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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): APRIL 30, 1996
NRG GENERATING (U.S.) INC.
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(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 1-9208 59-2076187
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification Number)
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1221 NICOLLET MALL, MINNEAPOLIS, MINNESOTA 55403
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (612) 373-5300
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(Former name or former address, if changed since last report)
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ITEM 1. CHANGES IN CONTROL OF REGISTRANT.
On April 30, 1996, NRG Energy, Inc. ("NRG Energy") purchased 2,710,357
shares of newly issued common stock of NRG Generating (U.S.) Inc. ("the
Company," formerly O'Brien Environmental Energy, Inc., "O'Brien") (the
"Acquisition"). NRG Energy purchased such shares, which comprise 41.86% of the
outstanding common stock of the Company, pursuant to the Composite Fourth
Amended and Restated Plan of Reorganization for O'Brien (the "Plan"), confirmed
by order (the "Confirmation Order") of the United States Bankruptcy Court for
the District of New Jersey under Chapter 11 of the United States Bankruptcy
Code on February 22, 1996. Pursuant to the Plan, NRG Energy has made
approximately $107,396,602 (the "Cash Purchase Price") available to the various
holders of claims against and equity interests in O'Brien, $69.0 million of
which funds NRG Energy loaned to the Company. Approximately $30.8 million of
the Cash Purchase Price is allocable to the purchase of 41.86% of the Common
Stock of the Company by NRG Energy, $23.3 million of which was paid directly to
the Company, and $7,500,000 of which was paid to the stockholders of O'Brien.
The source of the Cash Purchase Price was NRG Energy's working capital. The
former stockholders of O'Brien own the remaining 58.14% of the Company. In
addition, NRG Energy, through NEO Corporation (a wholly owned subsidiary),
purchased certain Biogas Assets from O'Brien for $7.5 million in cash.
NRG Energy acquired the shares of Common Stock pursuant to the Plan
and pursuant to the Amended and Restated Stock Purchase and Reorganization
Agreement dated as of January 31, 1996 (the "Purchase Agreement"). The Plan
and the Purchase Agreement provide for seven directors of the Company.
Pursuant to the Purchase Agreement, NRG Energy has the right to appoint four of
such seven directors. On April 30, 1996, the effective date of the Plan, NRG
Energy chose to reserve its right to appoint one of such four directors until a
later date. NRG Energy expects to appoint a seventh director of the Company
within the next several months. Additionally, pursuant to a Management
Services Agreement between NRG Energy and the Company, NRG Energy will provide
certain management, administration and support for the business of the Company
and its subsidiaries to aid in the growth of the Company. The Company and NRG
Energy have also entered into a Co-Investment Agreement, whereby NRG Energy will
offer the Company ownership interests in certain independent power projects
located in the United States. NRG Energy has also agreed to provide
additional financing to the Company and its subsidiaries in the aggregate
amount of approximately $29.5 million, subject to certain conditions.
The Company's new certificate of incorporation provides for, among
other things, the following restrictions on the trading of the Company's Common
Stock. For a period of six years, any sale or other transfer of the Common
Stock of the Company to any entity owning 5% or more of the value of the
outstanding stock of the Company is void and of no effect unless prior Board
approval is obtained. Any shares of Company Common Stock sold or transferred
in violation of the certificate of incorporation and any distributions received
thereon are subject to forfeiture to the Company. In addition, any attempted
sale or transfer of any share of the Company's Common Stock to any Electric
Utility Interest (as defined by the Federal Energy Regulatory Commission in
regulations or orders implementing the Public Utility Regulatory Policies Act
of 1978, as amended) is prohibited and is deemed to be of no force and effect.
Any shares sold or transferred in violation of this restriction are subject to
redemption by the Company.
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Except as set forth in the following sentence, the by-laws of the
Company may be repealed or modified only by (i) the vote of 60% of all
outstanding shares or (ii) the vote of a majority of the entire board of
directors. By-laws regarding: (i) action by written consent of stockholders;
(ii) notice of stockholder nominations; (iii) number of directors; (iv)
independent directors; and (v) independent directors committee may only be
repealed or modified by (x) the vote of 75% of all outstanding shares or (y)
the vote of six out of seven of the Company's directors.
O'Brien's common stock was traded on the American Stock Exchange (the
"AMEX") until September, 1994, when the stock was delisted from the AMEX. The
Company's Common Stock is currently trading on the Nasdaq's OTC Bulletin Board
under the O'Brien symbol "OBSE." The Company intends to change the symbol under
which the Common Stock is traded to "NRGG."
The foregoing description of the Acquisition, the Purchase Agreement,
the Plan, the Management Agreement, the Co-Investment Agreement, financing
arrangements of the Company and the Company's certificate of incorporation and
bylaws is summary in nature, is not intended to be complete and is qualified
in its entirety by reference to the Exhibits to this Report.
ITEM 3. BANKRUPTCY OR RECEIVERSHIP.
The Plan was confirmed by the U.S. Bankruptcy Court on February 22,
1996. Notices of appeal were filed, but no motion to stay the Confirmation
Order was made and, accordingly, the Acquisition was consummated on April 30,
1996. The Company plans to vigorously contest the appeals.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
Exhibit No. Description
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2.1 Amended and Restated Stock Purchase and Reorganization
Agreement (including, without limitation, Exhibit A
(Co-Investment Agreement between NRG Energy and the Company
dated April 30, 1996); Exhibit B (Chapter 11 Financing
Agreement between NRG Energy and the Company dated August 30,
1996); and Exhibit D (Management Services Agreement) dated as
of January 31, 1996, by and between NRG Energy, Inc. and
O'Brien Environmental Energy, Inc.) filed as Exhibit 10.1 to
the Company's Current Report on Form 8-K dated April 29, 1996
and incorporated herein by this reference.
2.2 Order Confirming Composite Fourth Amended and Restated Plan of
Reorganization for O'Brien Proposed by O'Brien, the Official
Committee of Equity Security Holders, Wexford Management Corp.
and NRG Energy dated February 13, 1996 and entered on February
22, 1996, and filed as Exhibit 2.1 to the Company's Current
Report on Form 8-K dated April 29, 1996 and incorporated
herein by this reference.
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2.3 Composite Fourth Amended and Restated Plan of Reorganization
for O'Brien Environmental Energy, Inc. dated January 31,
1996, proposed by O'Brien Environmental Energy, Inc., the
Official Committee of Equity Security Holders, Wexford
Management Corp. and NRG Energy, Inc., and filed as Exhibit
2.2 to the Company's Current Report on Form 8-K dated April
29, 1996 and incorporated herein by this reference.
3.1 Amended and Restated Certificate of Incorporation of the
Company.
3.2 Bylaws of the Company.
3.3 Preferred Stock Certificate of Designation of the Company.
10.1 Supplemental Loan Agreement dated April 30, 1996, between NRG
Energy and the Company filed as Exhibit 10.2 to the Company's
Current Report on Form 8-K dated April 29, 1996 and
incorporated herein by this reference.
10.2 Loan Agreement dated April 30, 1996, between NRG Energy and
the Company filed as Exhibit 10.3 to the Company's Current
Report on Form 8-K dated April 29, 1996 and incorporated
herein by this reference.
10.3 NRG Newark Cogen Loan Agreement dated April 30, 1996, between
NRG Energy and the Company, and filed as Exhibit 10.4 to the
Company's Current Report on Form 10-K dated April 29, 1996 and
incorporated herein by reference.
ITEM 8. CHANGE IN FISCAL YEAR.
At a meeting on April 30, 1996, the Company's Board of Directors
approved the decision to change the Company's fiscal year from a fiscal year
ending June 30 to a calendar year fiscal year ending December 31. Such new
fiscal year will commence on January 1, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
NRG GENERATING (US.) INC.
By: /s/ Leonard A. Bluhm
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Leonard A. Bluhm
President and Chief Executive Officer
Date: May 15, 1996
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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
O'BRIEN ENVIRONMENTAL ENERGY, INC.
O'Brien Environmental Energy, Inc., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows: The original
name of the Corporation was O'Brien Energy Systems, Inc. The date of filing of
its original Certificate of Incorporation with the Secretary of State was
December 5, 1983.
1. This Amended and Restated Certificate of Incorporation restates and
further amends the Certificate of Incorporation of the Corporation to read as
set forth herein.
2. The text of the Certificate of Incorporation as heretofore amended or
supplemented is hereby further amended and restated to read in full as follows:
FIRST:The name of the Corporation is:
NRG GENERATING (U.S.) INC.
SECOND:The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle, and the name of its registered agent at that
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 total number of shares of stock which the Corporation is
authorized to issue is seventy thousand consisting of fifty million
(50,000,000) shares of common stock, having a par value of one cent ($.01) per
share and twenty million (20,000,000) shares of Preferred Stock, having a par
value of one cent ($.01) per share.
