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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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): October 26, 1998
Cogeneration Corporation of America
(Exact name of registrant as specified in its charter)
Delaware 1-9208 59-2076187
(State or other (Commission File Number) (IRS Employer
jurisdiction Identification Number)
of incorporation)
One Carlson Parkway, Suite 240, Minneapolis, Minnesota 55447-4454
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (612) 745-7900
(Former name or former address, if changed since last report)
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Item 5. Other Events.
On April 30, 1996, NRG Energy, Inc. ("NRG Energy") acquired a 41.86%
interest in Cogeneration Corporation of America ("CogenAmerica" or the
"Company") pursuant to the Company's bankruptcy plan. When the Company
emerged from bankruptcy, four of its seven directors were nominees of NRG
Energy. On May 1, 1997, the Company's Board of Directors increased the
size of the Board from seven to eight members and elected Robert T.
Sherman, Jr. to fill the vacancy. In addition, the Board appointed Mr.
Sherman as the Company's President and Chief Executive Officer. As a
result, at such time four of the Company's eight directors were executive
officers of NRG Energy, with the remaining members of the Board of
Directors consisting of Mr. Sherman and three other directors who
constituted the Independent Directors Committee.
On August 3, 1998, NRG Energy received an irrevocable proxy granting
it the right for a limited period of time to vote 147,676 shares of the
Company's common stock, par value $.01 per share (the "Common Stock").
As a result of its receipt of such proxy, according to its most recent
Schedule 13D filing, NRG Energy now beneficially owns an aggregate of
3,254,288, or 47.6%, of the Common Stock.
On September 14, 1998, NRG Energy sent a letter to David H. Peterson,
the Company's Chairman and NRG Energy's President, Chief Executive
Officer and Chairman, requesting that he call a special meeting of the
Company's stockholders to consider the removal of Mr. Sherman from the
Company's Board of Directors. On such date NRG Energy also filed
preliminary solicitation materials with the Securities and Exchange
Commission (the "SEC") pursuant to Section 14(a) of the Securities
Exchange Act of 1934, as amended, relating to a proposed solicitation of
proxies and consents from the Company's stockholders to remove Mr.
Sherman from the Company's Board (the "Proxy Solicitation"). On October
8, 1998, NRG Energy filed definitive solicitation materials with the SEC
relating to the Proxy Solicitation. On October 26, 1998, NRG Energy
delivered to the Company's registered agent consents of the holders of in
excess of 50% of the Company's outstanding Common Stock in favor of Mr.
Sherman's removal from the Company's Board of Directors. Although a
Bylaw of the Company purports to require that such action, if taken by
written consent, be taken only by the consent of the holders of at least
75% of the outstanding shares of Common Stock, NRG Energy has taken the
position that such Bylaw is invalid as a matter of state law and that the
delivery of the above-referenced consents was sufficient to effect Mr.
Sherman's removal from the Board of Directors. No court has ruled on the
validity of the referenced Bylaw, and NRG Energy has indicated that it
intends to continue with its Proxy Solicitation and to vote such proxies
as it then holds in favor of the removal of Mr. Sherman at a special
meeting of stockholders which has been called for November 12, 1998.
At a Board of Directors meeting held on October 27, 1998, the
Company's Chairman announced that NRG Energy had delivered the consents
required to remove Mr. Sherman from the Board and that Mr. Sherman was
therefore no longer a director of the Company. Mr. Sherman and the
members of the Independent Directors Committee objected to this position,
and their objections were noted for the record by the Company's Chairman.
The Chairman then presented for action several items of business,
including proposals to (i) appoint as a director of the Company Michael
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O'Sullivan, who is Vice President of NRG Energy's North American division
to fill the vacancy created by the removal of Mr. Sherman, (ii) terminate
Mr. Sherman's employment agreement with the Company for cause and (iii)
elect Julie A. Jorgensen, senior counsel of NRG Energy and a director of
the Company, as the Company's interim president and chief executive
officer. Each of the foregoing proposals was approved by the affirmative
vote of all of the directors of the Company who are also employed by NRG
Energy, with the remaining directors present voting against each of the
proposals. Mr. Sherman has asserted that the delivery of the above-
referenced consents was not legally sufficient to remove him from office.
He has filed suit in the U.S. District Court for the District of
Minnesota, which among other things, challenges the validity of the
actions taken at the referenced Board meeting and seeks to delay the
November 12th shareholders meeting. The Company is not a party to such
suit.
Also on October 27, 1998, NRG Energy entered into a letter agreement
(the "Wexford Letter Agreement") with Wexford Management LLC ("Wexford"),
a holder of 443,976 shares, or approximately 6.4%, of the outstanding
Common Stock. Under the Wexford Letter Agreement, Wexford delivered to
NRG Energy a limited consent and proxy to vote the shares of Common
Stock held by Wexford in connection with the Proxy Solicitation at the
meeting of shareholders and any adjournment thereof, but in no event
after November 30, 1998. NRG Energy is obligated under the Letter
Agreement to use its best efforts not to oppose the election of any
nominee of Wexford as a member of the Board of Directors of the Company,
subject to NRG Energy's obligations under the Co-Investment Agreement
and the Company's Amended and Restated Certificate of Incorporation
and Bylaws. On October 27, 1998, Wexford asked its designee to the Board
of Directors, Spyros S. Skouras, Jr., to tender his resignation from the
Board.
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Signature
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.
COGENERATION CORPORATION OF AMERICA
By: /s/ Timothy P. Hunstad
Name: Timothy P. Hunstad
Title:Vice President and Chief Financial Officer
Date: November 10, 1998
