EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CALPINE CORPORATION
FIRST. The name of the corporation is Calpine Corporation (the
"Corporation").
SECOND. The address of its registered office in the State of Delaware
is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name
of its registered agent at such 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 Corporation is authorized to issue 110,000,000 shares
of capital stock, $.001 par value. The shares shall be divided into two classes,
designated as follows:
Designation of Class Number of Shares
-------------------- ----------------
Common Stock 500,000,000
Preferred Stock 10,000,000
-----------
Total: 510,000,000
(b) The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is expressly authorized, in the resolution
or resolutions providing for the issuance of any wholly unissued series of
Preferred Stock, to fix, state and express the powers, rights, designations,
preferences, qualifications, limitations and restrictions thereof, including
without limitation: the rate of dividends upon which and the times at which
dividends on shares of such series shall be payable and the preference, if any,
which such dividends shall have relative to dividends on shares of any other
class or classes or any other series of stock of the Corporation; whether such
dividends shall be cumulative or noncumulative, and if cumulative, the date or
dates from which dividends on shares of such series shall be cumulative; the
voting rights, if any, to be provided for shares of such series; the rights, if
any, which the holders of shares of such series shall have in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation; the rights, if any, which the holders of shares of such
series shall have to convert such shares into or exchange such shares for shares
of stock of the Corporation, and the terms and conditions, including price and
rate of exchange of such conversion or exchange; the redemption rights
(including sinking fund provisions), if any, for shares of such series; and such
other powers, rights, designations, preferences, qualifications, limitations and
restrictions as the Board of Directors may desire to so fix. The Board of
Directors is also expressly authorized to fix the number of shares constituting
such series and to increase or decrease the number of shares of any series prior
to the issuance of shares of that series and to increase or decrease the number
of shares of any series subsequent to the issuance of shares of that series, but
not to decrease such number below the number of shares of such series then
outstanding. In case the number of shares of any series shall be so decreased,
the shares constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the number of shares
of such series.
FIFTH. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is authorized to make, alter or repeal any or
all of the Bylaws of the Corporation; provided, however, that any Bylaw
amendment adopted by the Board of Directors increasing or reducing the
authorized number of Directors shall require the affirmative vote of a majority
of the total number of Directors which the Corporation would have if there were
no vacancies. In addition, new Bylaws may be adopted or the Bylaws may be
amended or repealed by the affirmative vote of at least 66-2/3% of the combined
voting power of all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 66-2/3% of the combined voting power
of all shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to alter,
change, amend, repeal or adopt any provision inconsistent with, this Article
FIFTH.
SIXTH. (a) Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at an annual or special meeting
of stockholders of the Corporation and may not be effected by any consent in
writing of such stockholders.
(b) Special meetings of stockholders of the Corporation may be
called only (i) by the Chairman of the Board of Directors, or (ii) by the
Chairman or the Secretary at the written request of a majority of the total
number of Directors which the Corporation would have if there were no vacancies
upon not fewer than 10 nor more than 60 days' written notice. Any request for a
special meeting of stockholders shall be sent to the Chairman and the Secretary
and shall state the purposes of the proposed meeting. Special meetings of
holders of the outstanding Preferred Stock may be called in the manner and for
the purposes provided in the resolutions of the Board of Directors providing for
the issue of such stock. Business transacted at special meetings shall be
confined to the purpose or purposes stated in the notice of meeting.
(c) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
66-2/3% of the combined voting power of all shares of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class, shall be required to alter, change, amend, repeal or adopt any provision
inconsistent with, this Article SIXTH.
SEVENTH. (a) The number of Directors which shall constitute the whole
Board of Directors of this corporation shall be as specified in the Bylaws of
this corporation, subject to this Article SEVENTH.
(b) The Directors shall be classified with respect to the time for
which they severally hold office into three classes designated Class I, Class II
and Class III, as nearly equal in number as possible, as shall be provided in
the manner specified in the Bylaws of the Corporation. Each Director shall serve
for a term ending on the date of the third annual meeting of stockholders
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following the annual meeting at which the Director was elected; provided,
however, that each initial Director in Class I shall hold office until the
annual meeting of stockholders in 1997, each initial Director in Class II shall
hold office until the annual meeting of stockholders in 1998 and each initial
Director in Class III shall hold office until the annual meeting of stockholders
in 1999. Notwithstanding the foregoing provisions of this Article SEVENTH, each
Director shall serve until his successor is duly elected and qualified or until
such Director's death, resignation or removal.
(c) In the event of any increase or decrease in the authorized
number of Directors, (i) each Director then serving as such shall nevertheless
continue as a Director of the class of which such Director is a member until the
expiration of his current term, or his early resignation, removal from office or
death and (ii) the newly created or eliminated directorship resulting from such
increase or decrease shall be apportioned by the Board of Directors among the
three classes of Directors so as to maintain such classes as nearly equally as
possible.
(d) Any Director or the entire Board of Directors may be removed
by the affirmative vote of the holders of at least 66-2/3% of the combined
voting power of all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
(e) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
66-2/3% of the combined voting power of all shares of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class, shall be required to alter, change, amend, repeal or adopt any provision
inconsistent with, this Article SEVENTH.
EIGHTH. (a) 1. In addition to any affirmative vote required by law, any
Business Combination (as hereinafter defined) shall require the affirmative vote
of at least 66-2/3% of the combined voting power of all shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class (for purposes of this Article EIGHTH, the "Voting
Shares"). Such affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that some lesser percentage may be specified by law
or in any agreement with any national securities exchange or otherwise.
2. The term "Business Combination" as used in this Article EIGHTH
shall mean any transaction which is referred to in any one or more of
the following clauses (A) through (E):
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any Interested
Stockholder (as hereinafter defined) or (ii) any other corporation
(whether or not itself an Interested Stockholder) which is, or after
such merger or consolidation would be, an Affiliate (as hereinafter
defined) or Associate (as hereinafter defined) of an Interested
Stockholder; or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with, or proposed by or on behalf of, any
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Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder, of any assets of the Corporation or any Subsidiary
constituting not less than five percent of the total assets of the
Corporation, as reported in the consolidated balance sheet of the
Corporation as of the end of the most recent quarter with respect to
which such balance sheet has been prepared; or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related transactions) of
any securities of the Corporation or any Subsidiary to, or proposed by
or on behalf of, any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof) constituting
not less than five percent of the total assets of the Corporation, as
reported in the consolidated balance sheet of the Corporation as of the
end of the most recent quarter with respect to which such balance sheet
has been prepared; or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation, or any spin-off or split-up of any
kind of the Corporation or any Subsidiary, proposed by or on behalf of
an Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder; or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise involving
an Interested Stockholder) which has the effect, directly or
indirectly, of increasing the percentage of the outstanding shares of
(i) any class of equity securities of the Corporation or any Subsidiary
or (ii) any class of securities of the Corporation or any Subsidiary
convertible into equity securities of the Corporation or any
Subsidiary, represented by securities of such class which are directly
or indirectly owned by any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder.
(b) The provisions of section (a) of this Article EIGHTH shall not
be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law and
any other provision of this Certificate of Incorporation, if such Business
Combination has been approved by two-thirds of the whole Board of Directors.
(c) For the purposes of this Article EIGHTH:
1. A "person" shall mean any individual, firm, corporation or
other entity.
2. "Interested Stockholder" shall mean, in respect of any Business
Combination, any person (other than the Corporation or any Subsidiary)
who or which, as of the record date for the determination of
stockholders entitled to notice of and to vote on such Business
Combination, or immediately prior to the consummation of any such
transaction
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(A) is or was, at any time within two years prior thereto, the
beneficial owner, directly or indirectly, of 15% or more of the then
outstanding Voting Shares, or
(B) is an Affiliate or Associate of the Corporation and at any
time within two years prior thereto was the beneficial owner, directly
or indirectly, of 15% or more of the then outstanding Voting Shares, or
(C) is an assignee of or has otherwise succeeded to any shares
of capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder,
if such assignment or succession shall have occurred in the course of a
transaction, or series of transactions, not involving a public offering
within the meaning of the Securities Act of 1933, as amended.
3. A "person" shall be the "beneficial owner" of any Voting Shares
(A) which such person or any of its Affiliates and Associates
(as hereinafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (ii) the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purposes of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
4. The outstanding Voting Shares shall include shares deemed owned
through application of paragraph 3 above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement, or
upon exercise of conversion rights, warrants or options, or otherwise.
5. "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on the date of
adoption of this Certificate of Incorporation (the "Exchange Act").
6. "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Exchange Act) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Interested Stockholder set forth in
paragraph 2 of this section (c) the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the Corporation.
