Attached files
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8-K - FORM 8-K - GenOn Energy, Inc. | c16718e8vk.htm |
EX-99.2 - EXHIBIT 99.2 - GenOn Energy, Inc. | c16718exv99w2.htm |
EX-99.1 - EXHIBIT 99.1 - GenOn Energy, Inc. | c16718exv99w1.htm |
Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF
THIRD RESTATED CERTIFICATE OF INCORPORATION
OF
GENON ENERGY, INC.
OF
THIRD RESTATED CERTIFICATE OF INCORPORATION
OF
GENON ENERGY, INC.
GENON ENERGY, INC., a corporation organized and existing under and by virtue of the Delaware
General Corporation Law (the Corporation) DOES HEREBY CERTIFY THAT:
FIRST: At a meeting of the Board of Directors of the Corporation held on February 24, 2011,
the Board of Directors of the Corporation adopted resolutions that declared advisable and
recommended to the stockholders of the Corporation the following amendment to the Corporations
Third Restated Certificate of Incorporation and directed that said amendment be submitted to the
Corporations stockholders for their consent and approval at the Annual Meeting of Stockholders on
May 4, 2011. The amendment adds an Article Twelve to the Corporations Third Restated Certificate
of Incorporation to read in its entirety as follows:
ARTICLE TWELVE RESTRICTIONS ON TRANSFER OF SHARES
Part I Definitions
As used in this Article Twelve, the following capitalized terms have the following meanings
when used herein with initial capital letters (and any references to any portions of Section 382 or
the Treasury Regulations thereunder shall include any successor provisions):
(a) 4.99-percent Transaction means any Transfer described in clause (a) or (b) of
Part II of this Article Twelve.
(b) 4.99-percent Stockholder a Person who owns a Percentage Stock Ownership equal to
or exceeding 4.99% of the Corporations then-outstanding Stock, whether directly or indirectly,
including Stock such Person would be deemed to constructively own, pursuant to Section 382 of the
Code or any successor provision or replacement provision and the applicable Treasury Regulations
thereunder.
(c) Agent has the meaning set forth in Part V of this Article Twelve.
(d) Board of Directors or Board means the board of directors of the
Corporation.
(e) Code means the United States Internal Revenue Code of 1986, as amended from time
to time.
(f) Corporation Security or Corporation Securities means (i) any Stock,
(ii) shares of preferred stock issued by the Corporation (other than preferred stock described in
Section 1504(a)(4) of the Code), and (iii) warrants, rights, or options (including options within
the meaning of Treasury Regulation § 1.382-2T(h)(4)(v)) to purchase Securities of the Corporation.
(g) Effective Date means the date of filing of this Certificate of Amendment of
Certificate of Incorporation of the Corporation with the Secretary of State of the State of
Delaware.
(h) Excess Securities has the meaning given such term in Part IV of this Article
Twelve.
(i) Expiration Date means the earlier of (i) the close of business on May 3, 2014,
(ii) the date on which the Board of Directors determines that this Article Twelve is no longer
necessary or desirable for the preservation of Tax Benefits because of the repeal of Section 382 of
the Code or any successor statute, (iii) the date on which the Board of Directors determines that
no Tax Benefits may be carried forward, and (iv) such date as the Board of Directors otherwise
determines that this Article Twelve is no longer necessary or desirable.
(j) Percentage Stock Ownership means the percentage Stock Ownership interest of any
Person or group (as the context may require) for purposes of Section 382 of the Code as determined
in accordance with the Treasury Regulation § 1.382-2T(g), (h), (j) and (k).
(k) Person means any individual, firm, corporation or other legal entity, including
persons treated as an entity pursuant to Treasury Regulation § 1.382-3(a)(1)(i); and includes any
successor (by merger or otherwise) of such entity.
(l) Prohibited Distributions means any and all dividends or other distributions paid
by the Corporation with respect to any Excess Securities received by a Purported Transferee.
(m) Prohibited Transfer means any Transfer or purported Transfer of Corporation
Securities to the extent that such Transfer is prohibited and/or void under this Article Twelve.