(b)The Corporation shall not issue any nonvoting equity securities provided
that this provision, which is included in this Certificate of Incorporation in
compliance with Section 1123(a)(6) of the United States Bankruptcy Code of
1978, as amended, shall have no force or effect beyond that required by such
Section 1123(a)(6) and shall be effective only for so long as such Section
1123(a)(6) is in effect and applicable to the Corporation.
(c)Shares of Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized
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to fix the voting rights, designations, powers, preferences and the relative,
participating, optional or other rights, if any, and the qualifications,
limitations or restrictions thereof, of any wholly unissued series of Preferred
Stock; and to fix the number of shares constituting such series (but not below
the number of shares thereof then outstanding).
FIFTH: (a) Except as provided below, the bylaws of the
Corporation may only be made, repealed, altered, amended or rescinded by (i)
the stockholders of the Corporation by the vote of the holders of not less than
sixty percent (60%) of the total voting power of all outstanding shares of
voting stock of the Corporation or (ii) the directors of the Corporation by the
vote of a majority of the entire board of directors present at a meeting at
which a quorum is present.
(b) Section 1.7(b) (regarding action by written consent
of stockholders); Section 1.11 (regarding notice of stockholder nominations and
other stockholder business); Section 2.1(b) (regarding the number of
directors); Section 2.10 (regarding Independent Directors); and Section 3.2
(regarding the Independent Directors Committee), of the bylaws of the
Corporation may only be repealed, altered, amended or rescinded by (i) the
stockholders of the Corporation by a vote of the holders of not less than
seventy-five percent (75%) of the total voting power of all outstanding shares
of voting stock of the Corporation or (ii) the directors of the Corporation by
the affirmative vote of no fewer than the lesser of all of the directors then
in office or six (6) of the Corporation's directors; provided however, that
Section 2.10 (regarding Independent Directors) and Section 3.2 (regarding
the Independent Directors Committee) may be altered or amended pursuant to the
provisions of subparagraph (a) of Article Fifth to the extent necessary to
comply with the provisions of the applicable listing requirements of any
exchange or market system over which the securities of the Corporation are to
be traded.
SIXTH: 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 Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law is amended
to authorize corporate action further eliminating or limiting 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 Delaware
General Corporation Law, as so amended. Any repeal or modification of this
provision 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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SEVENTH: (a) Until April 30, 2002, (i) any attempted
sale, transfer, assignment, conveyance, grant, pledge, gift or other
disposition of any share or shares of stock of the Corporation (within the
meaning of Section 382 of the Internal Revenue Code of 1986 (the "Code")), or
any option or right to purchase such stock, as defined in the Treasury
Regulations under Section 382 of the Code, to any person or entity (or group of
persons or entities acting in concert) who either directly or indirectly owns
or would be treated as owning, or whose shares are or would be attributed to
any person or entity who directly or indirectly owns or would be treated as
owning, in either case prior to the purported transfer and after giving effect
to the applicable attribution rules of the Code and applicable Treasury
Regulations, 5 percent or more of the value of the outstanding stock of the
Corporation or otherwise treated as a 5 percent stockholder (within the meaning
of Section 382 of the Code), regardless of the percent or the value of the
stock owned, shall be void ab initio insofar as it purports to transfer
ownership or rights in respect of such stock to the purported transferee and
(ii) any attempted sale, transfer, assignment, conveyance, grant, gift, pledge
or other disposition of any share of stock of the Corporation (within the
meaning of Section 382 of the Code) or any option or right to purchase such
stock, as defined in the Treasury Regulations under Section 382 of the Code, to
any person or entity (or group of persons or entities acting in concert) not
described in clause (i) who directly or indirectly would own, or whose shares
would be attributed to any person or entity who directly or indirectly would
own in each case as a result of the purported transfer and after giving effect
to the applicable attribution rules of the Code and applicable Treasury
Regulations, 5 percent or more of the value of any of the stock of the
Corporation (or otherwise treated as a 5-percent stockholder within the meaning
of Section 382 of the Code), shall, as to that number of shares causing such
person or entity to be a 5-percent stockholder, be void ab initio insofar as it
purports to transfer ownership or rights in respect of such stock to the
purported transferee; provided, however, that neither of the foregoing clauses
(i) and (ii) shall prevent a valid transfer if (A) the transferor obtains the
written approval of the board of directors of the Corporation which approval
shall not be unreasonably withheld and provides the Corporation with an opinion
of counsel reasonably satisfactory to the Corporation that (assuming, as of the
date of such opinion, the full exercise of (i) all warrants issued under, and
(ii) any options granted pursuant to any stock option plan of the Corporation)
the transfer shall not result in an ownership change within the meaning of
Section 382 of the Code and any successor thereto or (B) a tender offer, within
the meaning of the Securities Exchange Act of 1934, as amended, and pursuant to
the rules and regulations thereof, is made by a bona fide third-party purchaser
to purchase at least sixty- six and two-thirds percent (66-2/3%) of the issued
and outstanding common stock of the Corporation and the offeror (i) agrees to
effect, within ninety (90) days of the consummation of the tender offer, a back
end merger in which all non- tendering stockholders would receive the same
consideration
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as paid in the tender offer, and (ii) has received the tender of sufficient
shares to effect such merger. Without limiting or restricting in any manner
the effectiveness of the foregoing provisions, the Corporation and any
transferor may rely and shall be protected in relying on the Corporation's
stockholder lists and stock transfer records for all purposes relating to any
opinion required hereunder.
(b) In the absence of specific board approval, a
purported transfer of shares in excess of the shares that can be transferred
pursuant to this Article SEVENTH (the "Prohibited Shares") to the purported
acquiror (the "Purported Acquiror") is not effective to transfer ownership of
such Prohibited Shares. On demand by the Corporation, which demand must be
made within thirty (30) days of the time the Corporation learns of the transfer
of the Prohibited Shares, a Purported Acquiror must transfer any certificate or
other evidence of ownership of the Prohibited Shares within the Purported
Acquiror's possession or control, together with any dividends or other
distributions ("Distributions") that were received by the Purported Acquiror
from the Corporation with respect to the Prohibited Shares, to an agent
designated by the Corporation (the "Agent"). The Agent will sell the
Prohibited Shares in an arm's length transaction (over a stock exchange, if
possible), and the Purported Acquiror will receive an amount of sales proceeds
not in excess of the price paid or consideration surrendered by the Purported
Acquiror for the Prohibited Shares (or the fair market value of the Prohibited
Shares at the time of an attempted transfer to the Purported Acquiror by gift,
inheritance, or a similar transfer). If the Purported Acquiror has resold the
Prohibited Shares prior to receiving the Corporation's demand to surrender the
Prohibited Shares to the Agent, the Purported Acquiror shall be deemed to have
sold the Prohibited Shares as an agent for the initial transferor, and shall be
required to transfer to the Agent any proceeds of such sale and any
Distributions.
(c) If the initial transferor can be identified, the
Agent will pay to it any sales proceeds in excess of those due to the Purported
Acquiror, together with any Distributions received by the Agent. If the
initial transferor cannot be identified within ninety (90) days, the Agent may
pay any such amounts to a charity of its choosing. In no event shall amounts
paid to the Agent inure to the benefit of the Corporation or the Agent, but
such amounts may be used to cover expenses of the Agent in attempting to
identify the initial transferor. If the Purported Acquiror fails to surrender
the Prohibited Shares within the next thirty (30) business days from the demand
by the Corporation, then the Corporation will institute legal proceedings to
compel the surrender. The Corporation shall be entitled to damages, including
reasonable attorneys' fees and costs, from the Purported Acquiror, on account
of such purported transfer.
EIGHTH: The affirmative vote of the holders of greater than
sixty-six and two thirds percent (66-2/3%) of the total voting power of all
outstanding shares of voting stock of
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the Corporation shall be required for the approval of any proposal (1) that the
Corporation merge or consolidate with any corporation, person, partnership,
trust or other entity ("Entity"), or (2) that the Corporation sell or exchange
all or substantially all of its assets or business, or (3) that the Corporation
issue or deliver any stock or other securities of its issue in exchange or
payment for any properties or assets of any Entity or securities issued by any
Entity, and to effect such transaction the approval of stockholders of the
Corporation is required by law or by any agreement between the Corporation and
any national securities exchange.