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(d) A majority of the directors shall have the power and duty to
determine for the purposes of this Article EIGHTH on the basis of
information known to them, (1) whether a person is an Interested
Stockholder, (2) the number of Voting Shares beneficially owned by any
person, (3) whether a person is an Affiliate or Associate of another,
(4) whether a person has an agreement, arrangement or understanding
with another as to the matters referred to in paragraph 3 of section
(c) or (5) whether the assets subject to any Business Combination or
the consideration received for the issuance or transfer of securities
by the Corporation or any Subsidiary constitutes not less than five
percent of the total assets of the Corporation.
(e) Nothing contained in this Article EIGHTH shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
(f) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of
at least 66-2/3% of the combined voting power of all shares of the
Corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required to alter, change,
amend, repeal or adopt any provision inconsistent with, this Article
EIGHTH.
NINTH. This 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 all rights conferred on
stockholders herein are granted subject to this reservation.
TENTH. 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 General Corporation Law of
Delaware or (iv) for any transaction from which the Director derived any
improper personal benefit. If the General Corporation Law of Delaware is
hereafter amended to authorize, with the approval of a corporation's
stockholders, further reductions in the liability of a corporation's directors
for breach of fiduciary duty, then a Director of the Corporation shall not be
liable for any such breach to the fullest extent permitted by the General
Corporation Law of Delaware as so amended. Any repeal or modification of the
foregoing provisions of this Article NINTH by the stockholders of the
Corporation shall not adversely affect any right or protection of a Director of
the Corporation existing at the time of such repeal or modification. This
corporation is authorized to indemnify the directors and officers of the
corporation to the fullest extent permissible under Delaware law.
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 05/19/2000
001257248 - 0939652
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CALPINE CORPORATION
A Delaware Corporation
(Pursuant to Sections 242 and 245
of the Delaware General Corporation Law)
CALPINE CORPORATION, a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, hereby certifies as
follows:
FIRST: That the name of the corporation is Calpine Corporation, and that the
corporation was originally incorporated on June 21, 1982 under the name
Electrowatt Services, Inc., pursuant to the General Corporation Law.
SECOND: The Certificate of Incorporation of this corporation shall be amended
and restated to read in full as is set forth on Exhibit A attached hereto.
THIRD: That said amendment and restatement was duly adopted in accordance with
the provisions of Section 242 and Section 245 of the General Corporation Law by
obtaining a majority vote of the Common Stock in favor of said amendment and
restatement in the manner set forth in Section 222 of the General Corporation
Law.
IN WITNESS WHEREOF, Calpine Corporation has caused its corporate seal to be
hereunto affixed and this Amended and Restated Certificate of Incorporation to
be signed by its President and attested to by its Secretary this 18th day of
May, 2000.
CALPINE CORPORATION
/s/ PETER CARTWRIGHT
--------------------
Name: Peter Cartwright
Title: President
[SEAL]
ATTEST:
/s/ ANN B. CURTIS
- -----------------
Name: Ann B. Curtis
Title: Secretary
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CALPINE CORPORATION
FIRST. The name of the corporation is Calpine Corporation (the "Corporation").
SECOND. The address of its registered office in the State of Delaware is 9
East Loockerman Street, City of Dover, 19901, County of Kent. The name of its
registered agent at such address is National Registered Agents, Inc.
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 Corporation is authorized to issue 510,000,000 shares of
capital stock, $.001 par value. The shares shall be divided into two classes,
designated as follows:
Designation of Class Number of Shares
-------------------- ----------------
Common Stock 500,000,000
Preferred Stock 10,000,000
-----------
Total 510,000,000
(b) The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is expressly authorized, in the resolution or resolutions
providing for the issuance of any wholly unissued series of Preferred Stock, to
fix, state and express the powers, rights, designations, preferences,
qualifications, limitations and restrictions thereof, including without
limitation; the rate of dividends upon which and the times at which dividends on
shares of such series shall be payable and the preference, if any, which such
dividends shall have relative to dividends on shares of any other class or
classes or any other series of stock of the Corporation; whether such dividends
shall be cumulative or noncumulative, and if cumulative, the date or dates from
which dividends on shares of such series shall be cumulative; the voting rights,
if any, to be provided for shares of such series; the rights, if any, which the
holders of shares of such series shall have in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation; the rights, if any, which the holders of shares of such series
shall have to convert such shares into or exchange such shares for shares of
stock of the Corporation, and the terms and conditions, including price and rate
of exchange of such conversion or exchange; the redemption rights (including
sinking fund provisions), if any, for shares of such series; and such other
powers, rights, designations, preferences, qualifications, limitations and
restrictions as the Board of Directors may desire to so fix. The Board of
Directors is also expressly authorized to fix the number of shares constituting
such series and to increase or decrease the number of shares of any series prior
to the issuance of shares of that series and to increase or decrease the number
of shares of any series subsequent to the issuance of shares of that series, but
not to decrease such number below the number of shares of such series then
outstanding. In case the number of shares of any series shall be so decreased,
the shares constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the number of shares
of such series.
FIFTH. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is authorized to make, alter or repeal any or
all of the Bylaws of the Corporation; provided, however, that any Bylaw
amendment adopted by the Board of Directors increasing or reducing the
authorized number of Directors shall require the affirmative vote of a majority
of the total number of Directors which the Corporation would have if there were
no vacancies. In addition, new Bylaws may be adopted or the Bylaws may be
amended or repealed by the affirmative vote of at least 66-2/3% of the combined
voting power of all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 66-2/3% of the combined voting power
of all shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to alter,
change, amend, repeal or adopt any provision inconsistent with, this Article
FIFTH.
SIXTH. (a) Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at an annual or special meeting of stockholders
of the Corporation and may not be effected by any consent in writing of such
stockholders.
(b) Special meetings of stockholders of the Corporation may be called only (i)
by the Chairman of the Board of Directors, or (ii) by the Chairman or the
Secretary at the written request of a majority of the total number of Directors
which the Corporation would have if there were no vacancies upon not fewer than
10 nor more than 60 days' written notice. Any request for a special meeting of
stockholders shall be sent to the Chairman and the Secretary and shall state the
purposes of the proposed meeting. Special meetings of holders of the outstanding
Preferred Stock may be called in the manner and for the purposes provided in the
resolutions of the Board of Directors providing for the issue of such stock.
Business transacted at special meetings shall be confined to the purpose or
purposes stated in the notice of meeting.
(c) Notwithstanding anything contained in this Certificate of Incorporation to
the contrary, the affirmative vote of the holders of at least 66-2/3% of the
combined voting power of all shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, change, amend, repeal or adopt any provision inconsistent
with, this Article SIXTH.
SEVENTH. (a) The number of Directors which shall constitute the whole Board of
Directors of this corporation shall be as specified in the Bylaws of this
corporation, subject to this Article SEVENTH.
(b) The Directors shall be classified with respect to the time for which they
severally hold office into three classes designated Class I, Class II and Class
III, as nearly equal in number as possible, as shall be provided in the manner
specified in the Bylaws of the Corporation. Each Director shall serve for a term
ending on the date of the third annual meeting of stockholders following the
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annual meeting at which the Director was elected; provided, however, that each
initial Director in Class I shall hold office until the annual meeting of
stockholders in 1997, each initial Director in Class II shall hold office until
the annul meeting of stockholders in 1998 and each initial Director in Class III
shall hold office until the annual meeting of stockholders in 1999.
Notwithstanding the foregoing provisions of this Article SEVENTH, each Director
shall serve until his successor is duly elected and qualified or until such
Director's death, resignation or removal.
(c) In the event of any increase or decrease in the authorized number of
Directors, (i) each Director then serving as such shall nevertheless continue as
a Director of the class of which such Director is a member until the expiration
of his current term, or his early resignation, removal from office or death and
(ii) the newly created or eliminated directorship resulting from such increase
or decrease shall be apportioned by the Board of Directors among the three
classes of Directors so as to maintain such classes as nearly equally as
possible.
(d) Any Director or the entire Board of Directors may be removed by the
affirmative vote of the holders of at least 66-2/3% of the combined voting power
of all shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
(e) Notwithstanding anything contained in this Certificate of Incorporation to
the contrary, the affirmative vote of the holders of at least 66-2/3% of the
combined voting power of all shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, change, amend, repeal or adopt any provision inconsistent
with, this Article SEVENTH.
EIGHTH. (a) 1. In addition to any affirmative vote required by law, any
Business Combination (as hereinafter defined) shall require the affirmative vote
of at least 66-2/3% of the combined voting power of all shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class (for purposes of this Article EIGHTH, the "Voting
Shares"). Such affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that some lesser percentage may be specified by law
or in any agreement with any national securities exchange or otherwise.
