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EXHIBIT 3(e)
STATEMENT OF RESOLUTION ESTABLISHING SERIES OF SHARES
DESIGNATED
SERIES D PREFERENCE STOCK
OF
RELIANT ENERGY, INCORPORATED
Pursuant to Article 2.13D of
the Texas Business Corporation Act
Pursuant to the provisions of Article 2.13D of the Texas Business
Corporation Act, the undersigned submits the following statement for the
purpose of establishing and designating a series of shares of its Preference
Stock, without par value, designated "Series D Preference Stock" and fixing and
determining the relative rights and preferences thereof:
1. The name of the company is RELIANT ENERGY, INCORPORATED (the
"Company").
2. The following resolution establishing and designating a series of
shares and fixing and determining the relative rights and preferences thereof,
was duly adopted by all necessary action on the part of the Company on
September 22, 1999:
RESOLVED, that pursuant to the authority vested in the Finance
Committee and the Preference Stock Committee, acting separately and/or
concurrently, by the Board of Directors of this Company in accordance with the
provisions of the Restated Articles of Incorporation, a series of Preference
Stock, without par value, of the Company be and hereby is created, and that the
designation and number of shares thereof and the preferences, limitations and
relative rights, including voting rights, of the shares of such series and the
qualifications, limitations and restrictions thereof are as follows:
SERIES D PREFERENCE STOCK
1. Designation and Amount. There shall be a series of Preference
Stock that shall be designated as "Series D Preference Stock," and the number
of shares constituting such series shall be 5,880. Such number of shares may be
increased or decreased by resolution of the Finance Committee and the
Preference Stock Committee, acting separately and/or concurrently; provided,
however, that no decrease shall reduce the number of shares of Series D
Preference Stock to less than the number of shares then issued and outstanding
plus the number of shares issuable upon exercise
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of outstanding rights, options or warrants or upon conversion of outstanding
securities issued by the Company.
2. Certain Defined Terms. Capitalized terms not otherwise defined
herein shall have the respective meanings ascribed to them in that certain
Credit Agreement (the "Credit Agreement") to be entered into among Reliant
Energy FinanceCo III LP, a Delaware limited partnership to be the Borrower
thereunder, the Company, the Banks party thereto, Chase Manhattan International
Limited as Administrative Agent, and Chase Securities, Inc. as Arranger, as in
effect at the time of the initial funding thereunder, and as such terms may be
amended in the Credit Agreement to the extent approved by the affirmative vote
of the holders of two-thirds or more of the outstanding shares of Series D
Preference Stock, voting separately as a class. In addition, the following
terms are used herein as defined below:
(i) "Computed Dividend Portion" means, within any
Dividend Interval Period, an amount equal to the interest expense accrued on
the indebtedness for borrowed money of the Borrower from the prior Dividend
Payment Date to the Determination Date for the current Dividend Interval
Period.
(ii) "Determination Date" means the date occurring five
Business Days prior to a Dividend Declaration Date.
(iii) "Dividend" means the dividend on the Series D
Preference Stock declared by the Company's Board of Directors with respect to a
Dividend Interval Period.
(iv) "Dividend Declaration Amount" means, as of any
Determination Date, the Preliminary Dividend Amount, less the sum of (a) the
Interest Reconciliation Amount, (b) the Support Agreement Reconciliation
Amount, and (c) the Other Sources Reconciliation Amount. The Dividend
Declaration Amount may be greater than or less than the Preliminary Dividend
Amount.
(v) "Dividend Declaration Date" means the date on which
Dividends on the Series D Preference Stock are declared (or would have been
declared but for the fact that the amount of the Dividend determined in
accordance herewith would have been zero) during a Dividend Interval Period by
the Company's Board of Directors.
(vi) "Dividend Interval Period" means the period
beginning on a Dividend Payment Date and extending to the next Dividend Payment
Date.
(vii) "Dividend Payment Date" means the date occurring
five Business Days after a Dividend Declaration Date.
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(viii) "Interest Reconciliation Amount" means an amount
equal to (a) the Preliminary Dividend Amount computed for the prior Dividend
Interval Period, less (b) the actual interest expense accrued on the
indebtedness for borrowed money of the Borrower during such period.