NINTH: (a) Any attempted sale, transfer, assignment,
conveyance, pledge or other disposition of any share of the Corporation's
common stock to any Electric Utility Interest (as defined below) shall be null
and void ab initio. No employee or agent, including any independent transfer
agent or registrar of this Corporation, shall be permitted to record any
attempted or purported transfer made in violation of this provision, and no
intended transferee of shares of this Corporation's common stock attempted to
be transferred in violation of this Article NINTH shall be recognized as a
holder of such shares for any purpose whatsoever, including, but not limited
to, the right to vote such shares of common stock or to receive dividends or
other distributions in respect thereof, if any. The transferor and any such
intended transferee shall be deemed to have appointed the Corporation as
attorney-in-fact, with full power of substitution and full power and authority,
in the name and on behalf of the intended transferor and transferee, to sell,
assign and transfer the shares of Common Stock of the Corporation attempted to
be transferred in violation of this Article NINTH, and to do all lawful acts
and execute all documents deemed necessary or advisable to effect such sale,
assignment and transfer, in an arm's-length transaction, to another entity or
person; provided that the sale, assignment and transfer to such other entity or
person does not violate the provisions of this Article NINTH. The Corporation
shall apply the proceeds of any such sale first, to pay the expenses of the
sale; second, to pay the intended transferee on whose behalf the shares were
sold, an amount equal to (i) the sum of the intended transferee's cost of such
shares (inclusive of brokerage fees and expenses), plus interest on such cost
at the then minimum rate of interest which would prevent interest on a
non-interest bearing obligation from being imputed by the Internal Revenue
Service, less the amount of any dividends or other distributions inadvertently
paid to said intended transferee in respect of such shares, or (ii) the balance
of such proceeds, whichever is less; and third, the balance of such proceeds,
if any, shall be paid to the Corporation. Notwithstanding the foregoing, the
Corporation shall not provide any proceeds to the intended transferee, if such
intended transferee has received consideration from any subsequent attempted
transfer.
(b) This Corporation shall take all appropriate legal
action to enforce the provisions of this Article NINTH in every
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case where there has been an attempted or purported transfer made in violation
thereof. In taking any action hereunder, this Corporation, and its directors,
officers and agents, will be fully protected in relying upon any notice, paper
or other document reasonably believed by this Corporation or any such person to
be genuine and sufficient, and, to the extent permitted by law, in no event
shall this Corporation, or any of its directors, officers or agents, be liable
for any act performed or omitted to be performed hereunder in the absence of
gross negligence or willful misconduct. This Corporation and each of its
directors, officers and agents may consult with counsel in connection with its
respective duties hereunder and, to the extent permitted by law, each shall be
fully protected by any act taken, suffered or permitted in good faith in
accordance with the advice of such counsel.
(c) For purposes of this Article NINTH, the term
"Electric Utility Interest" refers to an electric utility or utilities or an
electric utility holding company or companies, or any affiliate of either, in
each case as those terms are utilized by the Federal Energy Regulatory
Commission ("FERC") in regulations or orders implementing the Public Utility
Regulatory Policies Act of 1978, as amended, and its successors ("PURPA") , if
such entity's interest in this Corporation would be a utility interest for the
purposes of 10 C.F.R. S 292.206.
(d) Whenever it is deemed by the board of directors to be
prudent in protecting, preserving or obtaining for any of its projects
(including projects in which this Corporation or a subsidiary has an interest,
whether by ownership, lease or contract) the status of a "Qualifying Facility"
(as defined under PURPA), the board of directors of this Corporation may
require to be filed with this Corporation as a condition to permitting any
proposed transfer, and/or the registration of any transfer, of any shares of
this Corporation's common stock a statement of affidavit from any proposed
transferee to the effect that such transferee is not an "Electric Utility
Interest," as defined herein.
(e) The Corporation may, at any time that the Board of
Directors of the Corporation deems necessary or advisable to protect, preserve
or obtain for any of its projects the status of a "Qualifying Facility", redeem
any shares of its capital stock beneficially owned by any Electric Utility
Interest at a redemption price equal to the "Fair Market Value" (as defined in
subsection (h) below) of such shares of capital stock.
(f) In the event the Corporation shall redeem any shares
of its capital stock pursuant to subsection (e) above, notice of such
redemption shall be given by first class mail, postage prepaid, mailed not less
than thirty (30) days nor more than sixty (60) days prior to the redemption
date, to each holder of record of the shares to be redeemed at such holder's
address as the same appears on the books of the Corporation; provided, however,
that no failure to mail such notice nor any defect
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therein shall affect the validity of the proceeding for the redemption of any
shares of capital stock to be redeemed except as to the holder to whom the
Corporation has failed to mail said notice or except as to the holder whose
notice was defective. Each such notice shall state: (i) the redemption date;
(ii) the number of shares of capital stock to be redeemed and, if less than all
the shares held by such holder are to be redeemed from such holder, the number
of shares to be redeemed from such holder; and (iii) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price.
(g) Notice having been mailed as aforesaid, from and
after the redemption date (unless the Corporation shall fail to provide money
for the payment of the redemption price of the shares called for redemption)
the shares of capital stock so called for redemption shall no longer be deemed
to be outstanding, and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the redemption
price) shall cease. Upon surrender in accordance with said notice of the
certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the board of directors shall so require and the notice shall so
state), such shares shall be redeemed by the Corporation at the redemption
price. In case fewer than all of the shares represented by any such certificate
are redeemed, a new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof.
(h) For purposes of this Article NINTH, "Fair Market
Value" shall mean the average of the closing sale prices during the 30-day
period immediately preceding the redemption date of a share of capital stock of
the Corporation as reported on the American Stock Exchange, Inc. (the "Amex"),
or, if such stock is not then listed on the Amex, on the principal United
States securities exchange registered under the Securities Exchange Act of
1934, as amended, on which such stock is listed, or, if such stock is not then
listed on any such exchange, the average of the closing sale prices or closing
bid quotations (whichever is higher, if both are reported) with respect to a
share of such stock during the 30-day period immediately preceding the
redemption date of a share of such stock on the National Association of
Securities Dealers, Inc. National Market System or any system then in use, or
if no such quotations are available, the fair market value on the redemption
date of a share of such stock as determined by the board of directors in good
faith.
(i) The board of directors of this Corporation shall have
the right to determine whether any transferee or purported transferee of shares
of common stock of this Corporation is an "Electric Utility Interest" and to
determine whether this Corporation's projects (including projects in which this
Corporation or a subsidiary has an interest, whether by ownership, lease or
contract) meet the requirements for "Qualifying Facility" status under PURPA.
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(j) Nothing contained in this Article NINTH shall limit
the authority of the board of directors of this Corporation to take such other
action as it deems necessary or advisable to protect this Corporation and
interests of its stockholders by protecting, preserving or obtaining for any of
this Corporation's projects (including projects in which this Corporation or a
subsidiary has an interest, whether by ownership, lease or contract) the status
of a "Qualifying Facility" under PURPA.
(k) All certificates representing shares of this
Corporation's common stock shall bear the following legend:
The sale, transfer, assignment, conveyance, pledge or
other disposition of any of the shares represented by
this certificate to any "Electric Utility Interest"
(as hereinafter defined) is restricted in accordance
with the provisions of the Certificate of
Incorporation of the Corporation. For these
purposes, the term "Electric Utility Interest" refers
to an electric utility or utilities or an electric
utility holding company or companies, or any
affiliate of either, in each case as those terms are
utilized by the Federal Energy Regulatory Commission
("FERC") in regulations or orders implementing the
Public Utility Regulatory Policies Act of 1978, as
amended, and its successors ("PURPA"), if such
entity's interest in the corporation would be utility
interest for purposes of 10 C.F.R. S 292.206.
TENTH: The provisions set forth in this Article TENTH and
subparagraph (a) of Article FIFTH (regarding the alteration of bylaws) may not
be repealed or amended in any respect unless such repeal or amendment is
approved by the affirmative vote of the holders of not less than sixty percent
(60%) of the total voting power of all outstanding shares of voting stock of
the Corporation.
ELEVENTH: The provisions set forth in this Article Eleventh,
in subparagraph (b) of Article FIFTH (regarding the alteration of certain
bylaws) and in Article EIGHTH (regarding the greater than sixty-six and two
thirds percent (66-2/3%) vote of stockholders required for certain mergers or
other corporate combinations), may not be repealed or amended in any respect
unless such repeal or amendment is approved by the affirmative vote of holders
of not less than seventy-five percent (75%) of the total voting power of all
outstanding shares of voting stock of the Corporation.
TWELFTH: 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 in
accordance with Articles TENTH and ELEVENTH hereof.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation which restates in its entirety the provisions of the
Corporation's Certificate of Incorporation, having been duly adopted by the
Board of Directors and the stockholders of the Corporation in accordance with
the provisions of Section 242 & 245 of the General Corporation Law of the State
of Delaware, has been executed on the 30th day of April, 1996.
/s/ Leonard A. Bluhm
-------------------------------
Leonard A. Bluhm
Designated Responsible Person
ATTEST
/s/ Craig A. Mataczynski
- - ------------------------------------
Craig A. Mataczynski
Designated Responsible Person
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EXHIBIT 3.2
NRG GENERATING (U.S.) INC.