2. The term "Business Combination" as used in this Article EIGHTH shall mean
any transaction which is referred to in any one or more of the following clauses
(A) through (E);
(A) any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter
defined) or (ii) any other corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) or Associate (as hereinafter defined) or an
Interested Stockholder; or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition
(in one transaction or a series or related transactions) to or with, or proposed
by or on behalf of, any Interested Stockholder or any Affiliate or Associate of
any Interested Stockholder, of any assets of the Corporation or any Subsidiary
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constituting not less than five percent of the total assets of the Corporation,
as reported in the consolidated balance sheet of the Corporation as of the end
of the most recent quarter with respect to which such balance sheet has been
prepared; or
(C) the issuance or transfer by the Corporation or any Subsidiary (in one
transaction or a series of related transactions) of any securities of the
Corporation or any Subsidiary to, or proposed by or on behalf of, any Interested
Stockholder or any affiliate or Associate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination thereof)
constituting not less than five percent of the total assets of the Corporation,
as reported in the consolidated balance sheet of the Corporation as of the end
of the most recent quarter with respect to which such balance sheet has been
prepared; or
(D) the adoption of any plan or proposal for the liquidation or dissolution of
the Corporation, or any spin-off or split-up of any kind of the Corporation or
any Subsidiary, proposed by or on behalf of an Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder; or
(E) any reclassification of securities (including any reverse stock split), or
recapitalization of the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar transaction (whether or
not with or into or otherwise involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the percentage of the outstanding
shares of (i) any class of equity securities of the Corporation or any
Subsidiary or (ii) any class of securities of the Corporation or any Subsidiary
convertible into equity securities of the Corporation or any Subsidiary,
represented by securities of such class which are directly or indirectly owned
by any Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder.
(b) The provisions of section (a) of this Article EIGHTH shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote as is required by law and any other
provision of this Certificate of Incorporation, if such Business Combination has
been approved by two-thirds of the whole Board of Directors.
(c) For the purposes of this Article EIGHTH:
1. A "person" shall mean any individual, firm, corporation or other entity.
2. "Interested Stockholder" shall mean, in respect of any Business
Combination, any person (other than the Corporation or any Subsidiary) who or
which, as of the record date for the determination of stockholders entitled to
notice of and to vote on such Business Combination, or immediately prior to the
consummation of any such transaction
(A) is or was, at any time within two years prior thereto, the beneficial
owner, directly or indirectly, of 15% or more of the then outstanding Voting
Shares, or
(B) is an Affiliate or Associate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or indirectly, of 15% or
more of the then outstanding Voting Shares, or
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(C) is an assignee of or has otherwise succeeded to any shares of capital
stock of the Corporation which were at any time within two years prior thereto
beneficially owned by any Interested Stockholder, if such assignment or
succession shall have occurred in the course of a transaction, or series of
transactions, not involving a public offering within the meaning of the
Securities Act of 1933, as amended.
3. A "person" shall be the "beneficial owner" of any Voting Shares
(A) which such person or any of its Affiliates and Associates (as hereinafter
defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i) the right
to acquire (whether such right is exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any other person
with which such first mentioned person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purposes of acquiring,
holding, voting or disposing of any shares of capital stock of the Corporation.
4. The outstanding Voting Shares shall include shares deemed owned through
application of paragraph 3 above but shall not include any other Voting Shares
which may be issuable pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise.
5. "Affiliate" and "Associate" shall have the respective meanings given those
terms in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on the date of adoption of this Certificate
of Incorporation (the "Exchange Act").
6. "Subsidiary" shall mean any corporation of which a majority of any class of
equity security (as defined in Rule 3a11-1 of the General Rules and Regulations
under the Exchange Act) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in paragraph 2 of this section (c) the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) A majority of the directors shall have the power and duty to determine for
the purposes of this Article EIGHTH on the basis of information known to them,
(1) whether a person is an Interested Stockholder, (2) the number of Voting
Shares beneficially owned by any person, (3) whether a person is an Affiliate or
Associate of another, (4) whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in paragraph 3 of
section (c) or (5) whether the assets subject to any Business Combination or the
consideration received for the issuance or transfer of securities by the
Corporation or any Subsidiary constitutes not less than five percent of the
total assets of the Corporation.
-5-
(e) Nothing contained in this Article EIGHTH shall be construed to relieve any
Interested Stockholder from any fiduciary obligations imposed by law.
(f) Notwithstanding anything contained in this Certificate of Incorporation to
the contrary, the affirmative vote of the holders of at least 66-2/3% of the
combined voting power of all shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, change, amend, repeal or adopt any provision inconsistent
with, this Article EIGHTH.
NINTH. This 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 statue, and all rights conferred on stockholders
herein are granted subject to this reservation.
TENTH. 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 General Corporation Law of
Delaware or (iv) for any transaction from which the Director derived any
improper personal benefit. If the General Corporation Law of Delaware is
hereafter amended to authorize, with the approval of a corporation's
stockholders, further reductions in the liability of a corporation's directors
for breach of fiduciary duty, then a Director of the Corporation shall not be
liable for any such breach to the fullest extent permitted by the General
Corporation Law of Delaware as so amended. Any repeal or modification of the
foregoing provisions of this Article TENTH by the stockholders of the
Corporation shall not adversely affect any right or protection of a Director of
the Corporation existing at the time of such repeal or modification. This
corporation is authorized to indemnify the directors and officers of the
corporation to the fullest extent permissible under Delaware law.
-6-
CERTIFICATE OF CORRECTION OF
CALPINE CORPORATION
Calpine Corporation, a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
1. The name of the Corporation is Calpine Corporation.
2. An Amended and Restated Certificate of Incorporation (the "Instrument") was
filed with the Secretary of State of the State of Delaware on May 19, 2000 which
contains an inaccurate record of the corporate action taken therein, and said
Instrument requires correction as permitted by subsection (f) of Section 103 of
the General Corporation Law of the State of Delaware.
3. The inaccuracy in said Instrument is as follows:
Since the Board of Directors and stockholders of the Corporation merely
approved an amendment to the Amended and Restated Certificate of
Incorporation of the Corporation, as opposed to an amendment and
restatement thereof, the heading of the Instrument incorrectly identifies
the Instrument as the "Amended and Restated Certificate of Incorporation of
Calpine Corporation" and incorrectly restates the text of the Amended and
Restated Certificate of Incorporation of Calpine Corporation as filed with
the Secretary of State of the State of Delaware on September 13, 1996. The
Instrument further incorrectly states in paragraph THIRD that the
restatement was duly adopted in accordance with the provisions of Section
245 of the General Corporation Law of the State of Delaware.
4. The heading of the document filed on May 19, 2000 is corrected to read as
follows:
"Certificate of Amendment of Amended and Restated Certificate of
Incorporation of Calpine Corporation"
5. The text of the Instrument filed on May 19, 2000 is corrected to read in
its entirety as follows:
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CALPINE CORPORATION
CALPINE CORPORATION, a corporation duly organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify that:
1. The Amended and Restated Certificate of Incorporation of the Corporation is
hereby amended by deleting paragraph (a) of Article FOURTH thereof and inserting
the following in lieu thereof:
(a) The Corporation is authorized to issue
510,000,000 shares of capital stock, $.001 par value.
The shares shall be divided into two classes,
designated as follows:
Designation of Class Number of Shares
-------------------- ----------------
Common Stock 500,000,000
Preferred Stock 10,000,000
-----------
Total 510,000,000
2. The foregoing amendment was duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Calpine Corporation has caused this Certificate to be
executed by Lisa Bodensteiner, its duly authorized officer, this 28th day of
February, 2001.
CALPINE CORPORATION
By: /s/ LISA BODENSTEINER
-----------------------
Name: Lisa Bodensteiner
Title: Vice President, General
Counsel and Assistant Secretary
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CALPINE CORPORATION
CALPINE CORPORATION, a corporation duly organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify that:
1. The Amended and Restated Certificate of Incorporation of the Corporation,
as amended on March 2, 2001, is hereby amended by deleting paragraph (a) of
Article FOURTH thereof and inserting the following in lieu thereof:
(a) The Corporation is authorized to issue
1,010,000,000 shares of capital stock, $.001 par
value. The shares shall be divided into two classes,
designated as follows:
Designation of Class Number of Shares
-------------------- ----------------
Common Stock 1,000,000,000
Preferred Stock 10,000,000
-------------
Total 1,010,000,000
2. The foregoing amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, Calpine Corporation has caused this Certificate
to be executed by Ann B. Curtis, its duly authorized officer, this
25th day of July, 2001.
