EXHIBIT 3.69
CERTIFICATE OF INCORPORATION
OF
NRG INTERNATIONAL, INC.
FIRST. The name of the corporation is NRG International, Inc.
SECOND. The address of the corporation's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801 (New Castle County). 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 which the corporation shall have
authority to issue is 1,000 shares of capital stock, and the par value of each
such share is $1.00 per share.
FIFTH. The name and mailing address of the incorporator is Catherine J.
Mocn, 1221 Nicollet Mall, Suite 700, Minneapolis, Minnesota 55403.
SIXTH. The initial Board of Directors of the corporation is as follows:
Roland J. Jensen
David H. Peterson
SEVENTH. The Board of Directors of the corporation is expressly
authorized to make, alter or repeal by-laws of the corporation, but the
stockholders may make additional by-laws and may alter or repeal any by-law,
whether adopted by them or otherwise.
EIGHTH. Elections of directors need not be by written ballot except and
to the extent provided in the by-laws of the corporation.
NINTH. No director shall be personally liable to the corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (a) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (b) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (c) pursuant to Section 174 of the General Corporation Law of Delaware or
(d) for any transaction from which the director derived an improper personal
benefit. Any repeal or modification 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 with
respect to acts or omissions occurring prior to such repeal or modification.
The undersigned incorporator hereby acknowledges that the foregoing
certificate of incorporation is her act and deed and that the facts stated
therein are true.
/s/ Catherine J. Moen
---------------------------------
Catherine J. Moen
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
NRG INTERNATIONAL, INC.
NRG International, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by unanimous
written consent of its members, filed with the minutes of the Board adopted a
resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of NRG
International, Inc. be amended by changing the FOURTH Article
thereof so that, as amended, said Article shall be and read as
follows:
"The Corporation is authorized to issue two classes of stock to be
designated, respectively, "Capital Stock" and "Preferred Stock." The
total number of shares of stock that the Corporation has authority to
issue is 2,000, of which:
1. 1,000 shares shall be shares of Capital Stock, par
value $1.00 per share (the "Capital Stock"); and
2. 1,000 shares shall be shares of Preferred Stock, no
par value per share (the "Preferred Stock")."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, said NRG International, Inc. has caused this
certificate to be signed by Timothy W.J.O'Brien, its Secretary, this 31st day
of August, 2001.
By: Timothy W. J. O'Brien
-----------------------------------
Timothy W. J. O'Brien
Its Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NRG INTERNATIONAL, INC.
NRG International, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"CORPORATION"),
DOES HEREBY CERTIFY:
FIRST: that the Board of Directors of the Corporation, by the unanimous
written consent of its members in accordance with the provisions of Section 141
of the General Corporation Law of the State of Delaware, adopted a resolution
proposing and declaring advisable the following amendment to the Certificate of
Incorporation of the Corporation:
RESOLVED, that the Certificate of Incorporation of NRG
International, Inc., as amended, be amended by changing the
FOURTH Article thereof so that, as amended, said Article shall
be and read as follows:
"The Corporation is authorized to issue two classes of stock
to be designated, respectively, Common Stock, par value $1.00
per share, and Preferred Stock, no par value. The total number
of shares that the Corporation has authority to issue is 2,000
shares, of which 1,000 shares shall be shares of Common Stock
and 1,000 shares shall be shares of Preferred Stock. The Board
of Directors shall have the authority to issue shares of
Preferred Stock from time to time on such terms as it may
determine, and to divide the Preferred Stock into one or more
series. In connection with the creation of any such series,
the Board of Directors shall have the authority to fix by
resolution or resolutions providing for the issue of shares
thereof the designations, voting powers, preferences and
relative participating, option or other special rights of such
series,
and the qualifications, limitations or restrictions thereof,
to the full extent now or hereafter permitted by law.
SECOND: that in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law of
the State of Delaware.
THIRD: that the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 141,228 and 242 of the General Corporation
LAW of the State of Delaware.
IN WITNESS WHEREOF, said Board of Directors of the Corporation has
caused this certificate to be signed by David H. Peterson, its Chairman,
President & CEO and attested by Timothy W.J. O'Brien, its Secretary, this 4th
day of December, 2001.
NRG INTERNATIONAL, INC.