BY-LAWS
ARTICLE I
MEETINGS OF STOCKHOLDERS
1.1. ANNUAL.
The annual meeting of stockholders for the election of directors,
ratification or rejection of the selection of auditors and the transaction of
such other business as may properly be brought before the meeting shall be held
within five months after the end of the corporation's fiscal year, or such
other time as may be determined by the board of directors at such time, date
and place as the board shall determine by resolution.
1.2. SPECIAL.
Special meetings of stockholders may be called by the board of
directors or the chairman of the board of directors or the Independent
Directors' Committee (as described in Section 3.1(b)), at such place, date and
time and for such purpose or purposes as shall be set forth in the notice of
such meeting.
1.3. NOTICE OF MEETINGS.
Written notice of each meeting of stockholders shall be given
by the chairman of the board and/or the secretary in compliance with the
provisions of Delaware law.
1.4. LIST OF STOCKHOLDERS ENTITLED TO VOTE.
The secretary shall prepare, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof and may be inspected by any
stockholder who is present.
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1.5. QUORUM.
At each meeting of the stockholders, except where otherwise provided
by law or the certificate of incorporation or these by-laws, the holders of
sixty percent of the voting power of the outstanding shares of stock entitled
to vote at the meeting, present in person or by proxy, shall constitute a
quorum. In the absence of a quorum, the stockholders so present may, by
majority vote, adjourn the meeting from time to time in the manner provided in
Section 1.9 of these by-laws until a quorum shall attend. Shares of its own
stock belonging to the corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of the corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
1.6. ORGANIZATION.
The chairman or, if he so designates or is absent, the chief
executive officer or, in their absence, an executive vice president or vice
president designated by the board of directors, shall preside at meetings of
the stockholders. The secretary of the corporation shall act as secretary, but
in his absence the presiding officer may appoint a secretary.
1.7. VOTING; PROXIES.
(a) Each stockholder shall be entitled to vote in accordance with
the number of shares and voting powers of the voting shares held of record by
him. Each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for him by proxy, but such proxy,
whether revocable or irrevocable, shall comply with the requirements of
Delaware law. All elections and questions shall, unless otherwise provided by
law or by the certificate of incorporation or these by-laws, be decided by the
vote of the holders of a majority of the voting power of the shares of stock
entitled to vote thereon present in person or by proxy at the meeting.
(b) Any action required to be taken at any annual or special
meeting of stockholders of the corporation, or any action which may be taken at
any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding shares of stock having no less than the greater of: (i) the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
(ii) 75% of the voting power of the shares of stock entitled to vote thereon.
Prompt notice of the taking of the corporate action without a
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meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
1.8. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
In order that the corporation may determine the stockholders
entitled: (a) to notice of or to vote at any meeting of stockholders or any
adjournment thereof; (b) to express consent to corporate action in writing
without a meeting; (c) to receive payment of any dividend or other distribution
or allotment of any rights; or (d) to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix a record date. The record date shall
not precede the date upon which the resolution fixing the record date is
adopted by the board of directors and which record date: (a) in the case of
determination of stockholders entitled to vote at any meeting of stockholders
or adjournment thereof, shall not be more than sixty nor less than ten days
before the date of such meeting; (b) in the case of determination of
stockholders entitled to express consent to corporate action in writing without
a meeting, shall not be more than ten days from the date upon which the
resolution fixing the record date is adopted by the board of directors; and (c)
in the case of any other action, shall not be more than sixty days prior to
such other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of directors may
fix a new record date for the adjourned meeting.
1.9. ADJOURNMENTS.
Any meeting of stockholders, annual or special, may adjourn from time
to time to reconvene at the same or other place, and notice need not be given
of any such adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting.
1.10. JUDGES.
All votes by ballot at any meeting of stockholders shall be
conducted by two judges appointed for the purpose, either by the directors or
by the chairman of the meeting. The judges shall decide upon the
qualifications of voters, count the votes and declare the result.
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1.11. NOTICE OF STOCKHOLDER NOMINATION AND STOCKHOLDER BUSINESS.
(a) At a meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting.
(b) A notice of the intent of a stockholder to make a nomination
or to bring any other matter before the meeting shall be made in writing and
received by the secretary of the corporation not more than 180 days and not
less than 120 days in advance of the annual meeting or, in the event of a
special meeting of stockholders, such notice shall be received by the secretary
of the corporation not later than the close of the fifteenth day following the
day on which notice of the meeting is first mailed to stockholders.
(c) Every such notice by a stockholder shall set forth:
(i) the name and residence address of the stockholder of
the corporation who intends to make a nomination or bring up any other
matter;
(ii) a representation that the stockholder is a holder of
the corporation's voting stock and intends to appear in person or by
proxy at the meeting to make the nomination or bring up the matter
specified in the notice;
(iii) with respect to notice of an intent to make a
nomination, a description of all arrangements or understandings among
the stockholder and each nominee and any other person or persons
(naming such person or person) pursuant to which the nomination or
nominations are to be made by the stockholder;
(iv) with respect to notice of an intent to make a
nomination, such other information regarding each nominee proposed by
such stockholder as would have been required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had each nominee been nominated by the board of
directors of the corporation; and
(v) with respect to notice of an intent to bring up any
other matter, a description of the matter, and any material interest of
the stockholder in the matter.
(d) Notice of intent to make a nomination shall be
accompanied by the written consent of each nominee to serve as director of the
corporation if so elected.
(e) At the meeting of stockholders, the chairman shall
declare out of order and disregard any nomination or any other matter not
presented in accordance with this section.
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ARTICLE II
BOARD OF DIRECTORS
2.1. RESPONSIBILITY AND NUMBER.
(a) The business and affairs of the corporation shall be managed
by or under the direction of a board of directors.
(b) The number of directors shall be seven; provided that such
number of directors may be increased to eight if necessary or required by the
terms of any series of preferred stock that may be issued from time to time
pursuant to a resolution of the board of directors in accordance with Article
FOURTH of the corporation's certificate of incorporation.
2.2. ELECTION; RESIGNATION; VACANCIES.
(a) At each annual meeting of stockholders, the
stockholders shall elect directors, each of whom shall hold office for a term
commencing on the date of the annual meeting of stockholders, or such later
date as shall be determined by the board of directors, and ending on the next
annual meeting of stockholders, or until his or her successor is elected and
qualified. Any director may resign at any time upon written notice to the
chairman of the board or to the secretary.
(b) Except as otherwise provided in these by-laws with
respect to Independent Directors (as defined in Section 2.10(c)), the nominees
of the board of directors for the election of whom the board will solicit
proxies from the stockholders for use at the corporation's annual meeting shall
be determined by resolution of the board of directors.
(c) Except as otherwise provided in these by-laws with
respect to Independent Directors, any vacancy occurring in the board of
directors for any reason may be filled by a majority of the remaining members
of the board of directors, although such majority is less than a quorum. Each
director so elected shall hold office concurrent with the term of other
directors or until his successor is elected and qualified.
2.3. REGULAR MEETINGS.
Unless otherwise determined by resolution of the board of
directors, a meeting of the board of directors for the election of officers and
the transaction of such other business as may come before it shall be held at
such time and places as the board shall from time to time determine.
2.4. SPECIAL MEETINGS.
Special meetings of the board of directors may be called by
the chairman of the board of directors, the chief executive officer, the
president or a vice chairman, or at the request in
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writing of a majority of the directors then in office or of a majority of the
members of the Independent Directors Committee, and shall be called by the
secretary. Notice of a special meeting of the board of directors shall be
given at least twenty-four hours before the special meeting.
2.5. QUORUM; VOTE REQUIRED FOR ACTION.
(a) At all meetings of the board of directors, a majority
of the whole board shall constitute a quorum for the transaction of business.
Except in cases in which applicable law, the certificate of incorporation or
these by-laws otherwise provide, the vote of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors.
(b) Except as otherwise specifically provided in the
certificate of incorporation or these by-laws; the affirmative vote of a
majority of the entire Board of Directors shall be required to: (i) amend the
certificate of incorporation or these by-laws; (ii) adopt a plan of liquidation
or dissolution of the corporation; (iii) approve any merger, consolidation or
other business combination of the corporation or any of its subsidiaries with
any person (other than a wholly-owned subsidiary of the corporation); and (iv)
appoint members of board committees in accordance with Section 3.1(b) of these
by-laws.
2.6. ORGANIZATION.
(a) At its last meeting before, or first meeting after,
the annual meeting of stockholders, the board of directors shall elect one of
its members to be chairman of the board. The chairman of the board may, but
need not be, an officer of or employed in an executive or any other capacity by
the corporation.
(b) The chairman of the.board of directors shall preside
at meetings of the board of directors and lead the board in fulfilling its
responsibilities as defined in section 2.1 and, in particular, its
responsibilities to oversee the performance of the corporation and of the
executive management of the corporation.