CALPINE CORPORATION
By: /s/ Ann B. Curtis
-----------------
Name: Ann B. Curtis
Title: Executive Vice President,
Chief Financial Officer and
Secretary
CERTIFICATE OF DESIGNATION
of
SERIES A PARTICIPATING PREFERRED STOCK
of
CALPINE CORPORATION
(Pursuant to Section 151 of the
Delaware General Corporation Law)
---------------------------------------
Calpine Corporation, a corporation organized and existing under the General
Corporation Law of the State of Delaware (hereinafter called the "Corporation"),
hereby certifies that the following resolution was adopted by the Board of
Directors of the Corporation as required by Section 151 of the General
Corporation Law at a meeting duly called and held on June 5, 1997:
RESOLVED, that pursuant to the authority granted to and vested in the Board of
Directors of the Corporation (hereinafter called the "Board of Directors" or the
"Board") in accordance with the provisions of the Certificate of Incorporation,
the Board of Directors hereby creates a series of Preferred Stock, par value
$0.001 per share (the "Preferred Stock"), of the Corporation and hereby states
the designation and number of shares, and fixes the relative rights,
preferences, and limitations thereof as follows:
Series A Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Participating Preferred Stock" (the "Series A Preferred
Stock") and the number of shares constituting the Series A Preferred Stock shall
be One Hundred Thousand (100,000). Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, however, that no
decrease shall reduce the number of shares of Series A Preferred Stock to a
number less than the number of shares then outstanding plus the number of shares
reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the
Series A Preferred Stock with respect to dividends, each holder of a share of
Series A Preferred Stock, in preference to the holders of shares of Common
Stock, par value $0.001 per share (the "Common Stock"), of the Corporation,
and of any other junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of March, June,
September and December in each year (each such date being referred to herein
as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a
share of Series A Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to, subject to the provision for adjustment hereinafter
set forth, One Thousand (1,000) times the aggregate per share amount of all
cash dividends, and One Thousand (1,000) times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions, other than
a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of a share or fraction of a share of Series A
Preferred Stock. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of Series
A Preferred Stock were entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by multiplying such amount by
a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or distribution on the shares
of Series A Preferred Stock as provided in paragraph (A) of this Section 2
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided, however,
that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Distribution Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share
of Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on each outstanding
share of Series A Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such share of Series A
Participating Preferred Stock, unless the date of issue of such share is prior
to the record date for the first Quarterly Dividend Payment Date, in which
case dividends on such share shall begin to accrue from the date of issue of
such share, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of shares
-2-
of Series A Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the payment
thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to One
Thousand (1,000) votes on all matters submitted to a vote of the stockholders
of the Corporation. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the number of votes per share to which
holders of shares of Series A Preferred Stock were entitled immediately prior
to such event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series A Preferred Stock and the holders of
shares of Common Stock and any other capital stock of the Corporation having
general voting rights shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any shares of Series A Preferred Stock
shall be in arrears in an amount equal to six quarterly dividends thereon,
then during the period (a "default period") from the occurrence of such event
until such time as all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period on all shares
of Series A Preferred Stock then outstanding shall have been declared and paid
or set apart for payment, all holders of shares of Series A Preferred Stock,
voting separately as a class, shall have the right to elect two (2) Directors.
(ii) During any default period, such voting rights of the holders of shares
of Series A Preferred Stock may be exercised initially at a special meeting
called pursuant to subparagraph (iii) of this Section 3(C) or at any annual
meeting of stockholders, and thereafter at annual meetings of stockholders,
provided that neither such voting rights nor any right of the holders of
shares of Series A Preferred Stock to increase, in certain cases, the
authorized number of Directors may be exercised at any meeting unless
one-third of the outstanding shares of Preferred Stock shall be present at
such meeting in person or by proxy. The absence of a quorum of the holders of
Common Stock shall not affect the exercise by the holders of shares of Series
A Preferred Stock of such rights. At any meeting at which the holders of
shares of Series A Preferred Stock shall exercise such voting rights initially
during an existing default period, they shall have the right, voting
separately as a class, to elect Directors to fill up to two (2) vacancies in
the Board of Directors, if any such vacancies may then exist, or, if such
right is exercised at an annual meeting, to elect two (2) Directors. If the
-3-
number which may be so elected at any special meeting does not amount to the
required number, the holders of the Series A Preferred Stock shall have the
right to make such increase in the number of Directors as shall be necessary
to permit the election by them of the required number. After the holders of
shares of Series A Preferred Stock shall have exercised their right to elect
Directors during any default period, the number of Directors shall not be
increased or decreased except as approved by a vote of the holders of shares
of Series A Preferred Stock as herein provided or pursuant to the rights of
any equity securities ranking senior to the Series A Preferred Stock.
(iii) Unless the holders of Series A Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any stockholder or
stockholders owning in the aggregate not less than 25% of the total number of
the shares of Series A Preferred Stock outstanding may request, the calling of
a special meeting of the holders of shares of Series A Preferred Stock, which
meeting shall thereupon be called by the Secretary of the Corporation. Notice
of such meeting and of any annual meeting at which holders of shares of Series
A Preferred Stock are entitled to vote pursuant to this Section 3(C)(iii)
shall be given to each holder of record of shares of Series A Preferred Stock
by mailing a copy of such notice to such holder at such holder's last address
as the same appears on the books of the Corporation. Such meeting shall be
called for a time not earlier than 20 days and not later than 60 days after
such order or request or in default of the calling of such meeting within 60
days after such order or request, such meeting may be called on similar notice
by any stockholder or stockholders owning in the aggregate not less than 25%
of the total number of outstanding shares of Series A Preferred Stock.
Notwithstanding the provisions of this Section 3(C)(iii), no such special
meeting shall be called during the 60 days immediately preceding the date
fixed for the next annual meeting of the stockholders.
(iv) During any default period, the holders of shares of Common Stock and
shares of Series A Preferred Stock, and other classes or series of stock of
the Corporation, if applicable, shall continue to be entitled to elect all the
Directors until holders of the shares of Series A Preferred Stock shall have
exercised their right to elect two (2) Directors voting as a separate class,
after the exercise of which right (x) the Directors so elected by the holders
of shares of Series A Preferred Stock shall continue in office until their
successors shall have been elected by such holders or until the expiration of
the default period, and (y) any vacancy in the Board of Directors may (except
as provided in Section 3(C)(ii)) be filled by vote of a majority of the
remaining Directors theretofore elected by the holders of the class of capital
stock which elected the Director whose office shall have become vacant.
References in this Section 3(C) to Directors elected by the holders of a
particular class of capital stock shall include Directors elected by such
Directors to fill vacancies as provided in clause (y) of the foregoing
sentence.
(v) Immediately upon the expiration of a default period, (x) the right of
the holders of shares of Series A Preferred Stock as a separate class to elect
Directors shall cease, (y) the term of any Directors elected by the holders of
shares of Series A Preferred Stock as a separate class shall terminate, and
(z) the number of Directors shall be such number as may be provided for in the
Certificate of Incorporation or by-laws irrespective of any increase made
pursuant to the provisions of Section 3(C)(ii) (such number being subject,
-4-
however, to change thereafter in any manner provided by law or in the
Certificate of Incorporation or by-laws). Any vacancies in the Board of
Directors effected by the provisions of clauses (y) and (z) in the preceding
sentence may be filled by a majority of the remaining Directors.
(vi) The provisions of this Section 3(C) shall govern the election of
Directors by holders of shares of Preferred Stock during any default period
notwithstanding any provisions of the Certificate of Incorporation to the
contrary, including, without limitation, the provisions of Article Sixth of
the Certificate of Incorporation.
(D) Except as set forth herein, or as otherwise provided by law, holders of
Series A Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable
on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions,
whether or not declared, on shares of Series A Preferred Stock outstanding
shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any shares
of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on the shares of Series A Preferred Stock and
all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are
then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of
any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of
any such junior stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock, or any shares of stock ranking on a parity with the
Series A Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative
rights and preferences of the respective series and classes, shall determine
in good faith will result in fair and equitable treatment among the respective
series or classes.
-5-
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section
4, purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased
or otherwise acquired by the Corporation in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock subject to
the conditions and restrictions on issuance set forth herein, in the Certificate
of Incorporation, or in any other Certificate of Designations creating a series
of Preferred Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of Series
A Preferred Stock shall have received One Thousand Dollars ($1,000), per share,
plus an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment; provided, however, that
the holders of shares of Series A Preferred Stock shall be entitled to receive
an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to one thousand (1,000), times the aggregate amount
to be distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except distributions made ratably on the Series A Preferred Stock and all such
parity stock in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up. In the
event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under the proviso in clause
(1) of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) In the event, however, that there are not sufficient assets available to
permit payment in full the Series A Liquidation Preference and the liquidation
preferences of all other series of Preferred Stock, if any, which rank on a
parity with the Series A Preferred Stock, then such remaining assets shall be
distributed ratably to the holders of such parity shares in proportion to their
respective liquidation preferences.
