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 One from the Amended
and Restated Certificate of Incorporation filed on January 10, 1997 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. The effective date of this Amended and Restated Certificate of
Incorporation shall be July 20, 1998.
2. This Amended and Restated Certificate of Incorporation restates
the Certificate of Incorporation of the Corporation to read as set forth
herein.
3. The text of the Certificate of Incorporation as heretofore
amended or supplemented is hereby amended to change the name of the
corporation from NRG Generating (U.S.) Inc. to Cogeneration Corporation of
America and is hereby further restated to read in full as follows:
FIRST: The name of the Corporation is:
COGENERATION CORPORATION OF AMERICA
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
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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
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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
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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.
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(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
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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
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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.
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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
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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
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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 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 and the
shareholders of the Corporation in accordance with the provisions of
Sections 242 and 245 of the General Corporation Law of the State of
Delaware, has been executed on the 8th day of July, 1998.
/s/ Timothy P. Hunstad
Timothy P. Hunstad
Treasurer and Chief Financial Officer
ATTEST:
/s/ Karen Brennan
By: Karen Brennan
Its: Secretary
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