(c) The chairman of the board of directors, or in his
absence, the chief executive officer, the president or a vice chairman (in the
order stated), or in their absence a member of the board selected by the
members present, shall preside at meetings of the board. The secretary of the
corporation shall act as secretary, but in his absence the presiding officer
may appoint a secretary.
2.7. TRANSACTIONS WITH CORPORATION.
(a) No contract or transaction between the corporation
and one or more of its directors, or between the corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are
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directors or officers, or have a financial interest, shall be void or voidable
for this reason, or solely because the director or officer is present at or
participates in the meeting of the board or committee thereof which authorizes
the contract or transaction, or solely because his or their votes are counted
for such purpose: (1) if the material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known to the board
of directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority
of the disinterested directors, even though the disinterested directors be less
than a quorum; or (2) if the material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (3) if the
contract or transaction is fair as to the corporation as of the time it is
authorized, approved or ratified, by the board of directors, a committee
thereof, or the stockholders.
(b) Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors or
of a committee which authorizes the contract or transaction.
(c) Any material transaction between the corporation or
any of its subsidiaries on the one hand and NRG Energy, Inc., Northern States
Power Company (Minnesota) (or any wholly owned subsidiary of either) on the
other hand shall require approval by a majority of the Independent Directors of
the corporation, as hereinafter defined.
2.8. INFORMAL ACTION BY DIRECTORS.
Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors, or of any committee thereof, may be
taken without a meeting if all members of the board or such committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board or committee.
2.9. TELEPHONIC MEETINGS PERMITTED.
Members of the board of directors, or any committee designated
by the board, may participate in a meeting of such board or committee by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and participation
in a meeting pursuant to this by- law shall constitute presence in person at
such meeting.
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2.10. INDEPENDENT DIRECTORS.
(a) No fewer than two of the individuals to constitute
the nominees of the board of directors for the election of whom the board will
solicit proxies from the stockholders for use at the corporation's annual
meeting shall consist of individuals who, on the date of their selection as
nominees of the board of directors, would be Independent Directors.
(b) In the event the board of directors elects directors
between annual meetings of stockholders, the number of such directors who
qualify as Independent Directors on the date of their nomination shall be such
that no less than two of all directors holding office immediately thereafter
shall have been Independent Directors on the date of the first of their
nomination or selection as nominees of the board of directors.
(c) For purposes of this by-law, the term "Independent
Director" shall mean a director who: (i) is not and has not been employed by
the corporation or its subsidiaries in an executive capacity within the five
years immediately prior to the annual meeting at which the nominees of the
board of directors will be voted upon; (ii) is not (and is not affiliated with
a company or a firm that is) a significant advisor or consultant to the
corporation or its subsidiaries; (iii) is not affiliated with a significant
customer or supplier of the corporation or its subsidiaries; (iv) does not have
significant personal services contract(s) with the corporation or its
subsidiaries; (v) is not affiliated with a tax-exempt entity that receives
significant contributions from the corporation or its subsidiaries; (vi) is not
an affiliate (as defined in Rule 124b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934), of any beneficial owner directly or
indirectly, of 5% or more of the voting power of the outstanding voting stock
of the corporation; and (vii) is not a spouse, parent, sibling or child of any
person described by (i) through (vi).
ARTICLE III
COMMITTEES
3.1. COMMITTEES OF THE BOARD OF DIRECTORS.
(a) The board of directors may, by resolution passed by
a majority of the whole board, designate one or more committees, consisting of
one or more of the directors of the corporation, to be committees of the board
of directors ("committees of the board") . All committees of the board may
authorize the seal of the corporation to be affixed to any papers which may
require it. To the extent provided in any resolution of the board of directors
or these by-laws, and to the extent permissible under the laws of the State of
Delaware and the certificate of incorporation, any such committee shall have
and may exercise all the powers and authority
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of the board of directors in the management of the business and affairs of the
corporation.
(b) The board shall have three standing committees: an
Audit Committee, a Compensation Committee and an Independent Directors
Committee. Subject to the provisions of Sections 3.2 through 3.4 below, each
standing committee shall have such number of members as determined by
resolution of the directors and each of such members shall be appointed by a
majority of the whole board.
3.2. INDEPENDENT DIRECTORS COMMITTEE.
(a) The Independent Directors Committee shall have three
members, two of whom shall be Independent Directors. The Independent Directors
Committee shall review the qualifications of individuals for consideration as
one of the three members of the Independent Directors Committee. Prior to the
annual meeting of the shareholders each year, the Independent Directors
Committee shall nominate those individuals to serve on the board and constitute
the three members of the Independent Directors Committee for the election of
whom the board will solicit proxies. The Independent Directors Committee shall
also designate the individuals to fill any vacancies on the board that are to
be filled by a member of the Independent Directors Committee and that arise
between annual meetings of shareholders. The Independent Directors Committee
shall have sole authority and responsibility to make all decisions and take all
actions on behalf of the corporation under both the Co-Investment Agreement
dated as of April 30, 1996 between NRG Energy, Inc., a Delaware corporation
("NRG") and the corporation and the Management Services Agreement dated as of
April 30, 1996 between NRG and the corporation, including without limitation
decisions regarding the amendment or modification of such agreements. The
Independent Directors Committee shall have and may exercise such other powers,
authority and responsibilities as provided in these by-laws or as may be
determined by the board of directors.
(b) Independent Directors Committee members shall have
the right to request and receive such information, reports and/or backup data
from employees of the corporation or the corporation's auditors, as the case
may be, as they deem necessary to assist them in the conduct of their duties,
and such committee shall have the right, without limitation, to retain such
advisors and consultants, including attorneys, accountants, engineers or other
experts, as it deems necessary or appropriate to assist the members in carrying
out the committee's responsibilities.
3.3. AUDIT COMMITTEE.
The board of directors shall select the members of the Audit
Committee, the majority of whom shall be Independent Directors, and shall
designate the chairman of the committee. No officer of the corporation shall
be a member of the Audit Committee. The members of the Audit Committee shall
not be eligible to participate in any incentive compensation plan for
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employees of the corporation or any of its subsidiaries. The selection by the
committee of accountants for the ensuing calendar year shall be made annually
in advance of the annual meeting of stockholders and shall be submitted to the
stockholders for ratification or rejection at such meeting. The Audit
Committee shall have and may exercise such powers, authority and
responsibilities as are normally incident to the functions of an Audit
Committee or as may be determined by the board of directors.
3.4. COMPENSATION COMMITTEE.
(a) The board of directors shall select the members of
the executive Compensation Committee and shall designate the chairman of the
committee. No officer of the corporation shall be a member of the committee.
No member of the committee shall be eligible to participate in any plan falling
within the jurisdiction of the committee. The committee shall have and may
exercise the powers and authority granted to it by any incentive compensation
plan for employees of the corporation or any of its subsidiaries, and such
other powers, authority and responsibilities as may be determined by the board
of directors.
(b) The committee shall determine the compensation of: (a)
employees of the corporation who are directors of the corporation; and (b)
after receiving and considering the recommendation of the chief executive
officer and the president of the corporation, all other employees of the
corporation who are officers of the corporation or who occupy such other
positions as may be designated by the committee.
ARTICLE IV
OFFICERS
4.1. ELECTED OFFICERS.
The officers of the corporation shall be elected by the board of
directors. There shall be a chief executive officer, a president, one or more
vice presidents, a secretary, a treasurer and a comptroller. The chief
executive officer and the president shall have the powers, authority and
responsibilities provided by these by-laws. The officers, other than the chief
executive officer and the president, shall each have, in addition to the
powers, authority and responsibilities of those officers otherwise provided by
the by-laws, such powers, authority and responsibilities as the board of
directors or the chief executive officer may determine. The board of directors
may also elect persons to hold such other offices as the board of directors
shall determine, including one or more vice chairmen of the board. A person
may hold any number of offices. Elected officers shall hold their offices at
the pleasure of the board of directors, or until their earlier resignation.
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4.2. CHIEF EXECUTIVE OFFICER.
(a) The chief executive officer shall have the general executive
responsibility for the conduct of the business and affairs of the corporation.
If the chairman so designates or is absent, the chief executive officer shall
preside at meetings of the stockholders. He shall exercise such other powers,
authority and responsibilities as the board of directors may determine.
(b) In the absence of or during the physical disability of the
chief executive officer, the board of directors shall designate an officer who
shall have and exercise the powers, authority and responsibilities of the chief
executive officer.
4.3. PRESIDENT.
The president shall have and exercise such powers, authority
and responsibilities as the board of directors may determine.
4.4 TREASURER.
The treasurer shall have custody of all funds and securities of the
corporation and shall perform all acts incident to the position of treasurer.
