Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
CAITHNESS COSO FUNDING CORP.
FIRST: The name of the Corporation is CAITHNESS COSO FUNDING CORP.
SECOND: The registered office of the Corporation in the State of Delaware
is located at Corporation Service Company, 1013 Centre Road, Wilmington,
Delaware 19805-1297. The name of its registered agent is Corporation Service
Company.
THIRD: The exclusive purposes of the Corporation are:
a) to issue for the Corporation and as agent for Coso Finance
Partners, a California general partnership (the "Navy I Partnership"), Coso
Energy Developers, a California general partnership (the "BLM
Partnership"), and Coso Power Developers, a California general partnership
(the "Navy II Partnership," and, together with the Navy I Partnership and
the BLM Partnership, the "Partnerships"), senior secured notes
(collectively, the "Notes") pursuant to an Indenture, among the
Corporation, the Partnerships and U.S. Bank National Association, as
trustee, as now or hereafter amended or supplemented (the "Indenture"), and
other Permitted Indebtedness (as defined in the Indenture), and to loan the
proceeds of the Notes and other Permitted Indebtedness to one or more of
the Partnerships pursuant to various credit agreements and other ancillary
agreements thereto (the "Loans");
b) to execute and deliver any and all documents, certificates or
other instruments in connection with the issuance of the Notes and other
Permitted Indebtedness and the Loans described in clause (a) of this
paragraph THIRD (the "Operative Documents") to which the Corporation is or
becomes a party;
c) to satisfy and perform the obligations and to enforce the rights
of the Corporation under each such Operative Document to which the
Corporation is or becomes a party; and
d) to engage in such other activities and to exercise such other
powers permitted to corporations under the laws of the State of Delaware
(including executing, delivering and performing any other certificates or
agreements other than the Operative Documents) but only to the extent that
the Corporation or its Board of Directors deems such activities or powers
reasonably incidental to, or necessary to the accomplishment of, any of the
purposes described in clause (a), (b) or (c) of this paragraph THIRD.
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FOURTH: The Corporation shall not engage in any other activity so long as
any of the Notes are outstanding, including, without limitation, the following
activities:
a) create or incur or suffer to exist any Indebtedness (as defined in
the Indenture) except Permitted Indebtedness or contingently or otherwise
be or become liable in connection with any guarantee, except for
endorsements and similar obligations in the ordinary course of business;
b) grant, create, incur or suffer to exist any Liens (as defined in
the Indenture) upon any of its assets or property except for Permitted
Liens (as defined in the Indenture);
c) enter into any transaction of merger, consolidation or asset sale,
change its form of organization or its business, liquidate, wind-up or
dissolve itself or discontinue its business; or
d) engage in other activities or exercise other powers permitted to
corporations under the laws of the State of Delaware, except as permitted
under paragraph THIRD hereof or the Operative Documents.
FIFTH: The total number of shares of stock that the Corporation shall have
authority to issue is 1,000 shares of Common Stock, par value $0.01 per share.
Each share of Common Stock shall be entitled to one vote. All of the
Corporation's issued stock, exclusive of treasury shares, shall be represented
by certificates.
SIXTH: Except as provided to the contrary in the provisions establishing a
class or series of stock, the amount of the authorized stock of the Corporation
of any class or classes may be increased or decreased by the unanimous
affirmative vote of the holders of the stock of the Corporation entitled to
vote.
SEVENTH: The election of directors need not be by ballot unless the Bylaws
shall so require.
EIGHTH: In furtherance and not in limitation of the power conferred upon
the Board of Directors by law, the Board of Directors shall, with the unanimous
affirmative vote of the directors constituting the Board of Directors, have the
power to make, adopt, alter, amend and repeal from time to time the Bylaws of
this Corporation, subject to the unanimous affirmative vote by the stockholders
entitled to vote with respect thereto to alter and repeal Bylaws made by the
Board of Directors.
NINTH: A director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that exculpation from liability is not
permitted under the Delaware General Corporation Law as in effect at the time
such liability is determined. No amendment or repeal of this paragraph
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NINTH shall apply to or have any effect on the liability or alleged liability of
any director of this Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal.
TENTH: The Corporation shall, to the maximum extent permitted from time to
time under the laws of the State of Delaware, indemnify, and upon request shall
advance expenses to, any person who is or was a party or is threatened to be
made a party to any threatened, pending or completed action, suit, proceeding or
claim, whether civil, criminal, administrative or investigative, by reason of
the fact that such person is or was or has agreed to be a director or an officer
of the Corporation or while a director or officer, partner, trustee, employee or
agent is or was serving at the request of the Corporation as an officer,
partner, trustee, employee or agent of any corporation, partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, against expenses (including attorneys' fees and expenses),
judgments, fines, penalties and amounts paid in settlement incurred in
connection with the investigation, preparation to defend or defense of such
action, suit, proceeding or claim; provided, however, that the foregoing shall
not require the Corporation to indemnify or advance expenses to any person in
connection with any action, suit, proceeding, claim or counterclaim initiated by
or on behalf of such person. Such indemnification shall not be exclusive of
other indemnification rights arising under any bylaw, agreement, vote of
stockholders or otherwise and shall inure to the benefit of the heirs and legal
representatives of such person. Any person seeking indemnification under this
paragraph TENTH shall be deemed to have met the standard of conduct required for
such indemnification unless the contrary shall be established. Any repeal or
modification of the foregoing provisions of this paragraph TENTH shall not
adversely affect any right or protection of any director or officer of the
Corporation with respect to any acts or omissions of such director or officer
occurring prior to such repeal or modification.
