EXHIBIT 3.2.2
AMENDMENT TO AMENDED AND RESTATED BYLAWS
OF
RELIANT ENERGY POWER GENERATION MERGER SUB, INC.
(hereinafter called the "Company")
Effective as of immediately after the Effective Time (as defined in the
Agreement and Plan of Merger, dated as of September 26, 2001 ("Merger
Agreement"), by and among Reliant Resources, Inc., a Delaware corporation,
Reliant Energy Power Generation Merger Sub, Inc., a Delaware corporation and
predecessor by merger to the Company, and the Company):
Article II, Section 3 is hereby deleted in its entirety and replaced with
the following (provided, however, that the definitions contained in Article
II, Section 3 prior to giving effect to this amendment shall survive solely
for purposes of Article V as effective as to any person within the scope of
the first sentence of Section 5.12(a) of the Merger Agreement (a "Section
5.12(a) Indemnitee")):
Section 3. SPECIAL MEETINGS. Unless otherwise prescribed by law
or by the Certificate of Incorporation, special meetings of the
stockholders, for any purpose or purposes, may be called at any time
by the Board of Directors, the Chairman of the Board, if any, the
President or the Corporate Secretary of the Company and shall be
called by any such officer at the request in writing of a majority of
the Board of Directors or at the request in writing of stockholders
owning a majority of the capital stock of the Company issued and
outstanding and entitled to vote. Such request shall state the purpose
or purposes of the proposed meeting.
Article V is hereby deleted in its entirety and replaced with the following
(provided, however, that this amendment to Article V shall not be effective as
to any Section 5.12(a) Indemnitee):
Article V
Indemnification
SECTION 1. RIGHT TO INDEMNIFICATION. The Company shall indemnify
and hold harmless each Indemnitee (as this and all other capitalized
words are defined in Section 13 (Definitions) of this Article) to the
fullest extent permitted by applicable law as it presently exists or
may hereafter be amended. The rights of an Indemnitee provided under
the preceding sentence shall include, but not be limited to, the right
to be indemnified to the fullest extent permitted by Section 145(b) of
the DGCL in Proceedings by or in the right of the Company and to the
fullest extent permitted by Section 145(a) of the DGCL in all other
Proceedings.
SECTION 2. EXPENSES. If an Indemnitee is, by reason of his
Corporate Status, a witness in or is a party to any Proceeding, and is
successful on the merits or otherwise, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his behalf
in connection therewith. If the Indemnitee is a party to and is not
wholly successful in such Proceeding but is successful, on the merits
or otherwise, as to any Matter in such Proceeding, the Company shall
indemnify the Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf relating to each such Matter. The
termination of any Matter in such a Proceeding by dismissal, with or
without prejudice, shall be deemed to be a successful result as to
such Matter.
SECTION 3. REQUEST FOR INDEMNIFICATION. To obtain
indemnification, an Indemnitee shall submit to the Corporate Secretary
of the Company a written request with such information as is
reasonably available to the Indemnitee regarding the basis for such
claim for indemnification. The Corporate Secretary of the Company
shall promptly advise the Board of Directors of such request. An
Indemnitee shall be advanced Expenses, within ten days after
requesting them, to the fullest extent permitted by Section 145(e) of
the DGCL
SECTION 4. DETERMINATION OF INDEMNIFICATION. The Indemnitee's
entitlement to indemnification shall be determined in accordance with
Section 145(d) of the DGCL. If entitlement to indemnification is to be
determined by Independent Counsel, the Company shall furnish notice to
the Indemnitee within ten days after receipt of the request for
indemnification, specifying the identity and address of the
Independent Counsel. The Indemnitee may, within 14 days after receipt
of such written notice of selection, deliver to the Company a written
objection to such selection. Such objection may be asserted only on
the ground that the Independent Counsel so selected does not meet the
requirements of Independent Counsel and the objection shall set forth
with particularity the factual basis of such assertion. If there is an
objection to the selection of Independent Counsel, either the Company
or the Indemnitee may petition the Court of Chancery of the State of
Delaware or any other court of competent jurisdiction for a
determination that the objection is without a reasonable basis and/or
for the appointment of Independent Counsel selected by the Court.