/s/ David H. Peterson
-------------------------------------
By David H. Peterson
Its Chairman, President & CEO
ATTEST:
/s/ Timothy W. J. O'Brien
- ---------------------------------
By Timothy W. J. O'Brien
Its Secretary
-2-
CERTIFICATE OF DESIGNATION OF
A SERIES OF PREFERRED STOCK
NRG INTERNATIONAL, INC.
STATEMENT OF DESIGNATION
OF
RIGHTS, PREFERENCES AND LIMITATIONS
OF
SERIES A CONVERTIBLE PREFERRED STOCK
The undersigned, Timothy W. J. O'Brien, the Secretary of NRG
International, Inc., a Delaware corporation (the "CORPORATION"), hereby
certifies that the following resolutions establishing Series A Convertible
Preferred Stock of the Corporation pursuant to Section 151 of the General
Corporation Law of the State of Delaware were duly adopted by the unanimous
written consent of the members of the Board of Directors:
RESOLVED, that, subject to the filing of the Designation of Rights,
Preferences and Limitations of Preferred Stock attached hereto as
Exhibit A (the "DESIGNATION"), there is hereby created one series of
preferred stock of the Corporation, such series to be known as Series A
Convertible Preferred Stock, and that such series shall have the
rights, powers, preferences and restrictions set forth in the
Designation.
RESOLVED, that the Secretary of the Corporation is hereby authorized
and directed to make, execute and file with the Secretary of State of
the State of Delaware in the manner required by law, the Designation,
and to take all other action he may dem necessary or advisable to
carry into effect the foregoing resolution.
IN WITNESS WHEREOF, I have subscribed my name this 19th day of
December, 2001.
/s/ Timothy W. J. O'Brien
-----------------------------------
Timothy W. J. O'Brien
Secretary
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EXHIBIT A
DESIGNATION OF RIGHTS AND PREFERENCES OF
SERIES A CONVERTIBLE PREFERRED STOCK OF
NRG INTERNATIONAL, INC.
A. The Corporation has authority to issue two classes of shares designated
"Common Stock" and "Preferred Stock" respectively. The total number of
shares of capital stock that the Corporation has authority to issue is
2,000. The total number of shares of Common Stock the Coloration has
authority to issue is 1,000. The total number of shares of Preferred
Stock the Corporation has authority to issue is 1,000. The Common Stock
has a par value of $1.00 per share and the Preferred Stock has no par
value pet share.
B. Five Hundred (500) shares of Preferred Shares are hereby designated
Series A Convertible Preferred Stock (the "Series A Preferred Stock").
The powers, preferences, rights, restrictions and other matters
relating to the Series A Preferred Stock are as follows:
1. Voting Rights.
(a) General Rights. Except as otherwise expressly
provided herein or as required by law. at each annual
or special meeting of the stockholders, or, if the
stockholders have the power to act by written
consent, in any action taken by written consent in
lieu thereof, the holders of the Series A Preferred
Stock shall be entitled to vote the shares of the
Series A Preferred Stock equally with the shares of
Common Stock of the Corporation and not as a separate
class. Each holder of the Series A Preferred Stock
shall be entitled to one (1) vote in person or proxy
for each share of the Series A Preferred Stock
standing in such stockholder's name on the stock
transfer records of the Corporation.
(b) Directors. The holders of the Series A Preferred
Stock, voting as a separate class, shall be entitled
to elect one-quarter (1/4) of the total number of the
members of the Board of Directors of the Corporation
(rounding, if necessary) to the next highest whole
number) at each meeting or pursuant to each consent
of the stockholders of the Corporation for the
election of directors, and to remove from office such
directors and to fill any vacancy caused by the
resignation, death or removal of such directors. The
holders of Common Stock and all other capital stock
possessing voting rights, including the Series A
Preferred Stock, voting together as a single class
shall be entitled to elect all remaining members of
the Board of Directors of the Corporation at each
meeting or pursuant to each consent of the
stockholders of the Corporation for the election of
directors, and to remove from office such directors
and to fill any vacancy caused by the resignation,
death or removal of such directors.