-6-
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to One Thousand (1,000) times the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall not be
redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all series of any
other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the Corporation
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at least a
majority of the outstanding shares of Series A Preferred Stock, voting together
as a single class.
IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of
the Corporation by its President and its corporate seal attested by its
Secretary this 16th day of June, 1997.
/s/ PETER CARTWRIGHT
--------------------
Name: Peter Cartwright
Title: Chairman, President and
Chief Executive Officer
Attest:
/s/ ANN B. CURTIS
- -----------------
Name: Ann B. Curtis
Title: Senior Vice President and Corporate Secretary
-7-
AMENDED CERTIFICATE OF DESIGNATION
OF
SERIES A PARTICIPATING PREFERRED STOCK
OF
CALPINE CORPORATION
(PURSUANT TO SECTION 151 OF THE
DELAWARE GENERAL CORPORATION LAW)
---------------
CALPINE CORPORATION, a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Company"), in accordance with the
provisions of Section 103 of the General Corporation Law of the State of
Delaware, certifies as follows:
1. That by resolution of the Board of Directors of the Company dated June 5,
1997, and by a Certificate of Designation filed in the office of the Secretary
of State of the State of Delaware on June 16, 1997, the Company authorized a
series of 100,000 shares of Series A Participating Preferred Stock, par value
$0.001 per share, of the Company (the "Series A Preferred Stock") and
established the powers, designations, preferences and relative, participating,
optional and other rights of the Series A Preferred Stock and the
qualifications, limitations or restrictions thereof.
2. As of the date hereof, no shares of Series A Preferred Stock are
outstanding and no shares of Series A Preferred Stock have been issued.
3. The pursuant to the authority conferred on the Board of Directors of the
Company by its Restated Certificate of Incorporation and the provisions of
Section 151(g) of the General Corporation Law of the State of Delaware, the
Board of Directors on February 6, 2001, adopted the following resolution
amending certain provision s of said Certificate of Designation:
RESOLVED FURTHER, that the Board finds it advisable to amend the Certificate
of Designation of Series A Participating Preferred Stock of Calpine
Corporation (the "Series A Preferred Certificate of Designation"), and the
Series A Preferred Stock Certificate of Designation is hereby amended, as
follows: the phrase "One Hundred Thousand (100,000)" in the first sentence of
Section 1 of the Series A Preferred Certificate of Designation is deleted and
replaced with the phrase "Five Hundred Thousand (500,000)".
IN WITNESS WHEREOF, CALPINE CORPORATION has caused this certificate to be
executed by Lisa M. Bodensteiner, the Vice President, General Counsel and
Assistant Secretary of the Company, this 28th day of February, 2001.
/s/ LISA M. BODENSTEINER
------------------------
Lisa M. Bodensteiner
Vice President, General Counsel and
Assistant Secretary
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:30 AM 04/18/2001
010185705 - 0939652
CERTIFICATE OF DESIGNATION
of
SPECIAL VOTING PREFERRED STOCK
of
CALPINE CORPORATION
(Pursuant to Section 151 of the
Delaware General Corporation Law)
------------------------------------
Calpine Corporation, a corporation organized and existing under
the General Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), hereby certifies that the following resolution was adopted by
the unanimous consent of the Board of Directors of the Corporation as required
by Section 151 of the General Corporation Law on April [ ], 2001:
RESOLVED, that pursuant to the authority granted to and vested in
the Board of Directors of the Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation of the Corporation, the Board of Directors hereby creates a
series of Preferred Stock, par value $.001 per share, of the Corporation and
hereby states the designation and number of shares, and fixes the relative
rights, preferences and limitations thereof as follows:
Special Voting Preferred Stock:
Section 1. Designation and Amount. A series of Preferred Stock is
hereby created designated as "Special Voting Preferred Stock." The number of
shares constituting such series shall be one (1). So long as any Exchangeable
Shares, without par value (the "Exchangeable Shares"), of Calpine Canada
Holdings Ltd., an Alberta corporation, shall be outstanding, the number of
shares comprising the Special Voting Preferred Stock shall not be increased or
decreased.
Section 2. Voting Rights. The holder of the Special Voting
Preferred Stock shall have no voting rights except as provided in this Section 2
and under applicable law. Except as provided in Section 7, the share of Special
Voting Preferred Stock shall be entitled at any relevant date (which date shall
be the applicable record date with respect to such matter if a record date is
set) to the number of votes determined in accordance with the following
calculation on any matter on which the holders of Common Stock, par value $.001
(the "Common Stock"), of the Corporation are entitled to vote, consent or
otherwise act. The number of votes to which the share of Special Voting
Preferred Stock shall be entitled at any relevant date (which date shall be the
applicable record date with respect to such matter if a record date is set)
shall equal the product of (i) the number of Exchangeable Shares issued and
outstanding on such date and held by holders other than the Corporation or any
Subsidiary of the Corporation multiplied by (ii) the number of votes to which a
holder of one share of Common Stock is entitled with respect to such matter on
such date. Except as otherwise provided by law, the Special Voting Preferred
Stock shall vote with the Common Stock as a single class. So long as any
Exchangeable Shares shall be outstanding, no term of the Special Voting
Preferred Stock shall be amended, except upon the approval of a majority of the
shares of Common Stock and the holder of the Special Voting Preferred Stock. As
used herein, a "Subsidiary of the Corporation" is any entity of which more than
50% of the total voting power of the shares of stock or units of ownership or
beneficial interest entitled to vote in the election of directors (or members of
a comparable governing body) are owned or controlled, directly or indirectly, by
the Corporation.
Section 3. Liquidation, Dissolution or Winding Up. Upon the
liquidation, dissolution or winding up of the Corporation, the holder of the
Special Voting Preferred Stock shall be entitled, prior and in preference to any
distribution to holders of Common Stock and after the distribution to holders of
any class or series of Preferred Stock ranking senior to the Special Voting
Preferred Stock of all amounts to which such holders are entitled, to receive
the sum of $.001.
Section 4. Dividends and Distributions. Except as provided in
Section 3, no dividends or distributions shall be payable to the holder of the
Special Voting Preferred Stock.
Section 5. Voting Trust Agreement. The Special Voting Preferred
Stock is subject to the Voting and Exchange Trust Agreement, dated April 18,
2001, between the Corporation, Calpine Canada Holdings Ltd. and CIBC Mellon
Trust Company, a Canadian corporation.
Section 6. No Conversion. The Special Voting Preferred Stock shall
not be convertible into any other class or series of capital stock of the
Corporation or into cash, property or other rights.
Section 7. Redemption; Cancellation. From and after the first time
after April 19, 2001, that there are no longer outstanding any Exchangeable
Shares (other than Exchangeable Shares owned by the Corporation or any
Subsidiary of the Corporation) and there are no shares of stock, debt, options
or other agreements which could give rise to the issuance of any Exchangeable
Shares to any person (other than the Corporation or any Subsidiary of the
Corporation), the share of Special Voting Preferred Stock shall no longer be
entitled to vote on any matter involving the Corporation or on any matter
presented for a vote to the holders of any of the stock of the Corporation, and
shall automatically be redeemed for $1.00, and upon such redemption or other
purchase or acquisition of the Special Voting Preferred Stock by the Corporation
the share of Special Voting Preferred Stock shall be deemed retired and canceled
and may not be reissued.
-2-
IN WITNESS WHEREOF, this Certificate of Designation is executed on
behalf of the Corporation by its President this 18th day of April, 2001.
/s/ PETER CARTWRIGHT
---------------------
Peter Cartwright
Chairman, President and Chief
Executive Officer
-3-
AMENDED CERTIFICATE OF DESIGNATION
OF
SERIES A PARTICIPATING PREFERRED STOCK
OF
CALPINE CORPORATION
(PURSUANT TO SECTION 151 OF THE
DELAWARE GENERAL CORPORATION LAW)
---------------
CALPINE CORPORATION, a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Company"), in accordance with the
provisions of Section 103 of the General Corporation Law of the State of
Delaware, certifies as follows:
1. That by resolution of the Board of Directors of the Company dated June 5,
1997, and by a Certificate of Designation filed in the office of the Secretary
of State of the State of Delaware on June 16, 1997, as thereafter amended by an
Amended Certificate of Designation filed in the office of the Secretary of State
of the State of Delaware on March 2, 2001, the Company authorized a series of
shares of Series A Participating Preferred Stock, par value $0.001 per share, of
the Company (the "Series A Preferred Stock") and established the powers,
designations, preferences and relative, participating, optional and other rights
of the Series A Preferred Stock and the qualifications, limitations or
restrictions thereof.