(n) Public Group has the meaning set forth in Treasury Regulation § 1.382-2T(f)(13).
(o) Purported Transferee has the meaning set forth in Part IV of this Article
Twelve.
(p) Securities and Security each has the meaning set forth in Part VII of
this Article Twelve.
(q) Stock means any interest that would be treated as stock of the Corporation
pursuant to Treasury Regulation § 1.382-2T(f)(18).
(r) Stock Ownership means any direct or indirect ownership of Stock, including any
ownership by virtue of application of constructive ownership rules, with such direct, indirect, and
constructive ownership determined under the provisions of Section 382 of the Code or any successor
provision or replacement provision and the applicable Treasury Regulations thereunder.
(s) Tax Benefits means the net operating loss carryforwards, capital loss
carryforwards, general business credit carryforwards, alternative minimum tax credit carryforwards
and foreign tax credit carryforwards, as well as any loss or deduction attributable to a net
unrealized built-in loss of the Corporation or any direct or indirect subsidiary thereof, within
the meaning of Section 382 of the Code.
(t) Transfer means, any direct or indirect sale, transfer, assignment, conveyance,
pledge or other disposition or other action taken by a person, other than the Corporation, that
alters the Percentage Stock Ownership of any Person. A Transfer also shall include the creation or
grant of an option (including an option within the meaning of Treasury Regulation § 1.382-4(d)).
In any event, a Transfer shall not include the creation or grant of an option by the Corporation,
nor shall a Transfer include the issuance of Stock by the Corporation.
(u) Transferee means any Person to whom Corporation Securities are Transferred.
(v) Treasury Regulations means the regulations, including temporary regulations or
any successor regulations promulgated under the Code, as amended from time to time.
Part II Transfer and Ownership Restrictions
In order to preserve the Tax Benefits, from and after the Effective Date of this Article
Twelve any attempted Transfer of Corporation Securities prior to the Expiration Date and any
attempted Transfer of Corporation Securities pursuant to an agreement entered into prior to the
Expiration Date, shall be prohibited and void ab initio to the extent that, as a result of such
Transfer (or any series of Transfers of which such Transfer is a part), either (a) any Person or
Persons would become a 4.99-percent Stockholder or (b) the Percentage Stock Ownership in the
Corporation of any 4.99-percent Stockholder would be increased.
Part III Exceptions
(a) Notwithstanding anything to the contrary herein, Transfers to a Public Group (including a
new Public Group created under Treasury Regulation § 1.382-2T(j)(3)(i)) shall be permitted.
(b) The restrictions set forth in Part II of this Article Twelve shall not apply to an
attempted Transfer that is a 4.99-percent Transaction if the transferor or the Transferee obtains
the written approval of the Board of Directors or a duly authorized committee thereof. As a
condition to granting its
approval pursuant to this Part III of Article Twelve, the Board of Directors, may, in its
discretion, require (at the expense of the transferor and/or Transferee) an opinion of counsel
selected by the Board of Directors that the Transfer will not result in a limitation on the use of
the Tax Benefits as a result of the application of Section 382 of the Code; provided that
the Board may grant such approval notwithstanding the effect of such approval on the Tax Benefits
if it determines that the approval is in the best interests of the Corporation. The Board of
Directors may impose any conditions that it deems reasonable and appropriate in connection with
such approval, including, without limitation, restrictions on the ability of any Transferee to
transfer Stock acquired through a Transfer. Approvals of the Board of Directors hereunder may be
given prospectively or retroactively. The Board of Directors, to the fullest extent permitted by
law, may exercise the authority granted by this Article Twelve through duly authorized officers or
agents of the Corporation. Nothing in this Part III of this Article Twelve shall be construed to
limit or restrict the Board of Directors in the exercise of its fiduciary duties under applicable
law.