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2. Dividend Rights. The holders of the Series A Preferred Stock
shall be entitled to receive dividends out of funds of the
Corporation legally available for such purpose at a fixed rate
of 7.134% per annum. Such dividends shall be paid only when,
as and if declared by the Board of Directors. Such dividends
shall accrue annually, whether or not earned or declared, and
shall be cumulative. If for any year dividends payable shall
not be paid thereon or funds set apart for payment thereof,
the right to such unpaid dividends shall accumulate, whether
or not there are funds of the Corporation legally available
for payment of such dividends. Accumulations of dividends
shall not bear interest So long as shares of the Series A
Preferred Stock are outstanding, no dividends (other than (i)
dividends on Common Stock payable in shares of Common Stock,
(ii) dividends payable in capital stock of the Corporation
that is junior to the Series A Preferred Stock both as to
dividends and liquidation, and (iii) cash in lieu of
fractional shares in connection with such dividends) shall be
paid or declared, in cash or otherwise, nor shall any other
distributions be made, on Common Stock or on any other capital
stock of the Corporation that is junior to the Series A
Preferred Stock as to dividends, unless all dividends on the
Series A Preferred Stock for all current and past annual
dividend periods shall have been paid in full.
3. Liquidation Rights.
(a) In the event of a voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation, before any payment shall be made or any
assets distributed to the holders of Common Stock or
any other capital stock of the Corporation that is
junior to the Series A Preferred Stock with respect
to the right to receive payments upon liquidation,
the holders of record of shares of the Series A
Preferred Stock shall be entitled to receive, out of
the assets of the Corporation legally available
therefor, an amount per share of Series A Preferred
Stock equal to the Original Issue Price (as defined
in Section 4(b) below), plus an amount equal to any
accrued and unpaid dividends, up to and including the
date of payment If, upon any such liquidation,
distribution or winding up, the assets of the
Corporation shall be insufficient to make payment in
full to all holders of the Series A Preferred Stock
of the liquidation preference set forth in (his
Section 3(a), then such assets shall be distributed
among me holders of the Series A Preferred Stock at
the time outstanding ratably in proportion to the
full amount to which they would otherwise be
respectively entitled.
(b) After the payment of the full liquidation preference
of the Series A Preferred Stock as set forth in
Section 3(a) above, the assets of the Corporation
legally available for distribution, if any, shall be
distributed to the holders of any other capital stock
of the Corporation, including, but not limited to
Common Stock, in accordance with, and to the extent
of, their liquidation rights and preferences.
(c) Nothing in this Section 3 shall preclude the holders
of shares of the Series A Preferred Stock from
converting their shares of the Series A Preferred
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Stock to Common Stock prior to such liquidation,
dissolution or winding up in accordance with the
provisions of Section 4 below.
(d) The merger or consolidation of the Corporation into
or with another corporation (other than a merger
which will not result in more than fifty percent
(50%) of the voting power of the outstanding capital
stock of The surviving or resulting corporation
outstanding immediately after the effective date of
such merger being owned of record or beneficially by
persons other than the holders of such voting power
of the outstanding capital stock immediately prior to
such merger), or the sale, conveyance or transfer of
all or substantially all of the assets of the
Corporation shall be deemed to be a liquidation,
dissolution or winding up of the Corporation for
purposes of this Section 3 with respect to the Series
A Preferred Stock. The amount deemed distributed in
connection with a transaction referred to in this
Section 3(d) shall be the cash or the value of the
property, rights or other securities distributable by
the acquiring person, firm or other entity as part of
such transaction. Wherever a distribution provided
for in this Section 3 is payable in property other
than in cash, the value of such distribution shall be
the fair market value of such property as determined
in good faith by the Board of Directors of the
Corporation.
4. Conversion Rights. The holders of the Series A Preferred Stock
shall have the following conversion rights:
(a) Optional Conversion. Subject to and in compliance
with the provisions of (his Section 4, any shares of
the Series A Preferred Stock, at the option of the
holder or holders, may be converted at any time or
from time to time into fully-paid and non-assessable
shares (calculated as to each conversion to the
nearest smaller whole share) of Common Stock (except
that upon any liquidation of the Corporation the
right of conversion thereof shall terminate at the
close of business on the last business day next
preceding the date fixed for payment of the amount
distributable with respect to such shares of the
Series A Preferred Stock). The number of shares of
Common Stock to which a holder of the Series A
Preferred Stock shall be entitled upon conversion
shall be the product obtained by multiplying the
Applicable Conversion Rate for the Series A Preferred
Stock (as determined in Section 4(b)) by the number
of shares of the Series A Preferred Stock being
converted.
