EXHIBIT 3.1 - AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
RESTATED CERTIFICATE OF INCORPORATION
OF
NRG ENERGY, INC.
ARTICLE FIRST
The name of the corporation (the "Corporation") is NRG Energy, Inc.
ARTICLE SECOND
The registered office and registered agent of the Corporation is The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801.
ARTICLE 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 the State of Delaware.
ARTICLE FOURTH
A. The Corporation is authorized to issue three classes of stock to be
designated, respectively, "Common Stock," "Class A Common Stock" and "Preferred
Stock." The total number of shares of stock that the Corporation has authority
to issue is 300, of which:
1. 100 shares shall be shares of Common Stock, par value $0.01
per share (the "Common Stock");
2. 100 shares shall be shares of Class A Common Stock, par
value $0.01 per share (the "Class A Common Stock"); and
3. 100 shares shall be shares of Preferred Stock, par value
$0.01 per share (the "Preferred Stock").
The Common Stock and the Class A Common Stock are referred to
collectively as the "Common Shares."
B. The powers, preferences and rights of the holders of Common Stock
and Class A Common Stock, and the qualifications, limitations or restrictions
thereof, shall be in all respects identical on the basis of the number of shares
held, whether as to dividends or upon liquidation, dissolution or winding up of
the affairs of the Corporation, or otherwise, except as otherwise required by
law or expressly provided in this Certificate of Incorporation, as it may be
amended, and subject to the powers, preferences and rights of the holders of
Preferred Stock, as provided in
or as otherwise determined by the Board of Directors pursuant to Section C of
this Article FOURTH.
1. Dividends.
(a) Dividends may be declared and paid to the holders
of Common Stock and Class A Common Stock in cash, property, or other securities
of the Corporation out of any funds legally available therefor. If and when
dividends on the Common Stock and the Class A Common Stock are declared payable
from time to time by the Board of Directors, whether payable in cash, in
property or in securities of the Corporation, the holders of the Common Stock
and the Class A Common Stock shall be entitled to share equally on a per share
basis in such dividends. If dividends are declared that are payable in shares of
Common Stock, such dividends shall be payable at the same rate on both Common
Stock and Class A Common Stock; provided that such dividends shall be payable in
shares of Common Stock both to holders of Common Stock and to holders of Class A
Common Stock.
(b) Subject to provisions of law and rights, powers
and preferences of any series of Preferred Stock and of any other stock ranking
prior to the Common Stock or the Class A Common Stock as to dividends, the
holders of the Common Stock and the Class A Common Stock shall be entitled to
receive dividends at such time and in such amounts as may be determined by the
Board of Directors and declared out of any funds legally available therefor, and
shares of Preferred Stock of any series shall not be entitled to share therein
except as otherwise expressly provided in the resolution or resolutions of the
Board of Directors providing for the issue of such series.
2. Distributions on Liquidation, Dissolution or Winding Up. In
the event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary (sometimes hereinafter referred to as
"liquidation"), after payment or provision for payment of the debts and other
liabilities of the Corporation and the preferential amounts to which the holders
of any stock ranking prior to the Common Stock and the Class A Common Stock in
the distribution of assets shall be entitled upon liquidation, the holders of
the Common Stock and the Class A Common Stock and the holders of any other stock
ranking on a parity with the Common Stock and the Class A Common Stock in the
distribution of assets upon liquidation shall be entitled to share pro rata in
the remaining assets of the Corporation according to their respective interests.
3. Voting.
(a) 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, each holder of Common
Stock shall be entitled to one (1) vote in person or by proxy for each Common
Stock share standing in such stockholder's name on the stock transfer records of
the Corporation in connection with the election of directors and all other
actions submitted to a vote of stockholders.
(b) 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
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lieu thereof, each holder of Class A Common Stock shall be entitled to ten (10)
votes in person or by proxy for each Class A Common Stock share standing in such
stockholder's name on the stock transfer records of the Corporation in
connection with the election of directors and all other actions submitted to a
vote of stockholders.
(c) Except as may be otherwise required by law or
this Certificate of Incorporation, the holders of Common Stock and Class A
Common Stock shall vote together as a single class.
4. Conversion of Class A Common Stock.
(a) Optional Conversion.