Part IV Excess Securities
(a) No employee or agent of the Corporation shall record any Prohibited Transfer, and the
purported transferee of such a Prohibited Transfer (the Purported Transferee) shall not
be recognized as a stockholder of the Corporation for any purpose whatsoever in respect of the
Corporation Securities which are the subject of the Prohibited Transfer (the Excess
Securities). Until the Excess Securities are acquired by another person in a Transfer that is
not a Prohibited Transfer, the Purported Transferee shall not be entitled, with respect to such
Excess Securities, to any rights of stockholders of the Corporation, including, without limitation,
the right to vote such Excess Securities and to receive dividends or distributions, whether
liquidating or otherwise, in respect thereof, if any, and the Excess Securities shall be deemed to
remain with the transferor unless and until the Excess Securities are transferred to the Agent
pursuant to Part V of this Article Twelve or until an approval is obtained under Part III of this
Article Twelve. After the Excess Securities have been acquired in a Transfer that is not a
Prohibited Transfer, the Corporation Securities shall cease to be Excess Securities. For this
purpose, any Transfer of Excess Securities not in accordance with the provisions of Parts IV or V
of this Article Twelve shall also be a Prohibited Transfer.
(b) The Corporation may require as a condition to the registration of the Transfer of any
Corporation Securities or the payment of any distribution on any Corporation Securities that the
proposed Transferee or payee furnish to the Corporation all information reasonably requested by the
Corporation with respect to its direct or indirect ownership interests in such Corporation
Securities. The Corporation may make such arrangements or issue such instructions to its stock
transfer agent as may be determined by the Board of Directors to be necessary or advisable to
implement this Article Twelve, including, without limitation, authorizing such transfer agent to
require an affidavit from a Purported Transferee regarding such Persons actual and constructive
ownership of Stock and other evidence that a Transfer will not be prohibited by this Article Twelve
as a condition to registering any Transfer.
Part V Transfer to Agent
If the Board of Directors determines that a Transfer of Corporation Securities constitutes a
Prohibited Transfer then, upon written demand by the Corporation sent within thirty days of the
date on which the Board of Directors determines that the attempted Transfer would result in Excess
Securities, the Purported Transferee shall transfer or cause to be transferred any certificate or
other evidence of ownership of the Excess Securities within the Purported Transferees possession
or control, together with any Prohibited Distributions, to an agent designated by the Board of
Directors (the Agent). The Agent shall thereupon sell to a buyer or buyers, which may
include the Corporation, the Excess Securities transferred to it in one or more arms-length
transactions (on the public securities market on which such Excess Securities are traded, if
possible, or otherwise privately); provided, however, that any such sale must not
constitute a Prohibited Transfer and provided, further, that the Agent shall effect
such sale or sales in an orderly fashion and shall not be required to effect any such sale within
any specific time frame if, in the Agents discretion, such sale or sales would disrupt the market
for the Corporation Securities or otherwise would adversely affect the value of the Corporation
Securities. If the Purported Transferee has resold the Excess Securities before receiving the
Corporations demand to surrender Excess Securities to the Agent, the Purported Transferee shall be
deemed to have sold the Excess Securities for the Agent, and shall be required to transfer to the
Agent any Prohibited Distributions and proceeds of such sale, except to the extent that the
Corporation grants written permission to the Purported Transferee to retain a portion of such
sales proceeds not exceeding the amount that the Purported Transferee would have received from the
Agent pursuant to Part VI of this Article Twelve if the Agent rather than the Purported Transferee
had resold the Excess Securities.
Part VI Application of Proceeds and Prohibited Distributions
The Agent shall apply any proceeds of a sale by it of Excess Securities and, if the Purported
Transferee has previously resold the Excess Securities, any amounts received by it from a Purported
Transferee, together, in either case, with any Prohibited Distributions, as follows: (a) first,
such amounts shall be paid to the Agent to the extent necessary to cover its costs and expenses
incurred in connection with its duties hereunder; (b) second, any remaining amounts shall be paid
to the Purported Transferee, up to the amount paid by the Purported Transferee for the Excess
Securities (or the fair market value at the time of the Transfer, in the event the purported
Transfer of the Excess Securities was, in whole or in part, a gift, inheritance or similar
Transfer) which amount shall be determined in the discretion of the Board of Directors; and (c)
third, any remaining amounts shall be paid to one or more organizations qualifying under section
501(c)(3) of the Code (or any comparable successor provision) selected by the Board of Directors.