(b) Applicable Conversion Rate. The conversion rate in
effect at any time for conversion of the Series A
Preferred Stock (the "Applicable Conversion Rate"),
shall be the quotient obtained by dividing (i) the
Original Issue Price (as defined below) of the Series
A Preferred Stock by (ii) the Applicable Conversion
Value, calculated as provided in Section 4(c) below.
The "Original Issue Price" of the Series A Preferred
Stock shall be US $1,000,000.00
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(c) Applicable Conversion Value. The "Applicable
Conversion Value" for the Series A Preferred Stock
shall be the fair market value of one (1) share of
Common Stock, as determined in good faith by the
Board of Directors of the Corporation, at the close
of business on the Conversion Date (as defined in
Section 4(d) below).
(d) Exercise of Conversion Privilege. To exercise the
conversion privilege, a holder of shares of the
Series A Preferred Stock shall surrender the
certificate or certificates representing the shares
being converted together with written notice of such
conversion to the Corporation at its principal office
or to the transfer agent, if any, which has been
designated by the Corporation. Such notice shall
state the name or names (with address or addresses)
in which the certificate or certificates for shares
of Common Stock issuable upon conversion shall be
issued. The certificate or certificates for shares of
the Series A Preferred Stock surrendered for the
conversion shall be duly endorsed in blank or
accompanied by proper assignment thereof to the
Corporation duly endorsed in blank. In the event that
the certificate or certificates representing the
shares being converted have been lost, stolen or
destroyed, the holder of such shares shall execute an
agreement and an affidavit of loss satisfactory to
the Corporation to indemnify the Corporation (with
surety if requested) from any loss incurred by it in
connection therewith. The date when such written
notice Is received by the Corporation, together with
the certificate or certificates, or the agreement and
affidavit of loss, representing the shares being
converted, shall be the "Conversion Date." As
promptly as practicable after the Conversion Date,
the Corporation shall issue and deliver to the holder
or holders of the shares of the Series A Preferred
Stock being converted: (i) such certificate or
certificates as the holder or holders may request for
the number of whole shares of Common Stock issuable
upon the conversion of such shares of the Series A
Preferred Stock in accordance with the provisions of
this Section 4; (ii) cash or, to the extent
sufficient funds are not then legally available
therefore, in Common Stock (at the fair market value
of one (1) share of Common Stock, as determined in
good faith by the Board of Directors of the
Corporation) any declared and unpaid dividends on the
shares of the Series A Preferred Stock being
converted; and (iii) cash, as provided in Section
4(h). in respect of any fraction of a share of Common
Stock otherwise issuable upon such conversion. Such
conversion .shall be deemed to have been effected
immediately prior to the close of business on the
Conversion Date, and at such time the rights of the
holder or holders as holder or holders of the
converted shares of the Series A Preferred Stock
shall cease and the person or persons in whose name
or names any certificate or certificates for shares
of Common Stock shall be issuable upon such
conversion shall be deemed to have become the holder
or holders of record of the shares of Common Stock
represented thereby.
5
(e) Dividends. In the event the Corporation shall make or
issue, or fix a record date for the determination of
holders of Common Stock entitled to receive, a
dividend or other distribution (other than a
distribution in liquidation or other distribution
provided for herein) payable in securities of the
Corporation other than shares of Common Stock or in
assets (excluding ordinary cash dividends paid out of
retained earnings), then and in each such event,
provision shall be made so mat the holders of the
Series A Preferred Stock shall receive upon
conversion of the Series A Preferred Stock, in
addition to the number of shares of Common Stock
receivable thereupon, the number of securities or
such other assets of the Corporation which they would
have received had their shares of the Series A
Preferred Stock been converted into Common Stock on
the record date of such event and had they
thereafter, during the period from the date of such
event to and including the Conversion Date, retained
such securities or such other assets receivable by
them as aforesaid during such period, giving
application to all adjustments called for during such
period under this Section 4 with respect to the
rights of the holders of shares of the Series A
Preferred Stock.