2. As of the date hereof, no shares of Series A Preferred Stock are
outstanding and no shares of Series A Preferred Stock have been issued.
3. The pursuant to the authority conferred on the Board of Directors of the
Company by its Restated Certificate of Incorporation and the provisions of
Section 151(g) of the General Corporation Law of the State of Delaware, the
Board of Directors on July 25, 2001, adopted the following resolution amending
certain provisions of said Certificate of Designation:
RESOLVED FURTHER, that the Board finds it advisable to amend the Certificate
of Designation of Series A Participating Preferred Stock of Calpine
Corporation (as amended on March 2, 2001, the "Series A Preferred Certificate
of Designation"), and the Series A Preferred Certificate of Designation is
hereby amended, as follows: the phrase "Five Hundred Thousand (500,000)" in
the first sentence of Section 1 of the Series A Preferred Certificate of
Designation is deleted and replaced with the phrase "One Million (1,000,000)".
IN WITNESS WHEREOF, CALPINE CORPORATION has caused this certificate to be
executed by Ann B. Curtis, the Executive Vice President, Chief Financial Officer
and Secretary of the Company, this 25th day of July, 2001.
/s/ Ann B. Curtis
-----------------
Ann B. Curtis
Executive Vice President, Chief
Financial Officer and Secretary
-2-
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
CALPINE NATURAL GAS COMPANY
a Delaware corporation
INTO
CALPINE CORPORATION
a Delaware corporation
(Pursuant to Section 253 of the General Corporation
Law of the State of Delaware)
Calpine Corporation, a corporation duly organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, does hereby
certify:
FIRST: That Calpine Corporation (the "Company") and Calpine Natural Gas
Company ("CNGC") are corporations duly organized and existing under and by
virtue of the General Corporation Law of the State of Delaware.
SECOND: That the Company owns all of the issued and outstanding shares of
the capital stock of CNGC.
THIRD: That the Company, by resolutions of its board of directors duly
adopted at a meeting held on the 22nd day of April, 2002, determined to and did
merge into itself said CNGC, and that such resolutions have not been rescinded
and are in full force and effect on the date hereof, which resolutions are in
the following words, to wit:
"WHEREAS, the merger of Calpine Natural Gas GP, Inc., a Delaware
corporation, with and into the Company and the receipt of 990 shares of the
common stock of Calpine Natural Gas Company, a Delaware corporation, from
Calpine Natural Gas Holdings, LLC, a Delaware limited liability company and
wholly owned subsidiary of the Company (the "Stock Transfer"), resulted in
CNGC becoming a wholly owned subsidiary of the Company;
WHEREAS, the board of directors of the Company deems it advisable and
in the best interests of the Company to merge CNGC with and into the
Company, with the Company being the surviving corporation;
NOW, THEREFORE, BE IT RESOLVED, that CNGC be merged with and into the
Company pursuant to Section 253 of the General Corporation Law of the State
of Delaware, and that the Company succeed to and possess all the rights and
assets of CNGC and be subject to all of the liabilities and obligations of
CNGC;
RESOLVED FURTHER, that each share of the capital stock of CNGC issued
and outstanding immediately prior to the effective time of the merger
shall, upon the effective time and by virtue of the merger, be cancelled
without payment therefor;
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:02 PM 04/24/2002
020262278 - 0939652
-1-
RESOLVED FURTHER, that the merger shall become effective at such time
designated in the Certificate of Ownership and Merger filed by the Company
with the Secretary of State of the State of Delaware to effect the merger;
RESOLVED FURTHER, that the appropriate officers of the Company are
hereby authorized and empowered to file the necessary documents with the
Secretary of State of the State of Delaware, to incur the necessary
expenses therefor and to take, or cause to be taken, all such further
action and to execute and deliver or cause to be executed and delivered, in
the name of and on behalf of the Company, all such further instruments and
documents as any such officer may deem to be necessary or advisable in
order to effect the purpose and intent of the foregoing resolutions and to
be in the best interests of the Company (as conclusively evidenced by the
taking of such action or the execution and delivery of such instruments and
documents, as the case may be, by or under the direction of any such
officer);
RESOLVED FURTHER, that the prior actions of the officers and directors
of the Company in undertaking to carry out the transactions contemplated by
the foregoing resolutions be, and the same hereby are, in all respects,
approved, adopted, ratified and confirmed; and
RESOLVED FURTHER, anything herein or elsewhere to the contrary
notwithstanding, the merger may be amended or terminated and abandoned by
the board of directors of the Company at any time prior to the time that
the Certificate of Ownership and Merger filed with the Secretary of State
of Delaware becomes effective."
FOURTH: The merger shall become effective at 11:59 p.m., Eastern Time on
April 24, 2002.
IN WITNESS WHEREOF, the Company has caused this Certificate to be signed by
its duly authorized officer this 24 day of April, 2002.
CALPINE CORPORATION
By: /s/ Peter Cartwright
---------------------------
Peter Cartwright, President
-2-
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:01 PM 04/24/2002
020262655 - 0939652
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
CALPINE NATURAL GAS GP, INC.
a Delaware corporation
INTO
CALPINE CORPORATION
a Delaware corporation
(Pursuant to Section 253 of the General Corporation
Law of the State of Delaware)
Calpine Corporation, a corporation duly organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, does hereby
certify:
FIRST: That Calpine Corporation (the "Company") and Calpine Natural Gas GP,
Inc. ("Calpine GP") are corporations duly organized and existing under and by
virtue of the General Corporation Law of the State of Delaware.
SECOND: That the Company owns all of the issued and outstanding shares of
the capital stock of Calpine GP.
THIRD: That the Company, by resolutions of its board of directors duly
adopted at a meeting held on the 22nd day of April, 2002, determined to and did
merge into itself said Calpine GP, and that such resolutions have not been
rescinded and are in full force and effect on the date hereof, which resolutions
are in the following words, to wit:
"WHEREAS, Calpine Natural Gas GP, Inc., a Delaware corporation
("Calpine GP"), is a wholly owned subsidiary of the Company;
WHEREAS, the board of directors of the Company deems it advisable and
in the best interest of the Company to merge Calpine GP with and into the
Company, with the Company being the surviving corporation;
NOW, THEREFORE, BE IT RESOLVED, that Calpine GP be merged with and
into the Company pursuant to Section 253 of the General Corporation Law of
the State of Delaware, and that the Company succeed to and possess all the
rights and assets of Calpine GP and be subject to all of the liabilities
and obligations of Calpine GP;
RESOLVED FURTHER, that each share of the capital stock of Calpine GP
issued and outstanding immediately prior to the effective time of the
merger shall, upon the effective time and by virtue of the merger, be
cancelled without payment therefor;
RESOLVED FURTHER, that the merger shall become effective at such time
designated in the Certificate of Ownership and Merger filed by the Company
with the Secretary of State of the State of Delaware to effect the merger;
RESOLVED FURTHER, that the appropriate officers of the Company are
hereby authorized and empowered to file the necessary documents with the
Secretary of State of the State of Delaware, to incur the necessary
-1-
expenses therefor and to take, or cause to be taken, all such further
action and to execute and deliver or cause to be executed and delivered, in
the name of and on behalf of the Company, all such further instruments and
documents as any such officer may deem to be necessary or advisable in
order to effect the purpose and intent of the foregoing resolutions and to
be in the best interests of the Company (as conclusively evidenced by the
taking of such action or the execution and delivery of such instruments and
documents, as the case may be, by or under the direction of any such
officer);
RESOLVED FURTHER, that the prior actions of the officers and directors
of the Company in undertaking to carry out the transactions contemplated by
the foregoing resolutions be, and the same hereby are, in all respects,
approved, adopted, ratified and confirmed; and
RESOLVED FURTHER, anything herein or elsewhere to the contrary
notwithstanding, the merger may be amended or terminated and abandoned by
the board of directors of the Company at any time prior to the time that
the Certificate of Ownership and Merger filed with the Secretary of State
of Delaware becomes effective."
FOURTH: The merger shall become effective at 11:58 p.m., Eastern Time on
April 24, 2002.
IN WITNESS WHEREOF, the Company has caused this Certificate to be signed by
its duly authorized officer this 24 day of April, 2002.
CALPINE CORPORATION
By: /s/ Peter Cartwright
-----------------------
Peter Cartwright, President
-2-
3
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
GOLDENDALE ENERGY, INC.
a Washington corporation
WITH AND INTO
CALPINE CORPORATION
a Delaware corporation
(Pursuant to Section 253 of the General Corporation
Law of the State of Delaware)
Calpine Corporation, a corporation duly organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, does hereby
certify:
FIRST: That Calpine Corporation (the "Company") is a corporation duly
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, and Goldendale Energy, Inc. ("Goldendale") is a corporation
duly organized and existing under and by virtue of theWashington Business
Corporation Act.