Except in the event that the determination of entitlement to
indemnification is to be made by Independent Counsel, if the person or
persons authorized under this Section to determine entitlement to
indemnification shall not have made and furnished to the Indemnitee in
writing a determination of whether the Indemnitee is entitled to
indemnification within 30 days after receipt by the Company of the
Indemnitee's request therefor, a determination of entitlement to
indemnification shall be deemed to have been made, and the Indemnitee
shall be entitled to such indemnification unless the Indemnitee
knowingly misrepresented a material fact in connection with the
request for indemnification or such indemnification is prohibited by
law. The termination of any Proceeding or of any Matter therein, by
judgment, order, settlement or conviction, or upon a plea of NOLO
CONTENDERE or its equivalent, shall not (except as otherwise expressly
provided in this Article) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee
did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Company, or with
respect to any criminal Proceeding, that Indemnitee had reasonable
cause to believe that his conduct was unlawful.
SECTION 5. PAYMENTS TO INDEPENDENT COUNSEL. The Company shall pay
any and all reasonable fees and expenses of Independent Counsel
incurred acting pursuant to this Article and in any proceeding to
which it is a party or witness in respect of its investigation and
written report and shall pay all reasonable fees and expenses incident
to the procedures in which such Independent Counsel was selected or
appointed. No Independent Counsel may serve if a timely objection has
been made to his selection until a court has determined that such
objection is without a reasonable basis.
SECTION 6. RIGHT TO BRING SUIT. In the event that:
(a) a determination is made pursuant to Article V, Section 4
(Determination of Indemnification) that the Indemnitee is
not entitled to indemnification under this Article;
(b) advancement of Expenses is not timely made pursuant to
Section 3 (Request for Indemnification) of this Article;
(c) Independent Counsel has not made and delivered a written
opinion determining the request for indemnification (i)
within 90 days after being appointed by the court, or (ii)
within 90 days after objections to his selection have been
overruled by the court, or (iii) within 90 days after the
time for the Company or the Indemnitee to object to his
selection; or
(d) payment of indemnification is not made within five days
after a determination of entitlement to indemnification;
the Indemnitee shall be entitled to an adjudication in an appropriate
court of the State of Delaware, or in any other court of competent
jurisdiction, of his entitlement to such indemnification or
advancement of Expenses. In the event that a determination shall have
been made that the Indemnitee is not entitled to indemnification, any
judicial proceeding or arbitration commenced pursuant to this Section
shall be conducted in all respects as a DE NOVO trial on the merits
and Indemnitee shall not be prejudiced by reason of that adverse
determination. If a determination shall have been made or deemed to
have been made that the Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any judicial
proceeding commenced pursuant to this Section 6, or otherwise, unless
the Indemnitee knowingly misrepresented a material fact in connection
with the request for indemnification, or such indemnification is
prohibited by law.
The Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 6 that the procedures
and presumptions of this Article are not valid, binding and
enforceable and shall stipulate in any such court that the Company is
bound by all provisions of this Article. In the event that the
Indemnitee, pursuant to this Section 6, seeks a judicial adjudication
to enforce his rights under, or to recover damages for breach of, this
Article, the Indemnitee shall be entitled to recover from the Company,
and shall be indemnified by the Company against, any and all Expenses
actually and reasonably incurred by him in such judicial adjudication,
but only if he prevails therein. If it shall be determined in such
judicial adjudication that the Indemnitee is entitled to receive part
but not all of the indemnification or advancement of Expenses sought,
the Expenses incurred by the Indemnitee in connection with such
judicial adjudication or arbitration shall be appropriately prorated.