(f) Capital Reorganization or Reorganization. If at
any time, or from time to time, the Common Stock
issuable upon the conversion of the Series A
Preferred Stock shall be changed into the came or a
different number of shares of any series or classes
of stock, whether by capital reorganization,
reclassification or otherwise (other than a
subdivision or combination of shares or stock
dividend provided for elsewhere in this Section 4, or
a reorganization, merger, consolidation or sale of
assets provided for elsewhere in this Section 4),
then and in each such event each holder of the Series
A Preferred Stock shall have the right thereafter to
convert its shares of the Series A Preferred Stock
into the kind and amount of shares of stock and other
securities and property receivable by such holders
upon such reorganization, reclassification or other
change equal to the number of shares of Common Stock
into which such shares of the Series A Preferred
Stock might have been converted immediately prior to
such reorganization, reclassification or change, all
subject to further adjustment as provided herein.
(g) Capital Reorganization, Merger or Sale of Assets. If
at any time, or from time to time, there shall be a
capital reorganization of the Common Stock (other
than a subdivision, combination, reclassification or
exchange of shares provided for elsewhere in this
Section 4) or a. merger or consolidation of the
Corporation with or into another corporation, or the
sale of all or substantially all of the Corporation's
properties and assets to any other person (other than
an event described in Section 3(d)), then, as a part
of such reorganization, merger, consolidation or
sale, provision shall be made so that the holders of
the Series A Preferred Stock shall be entitled to
receive upon consummation of such transaction, the
number of shares of stock or other securities or
property of the Corporation, or of the
6
successor corporation resulting from such merger,
consolidation or sale, to which a holder of Common
Stock issuable upon conversion would have been
entitled upon consummation of such capital
reorganization, merger; consolidation or sale had
such holder's shares of the Series A Preferred Stock
been converted into Common Stock prior to such
capital reorganization, merger, consolidation or
sale, provided that no such I provision shall be
deemed to constitute the consent of the holders of
the Series A Preferred Stock to any such transaction
if such consent is required by the Certificate of
Incorporation of the Corporation or under applicable
law.
(h) Mandatory Conversion. All outstanding shares of the
Series A Preferred Stock will automatically be
converted into shares of Common Stock in the event
that fifty percent (50%) or more of the total number
of shares of the Series A Preferred Stock issued by
the Corporation are converted pursuant to Section
4(a) above. The number of shares of Common Stock to
which a holder of the Series A Preferred Stock shall
be entitled upon automatic conversion shall be the
product obtained by multiplying the Applicable
Conversion Rate far the Series A Preferred Stock (as
determined in Section 4(b)) by the number of shares
of the Series A Preferred Stock standing in such
stockholder's name on the stock transfer records of
the Corporation. Upon such automatic conversion, the
outstanding shares of the Series A Preferred Stock
will be converted automatically without any further
action by the holders of such shares and whether or
not the certificates representing such shares are
surrendered to the Corporation or the transfer agent,
if any, designated by the Corporation; provided,
however, that the Corporation shall not be obligated
to issue certificates evidencing the shares of Common
Stock issuable upon such conversion unless the
certificates evidencing such shares of the Series A
Preferred Stock are either delivered to the
Corporation or its transfer agent as provided below,
or the holder notifies the Corporation or its
transfer agent that such certificates have been lost,
stolen or destroyed and executes an agreement and an
affidavit of loss satisfactory to the Corporation to
indemnify the Corporation (with surety if requested)
from any loss incurred by it in connection therewith.
Upon the occurrence of such automatic conversion of
the Series A Preferred Stock, the holders of the
Series A Preferred Stock shall surrender the
certificate or certificates, or the agreement and
affidavit of loss, representing such shares to the
Corporation at its principal office or to its
transfer agent As promptly as practicable after the
automatic conversion, the Corporation shall issue and
deliver to the holder or holders of the shares of the
Series A Preferred Stock being automatically
converted: (i) such certificate or certificates as
the holder or holders may request for the number of
whole shares of Common Stock into which the shares of
the Series A Preferred Stock surrendered were
convertible on the date on which such automatic
conversion occurred; (ii) cash, as provided in
Section 4(d), in respect of any declared and unpaid
dividends on the shares of the Series A Preferred
7
Stock being automatically converted and (iii) cash,
as provided in Section 4(h), in respect of any
fraction of a share of Common Stock otherwise
issuable upon such automatic conversion.