(i) Each share of Class A Common Stock may
at any time be converted into one (1) fully paid and non-assessable share of
Common Stock. Such right shall be exercised by the surrender of the certificate
representing such share of Class A Common Stock to be converted to the
Corporation at any time during normal business hours at the principal executive
offices of the Corporation, or if an agent for the registration of transfer of
shares of Class A Common Stock is then duly appointed and acting (said agent
being hereinafter called the "Transfer Agent") then at the office of the
Transfer Agent, accompanied by a written notice of the election by the holder
thereof to convert and (if so required by the Corporation or the Transfer Agent)
by instruments of transfer, in form satisfactory to the Corporation and to the
Transfer Agent, duly executed by such holder or his duly authorized attorney,
and transfer tax stamps or funds therefor, if required pursuant to Section
4(a)(v) below.
(ii) As promptly as practicable after the
surrender for conversion of a certificate representing shares of Class A Common
Stock in the manner provided in Section 4(a)(i) above and the payment in cash of
any amount required by the provisions of Sections 4(a)(i) and 4(a)(v), the
Corporation will deliver or cause to be delivered at the office of the Transfer
Agent to or upon the written order of the holder of such certificate, a
certificate or certificates representing the number of full shares of Common
Stock issuable upon such conversion, issued in such name or names as such holder
may direct. Such conversion shall be deemed to have been made immediately prior
to the close of business on the date of the surrender of the certificate
representing shares of Class A Common Stock, and all rights of the holder of
such shares as such holder shall cease at such time and the person or persons in
whose name or names the certificate or certificates representing the shares of
Common Stock are to be issued shall be treated for all purposes as having become
the record holder or holders of such shares of Common Stock at such time;
provided, however, that any such surrender and payment on any date when the
stock transfer books of the Corporation shall be closed shall constitute the
person or persons in whose name or names the certificate or certificates
representing shares of Common Stock are to be issued as the record holder or
holders thereof for all purposes immediately prior to the close of business on
the next succeeding day on which such stock transfer books are open.
(iii) No adjustments in respect of dividends
shall be made upon the conversion of any share of Class A Common Stock;
provided, however, that if a share shall be converted subsequent to the record
date for the payment of a dividend or other distribution on
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shares of Class A Common Stock but prior to such payment, the registered holder
of such share at the close of business on such record date shall be entitled to
receive the dividend or other distribution payable on such share on such date
notwithstanding the conversion thereof or the Corporation's default in payment
of the dividend due on such date.
(iv) The Corporation covenants that it will
at all times reserve and keep available, solely for the purpose of issuance upon
conversion of the outstanding shares of Class A Common Stock, such number of
shares of Common Stock as shall be issuable upon the conversion of all such
outstanding shares, provided, that nothing contained herein shall be construed
to preclude the Corporation from satisfying its obligations in respect of the
conversion of the outstanding shares of Class A Common Stock by delivery of
purchased shares of Common Stock which are held in the treasury of the
Corporation. The Corporation covenants that if any shares of Common Stock,
required to be reserved for purposes of conversion hereunder, require
registration with or approval of any governmental authority under any federal or
state law before such shares of Common Stock may be issued upon conversion, the
Corporation will cause such shares to be duly registered or approved, as the
case may be. The Corporation will endeavor to list the shares of Common Stock
required to be delivered upon conversion prior to such delivery upon each
national securities exchange upon which the outstanding Common Stock is listed
at the time of such delivery. The Corporation covenants that all shares of
Common Stock which shall be issued upon conversion of the shares of Class A
Common Stock, will, upon issuance, be fully paid and non-assessable and not
subject to any preemptive rights.
(v) The issuance of certificates
representing shares of Common Stock upon conversion of shares of Class A Common
Stock shall be made without charge for any stamp or other similar tax in respect
of such issuance. However, if any such certificate is to be issued in a name
other than that of the holder of the share or shares of Class A Common Stock
converted, the person or persons requesting the issuance thereof shall pay to
the Corporation the amount of any tax which may be payable in respect of any
transfer involved in such issuance or shall establish to the satisfaction of the
Corporation that such tax has been paid.
(b) Automatic Conversion.