He shall render such accounts and reports as may be required by the board of
directors. The records, books and accounts of the office of the treasurer
shall, during the usual hours for business at the office of the treasurer, be
open to the examination of any director.
4.5. SECRETARY.
The secretary shall keep the minutes of all meetings of stockholders
and directors and of such committees of the board of directors as to which he
may be so directed. He shall give all required notices and shall have charge
of such books and papers as the board of directors may require. He shall
submit such reports to the board of directors or to any of the committees of
the board or committees of the corporation as the board of directors or any
such committee may require. Any action or duty required to be performed by the
secretary may be performed by an assistant secretary.
4.6. COMPTROLLER.
The comptroller shall be in charge of the accounts of the corporation
and shall perform all acts incident to the position of comptroller. He shall
submit such reports and records to the board of directors or to any of the
committees of the board or committees of the corporation as the board of
directors or any such committee may require.
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4.7. SUBORDINATE OFFICERS.
(a) The board of directors may from time to time appoint one or
more assistant secretaries, assistant treasurers, assistant comptrollers, and
such other subordinate officers as the board of directors may deem advisable.
Such subordinate officers shall have such powers, authority and
responsibilities as the board of directors may from time to time determine.
The board of directors may grant to any committee of the board or the chief
executive officer the power and authority to appoint subordinate officers and
to prescribe their respective terms of office, powers, authority and
responsibilities. Each subordinate officer shall hold his position at the
pleasure of the board of directors, the committee of the board appointing him,
the chief executive officer and any other officer to whom such subordinate
officer reports.
(b) In the interval between annual organizational meetings of the
board of directors, the chief executive officer shall have the power and
authority to appoint such subordinate officers. Such subordinate officers
shall serve until the first meeting of the board of directors immediately
following the annual meeting of stockholders.
4.8. RESIGNATION, REMOVAL, SUSPENSION AND VACANCIES.
(a) Any officer may resign at any time by giving written notice to
the chief executive officer, the president or the secretary. Unless stated in
the notice of resignation, the acceptance thereof shall not be necessary to
make it effective. It shall take effect at the time specified therein or, in
the absence of such specification, it shall take effect upon the receipt
thereof.
(b) Any officer elected by the board of directors may be suspended
or removed at any time by the affirmative vote of a majority of the whole
board. Any subordinate officer of the corporation appointed by the board of
directors or a committee of the board, or the chief executive officer, may be
suspended or removed at any time by a majority vote of a quorum of the board of
directors or committee appointing such subordinate officer, or by the chief
executive officer or any other officer to whom such subordinate officer
reports.
(c) The chief executive officer may suspend the powers, authority,
responsibilities and compensation of any elected officer or appointed
subordinate officer for a period of time sufficient to permit the board or the
appropriate committee of the board a reasonable opportunity to consider and act
upon a resolution relating to the reinstatement, further suspension or removal
of such person.
(d) As appropriate, the board of directors, a committee of the
board, and/or the chief executive officer may fill any vacancy created by the
resignation of any officer.
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ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.1. EXECUTION OF CONTRACTS.
The board, except as in these by-laws otherwise provided, may
authorize any officer or officers, agent or agents, to enter into any contract
or execute any instrument in the name of and on behalf of the corporation, and
such authority may be general or confined to specific instances.
5.2. CHECKS, DRAFTS, ETC.
All checks, drafts or other orders for payment of money, notes or
other evidence of indebtedness, issued in the name of or payable to the
corporation, shall be signed or endorsed by such person or persons and in such
manner as, from time to time, shall be determined by resolution of the board.
Each such officer, assistant, agent or attorney shall give such bond, if any,
as the board may require.
5.3. DEPOSITS.
All funds of the corporation not otherwise employed shall be
deposited from time to time to the credit of the corporation in such banks,
trust companies or other depositories as the board may select, or as may be
selected by any officer or officers, assistant or assistants, agent or agents,
or attorney or attorneys of the corporation to whom such power shall have been
delegated by the board. For the purpose of deposit and for the purpose of
collection for the account of the corporation, the President, any Vice
President or the Treasurer (or any other officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the corporation who
shall from time to time be determined by the board) may endorse, assign and
deliver checks, drafts and other orders for the payment of money which are
payable to the order of the corporation.
5.4. GENERAL AND SPECIAL BANK ACCOUNTS.
The board may from time to time authorize the opening and keeping of
general and special bank accounts with such banks, trust companies or other
depositories as the board may select or as may be selected by any officer or
officers, assistant or assistants, agent or agents, or attorney or attorneys of
the corporation to whom such power shall have been delegated by the board. The
board may make such special rules and regulations with respect to such bank
accounts, not inconsistent with the provisions of these by-laws, as it may deem
expedient.
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ARTICLE VI
SHARES AND THEIR TRANSFER
6.1. CERTIFICATES FOR STOCK.
Except as otherwise provided in the corporation's certificate of
incorporation or by-laws, every owner of stock of the corporation shall be
entitled to have a certificate or certificates, to be in such form as the board
shall prescribe, certifying the number and class of shares of the stock of the
corporation owned by him. The certificates representing shares of such stock
shall be numbered in the order in which they shall be issued and shall be
signed in the name of the corporation by the President or a Vice President, and
by the Secretary or an Assistant Secretary or by the Treasurer or an Assistant
Treasurer. Any of or all of the signatures on the certificates may be a
facsimile. In case any officer, transfer agent or registrar who has signed, or
whose facsimile signature has been placed upon, any such certificate, shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may nevertheless be issued by the
corporation with she same effect as though the person who signed such
certificate, or whose facsimile signature shall have been placed thereupon,
were such officer, transfer agent or registrar at the date of issue. A record
shall be kept of the respective names of the persons, firms or corporations
owning the stock represented by such certificates, the number and class of
shares represented by such certificates, respectively, and the respective dates
thereof, and in case of cancellation, the respective dates of cancellation.
Every certificate surrendered to the corporation for exchange or transfer shall
be canceled, and no new certificate or certificates shall be issued in exchange
for any existing certificate until such existing certificate shall have been so
canceled, except in cases provided for in Section 6.4.
6.2. TRANSFERS OF STOCK.
Transfers of shares of stock of the corporation shall be made only on
the books of the corporation by the registered holder thereof, or by his
attorney thereunto authorized by power of attorney duly executed and filed with
the Secretary, or with a transfer clerk or a transfer agent appointed as
provided in Section 6.3, and upon surrender of the certificate or certificates
for such shares properly endorsed and the payment of all taxes thereon. Except
as otherwise provided in the corporation's certificate of incorporation or
these by-laws, the person in whose name shares of stock stand on the books of
the corporation shall be deemed the owner thereof for all purposes as regards
the corporation. Whenever any transfer of shares shall be made for collateral
security, and not absolutely, such fact shall be so expressed in the entry of
transfer if, when the certificate or certificates shall be presented to the
corporation for transfer, both the transferor and the transferee request the
corporation to do so.
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6.3. REGULATIONS.
The board may make such rules and regulations as it may deem
expedient, not inconsistent with these by-laws, concerning the issue, transfer
and registration of certificates for shares of the stock of the corporation.
It may appoint, or authorize any officer or officers to appoint, one or more
transfer clerks or one or more transfer agents and one or more registrars, and
may require all certificates for stock to bear the signature or signatures of
any of them.
6.4. LOST, STOLEN, DESTROYED, AND MUTILATED CERTIFICATES.
In any case of loss, theft, destruction, or mutilation of any
certificate of stock, another may be issued in its place upon proof of such
loss, theft, destruction, or mutilation and upon the giving of a bond of
indemnity to the corporation in such form and in such sum as the Board may
direct; provided, however, that a new certificate may be issued without
requiring any bond when, in the judgment of the board, it is proper so to do.
ARTICLE VII
MISCELLANEOUS
7.1. FISCAL YEAR.
The fiscal year of the Corporation shall be determined by resolution
of the board.
7.2. WAIVER OF NOTICES.
Whenever notice is required to be given by these by-laws or the
certificate of incorporation, the person entitled to said notice may waive such
notice in writing, either before or after the time stated therein, and such
waiver shall be deemed equivalent to notice.
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EXHIBIT 3.3
CERTIFICATE OF DESIGNATION
OF
NRG GENERATING (U.S.) INC.