The Purported Transferee of Excess Securities shall have no claim, cause of action or any other
recourse whatsoever against any transferor of Excess Securities. The Purported Transferees sole
right with respect to such shares shall be limited to the amount payable to the Purported
Transferee pursuant to this Part VI of Article Twelve. In no event shall the proceeds of any sale
of Excess Securities pursuant to this Part VI of Article Twelve inure to the benefit of the
Corporation or the Agent, except to the extent used to cover costs and expenses incurred by Agent
in performing its duties hereunder.
Part VII Modification Of Remedies For Certain Transfers
In the event of any Transfer which does not involve a transfer of securities of the
Corporation within the meaning of Delaware law (Securities, and individually, a
Security) but which would cause a 4.99-percent Stockholder to violate a restriction on
Transfers provided for in this Article Twelve, the application of Parts V and VI of this Article
Twelve shall be modified as described in this Part VII of this Article Twelve. In such case, no
such 4.99-percent Stockholder shall be required to dispose of any interest that is not a Security,
but such 4.99-percent Stockholder and/or any Person whose ownership of Securities is attributed to
such 4.99-percent Stockholder shall be deemed to have disposed of and shall be required to dispose
of sufficient Securities (which Securities shall be disposed of in the inverse order in which they
were acquired) to cause such 4.99-percent Stockholder, following such disposition, not to be in
violation of this Article Twelve. Such disposition shall be deemed to occur simultaneously with
the Transfer giving rise to the application of this provision, and such number of Securities that
are deemed to be disposed of shall be considered Excess Securities and shall be disposed of through
the Agent as provided in Parts V and VI of this Article Twelve, except that the maximum aggregate
amount payable either to such 4.99-percent Stockholder, or to such other Person that was the direct
holder of such Excess Securities, in connection with such sale shall be the fair market value of
such Excess Securities at the time of the purported Transfer. All expenses incurred by the Agent
in disposing of such Excess Stock shall be paid out of any amounts due such 4.99-percent
Stockholder or such other Person. The purpose of this Part VII of Article Twelve is to extend the
restrictions in Part II and V of this Article Twelve to situations in which there is a 4.99-percent
Transaction without a direct Transfer of Securities, and this Part VII of Article Twelve, along
with the other provisions of this Article Twelve, shall be interpreted to produce the same results,
with differences as the context requires, as a direct Transfer of Corporation Securities.
Part VIII Legal Proceedings; Prompt Enforcement
If the Purported Transferee fails to surrender the Excess Securities or the proceeds of a sale
thereof to the Agent within thirty days from the date on which the Corporation makes a written
demand pursuant to Part V of this Article Twelve (whether or not made within the time specified in
Part V of this Article Twelve), then the Corporation may take such actions as it deems appropriate
to enforce the provisions hereof, including the institution of legal proceedings to compel the
surrender. Nothing in this Part VIII of Article Twelve shall (1) be deemed inconsistent with any
Transfer of the Excess Securities provided in this Article Twelve being void ab initio, (2)
preclude the Corporation in its discretion from immediately bringing legal proceedings without a
prior demand or (3) cause any failure of the Corporation to act within the time periods set forth
in Part V of this Article Twelve to constitute a waiver or loss of any
right of the Corporation under this Article Twelve. The Board of Directors may authorize such
additional actions as it deems advisable to give effect to the provisions of this Article Twelve.
Part IX Liability
To the fullest extent permitted by law, any stockholder subject to the provisions of this
Article Twelve who knowingly violates the provisions of this Article Twelve and any Persons
controlling, controlled by or under common control with such stockholder shall be jointly and
severally liable to the Corporation for, and shall indemnify and hold the Corporation harmless
against, any and all damages suffered as a result of such violation, including but not limited to
damages resulting from a reduction in, or elimination of, the Corporations ability to utilize its
Tax Benefits, and attorneys and auditors fees incurred in connection with such violation.
Part X Obligation to Provide Information
As a condition to the registration of the Transfer of any Stock, any Person who is a
beneficial, legal or record holder of Stock, and any proposed Transferee and any Person
controlling, controlled by or under common control with the proposed Transferee, shall provide such
information as the Corporation may request from time to time in order to determine compliance with
this Article Twelve or the status of the Tax Benefits of the Corporation.
