{"id":41626,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/certificate-of-incorporation-southern-energy-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"certificate-of-incorporation-southern-energy-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/formation\/certificate-of-incorporation-southern-energy-inc.html","title":{"rendered":"Certificate of Incorporation &#8211; Southern Energy Inc."},"content":{"rendered":"<pre>                     RESTATED CERTIFICATE OF INCORPORATION\n\n                                       OF\n\n                             SOUTHERN ENERGY, INC.\n\n                  1.       The name of the corporation is Southern Energy, Inc. \nThe Corporation was originally incorporated under the name \"SEI Holdings, Inc.\"\nThe original Certificate of Incorporation of the corporation was filed with the\nSecretary of the State of Delaware on April 20, 1993.\n\n                  2.       This Restated Certificate of Incorporation has been\nduly adopted in accordance with Section 245 of the General Corporation Law of\nthe State of Delaware (the \"DGCL\"). In connection with such amendment, and\nsimultaneously with the effectiveness thereof, the par value of all shares of\nstock of the corporation (both outstanding shares and authorized but unissued or\ntreasury shares) shall be decreased from $1.00 per share to $0.01 per share and\nsuch shares shall be designated as shares of Common Stock of such par value, as\nauthorized by this Restated Certificate of Incorporation. The sole stockholder\nof the Corporation adopted this Restated Certificate of Incorporation by written\nconsent in accordance with Section 228 of the DGCL.\n\n                  The certificate of incorporation of the corporation is hereby \nrestated and integrated and further amended to read in its entirety as follows:\n\n                  FIRST. The name of the corporation is Southern Energy, Inc.\n\n                  SECOND. The address of the corporation's registered office in \nthe State of Delaware is Corporation Service Company, 1013 Centre Road in the\nCity of Wilmington, County of New Castle. The name of its registered agent at\nsuch address is Corporation Service Company.\n\n   2\n\n                  THIRD. The purpose of the corporation is to engage in any \nlawful act or activity for which corporations may be organized under the General\nCorporation Law of Delaware.\n\n                  FOURTH. The total number of shares of all classes of stock \nwhich the corporation shall have authority to issue is 2,125,000,000, of which\n2,000,000,000 shares of the par value of $0.01 per share shall constitute a\nclass designated as Common Stock and 125,000,000 shares of the par value of \n$0.10 per share shall constitute a class designated as Preferred Stock. Shares \nof Preferred Stock may be issued in one or more series from time to time by the\nboard of directors, and the board of directors is expressly authorized to fix by\nresolution or resolutions the designations and the powers, preferences and\nrights, and the qualifications, limitations and restrictions thereof, of the\nshares of each series of Preferred Stock, which may include but shall not be\nlimited to any of the following:\n\n                  (a)      the distinctive serial designation of such series \n         which shall distinguish it from other series;\n\n                  (b)      the number of shares included in such series;\n\n                  (c)      the dividend rate (or method of determining such\n         rate) payable to the holders of the shares of such series, any\n         conditions upon which such dividends shall be paid, the means and types\n         of property that may be used in making any such payment and the date or\n         dates upon which such dividends shall be payable;\n\n                 (d)       whether dividends on the shares of such series shall\n         be cumulative and, in the case of shares of any series having\n         cumulative dividend rights, the date or dates or method of determining\n         the date or dates from which dividends on the shares of such series\n         shall be cumulative;\n\n\n                                     - 2 -\n   3\n\n                  (e)      the amount or amounts which shall be payable out of\n         the assets of the corporation to the holders of the shares of such\n         series upon voluntary or involuntary liquidation, dissolution or\n         winding up the corporation, and the relative rights of priority, if\n         any, of payment of the shares of such series;\n\n                  (f)      the price or prices at which, the period or periods \n         within which and the terms and conditions upon which the shares of such\n         series may be redeemed, in whole or in part, at the option of the\n         corporation or at the option of the holder or holders thereof or upon\n         the happening of a specified event or events;\n\n                  (g)      the obligation, if any, of the corporation to \n         purchase or redeem shares of such series pursuant to a sinking fund or\n         otherwise and the price or prices at which, the period or periods\n         within which and the terms and conditions upon which the shares of such\n         series shall be redeemed or purchased, in whole or in part, pursuant to\n         such obligation;\n\n                  (h)      whether or not the shares of such series shall be \n         convertible or exchangeable, at any time or times at the option of the\n         holder or holders thereof or at the option of the corporation or upon\n         the happening of a specified event or events, into shares of any other\n         class or classes or any other series of the same or any other class or\n         classes of stock of the corporation, and the price or prices or rate or\n         rates of exchange or conversion and any adjustments applicable thereto;\n         and\n\n                  (i)      whether or not the holders of the shares of such \n         series shall have voting rights, in addition to the voting rights\n         provided by law, and if so the terms of such voting rights.