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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): NOVEMBER 12, 1998
COGENERATION CORPORATION OF AMERICA
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(Exact name of registrant as specified in its charter)
Delaware 1-9208 59-2076187
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification Number)
One Carlson Parkway, Suite 240, Minneapolis, Minnesota 55447-4454
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (612) 745-7900
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
As previously reported in a Current Report on Form 8-K dated October 26,
1998, NRG Energy, Inc. ("NRG Energy") acquired on April 30, 1996 a 41.86%
interest in Cogeneration Corporation of America ("CogenAmerica" or the
"Company") pursuant to the Company's bankruptcy plan. After 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. According to its most recent
Schedule 13D filing, NRG Energy 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. Because 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 indicated that it intended to continue with its Proxy Solicitation and to
vote such proxies as it then held in favor of the removal of Mr. Sherman at a
special meeting of stockholders which had been called for November 12, 1998 (the
"Special Meeting").
On October 27, 1998, the Company's Chairman announced at a Board meeting
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 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.
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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 sought to delay the Special Meeting. The Company is not a party to
such suit. On November 10, 1998, the district court declined to issue an
injunction to delay the Special Meeting.
At the Special Meeting held on November 12, 1998, CogenAmerica
stockholders approved the removal of Mr. Sherman as a director of the Company by
an affirmative vote of 77.73 percent of the outstanding shares of Common Stock,
with 1.25 percent of the outstanding shares voting against such removal. On the
same day, the Board of Directors confirmed (i) the appointment as a director of
the Company Michael O'Sullivan to fill the vacancy created by the removal of Mr.
Sherman, (ii) the termination of Mr. Sherman's employment agreement with the
Company and (iii) the election of Julie A. Jorgensen as the Company's interim
president and chief executive officer.
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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
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Name: Timothy P. Hunstad
Title: Vice President and Chief Financial Officer
Date: November 25, 1998
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