SECOND: That the Company owns all of the issued and outstanding shares of
each class of the capital stock of Goldendale.
THIRD: That the board of directors of the Company (the "Board") adopted the
following resolutions on July 10, 2003, and that such resolutions have not been
rescinded and are in full force and effect on the date hereof:
WHEREAS, the Company owns all of the issued and outstanding shares of
each class of the capital stock of Goldendale; and
WHEREAS, the Board deems it advisable and in the best interests of the
Company to merge Goldendale with and into the Company pursuant to Section
253 of the General Corporation Law of the State of Delaware (the "DGCL")
and RCW 23B.11.050 of the Washington Business Corporation Act, Title 23B
RCW (the "WBCA"), with the Company being the surviving corporation;
NOW, THEREFORE, BE IT RESOLVED, that Goldendale be merged with and
into the Company pursuant to Section 253 of the DGCL and RCW 23B.11.050 of
the WBCA with the Company being the surviving corporation (the "Merger"),
and that the Company succeed to and possess all the rights and assets of
Goldendale and be subject to all of the liabilities and obligations of
Goldendale;
RESOLVED FURTHER, that by virtue of the Merger and without any action
on the part of the holder thereof, each then outstanding share of capital
stock of the Company shall remain unchanged and continue to remain
outstanding as capital stock of the Company, held by the holder that was
the holder of such share of capital stock of the Company immediately prior
to the Merger;
State of Delaware
Secretary of State
Division of Corporations
Delivered 08:02 AM 07/16/2003
FILED 08:02 AM 07/16/2003
SRV 030464644 - 0939652 FILE
RESOLVED FURTHER, that by virtue of the Merger and without any action
on the part of the holder thereof, each share of the capital stock of
Goldendale issued and outstanding immediately prior to the effective time
of the Merger shall, upon the effective time of the Merger, be cancelled
without payment therefor;
RESOLVED FURTHER, that the appropriate officers of the Company be and
hereby are authorized and empowered to file the necessary documents with
the Secretary of State of the State of Delaware and the Secretary of State
of the State of Washington, including, without limitation, a Certificate of
Ownership and Merger complying with Section 253 of the DGCL (the
"Certificate of Merger"), Articles of Merger complying with RCW 23B.11.050
of the WBCA (the "Articles of Merger") and the Plan of Merger between the
Company and Goldendale to be attached to the Articles of Merger (the "Plan
of Merger"), to incur the necessary expenses therefor and to take, or cause
to be taken, all such further action and to execute and deliver or cause to
be executed and delivered, in the name of and on behalf of the Company, all
such further instruments and documents as any such officer may deem to be
necessary or advisable in order to effect the purpose and intent of the
foregoing resolutions and to be in the best interests of the Company (as
conclusively evidenced by the taking of such action or the execution and
delivery of such instruments and documents, as the case may be, by or under
the direction of any such officer);
RESOLVED FURTHER, that the prior actions of the officers and directors
of the Company in undertaking to carry out the transactions contemplated by
the foregoing resolutions be, and the same hereby are, in all respects,
approved, adopted, ratified and confirmed; and
RESOLVED FURTHER, anything herein or elsewhere to the contrary
notwithstanding, the Merger may be amended or terminated and abandoned by
the Board at any time prior to the time that the Certificate of Merger
filed with the Secretary of State of the State of Delaware and the Articles
of Merger and the Plan of Merger filed with the Secretary of State of the
State of Washington become effective.
FOURTH: The Company shall be the surviving corporation of the Merger.
FIFTH: The certificate of incorporation of the Company as in effect
immediately prior to the merger shall be the certificate of incorporation of the
surviving corporation.
SIXTH: The Merger shall become effective at 8:30 a.m., Eastern Daylight
Time, on the 16th day of July, 2003.
-2-
IN WITNESS WHEREOF, the Company has caused this Certificate to be
signed by its duly authorized officer this 16th day of July, 2003.
CALPINE CORPORATION
By: /s/ Ann B. Curtis
-----------------------------------
Name: Ann B. Curtis
Title: Executive Vice President,
Secretary and Vice Chairman
of the Board
-3-
CERTIFICATE OF MERGER
MERGING
CALPINE DEER PARK GP, LLC AND
CALPINE DEER PARK LP, LLC
WITH AND INTO
CALPINE CORPORATION
(Pursuant to Section 264 of the General Corporation Law of the State of Delaware
and Section 18-209 of the Delaware Limited Liability Company Act)
The undersigned Calpine Corporation, a Delaware corporation,
DOES HEREBY CERTIFY:
FIRST: The name and jurisdiction of formation or organization and domicile
of each of the constituent entities are as follows:
Jurisdiction of
Name Formation or Organization and Domicile
- ---- --------------------------------------
Calpine Corporation Delaware
Calpine Deer Park GP, LLC Delaware
Calpine Deer Park LP, LLC Delaware
SECOND: An Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent entities in
accordance with Section 264(c) of the General Corporation Law of the State of
Delaware, 8 Del. C. Section 101, et seq., and Section 18-209 of the Delaware
Limited Liability Company Act, 6 Del.C. Section 18-101, et seq.
THIRD: The name of the surviving Delaware corporation is Calpine
Corporation (the "Surviving Corporation").
FOURTH: The certificate of incorporation of Calpine Corporation as in
effect immediately prior to the merger shall be the certificate of incorporation
of the Surviving Corporation.
FIFTH: The executed Agreement and Plan of Merger is on file at an office
and a place of business of the Surviving Corporation at 50 West San Fernando
Street, San Jose, California 95113.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
Surviving Corporation, on request and without cost, to any member of Calpine
Deer Park GP, LLC or Calpine Deer Park LP, LLC or any stockholder of Calpine
Corporation.
SEVENTH: The merger shall become effective at 8:30 a.m., Eastern Daylight
Time, on the 16th day of July, 2003.
State of Delaware
Secretary of State
Division of Corporations
Delivered 08:02 AM 07/16/2003
FILED 08:02 AM 07/16/2003
SRV 030464645 - 0939652 FILE
IN WITNESS WHEREOF, Surviving Corporation has caused this Certificate to be
signed by its duly authorized officer this 16th day of July, 2003.
CALPINE CORPORATION
By: /s/ Ann B. Curtis
-----------------------------------
Name: Ann B. Curtis
Title: Executive Vice President,
Secretary and Vice Chairman
of the Board
-2-
State of Delaware
Secretary of State
Division of Corporations
Delivered 08:02 AM 07/16/2003
FILED 08:04 AM 07/16/2003
SRV 030464646 - 0939652 FILE
CERTIFICATE OF MERGER
MERGING
DEER PARK ENERGY CENTER, LP
WITH AND INTO
CALPINE CORPORATION
(Pursuant to Section 263 of the General Corporation Law of the State of Delaware
and Section 17-211 of the Delaware Revised Uniform Limited Partnership Act)
The undersigned Calpine Corporation, a Delaware corporation,
DOES HEREBY CERTIFY:
FIRST: The name and jurisdiction of formation or organization and domicile
of each of the constituent entities are as follows:
Jurisdiction of
Name Formation or Organization and Domicile
---- --------------------------------------
Calpine Corporation Delaware
Deer Park Energy Center, LP Delaware
SECOND: An Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent entities in
accordance with Section 263(c) of the General Corporation Law of the State of
Delaware, 8 Del. C. Section 101, et seq., and Section 17-211 of the Delaware
Revised Uniform Limited Partnership Act, 6 Del.C. Section 17-101, et seq.
THIRD: The name of the surviving Delaware corporation is Calpine
Corporation (the "Surviving Corporation").
FOURTH: The certificate of incorporation of Calpine Corporation as in
effect immediately prior to the merger shall be the certificate of incorporation
of the Surviving Corporation.
FIFTH: The executed Agreement and Plan of Merger is on file at an office
and a place of business of the Surviving Corporation at 50 West San Fernando
Street, San Jose, California 95113.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
Surviving Corporation, on request and without cost, to any partner of Deer Park
Energy Center LP or any stockholder of Calpine Corporation.
SEVENTH: The merger shall become effective at 8:30 a.m., Eastern Daylight
Time, on the 16th day of July, 2003.
IN WITNESS WHEREOF, Surviving Corporation has caused this Certificate to be
signed by its duly authorized officer this 16th day of July, 2003.