(i) All outstanding Class A Common Stock
shall be automatically converted into Common Stock on a share-for-share basis if
at any time Xcel Energy Inc. or its successors by way of merger or
consolidation, together with their respective affiliates ceases to own, directly
or indirectly, at least 30% of the total number of outstanding Common Shares, as
reflected on the stock transfer records of the Corporation. For purposes of the
immediately preceding sentence, any Common Shares repurchased and held as
treasury shares or canceled by the Corporation shall no longer be deemed
"outstanding" from and after the date of repurchase or cancellation.
(ii) Each share of Class A Common Stock
shall be automatically converted on a share-for-share basis into Common Stock
upon the transfer of such share of Class A Common Stock. For purposes of the
immediately preceding sentence, "transfer" means any sale, gift, assignment or
other transfer of any ownership or voting interest in any share of Class A
Common Stock, including (a) by way of any merger, consolidation, combination or
reorganization of the Corporation with or into another entity (whether or not
the
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Corporation is the surviving entity), (b) any offer, sale, contract to sell,
sale of any option or contract to purchase, purchase of any option or contract
to sell, grant of any option, right or warrant to purchase or other direct or
indirect transfer or disposal of any shares of Class A Common Stock or any
securities convertible into or exercisable or exchangeable for Class A Common
Stock or (c) entry into any swap or other arrangement (including by way of
insurance) that transfers to another, in whole or in part, any of the economic
consequences of ownership of any shares of Class A Common Stock, but shall not
include (y) any pledge of such stock as collateral, or (z) any "transfer" to any
person or entity that (A) is an "Affiliate" (as defined in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended) of a holder of such Class A Common
Stock prior to such transfer and without giving effect to any agreements
executed in connection with such transfer or (B) becomes an Affiliate by virtue
of transactions for which an agreement was existing as of April 30, 2000.
(iii) In the event of any conversion of the
Class A Common Stock pursuant to Section 4(b)(i) or (ii), certificates which
formerly represented outstanding shares of Class A Common Stock will thereafter
be deemed to represent a like number of shares of Common Stock and all
authorized Common Shares shall consist of only Common Stock.
5. Splits, Subdivisions, etc. If the Corporation shall in any
manner split, reclassify, subdivide or combine the outstanding Common Stock or
Class A Common Stock, the outstanding shares of the other such class of Common
Shares shall be proportionately subdivided or combined in the same manner and on
the same basis as the outstanding shares of the class of Common Shares that have
been split, reclassified, subdivided or combined.
6. No Preemptive Rights. No holder of Common Stock or Class A
Common Stock shall, by reason of such holding, have any preemptive right to
subscribe to any additional issue of stock of any class or series of the
Corporation or to any security of the Corporation convertible into such stock.
7. Reissuance of Class A Common Stock. Following the initial
issuance of shares of Class A Common Stock, the Corporation shall not issue
additional shares of Class A Common Stock, and all shares of Class A Common
Stock surrendered for conversion or redeemed or repurchased by the Corporation
shall be retired and shall not be reissued by the Corporation.
8. Priority of Preferred Stock. The Common Stock and the Class
A Common Stock are subject to all powers, rights, privileges, preferences and
priorities of the Preferred Stock as may be stated herein and as shall be stated
and expressed in any resolution or resolutions adopted by the Board of
Directors, pursuant to authority expressly granted and vested in it by Section C
of this Article FOURTH.
C. 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 the resolution or resolutions providing for the issue of shares thereof
the designations, voting powers, preferences and relative participating, option
or other special
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rights of such series, and the qualifications, limitations or restrictions
thereof, to the full extent now or hereafter permitted by law.
ARTICLE FIFTH
The Board of Directors of the Corporation, acting by majority vote, may
alter, amend or repeal the Bylaws of the Corporation.
ARTICLE SIXTH
The names of the persons who are to serve as the initial directors of
the Corporation until the first annual meeting of stockholders or until their
successors are elected and qualify are as follows:
Wayne H. Brunetti
Gary R. Johnson
Richard C. Kelly
Edward J. McIntyre
The mailing address for each of the foregoing directors shall be c/o
Xcel Energy Inc., 800 Nicollet Mall, Minneapolis, MN 55402.
ARTICLE SEVENTH
Except as otherwise provided by the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended, no director of
the Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Any repeal or modification of this Article SEVENTH 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.
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