Part XI Legends
The Board of Directors may require that any certificates issued by the Corporation evidencing
ownership of shares of Stock that are subject to the restrictions on transfer and ownership
contained in this Article Twelve bear the following legend:
THE CERTIFICATE OF INCORPORATION, AS AMENDED (THE CERTIFICATE OF INCORPORATION), OF THE
CORPORATION CONTAINS RESTRICTIONS PROHIBITING THE TRANSFER (AS DEFINED IN THE CERTIFICATE OF
INCORPORATION) OF STOCK OF THE CORPORATION (INCLUDING THE CREATION OR GRANT OF CERTAIN OPTIONS,
RIGHTS AND WARRANTS) WITHOUT THE PRIOR AUTHORIZATION OF THE BOARD OF DIRECTORS OF THE CORPORATION
(THE BOARD OF DIRECTORS) IF SUCH TRANSFER AFFECTS THE PERCENTAGE OF STOCK OF THE CORPORATION
(WITHIN THE MEANING OF SECTION 382 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE)
AND THE TREASURY REGULATIONS PROMULGATED THEREUNDER), THAT IS TREATED AS OWNED BY A 4.99 PERCENT
STOCKHOLDER (AS DEFINED IN THE CERTIFICATE OF INCORPORATION). IF THE TRANSFER RESTRICTIONS ARE
VIOLATED, THEN THE TRANSFER WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEREE OF THE STOCK WILL
BE REQUIRED TO TRANSFER EXCESS SECURITIES (AS DEFINED IN THE CERTIFICATE OF INCORPORATION) TO THE
CORPORATIONS AGENT. IN THE EVENT OF A TRANSFER WHICH DOES NOT INVOLVE SECURITIES OF THE
CORPORATION WITHIN THE MEANING OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
(SECURITIES) BUT WHICH WOULD VIOLATE THE TRANSFER RESTRICTIONS, THE PURPORTED TRANSFEREE (OR THE
RECORD OWNER) OF THE SECURITIES WILL BE REQUIRED TO TRANSFER SUFFICIENT SECURITIES PURSUANT TO THE
TERMS PROVIDED FOR IN THE CORPORATIONS CERTIFICATE OF INCORPORATION TO CAUSE THE 4.99 PERCENT
STOCKHOLDER TO NO LONGER BE IN VIOLATION OF THE TRANSFER RESTRICTIONS. THE CORPORATION WILL
FURNISH WITHOUT CHARGE TO THE HOLDER OF RECORD OF THIS CERTIFICATE A COPY OF THE CERTIFICATE OF
INCORPORATION, CONTAINING THE ABOVE-REFERENCED TRANSFER RESTRICTIONS, UPON WRITTEN REQUEST TO THE
CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS.
The Board of Directors may also require that any certificates issued by the Corporation
evidencing ownership of shares of Stock that are subject to conditions imposed by the Board of
Directors under Part III of this Article Twelve also bear a conspicuous legend referencing the
applicable restrictions.
Part XII Authority of Board of Directors
(a) The Board of Directors shall have the power to determine all matters necessary for
assessing compliance with this Article Twelve, including, without limitation, (1) the
identification of 4.99-percent Stockholders, (2) whether a Transfer is a 4.99-percent Transaction or a Prohibited
Transfer, (3) the Percentage Stock Ownership in the Corporation of any 4.99-percent Stockholder,
(4) whether an instrument constitutes a Corporation Security, (5) the amount (or fair market value)
due to a Purported Transferee pursuant to Part VI of this Article Twelve, and (6) any other matters
which the Board of Directors determines to be relevant; and the good faith determination of the
Board of Directors on such matters shall be conclusive and binding for all the purposes of this
Article Twelve. In addition, the Board of Directors may, to the extent permitted by law, from time
to time establish, modify, amend or rescind by-laws, regulations and procedures of the Corporation
not inconsistent with the provisions of this Article Twelve for purposes of determining whether any
Transfer of Corporation Securities would jeopardize or endanger the Corporations ability to
preserve and use the Tax Benefits and for the orderly application, administration and
implementation of this Article Twelve.