CALPINE CORPORATION
By: /s/ Ann B. Curtis
-----------------------------------
Name: Ann B. Curtis
Title: Executive Vice President,
Secretary and Vice Chairman
of the Board
-2-
CERTIFICATE OF MERGER
MERGING
CPN MEC HOLDINGS, LLC,
MEC HOLDINGS, LLC, AND
METCALF ENERGY CENTER, LLC
WITH AND INTO
CALPINE CORPORATION
(Pursuant to Section 264 of the General Corporation Law of the State of Delaware
and Section 18-209 of the Delaware Limited Liability Company Act)
The undersigned Calpine Corporation, a Delaware corporation,
DOES HEREBY CERTIFY:
FIRST: The name and jurisdiction of formation or organization and domicile
of each of the constituent entities are as follows:
Jurisdiction of
Name Formation or Organization and Domicile
---- --------------------------------------
Calpine Corporation Delaware
CPN MEC Holdings, LLC Delaware
MEC Holdings, LLC Delaware
Metcalf Energy Center, LLC Delaware
SECOND: An Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent entities in
accordance with Section 264(c) of the General Corporation Law of the State of
Delaware, 8 Del. C. Section 101, et seq., and Section 18-209 of the Delaware
Limited Liability Company Act, 6 Del.C. Section 18-101, et seq.
THIRD: The name of the surviving Delaware corporation is Calpine
Corporation (the "Surviving Corporation").
FOURTH: The certificate of incorporation of Calpine Corporation as in
effect immediately prior to the merger shall be the certificate of incorporation
of the Surviving Corporation.
FIFTH: The executed Agreement and Plan of Merger is on file at an office
and a place of business of the Surviving Corporation at 50 West San Fernando
Street, San Jose, California 95113.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
Surviving Corporation, on request and without cost, to any member of CPN MEC
Holdings, LLC, MEC Holdings, LLC, or Metcalf Energy Center, LLC or any
stockholder of Calpine Corporation.
State of Delaware
Secretary of State
Division of Corporations
Delivered 08:02 AM 07/16/2003
FILED 08:05 AM 07/16/2003
SRV 030464647 - 0939652 FILE
IN WITNESS WHEREOF, Surviving Corporation has caused this Certificate to be
signed by its duly authorized officer this 16th day of July, 2003.
CALPINE CORPORATION
By: /s/ Ann B. Curtis
-----------------------------------
Name: Ann B. Curtis
Title: Executive Vice President,
Secretary and Vice Chairman
of the Board
-2-
State of Delaware
Secretary of State
Division of Corporations
Delivered 08:02 AM 07/16/2003
FILED 08:06 AM 07/16/2003
SRV 030464648 - 0939652 FILE
CERTIFICATE OF MERGER
MERGING
AUGUSTA ENERGY LLC,
OTAY MESA GENERATING COMPANY, LLC,
SANTA ROSA ENERGY, LLC AND
WASHINGTON PARISH ENERGY CENTER, LLC
WITH AND INTO
CALPINE CORPORATION
(Pursuant to Section 264 of the General Corporation Law of the State of Delaware
and Section 18-209 of the Delaware Limited Liability Company Act)
The undersigned Calpine Corporation, a Delaware corporation,
DOES HEREBY CERTIFY:
FIRST: The name and jurisdiction of formation or organization and domicile
of each of the constituent entities are as follows:
Jurisdiction of
Name Formation or Organization and Domicile
---- --------------------------------------
Calpine Corporation Delaware
Augusta Energy LLC Delaware
Otay Mesa Generating Company, LLC Delaware
Santa Rosa Energy, LLC Delaware
Washington Parish Energy Center, LLC Delaware
SECOND: An Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent entities in
accordance with Section 264(c) of the General Corporation Law of the State of
Delaware, 8 Del. C. Section 101, et seq., and Section 18-209 of the Delaware
Limited Liability Company Act, 6 Del.C. Section 18-101, et seq..
THIRD: The name of the surviving Delaware corporation is Calpine
Corporation (the "Surviving Corporation").
FOURTH: The certificate of incorporation of Calpine Corporation as in
effect immediately prior to the merger shall be the certificate of incorporation
of the Surviving Corporation.
FIFTH: The executed Agreement and Plan of Merger is on file at an office
and a place of business of the Surviving Corporation at 50 West San Fernando
Street, San Jose, California 95113.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
Surviving Corporation, on request and without cost, to any member of Augusta
Energy LLC, Otay Mesa Generating Company, LLC, Santa Rosa Energy, LLC or
Washington Parish Energy Center, LLC, or any stockholder of Calpine Corporation.
-2-
IN WITNESS WHEREOF, Surviving Corporation has caused this Certificate to be
signed by its duly authorized officer this 16th day of July, 2003.
CALPINE CORPORATION
By: /s/ Ann B. Curtis
-----------------------------------
Name: Ann B. Curtis
Title: Executive Vice President,
Secretary and Vice Chairman
of the Board
-3-
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
OF
CALPINE CORPORATION
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"corporation") is
CALPINE CORPORATION
2. The registered office of the corporation within the State of
Delaware is hereby changed to 2711 Centerville Road, Suite 400, City of
Wilmington 19808, County of New Castle.
3. The registered agent of the corporation within the State of
Delaware is hereby changed to Corporation Service Company, the business office
of which is identical with the registered office of the corporation as hereby
changed.
4. The corporation has authorized the changes hereinbefore set
forth by resolution of its Board of Directors.
Signed on July 23, 2003.
/s/ Lisa M. Bodensteiner
------------------------------
Name: Lisa M. Bodensteiner
Title: Assistant Secretary
State of Delaware
Secretary of State
Division of Corporations
Delivered 04:08 PM 07/23/2003
FILED 03:41 PM 07/23/2003
SRV 030482533 - 0939652 FILE
State of Delaware
Secretary of State
Division of Corporations
Delivered 08:05 AM 11/18/2003
FILED 08:05 AM 11/18/2003
SRV 030738126 - 0939652 FILE
CERTIFICATE OF MERGER
MERGING
FREMONT ENERGY CENTER LLC
WITH AND INTO
CALPINE CORPORATION
(Pursuant to Section 264 of the General Corporation Law of the State of Delaware
and Section 18-209 of the Delaware Limited Liability Company Act)
The undersigned Calpine Corporation, a Delaware corporation,
DOES HEREBY CERTIFY:
FIRST: The name and jurisdiction of formation or organization and domicile
of the constituent entities are as follows:
Jurisdiction of
Name Formation or Organization and Domicile
---- --------------------------------------
Calpine Corporation Delaware
Fremont Energy Center LLC Delaware
SECOND: An Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent entities in
accordance with Section 264(c) of the General Corporation Law of the State of
Delaware, 8 Del. C. Section 101, et seq., and Section 18-209 of the Delaware
Limited Liability Company Act, 6 Del.C. Section 18-101, et seq.
THIRD: The name of the surviving Delaware corporation is Calpine
Corporation (the "Surviving Corporation").
FOURTH: The certificate of incorporation of Calpine Corporation as in
effect immediately prior to the merger shall be the certificate of incorporation
of the Surviving Corporation.
FIFTH: The executed Agreement and Plan of Merger is on file at an office
and a place of business of the Surviving Corporation at 50 West San Fernando
Street, San Jose, California 95113.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
Surviving Corporation, on request and without cost, to any member of Fremont
Energy Center LLC, or any stockholder of Calpine Corporation.
IN WITNESS WHEREOF, Surviving Corporation has caused this Certificate to be
signed by its duly authorized officer this 18th day of November, 2003.
CALPINE CORPORATION
By: /s/ Eric Pryor
--------------------------------------
Name: Eric Pryor
Title: Senior Vice President
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:12 PM 06/02/2004
FILED 07:05 PM 06/02/2004
SRV 040411614 - 0939652 FILE
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CALPINE CORPORATION
CALPINE CORPORATION, a corporation duly organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify that:
1. The Amended and Restated Certificate of Incorporation of the
Corporation, as amended on July 26, 2001, is hereby amended by deleting
paragraph (a) of Article FOURTH thereof and inserting the following in lieu
thereof:
(a) The Corporation is authorized to issue
2,010,000,000 shares of capital stock, $.001 par value.
The shares shall be divided into two classes,
designated as follows:
Designation of Class Number of Shares
-------------------- ----------------
Common Stock 2,000,000,000
Preferred Stock 10,000,000
-------------
Total 2,010,000,000
2. The foregoing amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Calpine Corporation has caused this
Certificate to be executed by Ann B. Curtis, its duly authorized
officer, this 2nd day of June, 2004.
CALPINE CORPORATION
By: /s/ Ann B. Curtis
--------------------------------------
Name: Ann B. Curtis
Title: Executive Vice President, Vice
Chairman of the Board and
Corporate Secretary
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