-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BBprZCVtooDJW5mgfQLkGFnY5So3Czfr434ZJwa/7ekE+MWva7g3UdZu25diCKyc qUE+p0oKNJe3PeLWpVz/ww== 0000914317-98-000660.txt : 19981106 0000914317-98-000660.hdr.sgml : 19981106 ACCESSION NUMBER: 0000914317-98-000660 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19981105 GROUP MEMBERS: WEXFORD CAPITAL CORPORATION GROUP MEMBERS: WEXFORD CAPITAL II, LP GROUP MEMBERS: WEXFORD CAPITAL LIMITED GROUP MEMBERS: WEXFORD CAPITAL OVERSEAS, L.P. GROUP MEMBERS: WEXFORD CAPITAL PARNTERS II, L.P. GROUP MEMBERS: WEXFORD MANAGEMENT LLC GROUP MEMBERS: WEXFORD MANAGEMENT, LLC GROUP MEMBERS: WEXFORD OVERSEAS PARTNERS I, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: COGENERATION CORP OF AMERICA CENTRAL INDEX KEY: 0000795185 STANDARD INDUSTRIAL CLASSIFICATION: COGENERATION SERVICES & SMALL POWER PRODUCERS [4991] IRS NUMBER: 592076187 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-39646 FILM NUMBER: 98738323 BUSINESS ADDRESS: STREET 1: ONE CARLSON PARKWAY STREET 2: SUITE 240 CITY: MINNEAPOLIS STATE: MN ZIP: 55447-4454 BUSINESS PHONE: 612-745-7900 MAIL ADDRESS: STREET 1: ONE CARLSON PARKWAY STREET 2: SUITE 240 CITY: MINNEAPOLIS STATE: MN ZIP: 55447-4454 FORMER COMPANY: FORMER CONFORMED NAME: NRG GENERATING U S INC DATE OF NAME CHANGE: 19960507 FORMER COMPANY: FORMER CONFORMED NAME: O BRIEN ENVIRONMENTAL ENERGY INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: OBRIEN ENERGY SYSTEMS INC DATE OF NAME CHANGE: 19910804 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: WEXFORD MANAGEMENT LLC CENTRAL INDEX KEY: 0001048462 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 061442624 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 411 W PUTNAM AVENUE CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 2038627000 MAIL ADDRESS: STREET 1: 411 W PUTNAM AVENUE CITY: GREENWICH STATE: CT ZIP: 06830 SC 13D/A 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D/A-1 Under the Securities Exchange Act of 1934 (Amendment No. 1) COGENERATION CORPORATION OF AMERICA ----------------------------------- (Name of issuer) Common Stock, par value $.01 per share -------------------------------------- (Title of class of securities) 628950 10 7 ----------- (CUSIP number) Arthur H. Amron Wexford Management LLC 411 West Putnam Avenue Greenwich, CT 06830 (203) 862-7012 - -------------------------------------------------------------------------------- (Name, address and telephone number of person authorized to receive notices and communications) October 27, 1998 ------------------------------------------------------- (Date of event which requires filing of this statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule ss. 240.13d-7 Page 1 of 8 This Amendment No. 1 to Schedule 13D modifies and supplements the Schedule 13D filed on May 8, 1997 with respect to the Common Stock, par value $.01 per share (the "Common Stock"), of COGENERATION CORPORATION OF AMERICA (formerly known as NRG Generating US Inc.) (the "Company"). Except to the extent supplemented by the information contained in this Amendment No. 1, such Schedule 13D remains in full force and effect. Capitalized terms used herein without definition have the respective meanings ascribed to them in such Schedule 13D. ITEM 4 On September 14, 1998, NRG Energy, Inc., the Company's largest stockholder ("NRG"), sent a letter to the Company's chairman requesting that he call a special meeting of the Company's shareholders to consider the removal of Robert Sherman from the Company's Board of Directors. NRG also filed definitive solicitation materials with the Securities and Exchange Commission 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 26, 1998, consents to over 50% of the Company's shareholders in favor of Mr. Sherman's removal from the Company's Board of Directors were filed with the Company and Mr. Sherman was removed from the Board of Directors. On October 27, 1998, the vacancy on the Board was filled with an employee of NRG and another NRG employee was elected as the Company's interim president and chief executive officer. Also on October 27, 1998, Wexford Management LLC entered into a letter agreement with NRG (a copy of which is attached as an Exhibit to this Amendment No. 1 to Schedule 13D) (the "Letter Agreement") pursuant to which Wexford granted NRG proxies and consents with respect to all of the shares of Common Stock beneficially owned by the Funds solely for purposes of voting in connection with the Proxy Solicitation. The grant of such proxies and consents is irrevocable, subject to the limitations set forth in the Letter Agreement, until November 30, 1998. NRG has agreed not to oppose any nominee of Wexford as a member of the Company's Board of Directors. As part of the reorganization of a predecessor of the Company, Wexford was granted the right to designate one person as a nominee to the Board. On October 27, 1998, Wexford asked its designee to the Board of Directors, Spyros S. Skouras, Jr., to tender his resignation from the Board. Except as described in this Item 4, the Company has no present plans or proposals which relate to or would result in (i) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the assets of the Company or any of its subsidiaries, (ii) a sale or transfer or a material amount of assets of the Company or any of its subsidiaries, (iii) any change in the board of directors or management of the Company or any of its subsidiaries, (iv) any material change in the present capitalization or dividend policy of the Company, (v) any other material change in the Company's business or corporate structure; (vi) changes in the Company's charter or bylaws or other actions which may impede the acquisition of control of the Company by any person, (vii) causing a class of securities of the Company to be delisted from a national securities exchange or cease to be quoted in an inter-dealer quotation system of a registered national securities association, (viii) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, or (ix) any action similar to any of those described above. However, Wexford retains its rights to modify its plans with respect to the transactions described in this Item 4, to acquire or dispose of securities of the Company and to formulate plans and proposals that could result in the occurrence of any such events, subject to applicable laws and regulations. Page 2 of 8 Item 7. 