ELEVENTH: Notwithstanding any provision of this Certificate to the
contrary, or any provision of law that may otherwise empower the Corporation,
the Corporation shall not, without the unanimous affirmative vote of the Board
of Directors (which shall include an Independent Person, as defined below), so
long as any of the Notes are outstanding, institute any proceedings to
adjudicate the Corporation as a bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against it, or file a
petition or answer or consent seeking or consenting to its reorganization or
relief under any applicable federal or state law relating to bankruptcy, or
consent to the appointment of, or taking possession by, a receiver, liquidator,
assignee, trustee, sequestrator, or other similar official of the Corporation or
any substantial part of its property, or make any assignment for the benefit of
creditors, or admit in writing its inability to pay its debts generally as they
become due, or take any corporate action in furtherance of any such action.
TWELFTH: Notwithstanding any other provision of this Certificate
(including paragraph ELEVENTH) and any provision of law that otherwise so
empowers the Corporation, the Corporation shall not, without (a) the unanimous
affirmative vote of the stockholders entitled to vote with respect thereto, and
(b) the unanimous affirmative vote of the Board of Directors
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(which shall include an Independent Person, as defined below), do any of the
following:
a) engage in any business or activity other than in accordance with
paragraph THIRD;
b) incur any indebtedness, or assume or guarantee any indebtedness of
any other entity, other than in connection with the activities described in
paragraph THIRD;
c) dissolve or liquidate, in whole or in part (including a
dissolution of the Corporation at the request of a majority of the holders
of the shares of stock of the Corporation);
d) consolidate with or merge into any other entity or sell, convey or
transfer all or substantially all of its properties and assets to any
entity or acquire all or substantially all of the assets or capital stock
or other ownership interest of any other corporation, company or entity;
e) institute any proceedings to be adjudicated bankrupt or insolvent,
or consent to the institution of bankruptcy or insolvency proceedings
against it, or file a petition or answer or consent seeking or consenting
to its reorganization or relief under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of, or taking
possession by, a receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Corporation or any substantial part of its
property, or make any assignment for the benefit of creditors, or admit in
writing its inability to pay its debts generally as they become due, or
take any corporate action in furtherance of any such action; or
f) authorize any amendment or alteration to, or repeal of, this
Certificate (including, without limitation, this paragraph TWELFTH).
When voting on whether the Corporation will take any action in respect of
any matter described in paragraph (e) of this paragraph TWELFTH and otherwise
with regard to any act, or failure to act, in connection with any matter
referred to in paragraph (e) of this paragraph TWELFTH, each director shall owe
its primary fiduciary duty or other obligation to the Corporation (including,
without limitation, the Corporation's creditors) and not to the stockholders
(except as may be required by the Delaware General Corporation Law or by case
law). Every stockholder of the Corporation shall be deemed to have consented to
the foregoing by virtue of such stockholder's consent to this Certificate of
Incorporation.
THIRTEENTH: At all times, at least one of the directors serving on the
Board of Directors of this Corporation and any Executive Committee of the Board
of Directors shall be an Independent Person (as defined below) (except in the
event of the resignation, death or removal of any such person, in which event
the vacancy shall be immediately filled by another
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Independent Person). For the purposes hereof, the term "Independent Person"
means an individual who is not, and has not been within the preceding 12 months,
(i) a beneficial owner of any shares of the Common Stock of this Corporation, or
any of the voting securities, or other rights to elect members of the board of
directors, of any Controlling Entity (as defined below) (provided that indirect
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stock ownership of any Controlling Entity or of any affiliate thereof by any
person through a mutual fund or similar diversified investment pool shall not
disqualify such person from being an Independent Person unless such person
maintains direct or indirect control of the investment decisions of such mutual
fund or similar diversified investment pool); (ii) a director, officer or
employee of this Corporation or any Controlling Entity; (iii) a person related
to any person referred to in clauses (i) and (ii); nor (iv) a trustee,
conservator or receiver for any Controlling Entity. As defined herein,
"Controlling Entity" means any entity other than this Corporation (A) which owns
beneficially, directly or indirectly, 10% or more of the outstanding shares of
Common Stock of the Corporation, (B) of which 10% or more of the outstanding
voting securities are owned beneficially, directly or indirectly, by any entity
described in clause (A) above, or (C) which otherwise controls or is otherwise
controlled by or is under common control with any entity described in clause (A)
above; provided that, for purposes of this definition, the terms "control,"
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"controlled by" and "under common control with" shall have the meanings assigned
to them in Rule 405 under the Securities Act of 1933, as amended.
FOURTEENTH: The Corporation shall not commingle any of its assets with the
assets of any other entity or person. The Corporation shall maintain its
financial and accounting books and records separate from those of any other
person or entity.
FIFTEENTH: The books and records of the Corporation may (subject to any
statutory requirements) be kept outside the State of Delaware as may be
designated by the Board of Directors or in the Bylaws of the Corporation.
SIXTEENTH: The name and mailing address of the incorporator of the
Corporation is Gail Conboy, c/o Caithness Energy, L.L.C., 1114 Avenue of the
Americas, 41/st/ Floor, New York, New York 10036-7790.
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I, THE UNDERSIGNED, being the sole incorporator, for the purpose of
forming a corporation under the laws of the State of Delaware do make, file and
record this Certificate of Incorporation, do certify that the facts herein
stated are true, and, accordingly, have hereunto set my hand and seal.
/s/ Gail Conboy
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Gail Conboy
Incorporator
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