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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:
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<S> <C>
Name Mailing Address
Rowena Villanueva c/o Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
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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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