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Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
ORION POWER HOLDINGS, INC.
Pursuant to Section 102 of the General Corporation Law
of the State of Delaware
The undersigned, in order to form a corporation pursuant to
Section 102 of the General Corporation Law of Delaware, does hereby certify:
FIRST: The name of the Corporation is Orion Power Holdings,
Inc.
SECOND: The address of the Corporation's registered office in
the State of Delaware is Corporation Trust Center, 1209 Orange Street in the
City of Wilmington, County of New Castle, Delaware 19801. 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: The total number of shares of all classes of capital
stock which the Corporation shall have the authority to issue is 1,000,000
shares, consisting of (i) 500,000 shares of Common Stock, par value $.01 per
share (the "Common Stock") and (ii) 500,000 shares of Preferred Stock, par value
$.01 per share (the "Preferred Stock").
A. Preferred Stock
1. Issuance. The Board of Directors is authorized,
subject to limitations prescribed by law, to provide for the issuance of shares
of Preferred Stock in one or more series, to establish the number of shares to
be included in each such series, and to fix the designations, powers,
preferences, and rights of the shares of each such series, and any
qualifications, limitations, or restrictions thereof.
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B. Common Stock
1. Dividends. Subject to the preferential rights, if
any, of the Preferred Stock, the holders of shares of Common Stock shall be
entitled to receive, when and if declared by the Board of Directors, out of the
assets of the Corporation which are by law available therefor, dividends payable
either in cash, in property, or in shares of Common Stock.
2. Voting Rights. At every annual or special meeting of
stockholders of the Corporation, every holder of Common Stock shall be entitled
to one vote, in person or by proxy, for each share of Common Stock standing in
his name on the books of the Corporation.
3. Liquidation, Dissolution, or Winding Up. In the
event of any voluntary or involuntary liquidation, dissolution, or winding up of
the affairs of the Corporation, after payment or provision for payment of the
debts and other liabilities of the Corporation and of the preferential amounts,
if any, to which the holders of Preferred Stock shall be entitled, the holders
of all outstanding shares of Common Stock shall be entitled to share ratably in
the remaining net assets of the Corporation.
FIFTH: The name and mailing address of the Incorporator is as
follows:
Name Mailing Address
Rowena Villanueva c/o Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
SIXTH: The Board of Directors is expressly authorized to
adopt, amend, or repeal the by-laws of the Corporation.
SEVENTH: Elections of directors need not be by written ballot
unless the by-laws of the Corporation shall otherwise provide.
EIGHTH: 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; provided, however, that the foregoing shall not
eliminate or limit the liability
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of a director (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 an improper personal benefit. If the
General Corporation Law of Delaware is hereafter amended to permit further
elimination or limitation of the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the General Corporation Law of Delaware as so
amended. Any repeal or modification of this Article EIGHTH by the stockholders
of the Corporation or otherwise shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification. For purposes of this Article EIGHTH, all references to a
director shall also be deemed to refer to any person or persons, if any, who,
pursuant to a provision of this Certificate of Incorporation, or the by-laws of
the Corporation exercise or perform any of the powers or duties otherwise
conferred or imposed upon the board of directors of the Corporation.
NINTH: The Corporation reserves the right to amend, alter,
change, or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, I have hereunto set my hand this 5th day
of March, 1998, and I affirm that the foregoing certificate is my act and deed
and that the facts stated therein are true.
/s/ Rowena Villanueva
_____________________________________
Rowena Villanueva, Incorporator
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AMENDMENT TO THE
CERTIFICATE OF INCORPORATION
OF
ORION POWER HOLDINGS, INC.
Orion Power Holdings, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Company"), hereby certifies as follows:
1. The name of the Company is Orion Power Holdings, Inc. The date of the
filing of its original Certificate of Incorporation with the Secretary of State
of the State of Delaware was March 5, 1998 (the "Original Certificate of
Incorporation").