SECTION 7. NONEXCLUSIVITY OF RIGHTS. The rights to receive
indemnification and advancement of Expenses as provided by this
Article shall not be deemed exclusive of any other rights to which an
Indemnitee may at any time be entitled under applicable law, the
Certificate of Incorporation, these Bylaws, any agreement, a vote of
stockholders or disinterested directors, or otherwise.
SECTION 8. OTHER INDEMNIFICATION. The Company's obligation, if
any, to indemnify any Indemnitee who was or is serving at its request
as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise or nonprofit entity shall be reduced by any amount
such Indemnitee may collect as indemnification from such other
corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise or nonprofit entity.
SECTION 9. AMENDMENT OR REPEAL. No amendment, alteration or
repeal of this Article or any provision thereof shall be effective as
to any Indemnitee for acts, omissions, events and circumstances that
occurred, in whole or in part, before such amendment, alteration or
repeal.
SECTION 10. SURVIVAL OF RIGHTS. The provisions of this Article
shall continue as to an Indemnitee whose Corporate Status has ceased
and shall inure to the benefit of his heirs, executors and
administrators.
SECTION 11. INSURANCE. The Company may maintain insurance, at its
expense, to protect itself and any director, officer, employee or
agent of the Company or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability
or loss, whether or not the Company would have the power to indemnify
such person against such expense, liability or loss under Delaware
law.
SECTION 12. INDEMNITY AGREEMENTS. The Company may enter into
indemnity agreements with the persons who are members of its Board of
Directors from time to time, and with such officers, employees and
agents as the Board may designate, such indemnity agreements to
provide in substance that the Company will indemnify such persons to
the full extent contemplated by this Article.
SECTION 13. DEFINITIONS. For purposes of this Article V:
"Corporate Status" describes the status of a person who is or was a
director, officer, employee, agent or fiduciary of the Company or of
any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise or nonprofit entity which such person
is or was serving at the request of the Company.
"DGCL" means the Delaware General Corporation Law as set forth in
Title 8 of the Delaware Code.
"Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees and all other disbursements or
expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend,
investigating, or being or preparing to be a witness in a Proceeding.
"Indemnitee" includes any person who was or is made, or is threatened
to be made a party or is otherwise involved in any Proceeding by
reason of his Corporate Status.
"Independent Counsel" means a law firm, or member of a law firm, that
is experienced in matters of corporation law and neither presently is,
nor in the five years previous to his selection or appointment has
been, retained to represent (a) the Company or Indemnitee in any
matter material to either such party or (b) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.
"Matter" is a claim, a material issue or a substantial request for
relief.
"Proceeding" includes any action, suit, arbitration, alternate dispute
resolution proceeding, investigation, administrative hearing or any
other proceeding, whether civil, criminal, administrative, or
investigative, except one initiated by an Indemnitee pursuant to
Section 6 (Right to Bring Suit) of this Article to enforce his rights
under this Article.
SECTION 14. COMMUNICATIONS. Any communication required or
permitted to be made to the Company shall be addressed to the
Corporate Secretary of the Company and any such communication to an
Indemnitee shall be addressed to his home address unless he specifies
otherwise.
SECTION 15. LEGALITY. If any provision or provisions of this
Article shall be held to be invalid, illegal or unenforceable for any
reason whatsoever, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby; and, to the fullest extent possible, the provisions of this
Article shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
Effective as of effectiveness of the Amendment of the Certificate of
Incorporation changing the name of the Company from Reliant Energy Power
Generation Merger Sub, Inc. back to Orion Power Holdings, Inc.:
The heading reading "AMENDED AND RESTATED BYLAWS of RELIANT ENERGY POWER
GENERATION MERGER SUB, INC." is hereby deleted in its entirety and replaced
with the following:
AMENDED AND RESTATED BYLAWS
OF
ORION POWER HOLDINGS, INC.