(b) Nothing contained in this Article Twelve shall limit the authority of the Board of
Directors to take such other action to the extent permitted by law as it deems necessary or
advisable to protect the Corporation and its stockholders in preserving the Tax Benefits.
(c) In the case of an ambiguity in the application of any of the provisions of this Article
Twelve, including any definition used herein, the Board of Directors shall have the power to
determine the application of such provisions with respect to any situation based on its reasonable
belief, understanding or knowledge of the circumstances. In the event this Article Twelve requires
an action by the Board of Directors but fails to provide specific guidance with respect to such
action, the Board of Directors shall have the power to determine the action to be taken so long as
such action is not contrary to the provisions of this Article Twelve. All such actions,
calculations, interpretations and determinations which are done or made by the Board of Directors
in good faith shall be conclusive and binding on the Corporation, the Agent, and all other parties
for all other purposes of this Article Twelve. The Board of Directors may delegate all or any
portion of its duties and powers under this Article Twelve to a committee of the Board of Directors
as it deems necessary or advisable and, to the fullest extent permitted by law, may exercise the
authority granted by this Article Twelve through duly authorized officers or agents of the
Corporation. Nothing in this Article Twelve shall be construed to limit or restrict the Board of
Directors in the exercise of its fiduciary duties under applicable law.
Part XIII Reliance
To the fullest extent permitted by law, the Corporation and the members of the Board of
Directors shall be fully protected in relying in good faith upon the information, opinions, reports
or statements of the chief executive officer, the chief financial officer, the chief accounting
officer or the corporate controller of the Corporation and the Corporations legal counsel,
independent registered public accountants, transfer agent, investment bankers or other employees
and agents in making the determinations and findings contemplated by this Article Twelve. The
members of the Board of Directors shall not be responsible for any good faith errors made in
connection therewith. For purposes of determining the existence and identity of, and the amount of
any Corporation Securities owned by any stockholder, the Corporation is entitled to rely on the
existence and absence of filings of Schedule 13D or 13G under the Securities and Exchange Act of
1934, as amended (or similar filings), including any disclaimers of beneficial ownership contained
therein, as of any date, subject to its actual knowledge of the ownership of Corporation
Securities.
Part XIV Benefits of This Article Twelve
Nothing in this Article Twelve shall be construed to give to any Person other than the
Corporation or the Agent any legal or equitable right, remedy or claim under this Article Twelve.
This Article Twelve shall be for the sole and exclusive benefit of the Corporation and the Agent.
Part XV Severability
The purpose of this Article Twelve is to facilitate the Corporations ability to maintain or
preserve its Tax Benefits. If any provision of this Article Twelve or the application of any such
provision to any Person or under any circumstance shall be held invalid, illegal or unenforceable
in any respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision of this Article Twelve.
Part XVI Waiver
With regard to any power, remedy or right provided herein or otherwise available to the
Corporation or the Agent under this Article Twelve, (i) no waiver will be effective unless
expressly contained in a writing signed by the waiving party; and (ii) no alteration, modification
or impairment will be implied by reason of any previous waiver, extension of time, delay or
omission in exercise, or other indulgence.
SECOND: At the Annual Meeting of Stockholders on May 4, 2011, held pursuant to the notice
required by Section 222 of the Delaware General Corporation Law, not less than a majority of the
outstanding shares of stock entitled to vote thereon approved the foregoing amendment to add an
Article Twelve to the Corporations Third Restated Certificate of Incorporation.
THIRD: The aforementioned amendment was duly adopted in accordance with the provisions of
Section 242 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed, under penalty of
perjury, by Edward R. Muller, its Chairman and Chief Executive Officer, and attested by Michael L.
Jines, its Secretary, on May 5, 2011, and does confirm that this Certificate of Amendment is the
act and deed of the Corporation and that the statements made herein are true.
/s/ Edward R. Muller | ||||
Chairman of the Board and Chief Executive | ||||
Officer | ||||
ATTEST: | /s/ Michael L. Jines | |||
Secretary | ||||