2. This Amendment to the Certificate of Incorporation amends the
provisions of the Original Certificate of Incorporation and (i) was duly adopted
by the Board of Directors in accordance with the provisions of Section 242 of
the General Corporation Law of the State of Delaware (the "DGCL"), (ii) was
declared by the Board of Directors to be advisable and in the best interests of
the Corporation and was directed by the Board of Directors to be submitted to
and be considered by the stockholders of the Corporation entitled to vote
thereon for approval by the affirmative vote of such stockholders in accordance
with Section 242 of the DGCL, and (iii) was duly adopted by a stockholder
consent in lieu of a meeting of the stockholders, with the holders of a majority
of the outstanding shares of the Corporation's capital stock entitled to vote
thereon, and a majority of the outstanding capital stock of each class entitled
to vote thereon as a class, of Sections 228 and 242 of the DGCL and the terms of
the Original Certificate of Incorporation.
3. The text of the Original Certificate of Incorporation is hereby
amended as follows:
The first sentence of the Fourth section be amended and restated to
read, in its entirety, as follows:
"FOURTH" The total number of shares of all classes of common stock
which the Corporation shall have authority to issue is 2,500,000
shares, consisting of (i) 2,000,000 shares of Common Stock, par value
$.01 per share (the "Common Stock") and (ii) 500,000 shares of
Preferred Stock, par value $.01 per share (the "Preferred Stock").
The Board of Directors is authorized, subject to limitations
prescribed by law, to provide for the issuance of shares of Common
Stock or Preferred Stock with preemptive rights."
I, Jack Fusco, the Chief Operating Officer of the Company, for the purpose
of amending the Company's certificate of incorporation pursuant to the DGCL, do
make this certificate, hereby declaring and certifying that this is my act and
deed on behalf of the Company this 20th day of September, 1999.
/s/ Jack Fusco
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Name: Jack Fusco
Title: Chief Operating Officer
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CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation")
is ORION POWER HOLDINGS, INC.
2. The registered office of the Corporation within the State of
Delaware is hereby changed to 9 East Loockerman Street, City of Dover 19901,
County of Kent.
3. The registered agent of the Corporation within the State of Delaware
is hereby changed to National Registered Agents, Inc., 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 October 29, 1999
/s/ W. Thaddeus Miller
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W. Thaddeus Miller, Secretary
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ORION POWER HOLDINGS, INC.
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Under Section 242 of the
Delaware General Corporation Law
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It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation")
is Orion Power Holdings, Inc.
2. The Certificate of Incorporation, as amended, of the Corporation is
hereby amended by:
(a) deleting the first sentence of Article Fourth and by
inserting the following new first sentence of Article Fourth in lieu
thereof:
FOURTH: The total number of shares of all classes of
capital stock which the Corporation shall have
authority to issue is 210,000,000 shares, consisting
of (i) 200,000,000 shares of Common Stock, par value
$.01 per share (the "Common Stock") and (ii)
10,000,000 shares of Preferred Stock, par value $.01
per share (the "Preferred Stock").
(b) deleting Article Seventh and by inserting the following
new of Article Seventh in lieu thereof:
SEVENTH. Elections of directors need not be by
written ballot unless the by-laws of the Corporation
shall otherwise provide. Subject to the rights of the
holders of any class separately entitled to elect one
or more directors, any director, or the entire Board
of Directors, may be removed from office at any time,
but only for cause and then only by the affirmative
vote of the holders of at least a majority of the
combined voting power of
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all classes of shares of capital stock entitled to
vote in the election for directors voting together as
a single class.
(c) deleting Article Ninth and by inserting the following new
Article Ninth in lieu thereof:
NINTH: Subject to the provisions of Article Tenth,
the Corporation reserves the right to amend, alter,
change or repeal any provision contained in this
Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights
conferred upon stockholders herein are granted
subject to this reservation.
(d) inserting the following Article Tenth:
TENTH: For as long as investment partnerships or
other entities affiliated with Goldman, Sachs & Co.
