-----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, TXRk2w6szjiDz5lHw1L4ykVFlsqQYsk5uAntVZMimHMyIbd7HPfxgR/FcbvcuOdA LUvDgW24Kfr1UqhUJwANhw== 0000950144-96-002678.txt : 19960523 0000950144-96-002678.hdr.sgml : 19960523 ACCESSION NUMBER: 0000950144-96-002678 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19960430 ITEM INFORMATION: Changes in control of registrant ITEM INFORMATION: Bankruptcy or receivership ITEM INFORMATION: Financial statements and exhibits ITEM INFORMATION: Change in fiscal year FILED AS OF DATE: 19960516 DATE AS OF CHANGE: 19960522 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: NRG GENERATING U S INC CENTRAL INDEX KEY: 0000795185 STANDARD INDUSTRIAL CLASSIFICATION: 5063 IRS NUMBER: 592076187 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-09208 FILM NUMBER: 96568882 BUSINESS ADDRESS: STREET 1: 1221 NICOLLET MALL CITY: MINNEAPOLIS STATE: MN ZIP: 55403 BUSINESS PHONE: 6123735300 MAIL ADDRESS: STREET 1: 1221 NICOLLET MALL CITY: MINNEAPOLIS STATE: MN ZIP: 55403 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 8-K 1 NRG 8-K 1 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): APRIL 30, 1996 NRG GENERATING (U.S.) INC. - - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) DELAWARE 1-9208 59-2076187 - - ---------------------------------- -------------------------------- ---------------------------------- (State or other jurisdiction (Commission File Number) (IRS Employer of incorporation) Identification Number)
1221 NICOLLET MALL, MINNEAPOLIS, MINNESOTA 55403 - - -------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (612) 373-5300 ------------------------------ - - -------------------------------------------------------------------------------- (Former name or former address, if changed since last report) 2 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. 2 3 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 - - ----------- ----------- 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. 3 4 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. 4 5 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 --------------------------------------- Leonard A. Bluhm President and Chief Executive Officer Date: May 15, 1996 5 EX-3.1 2 CERTIFICATE OF INCORPORATION 1 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 1 2 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. 2 3 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 3 4 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 4 5 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 5 6 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 6 7 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. 7 8 (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. 8 9 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 9 EX-3.2 3 BY-LAWS 1 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. 1 2 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 2 3 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. 3 4 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. 4 5 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 5 6 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 6 7 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. 7 8 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 8 9 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 9 10 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. 10 11 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. 11 12 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. 12 13 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. 13 14 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. 14 15 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. 15 EX-3.3 4 CERTIFICATE OF DESIGNATION 1 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. 1 2 (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 2 3 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 3 4 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. 4 5 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 5 6 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. 6 7 (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, 7 8 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." 8 9 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 -----END PRIVACY-ENHANCED MESSAGE-----