Pursuant to Section 151 of the
General Corporation Law of
the State of Delaware
NRG Generating (U.S.) Inc., a Delaware corporation (the
"Corporation") hereby certifies that, pursuant to authority contained in
Article FOURTH of its Certificate of Incorporation, and in accordance with the
provisions of Section 151 of the General Corporation Law of the State of
Delaware, its Board of Directors has adopted the following resolution
authorizing a series of preferred stock designated as Series A Preferred Stock:
RESOLVED, that the Board of Directors (the "Board") hereby
authorizes a series of preferred stock with the following designation,
preferences, rights, qualifications and limitations:
1. Designation and Number. The shares of such series
shall be designated as "Series A Preferred Stock" and the number of authorized
shares constituting such series shall be fifty thousand (50,000). The Board
may, in its sole discretion and by resolution duly adopted, increase or
decrease (but not below the number of shares of Series A Preferred Stock then
outstanding), at any time and from time to time, the number of authorized
shares of the Series A Preferred Stock. Shares of Series A Preferred Stock
redeemed, purchased, or otherwise acquired by the Corporation shall be canceled
and shall revert to authorized but unissued Series A Preferred Stock.
2. Dividends.
(a) The holders of the Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board out of funds legally
available therefor, a cumulative cash dividend per share (the "Series A
Dividend") at a rate per annum (as a percentage of the Redemption Price (as
defined in paragraph 3(a)) equal to the lessor of (i) 14% or (ii) 400 basis
points above (x) the interest to be paid on the debentures (the "New Notes")
which may be issued by the Corporation pursuant to the Fourth Amended and
Restated Plan of Reorganization for O'Brien Environmental Energy, Inc. dated
November 17, 1995 (as amended and confirmed by the United States Bankruptcy
Court for the District of New Jersey, the date that any shares of the series A
Preferred Stock are first issued, then (y) the rate of interest being paid on
the loan being made to the Corporation from NRG Energy, Inc., a Delaware
corporation ("NRG") in lieu of the financing to be provided by the New Notes.
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(b) The Series A Dividend shall accrue from and after the
date of filing of the Certificate of Designation with respect to the Series A
Preferred Stock with the Secretary of State of the State of Delaware (the
"Effective Date") with respect to all shares of Series A Preferred Stock,
whether or any of such shares shall be issued and outstanding as of the
Effective Date.
(c) The Series A Dividend is payable with respect to
outstanding shares of Series A Preferred Stock, quarterly in cash, on January
1, April 1, July 1 and October 1 (each a "Dividend Payment Date") with the
first dividend payment due on the first Dividend Payment Date occurring after
issuance of the Series A Preferred Stock, even if such period shall be less
than a full calendar quarter (the first such period and each full calendar
quarter preceding a Dividend Payment Date being referred to as a "Dividend
Period") . Each such Series A Dividend will be payable to the holders of record
at the close of business on a date (the "Record Date") fixed by the Board not
exceeding 60 days nor less than 10 days prior to the relevant Dividend Payment
Date. Payments of Series A Dividends in amounts less than the total amount
accrued and payable shall be allocated pro rata among the holders of
outstanding shares of Series A Preferred Stock.
(d) If, (i) on or before the date one-hundred and eighty
(180) days after a Dividend Payment Date there shall not have been paid to the
holders of the Series A Preferred Stock the Series A Dividends in an amount
equal to or greater than the Series A Dividends that were payable with respect
to such Dividend Payment Date plus any and all cumulative Series A Dividends
cumulated as of such Dividend Payment Date or (ii) on or before the date
one-hundred and eighty (180) days after the Redemption Date, the Redemption
Price shall not have been paid to the holders of the Series A Preferred Stock,
then immediately upon the happening of either such event, the rate per annum of
the Series A Dividend established pursuant to paragraph 2(a) shall be increased
by 2% (such aggregate rate, the "Increased Rate"). The right of the holders of
the Series A Preferred Stock to receive Series A Dividends accruing at the
Increased Rate shall continue until such time as the Corporation (i) in the
case of a failure of a dividend payment as described above, resumes payment of
the Series A Dividends in an amount equal to or greater than the Series A
Dividends that accrue during the then current Dividend Period plus any and all
cumulative Series A Dividends or (ii) in the case of a failure in payment of
the Redemption Price as described above, makes payment of the Redemption Price
in full, at which time such right shall terminate and the rate at which Series
A Dividends accrue shall be reduced accordingly.
(e) There shall be no payment of dividends with respect
to the Corporation's common stock, par value $.01 per share (the "Common
Stock") or purchase by the Corporation of the Common Stock while there are any
shares of the Series A Preferred Stock issued and outstanding. There shall be
no payments in respect of debtor-in-possession financing which remains unpaid
and outstanding (the "DIP Loan") after the Effective Date of the NRG Plan,
unless the
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number of shares of the Series A Preferred Stock issued and outstanding is
redeemed pursuant to the formula X = (Y x S) /D where "X" is the number of
shares of the Series A Preferred Stock to be redeemed multiplied by $100, "Y"
is the amount of the payment to be made in respect of the DIP Loan, "S" is the
total number of shares of Series A Preferred Stock issued and outstanding
immediately before such payment multiplied by $100, and "D" is the outstanding
amount of the DIP Loan immediately before such payment.
3. Redemption.
(a) All shares of Series A Preferred Stock then
outstanding shall be redeemed by the Corporation at a redemption price (the
"Redemption Price") for each share of Series A Preferred Stock equal to $100
plus all cumulative, accrued but unpaid Series A Dividends on or before the
earlier to occur of the following dates (each such date, a "Redemption Date"):
(i) the second anniversary of the Effective Date;
(ii) the effective date of any consolidation or merger of
the Corporation in which NRG shall own less than 26% of the outstanding common
stock of the surviving corporation, or persons designated by NRG or which NRG
shall have the right to appoint shall constitute less than one-half of the
board of directors of the surviving corporation; or
(iii) the effective date of any sale of all or
substantially all of the assets of the Corporation.
(b) The Board, in its sole discretion and by a majority
vote of the directors eligible to vote thereon, may, at any time and from time
to time, redeem or call any or all of the outstanding shares of the Series A
Preferred Stock at the Redemption Price; provided, however, that in the event
that a payment is to be made in respect of the DIP Loan, the Board shall be
required to redeem the Series A Preferred Stock in accordance with the formula
in paragraph 2(e) hereof.
(c) In the event the Corporation shall elect to redeem
shares of the Series A Preferred Stock, the Corporation shall give to each
holder of record of the shares of Series A Preferred Stock to be redeemed prior
written notice (the "Redemption Notice") of such redemption not more than 45
nor less than 30 days prior to the date fixed for redemption. Each such
Redemption Notice shall state: (i) the date fixed for redemption; (ii) the
total number of shares of Series A Preferred Stock to be redeemed and, if fewer
than all the shares held by such holder are redeemed, the number of such shares
to be redeemed from such holder; (iii) the Redemption Price; (iv) the place or
places where, and the time and manner in which, certificates for such shares
are to be surrendered for payment of the Redemption Price; and (v) that
dividends on the shares to be redeemed will cease to accrue on such date fixed
for redemption, provided that Redemption Price with respect to such
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shares to be redeemed is paid in full on or before the date fixed for
redemption.
(d) On the Redemption Date, the Redemption Price of the
Series A Preferred Stock scheduled to be redeemed or called for redemption
shall be payable to the holders of the Series A Preferred Stock. On or before
the Redemption Date, each holder of Series A Preferred Stock to be redeemed
shall surrender the certificate or certificates representing such shares to the
Corporation, in the manner and at the place designated in the Redemption
Notice, and thereupon the Redemption Price for such shares shall be payable to
the order of the person whose name appears on such certificate or certificates
as the owner thereof, and each surrendered certificate shall be cancelled and
retired.
(e) If the Redemption Notice is duly given, and if at
least two (2) business days prior to the Redemption Date the Redemption Price
is either paid or made available for payment through the arrangement specified
in subsection (f) below, then notwithstanding that the certificates evidencing
any of the shares of Series A Preferred Stock so called or scheduled for
redemption have not been surrendered, all rights with respect to such shares
shall forthwith after the Redemption Date cease and terminate, except for the
right of the holders to receive the Redemption Price, without interest, upon
surrender of their certificates therefore.
(f) At least two (2) business days prior to the
Redemption Date, the Corporation shall deposit with a United States bank or
trust company, a sum equal to the aggregate Redemption Price of all shares of
the Series A Preferred Stock scheduled to be redeemed or called for redemption
and not yet redeemed, with irrevocable instructions and authority to the bank
or trust company to pay, on or after the Redemption Date or prior thereto the
Redemption Price to the respective holders upon the surrender of their share
certificates. The deposit shall constitute full payment for the shares of
Series A Preferred Stock to the holders thereof, and from and after the date of
such deposit (even if prior to the Redemption Date), the shares of Series A
Preferred Stock shall be deemed to be redeemed and no longer outstanding, and
the holders thereof shall cease to be shareholders with respect to such shares
of Series A Preferred Stock and shall have no rights with respect thereto,
except the right to receive from the bank or trust company payment of the
Redemption Price of the shares of Series A Preferred Stock, without interest,
upon surrender of their certificates therefor. Any monies so deposited and
unclaimed at the end of one year from the Redemption Date shall be released or
repaid to the Corporation, after which time the holders of shares Series A
Preferred Stock shall be entitled to receive payment of the Redemption Price
only from the Corporation.