(Goldman, Sachs & Co. and such investment
partnerships and other entities are referred to
collectively hereafter as the "Goldman Sachs
Entities") either:
(i) own a percentage of the outstanding
voting securities of the Corporation that is
not less than the percentage provided in the
Public Utility Holding Company Act of 1935,
as amended, or any successor statute of
similar import ("PUHCA") or the Federal
Power Act, as amended, or any successor
statute of similar import (the "FPA") for
any of the Goldman Sachs Entities solely by
virtue of such ownership either to be deemed
any of an "affiliate," a "subsidiary
company" or a "holding company" (as each
such term is defined in PUHCA), or to cause
any of the Goldman Sachs Entities to be
subject to regulation under PUHCA or the FPA
(collectively, the "Statutory Threshold," it
being understood that as of October 2000,
the Statutory Threshold under PUHCA is equal
to five percent (5%) of the outstanding
voting securities of the Corporation); or
(ii) exercise a "controlling influence"
(within the meaning of PUHCA) with respect
to the Corporation that would cause any of
the Goldman Sachs Entities to be deemed a
"subsidiary company" or a "holding company"
under PUHCA or to be deemed related to the
Corporation in a manner and to a degree that
would cause any of the Goldman Sachs
Entities to be deemed an "affiliate" under
PUHCA or subject to regulation under PUHCA,
and so long as PUHCA (or any successor statute of
similar import) or the FPA (or any successor statute
of similar import), as the case may be, is in effect,
without the prior written consent of the Goldman
Sachs Entities (a) the Corporation may not acquire,
directly or indirectly, any of the voting securities
of, and the Corporation undertakes that it will not
take any
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action which would cause it, any of the Goldman Sachs
Entities or any other stockholder of the Corporation
to become, (x) a "public utility company" (as such
term is defined in PUHCA) or (y) an "affiliate," a
"subsidiary company" or a "holding company" under
PUHCA with respect to any such "public utility
company," and (b) the Corporation undertakes that it
will not take any action that would cause it to
become a "public-utility" (as such term is defined in
the FPA), in each case so long as any of (1)
acquiring any such securities, (2) becoming a "public
utility company" or an "affiliate," a "subsidiary
company" or a "holding company" of a "public utility
company" under PUHCA, or (3) becoming a
"public-utility" under the FPA imposes material
regulatory or other restrictions on either the
Corporation, any of the Goldman Sachs Entities or any
other stockholder of the Corporation. The preceding
sentence shall not, however, in any way restrict or
prohibit the Corporation from (a) becoming, or
require the prior written consent of the Goldman
Sachs Entities for the Corporation to become, a
"public-utility" under the FPA solely by reason of
the Corporation's (i) ownership of any "exempt
wholesale generator" (as such term is defined in
PUHCA) or any "qualifying facility" (as such term is
defined in the Public Utility Regulatory Policies Act
of 1978), (ii) authority to directly or through an
affiliate or subsidiary market or broker wholesale
power including related services or (iii) ownership
of electric transmission facilities relating to an
exempt wholesale generator or qualifying facility,
that is subject to the FPA, or (b) making other
necessary filings to effectuate the acquisition of
electric generating assets located in the United
States or Canada not otherwise prohibited under this
Article Tenth. Notwithstanding any other provision of
this Certificate of Incorporation, as amended, this
Article Tenth shall not be amended, modified or
repealed without the prior written consent of the
Goldman Sachs Entities for as long as the Goldman
Sachs Entities own a percentage of the outstanding
voting securities of the Corporation that is not less
than the Statutory Threshold or exercise a
"controlling influence" with respect to the
Corporation within the meaning of PUHCA.
(e) inserting the following Article Eleventh:
ELEVENTH. Subject to the rights of the holders of any series
of Preferred Stock:
(i) any action required or permitted to be taken by
the stockholders of the Corporation must be effected
at a duly called annual or special meeting of
stockholders of the Corporation and may not be
effected by any consent in writing of such
stockholders; and
(ii) special meetings of stockholders of the
Corporation, unless otherwise prescribed by statute,
may be called only by the entire
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Board of Directors pursuant to a resolution approved
by a majority of the entire Board of Directors.
At any annual meeting or special meeting of stockholders of
the Corporation, only such business will be conducted or
considered as has been brought before such meeting in the
manner provided in the By-Laws of the Corporation.
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3. This Certificate of Amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
Signed and attested to this ___ day of November, 2000.
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