4. Exhibit IV - Letter Agreement, dated October 27, 1998, between NRG and Wexford Management LLC. * * * * * * Page 3 of 8 SIGNATURE After reasonable inquiry and to the best of each of the undersigned's knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: October 27, 1998 WEXFORD CAPITAL PARTNERS II, L.P. By: WEXFORD CAPITAL II, L.P., general partner By: WEXFORD CAPITAL CORPORATION, general partner By: /s/Arthur H. Amron ------------------ Name: Arthur H. Amron Title: Vice President WEXFORD OVERSEAS PARTNERS I, L.P. By: WEXFORD CAPITAL OVERSEAS, L.P., general partner By: WEXFORD CAPITAL LIMITED, general partner By: /s/Charles E. Davidson ---------------------- Name: Charles E. Davidson Title: President WEXFORD CAPITAL II, LP By: WEXFORD CAPITAL CORPORATION., general partner By: /s/Arthur H. Amron ------------------ Name: Arthur H. Amron Title: Vice President WEXFORD CAPITAL CORPORATION., general partner By: /s/Arthur H. Amron ------------------ Name: Arthur H. Amron Title: Vice President WEXFORD MANAGEMENT, LLC By: /s/Arthur H. Amron ------------------ Name: Arthur H. Amron Title: Senior Vice President Page 4 of 8 WEXFORD CAPITAL OVERSEAS, L.P By: WEXFORD CAPITAL LIMITED, general partner BY: /s/Charles E. Davidson ---------------------- Name: Charles E. Davidson Title: President WEXFORD CAPITAL LIMITED By: /s/Charles E. Davidson ---------------------- Name: Charles E. Davidson Title: President /s/ Charles E. Davidson ----------------------- CHARLES E. DAVIDSON /s/ Joseph M. Jacobs -------------------- JOSEPH M. JACOBS Page 5 of 8 EXHIBIT INDEX 1. Letter Agreement, dated October 27, 1998 Page 6 of 8 EX-1 2 WEXFORD MANAGEMENT LLC 411 West Putnam Avenue Greenwich, CT 06830 (203) 862-7000 Direct Dial: 862-7012 Direct Fax: 862-7312 E-Mail: aamron@wexford.com October 27, 1998 James J. Bender Vice President & General Counsel NRG Energy, Inc. 1221 Nicollet Mall Suite 700 Minneapolis, MN 55403-2445 Re: Cogeneration Corporation of America Dear Jim: We are writing to set forth the terms of the agreement between Wexford Management LLC ("Wexford") and NRG Energy, Inc. ("NRG") with respect to certain matters concerning Cogeneration Corporation of America ("CCA"). 1. Wexford is the investment advisor to certain investment funds that hold approximately 443,976 shares of stock of CCA (the "Wexford Shares"). Wexford has a nominee serving as a member of the board of directors of CCA. 2. NRG holds approximately 3,106,612 shares of stock of CCA. NRG has four nominees (the "NRG Directors") serving as members of the board of directors of CCA. NRG and/or the NRG Directors are participants in a proxy solicitation relating to CCA (the "Proxy Solicitation"). 3. Wexford has agreed to provide NRG with proxies and consents with respect to the Wexford Shares solely for purposes of voting in connection with the Proxy Solicitation. The parties agree that Wexford's grant of such proxies and consents shall be irrevocable, subject to the limitations set forth herein on the use of such proxies and consents, until November 30, 1998. The parties further agree that NRG's ability to utilize the proxies and consents shall terminate and NRG shall have no right to vote the Wexford Shares in connection with the Proxy Solicitation (a) after the Page 7 of 8 James J. Bender October 27, 1998 Page 2 conclusion of the CCA shareholders' meeting scheduled for November 12, 1998 or any postponement or adjournment thereof, but in no event after November 30, 1998 or (b) on such earlier date that NRG or the NRG Directors agrees (i) to a severance or other arrangement with Robert Sherman that provides him with compensation or other consideration in excess of the amounts set forth in his employment agreement dated March 28, 1997, or (ii) to the payment by CCA in excess of an aggregate amount of $250,000 of the costs and expenses of the law firms, a public relations firm and printer retained by Robert Sherman and/or CCA in respect of the Proxy Solicitation. Concurrently herewith Wexford is delivering executed proxy cards and consents with respect to the Proxy Solicitation, the use of which shall be subject to the terms and conditions set forth above. 4. NRG agrees to use its best efforts not to oppose any nominee of Wexford as a member of the board of directors of CCA, subject to NRG's obligations under the Co-Investment Agreement and CCA's charter documents and bylaws. 5. NRG agrees to indemnity and hold harmless Wexford and its affiliates and each of their officers, directors, members, employees, agents and affiliates from any cost, expense or liability of any kind (including inside and outside attorney's fees) arising out of or relating in any manner to the granting of the proxies and consents provided for herein or the direction by Wexford to its nominee on the CCA board of directors to resign such position, other than such costs, expenses or liabilities arising out of or relating to any action or claim brought by or on behalf of Wexford's current nominee on the CCA board of directors. If this agreement accurately reflects our understanding, please execute and return a copy of this letter to the undersigned. Sincerely, /s/Arthur H. Amron ------------------ Arthur H. Amron General Counsel ACCEPTED & AGREED this ___ day of October, 1998 NRG ENERGY, INC. By: ______________________________ Name: Title: Page 8 of 8 -----END PRIVACY-ENHANCED MESSAGE-----