the board of directors to
be prudent in protecting, preserving or obtaining for any of its
projects (including projects in which this Corporation or a
subsidiary has an interest, whether by ownership, lease or
contract) the status of a "Qualifying Facility" (as defined under
PURPA), the board of directors of this Corporation may require to
be filed with this Corporation as a condition to permitting any
proposed transfer, and/or the registration of any transfer, of
any shares of this Corporation's common stock a statement of
affidavit from any proposed transferee to the effect that such
transferee is not an "Electric Utility Interest," as defined
herein.
(e) The Corporation may, at any time that the Board of
Directors of the Corporation deems necessary or advisable to
protect, preserve or obtain for any of its projects the status of
a "Qualifying Facility", redeem any shares of its capital stock
beneficially owned by any
9
Electric Utility Interest at a redemption price equal to the
"Fair Market Value" (as defined in subsection (h) below) of such
shares of capital stock.
(f) In the event the Corporation shall redeem any
shares of its capital stock pursuant to subsection (e) above,
notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than thirty (30) days nor more
than sixty (60) days prior to the redemption date, to each holder
of record of the shares to be redeemed at such holder's address
as the same appears on the books of the Corporation; provided,
however, that no failure to mail such notice nor any defect
therein shall affect the validity of the proceeding for the
redemption of any shares of capital stock to be redeemed except
as to the holder to whom the Corporation has failed to mail said
notice or except as to the holder whose notice was defective.
Each such notice shall state: (i) the redemption date; (ii) the
number of shares of capital stock to be redeemed and, if less
than all the shares held by such holder are to be redeemed from
such holder, the number of shares to be redeemed from such
holder; and (iii) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price.
(g) Notice having been mailed as aforesaid, from and
after the redemption date (unless the Corporation shall fail to
provide money for the payment of the redemption price of the
shares called for redemption) the shares of capital stock so
called for redemption shall no longer be deemed to be
outstanding, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive from
the Corporation the redemption price) shall cease. Upon
surrender in accordance with said notice of the certificates for
any shares so redeemed (properly endorsed or assigned for
transfer, if the board of directors shall so require and the
notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price.
10
In case fewer than all of the shares represented by any such
certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder
thereof.
(h) For purposes of this Article NINTH, "Fair Market
Value" shall mean the average of the closing sale prices during
the 30-day period immediately preceding the redemption date of a
share of capital stock of the Corporation as reported on the
American Stock Exchange, Inc. (the "Amex"), or, if such stock is
not then listed on the Amex, on the principal United States
securities exchange registered under the Securities Exchange Act
of 1934, as amended, on which such stock is listed, or, if such
stock is not then listed on any such exchange, the average of the
closing sale prices or closing bid quotations (whichever is
higher, if both are reported) with respect to a share of such
stock during the 30-day period immediately preceding the
redemption date of a share of such stock on the National
Association of Securities Dealers, Inc. National Market System or
any system then in use, or if no such quotations are available,
the fair market value on the redemption date of a share of such
stock as determined by the board of directors in good faith.
(i) The board of directors of this Corporation shall
have the right to determine whether any transferee or purported
transferee of shares of common stock of this corporation is an
"Electric Utility Interest" and to determine whether this
Corporation's projects (including projects in which this
Corporation or a subsidiary has an interest, whether by
ownership, lease or contract) meet the requirements for
"Qualifying Facility" status under PURPA.
(j) Nothing contained in this Article NINTH shall
limit the authority of the board of directors of this Corporation
to take such other action as it deems necessary or advisable to
protect this Corporation and interests of its stockholders by
protecting, preserving or obtaining for any of this Corporation's
projects (including projects in which this Corporation or a
11
subsidiary has an interest, whether by ownership, lease or
contract) the status of a "Qualifying Facility" under PURPA.
(k) All certificates representing shares of this
Corporation's common stock shall bear the following legend:
The sale, transfer, assignment, conveyance,
pledge or other disposition of any of the shares
represented by this certificate to any "Electric
Utility Interest" (as hereinafter defined) is
restricted in accordance with the provisions of
the Certificate of Incorporation of the
Corporation. For these purposes, the term
"Electric Utility Interest" refers to an electric
utility or utilities or an electric utility
holding company or companies, or any affiliate of
either, in each case as those terms are utilized
by the Federal Energy Regulatory Commission
("FERC") in regulations or orders implementing the
Public Utility Regulatory Policies Act of 1978, as
attended, and its successors ("PURPA"), if such
entity's interest in the Corporation would be
utility interest for purposes of 10 C.F.R.
292.206.
TENTH: The provisions set forth in this Article
TENTH and subparagraph (a) of Article FIFTH (regarding the
alteration of bylaws) may not be repealed or amended in any
respect unless such repeal or amendment is approved by the
affirmative vote of the holders of not less than sixty percent
(60%) of the total voting power of all outstanding shares of
voting stock of the Corporation.
ELEVENTH: The provisions set forth in this Article
Eleventh, in subparagraph (b) of Article FIFTH (regarding the
alteration of certain bylaws) and in Article EIGHTH (regarding
the greater than sixty-six and two thirds percent (66-2/3%) vote
of stockholders
12
required for certain mergers or other corporate combinations),
may not be repealed or amended in any respect unless such repeal
or amendment is approved by the affirmative vote of holders of
not less than seventy-five percent (75%) of the total voting
power of all outstanding shares of voting stock of the
Corporation.
TWELFTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this
Certificate of Incorporation, in the manner now or hereafter
prescribed by statute and in accordance with Articles TENTH and
ELEVENTH hereof.
IN WITNESS WHEREOF, this Certificate of Correction and
Restated Certificate of Incorporation which restates in its
entirety the provisions of the Corporation's Certificate of
Incorporation, having been duly adopted by the Board of Directors
of the Corporation in accordance with the provisions of Section
242 of the General Corporation Law of the State of Delaware, has
been executed on the 8th day of January, 1997.
/s/ Timothy P. Hunstad
Timothy P. Hunstad
Treasurer and Chief Financial Officer
ATTEST:
/s/ Karen A. Brennan
By: Karen Brennan
Its: Secretary