4. No Conversion or Exchange. The holders of shares of
the Series A Preferred Stock shall not have any rights to convert such shares
into or to exchange such shares for shares of the Common Stock or any other
stock of the Corporation.
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5. Voting Rights.
(a) Except as expressly provided for in this Paragraph 5
or as otherwise from time to time provided for by the laws of the State of
Delaware, the holders of the Series A Preferred Stock shall not have any voting
rights.
(b) If, (i) on or before the date ninety (90) days after
a Dividend Payment Date there shall not have been paid to the holders of the
Series A Preferred Stock the Series A Dividends in an amount equal to or
greater than the Series A Dividends that were payable with respect to such
Dividend Payment Date plus any and all cumulative Series A Dividends cumulated
as of such Dividend Payment Date or (ii) on or before the date ninety (90) days
after the Redemption Date, the Redemption Price shall not have been paid to the
holders of the Series A Preferred Stock, then immediately upon the happening of
either such event, the number of directors serving on the Board shall be
increased by one and the holders of the outstanding shares of the Series A
Preferred Stock shall have the exclusive right, voting as a class, to elect one
director (the "Additional Director") of the Corporation. At any time when such
exclusive voting rights shall have so vested in the holders of the Series A
Preferred Stock, the Secretary of the Corporation may, and upon the written
request of the holders of record of 5% or more of the number of shares of the
Series A Preferred Stock then outstanding addressed to him at the principal
office of the Corporation shall, call a special meeting of the holders of the
Series A Preferred Stock for the election of the Additional Director as herein
provided, to be held in the case of such written request within twenty (20)
days after delivery of such request, and in either case to be held at the place
and upon the notice provided by law and in the by-laws of the Corporation for
the holding of special meetings of stockholders.
If at any time following election of the Additional Director
while the holders of the Series A Preferred Stock shall be entitled to elect
the Additional Director, the Additional Director shall, by reason of
resignation, death or removal, have departed from the Board of Directors, the
vacancy with respect to the Additional Director shall be filled by a vote of
the holders of a majority of the then outstanding shares of the Series A
Preferred Stock, voting separately as a class, at a special meeting of the
holders of the Series A Preferred Stock called for such purpose or by the
written consent of the holders of a majority of the then outstanding shares of
the Series A Preferred Stock in lieu thereof.
No Additional Director may be removed from office by the vote
or written consent of stockholders, unless such vote or written consent
includes that of the holders of a majority of the then outstanding shares of
Series A Preferred Stock.
The right of the holders of the Series A Preferred Stock to
elect a director shall continue until such time as the Corporation (i) in the
case of a failure of a dividend payment as described above, resumes payment of
the Series A Dividends in an
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amount equal to or greater than the Series A Dividends that accrue during the
then current Dividend Period plus any and all cumulative accrued and unpaid
Series A Dividends or (ii) in the case of a failure in payment of the
Redemption Price as described above, makes payment of the Redemption Price in
full, at which time such right shall terminate and the term of office of the
Additional Director elected under this Paragraph 5 shall terminate immediately
and the maximum number of members of the Board shall be reduced accordingly.
(c) So long as any shares of Series A Preferred Stock
shall be outstanding, unless the vote or consent of the holders of a greater
number of shares shall then be required by law, the affirmative vote or consent
of the holders of at least two-thirds of the outstanding shares of Series A
Preferred Stock given in person or by proxy either in writing or by resolution
at any special or annual meeting called for the purpose, shall be necessary to
authorize, permit, effect or validate any one or more of the following:
(i) the authorization or any increase in the authorized
amount of any class of stock, or the establishment or designation of any series
of stock, or the issuance or sale of any obligation, security or instrument
convertible into, exchangeable for, or evidencing the right to purchase,
acquire or subscribe for shares of a class or series of stock of the
Corporation, if, in any such case, such class or series of stock ranks prior to
Series A Preferred Stock as to dividends or distribution of assets upon
liquidation, dissolution or winding up; and
(ii) The amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any provisions of the Certificate of
Incorporation of the Corporation or any certificate amendatory thereof, which
would materially and adversely affect any right, preference, privilege or
voting rights of the shares of Series A Preferred Stock then outstanding;
provided, however, that an increase in the authorized amount of shares of
Series A Preferred Stock, or the authorization, establishment, designation,
issuance or sale of other series of Preferred stock, or the authorization,
establishment, designation, issuance or sale of any shares of stock that do not
rank prior to the outstanding Series A Preferred Stock as to dividends or
distribution of assets upon liquidation, dissolution or winding up, shall not
have, or be deemed to have, such material and adverse affect.
(d) The foregoing provisions regarding voting rights
shall not apply if, at or prior to the time when the act with respect to which
such provisions would otherwise apply to a vote required to effect such act,
(i) all shares of Series A Preferred Stock then outstanding shall have been
redeemed or funds shall have been deposited in accordance with paragraph 3(e)
hereof with respect to a call for redemption; or (ii) all shares of Series A
Preferred Stock have been otherwise acquired by the Corporation and canceled.
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(e) Holders of shares of series A Preferred Stock shall
be entitled to one vote for each share of such stock held on matters as to
which such holders shall be entitled to vote.
6. Liquidation Rights.
(a) Upon the liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, the holders
of the Series A Preferred Stock shall be entitled to receive in full out of the
net assets of the Corporation or the proceeds therefrom available for
distribution to stockholders, before any payment or distribution shall be made
or set aside for payment on the Common Stock of the Corporation or any shares
of any other capital stock of the Corporation (other than the Series A
Preferred Stock) upon such liquidation, dissolution or winding up, the amount
of $100 per share (the "Liquidation Preference") plus in each case an amount
equal to all cumulative, accrued and unpaid Series A Dividends, if any, to the
date of final distribution. In the event that the assets to be distributed to
the holders of the Series A Preferred Stock shall be insufficient to pay the
full Liquidation Preference per share, then such distribution shall be
allocated pro rata according to the number of shares of Series A Preferred
Stock held by each stockholder.
(b) None of the sale, transfer, conveyance or lease of
all or substantially all of the property or business of the Corporation, the
merger or consolidation of the Corporation into or with any other corporation
or the merger or consolidation of any other corporation into or with the
Corporation shall be deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes of this Paragraph 6.
(c) After the payment to the holders of shares of the
Series A Preferred Stock of the full preferential amount provided for herein,
the holders of the Series A Preferred Stock, in such capacity, shall have no
right or claim to any of the remaining assets of the Corporation or the
proceeds thereof.
(d) In the event the assets of the Corporation or the
proceeds thereof available for distribution to the holders of shares of the
Series A Preferred Stock upon any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, shall be insufficient to pay in
full all amounts to which such holders are entitled, no distribution shall be
made on any shares of the Common Stock or any shares of any other capital stock
of the Corporation (other than the Series A Preferred Stock).
7. Record Holders. The Corporation shall be entitled to
recognize the exclusive right of a person registered in its records as the
holder of shares of Series A Preferred Stock and such record holder shall be
deemed the holder of such shares for all purposes.
8. Exclusion of Other Rights. Shares of the Series A
Preferred Stock shall not have any other preferences or rights,
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including preemptive rights, other than those specifically set forth herein or
as provided by applicable law.
9. Transfer Restrictions.
(a) The shares of Class A Preferred Stock may not be
sold, offered for sale, pledged or hypothecated if not registered under the
Securities Act of 1933, as amended (the "Act"), unless (i) any shareholder
proposing to sell such shares shall have notified the Corporation of the
proposed disposition and shall have furnished the Corporation with a detailed
statement of the circumstances surrounding the proposed disposition; and (ii)
if requested by the Corporation, such selling shareholder shall have furnished
the Corporation with an opinion of counsel, reasonably satisfactory to the
Corporation, that such disposition will not require registration of such shares
under the Act.
(b) The certificates evidencing shares of the Class A
Preferred Stock may bear the following legend:
"These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold, offered for sale,
pledged or hypothecated in the absence of a registration statement in effect
with respect to the securities under such Act or an opinion of counsel or
seller's certificate satisfactory to NRG Generating (U.S.) Inc. that such
registration is not required."
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IN WITNESS WHEREOF, NRG Generating (U.S.) Inc. has caused its
corporate seal to be affixed hereto and this Certificate to be signed by
Leonard A. Bluhm as President and Chief Executive Officer and attested by Craig
A. Mataczynski this 30th day of April, 1996.
/s/ Leonard A. Bluhm
-----------------------------------
Leonard A. Bluhm
Designated Responsible Person
ATTEST
/s/ Craig A. Mataczynski
- - ------------------------------------
Craig A. Mataczynski
Designated Responsible Person
9