(ix) "Other Sources Reconciliation Amount" means, to the
extent applied to pay interest on the indebtedness for borrowed money of the
Borrower or available in cash on the current Determination Date therefor, the
amount of income or cash proceeds received by the Borrower from sources other
than pursuant to the Support Agreement (including, without limitation, interest
received on loans to Affiliates), from the Determination Date occurring in the
Prior Dividend Interval Period to the Determination Date occurring in the
current Dividend Interval Period.
(x) "Preliminary Dividend Amount" means the sum of the
Computed Dividend Portion and the Projected Dividend Portion.
(xi) "Projected Dividend Portion" means, within any
Dividend Interval Period, an amount equal to the projected interest expense
that will be accrued on the indebtedness for borrowed money of the Borrower
from the Determination Date for such Dividend Interval Period to the Dividend
Payment Date.
(xii) "Support Agreement Reconciliation Amount" means the
amount of cash payments made pursuant to the Support Agreement by the Company
to the Borrower from the Determination Date occurring in the immediately prior
Dividend Interval Period to the Determination Date occurring in the current
Dividend Interval Period.
3. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of (i)
any shares of any series of Preference Stock ranking prior and superior to the
shares of Series D Preference Stock with respect to dividends and (ii) any
shares of Preferred Stock, the holders of shares of Series D Preference Stock,
in preference to the holders of shares of any class or series of stock of the
Company ranking junior to the Series D Preference Stock, shall be entitled to
receive the amounts set forth below, when, as and if declared by the Board of
Directors in the manner described below out of assets of the Company legally
available for the purpose:
(a) On every regularly scheduled meeting of the Company's
Board of Directors while any shares of Series D Preference Stock remain
outstanding, the Board of Directors shall declare an aggregate Dividend (if a
positive amount) equal the lesser of (i) the Dividend Declaration Amount or
(ii) the Excess Cash Flow projected to be available as of the applicable
Dividend Payment Date with respect to the then current Dividend Interval
Period.
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(b) If, with respect to any Dividend Interval Period, the
aggregate Dividend declared by the Company's Board of Directors is less than
the Dividend Declaration Amount for such Dividend Interval Period because the
Excess Cash Flow projected to be available as of the applicable Dividend
Payment Date is less than the Dividend Declaration Amount, the amount of such
deficiency shall be added to the Dividend Declaration Amount computed for the
next Dividend Interval Period and such aggregate amount shall become the
Dividend Declaration Amount for such period. The Dividend for such succeeding
Dividend Interval Period shall equal the Dividend Declaration Amount unless
such amount would exceed the Excess Cash Flow projected to be available as of
the applicable Dividend Payment Date, in which case the Dividend shall be the
amount of the projected Excess Cash Flow.
(c) The aggregate Dividends paid on the shares of Series D
Preference Stock in accordance with this Section 3(A) shall be allocated pro
rata on a share-by-share basis among all such shares at the time outstanding.
(B) Accrued but unpaid dividends shall not bear interest. The Board
of Directors may fix a record date for the determination of holders of shares
of Series D Preference Stock entitled to receive payment of a dividend or
distribution declared thereon.
4. Voting Rights. Except as otherwise required by law or the
Restated Articles of Incorporation of the Company or as otherwise provided
herein, the holders of shares of Series D Preference Stock shall have no voting
rights.
5. Certain Restrictions. At any time when dividends or distributions
payable on the Series D Preference Stock as provided in Section 3 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series D Preference Stock
outstanding shall have been paid in full, the Company shall not:
(i) declare dividends on, or redeem or purchase or
otherwise acquire for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series D
Preference Stock; or
(ii) declare dividends on any shares of stock ranking on
a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series D Preference Stock, except dividends declared ratably on
the Series D Preference Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders
of all such shares are then entitled.
6. Reacquired Shares. Any shares of Series D Preference Stock
purchased or otherwise acquired by the Company in any manner whatsoever shall
be retired and canceled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued
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shares of Preference Stock and may be reissued as part of a new series of
Preference Stock to be created by resolution or resolutions of the Board of
Directors, subject to any conditions and restrictions on issuance set forth
herein.
7. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Company, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series D Preference Stock unless, prior
thereto, the holders of shares of Series D Preference Stock shall have received
(U)100,000 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment
(the "Series D Liquidation Preference"). Following the payment of the full
amount of the Series D Liquidation Preference, no additional distributions
shall be made to the holders of shares of Series D Preference Stock.
(B) In the event that there are not sufficient assets available to
permit payment in full of the Series D Liquidation Preference and the
liquidation preferences of all other series of Preference Stock, if any, that
rank on a parity with the Series D Preference Stock, then such remaining assets
shall be distributed ratably to the holders of such parity shares in proportion
to their respective liquidation preferences.
(C) Neither the merger or consolidation of the Company into or with
another Company nor the merger or consolidation of any other Company into or
with the Company shall be deemed to be a liquidation, dissolution or winding up
of the Company within the meaning of this Section 7, but the sale, lease or
conveyance of all or substantially all of the Company's assets shall be deemed
to be a liquidation, dissolution or winding up of the Company within the
meaning of this Section 7.
8. Redemption.
(A) The Company, at its option, may redeem shares of the Series D
Preference Stock in whole at any time and in part from time to time, at a
redemption price equal to (U)100,000 per share, plus, in the event all
outstanding shares of the Series D Preference Shares are to be redeemed, unpaid
accumulated dividends to the date of redemption.
(B) In the event that fewer than all the outstanding shares of the
Series D Preference Stock are to be redeemed, (i) the number of shares to be
redeemed shall be determined by the Board of Directors and the shares to be
redeemed shall be determined by lot or pro rata as may be determined by the
Board of Directors or by any other method that may be determined by the Board
of Directors in its sole discretion to be equitable.
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(C) Except to the extent notice is waived in accordance with
applicable law, notice of any such redemption shall be given by mailing to the
holders of the shares of Series D Preference Stock to be redeemed a notice of
such redemption, first class postage prepaid, not later than the twentieth day
and not earlier than the sixtieth day before the date fixed for redemption, at
their last address as the same shall appear upon the books of the Company. Each
such notice shall state: (i) the redemption date; (ii) the number of shares to
be redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (iii) the
redemption price; (iv) the place or places where 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 the close of
business on such redemption date. Any notice that is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the shareholder received such notice, and failure duly to give such
notice by mail, or any defect in such notice, to any holder of Series D
Preference Stock shall not affect the validity of the proceedings for the
redemption of any other shares of Series D Preference Stock that are to be
redeemed. On or after the date fixed for redemption as stated in such notice,
each holder of the shares called for redemption shall surrender the certificate
evidencing such shares to the Company at the place designated in such notice
and shall thereupon be entitled to receive payment of the redemption price. If
fewer than all the shares represented by any such surrendered certificate are
redeemed, a new certificate shall be issued representing the unredeemed shares.
(D) The shares of Series D Preference Stock shall not be subject to
the operation of any purchase, retirement or sinking fund.
9. Ranking. The Series D Preference Stock shall rank junior to all
series of the Company's Preferred Stock and pari passu with all other series of
the Company's Preference Stock (other than any such series of Preference Stock
the terms of which shall provide otherwise) in respect to dividend and
liquidation rights and shall rank senior to the Common Stock as to such
matters.
10. Amendment. At any time that any shares of Series D Preference
Stock are outstanding, the Restated Articles of Incorporation of the Company
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series D Preference Stock so as to
affect them adversely without the affirmative vote of the holders of two-thirds
or more of the outstanding shares of Series D Preference Stock, voting
separately as a class.
11. Fractional Shares. Series D Preference Stock may be issued in
fractions of a share that shall entitle the holder, in proportion to such
holder's fractional shares, to exercise any voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series D Preference Stock.
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IN WITNESS WHEREOF, RELIANT ENERGY, INCORPORATED has caused this
Statement to be executed on its behalf by the undersigned officer this _____
day of September , 1999.
RELIANT ENERGY, INCORPORATED
/s/ MARC KILBRIDE
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Name: Marc Kilbride
Title: Treasurer