(i) Cash in Lieu of Fractional Shares. No fractional
shares of Common Stock or scrip representing
fractional shares shall be issued upon the conversion
of shares of the Series A Preferred Stock. Instead of
any fractional shares of Common Stock which would
otherwise be issuable upon conversion of the Series A
Preferred Stock, the Corporation shall pay to the
holder of the shares of the Series A Preferred Stock
which were converted a cash adjustment in respect of
such fractional shares in an amount equal to the same
fraction of the fair market value of one (1) share of
Common Stock (as determined in good faith by the
Board of Directors) at the close of business on the
Conversion Date or the date of automatic conversion.
The determination as to whether or not to make any
cash payment in lieu of the issuance of fractional
shares shall be based upon the total number of shares
of the Series A Preferred Stock being converted at
any one time by any holder thereof; and not upon each
share of the Series A Preferred Stock being
converted.
(j) Partial Conversion. In the event that some but not
all of the shares of the Series A Preferred Stock
represented by a certificate or certificates
surrendered by a holder are converted, the
Corporation shall execute and deliver to or on the
order of the holder, at the expense of the
Corporation, a new certificate representing (he
number of shares of The Series A Preferred Stock
which were not converted.
(k) Reservation of Common Stock. The Corporation shall at
all times reserve and keep available out of its
authorized but unissued shares of Common Stock,
solely for the purpose of effecting the conversion of
the shares of the Series A Preferred Stock, such
number of its shares of Common Stock as shall from
time to time be sufficient to effect the conversion
of all outstanding shares of the Series A Preferred
Stock, and if at any time the number of authorized
but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then
outstanding shares of the Series A Preferred Stock,
the Corporation shall take such corporate action,
subject to the terms of its Certificate of
Incorporation and applicable law, as may be necessary
to increase its authorized but unissued shares of
Common Stock at least to such number of shares as
shall be sufficient for such purpose.
(l) Issue Tax. The issuance of certificates for shares of
Common Stock upon conversion of shares of the Series
A Preferred Stock shall be made without charge to the
holders thereof for any issuance tax in respect
thereof, provided that the Corporation shall not be
required to pay any tax which may be payable in
respect of any transfer involved in the issuance and
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delivery of any certificate in a name other than that
of the holder of shares of the Series A Preferred
Stock which is being converted.
(m) Closing of Books. The Corporation shall at no time
close its transfer books against the transfer of
shares of the Series A Preferred Stock or of any
shares of Common Stock issued or issuable upon the
conversion of the Series A Preferred Stock in any
manner which interferes with the timely conversion
of shares of the Series A Preferred Stock, except' as
may otherwise be required to comply with applicable
securities laws.
5. Redemption Rights. Except as otherwise required by law, the
holders of shares of the Series A Preferred Stock shall not be
entitled to any redemption rights.
6. Transferability. The holders of shares of the Series A
Preferred Stock shall not be entitled to sell, assign or
otherwise transfer the shares of the Series A Preferred Stock
Series to any person or entity other than NRG Energy, Inc. or
its affiliates.
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CERTIFICATE OF CONVERSION
FROM A CORPORATION TO A LIMITED LIABILITY COMPANY
PURSUANT TO SECTION 266 OF THE DELAWARE GENERAL
CORPORATION LAW
1. The name of the corporation is NRG International, Inc.
2. The date on which the original Certificate of Incorporation was
filed with the Secretary of State is October 21,1992.
3. The name of the limited liability company into which the corporation
is being converted is NRG International LLC.
4. The conversion has been approved in accordance with the provisions
of Section 266.
By: Timothy W. J. O'Brien
-----------------------------
Timothy W. J. O'Brien
Secretary
CERTIFICATE OF FORMATION
OF
NRG INTERNATIONAL LLC
The undersigned, being a natural person 18 years of age or older and
for the purpose of forming a limited liability company for general business
purposes under the Delaware Limited Liability Act, hereby adopts the following
Certificate of Formation:
1. Name: The name of the limited liability company is NRG
International LLC.
2. Registered Office: The address of the registered office of the
limited liability company is Corporation Trust Center, 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.
3. Organizer: The name and address of the sole organizer of the
limited liability company is Timothy W.J. O'Brien, NRG Energy, Inc., 901
Marquette Avenue, Suite 2300, Minneapolis, Minnesota 55402.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation of NRG International LLC this 18th day of November 2002.
/s/ Timothy W. J. O'Brien
--------------------------------
Timothy W. J.O'Brien
Authorized Person