\n\n\n                                     - 3 -\n   4\n\n                  Subject to the rights of the holders of any series of \nPreferred Stock, the number of authorized shares of any class or series of\nPreferred Stock may be increased or decreased (but not below the number of\nshares thereof then outstanding) by the affirmative vote of the holders of a\nmajority of the outstanding shares of such class or series, voting together as a\nsingle class, irrespective of the provisions of Section 242(b)(2) of the\nGeneral Corporation Law of Delaware or any corresponding provision hereafter\nenacted. Upon the filing and effectiveness (the \"Effective Time\") of a Restated\nCertificate of Incorporation pursuant to the General Corporation Law of the\nState of Delaware to reflect the addition of this paragraph to Article FOURTH of\nthe corporation's certificate of incorporation, each share of the corporation's\ncommon stock, $1.00 par value per share, issued and outstanding or held in\ntreasury immediately prior to the Effective Time (the \"Old Common Stock\") shall\nbe reclassified as and changed and converted into one(1) validly issued, fully\npaid, and non-assessable share of Common Stock, without any action by the holder\nthereof. Each certificate that prior to the Effective Time represented a share\nor shares of Old Common Stock shall thereafter represent that number of shares\nof Common Stock into which the share or shares of Old Common Stock represented\nby such certificate shall have been reclassified; provided, however, that each\nrecord holder of a certificate or certificates that prior to the Effective Time\nrepresented a share or shares of Old Common Stock shall receive, upon surrender\nof such certificate or certificates, a new certificate or certificates\nevidencing and representing the number of shares of Common Stock to which such\nrecord holder is entitled pursuant to the foregoing reclassification.\n\n                  FIFTH. The board of directors of the corporation is expressly \nauthorized to adopt, amend or repeal by-laws of the corporation, but the\nstockholders entitled to vote may adopt additional by-laws and may amend or\nrepeal any bylaw whether or not adopted by them at a\n\n\n                                     - 4 -\n   5\n\nmeeting duly called for that purpose. In addition to any other affirmative vote\nor written consent required by applicable law, this Article FIFTH may not be\namended, modified or repealed except by the affirmative vote of the holders of\nnot less than sixty six and two-thirds percent (66 2\/3%) of the voting power of\nall outstanding shares of capital stock of the corporation entitled to vote\ngenerally in the election of directors, considered for purposes hereof as a\nsingle class.\n\n                  SIXTH. Elections of directors need not be by written ballot \nexcept and to the extent provided in the by-laws of the corporation.\n\n                  SEVENTH. The number of directors of the corporation shall be\nnot less than two nor more than twenty-one, as may be fixed from time to time by\nresolutions duly adopted by the board of directors. Effective upon and\ncommencing as of the day following the day on which The Southern Company, a\nDelaware Corporation (\"Southern\"), and any company that is directly or\nindirectly controlled by Southern and of which at least a majority of the equity\ninterests therein are directly or indirectly beneficially owned by Southern,\nshall first cease to be the holder, in the aggregate, of at least 33 1\/3% of the\nthen issued and outstanding shares of Common Stock, the directors of the\ncorporation shall by resolution divide the board into three classes, as nearly\nequal in number as reasonably possible, as determined by the board of\ndirectors, with the initial term of office of the first class of such directors\nto expire at the first annual meeting of stockholders thereafter, the initial\nterm of office of the second class of such directors to expire at the second\nannual meeting of stockholders thereafter and the initial term of office of the\nthird class of such directors to expire at the third annual meeting of\nstockholders thereafter, with each class of directors to hold office until their\nsuccessors have been duly elected and qualified or until their earlier\nresignation or removal. At each annual meeting of stockholders following such\ninitial classification and election, directors elected to succeed the directors\nwhose terms expire at such\n\n\n                                     - 5 -\n   6\n\nannual meeting shall be elected to hold office for a term expiring at the annual\nmeeting of stockholders in the third year following the year of their election\nand until their successors have been duly elected and qualified or until their\nearlier resignation or removal. Effective upon and commencing as of the day\nfollowing the day on which Southern, and any company that is directly or\nindirectly controlled by Southern and of which at least a majority of the equity\ninterests therein are directly or indirectly beneficially owned by Southern,\nshall first cease to be the holder, in the aggregate, of at least 33 1\/3% of the\nthen issued and outstanding shares of Common Stock, no director may be removed\nexcept for cause. Any vacancy occurring on the board of directors and any newly\ncreated directorship may only be filled by a majority of the remaining directors\nor by the sole remaining director in office. In the event of the death,\nresignation, retirement, removal or disqualification of a director during his or\nher elected term of office, his or her successor shall serve until the next\nstockholders' meeting at which directors of such class are elected, and until\nhis or her successor is elected and qualified or until his or her earlier\nresignation or removal. In addition to any other affirmative vote or written\nconsent required by applicable law, this Article SEVENTH may not be amended,\nmodified or repealed except by the affirmative vote of the holders of not less\nthan sixty six and two-thirds percent (66 2\/3%) of the voting power of all\noutstanding shares of capital stock of the corporation entitled to vote\ngenerally in the election of directors, considered for purposes hereof as a\nsingle class.\n\n                  EIGHTH. Effective upon and commencing as of the day following\nthe day on which Southern, and any company that is directly or indirectly\ncontrolled by Southern and of which at least a majority of the equity interests\ntherein are directly or indirectly beneficially owned by Southern, shall first\ncease to be the holder, in the aggregate, of at least a majority of the then\noutstanding shares of Common Stock (the \"Trigger Date\"), and except as otherwise\n\n\n                                     - 6 -\n   7\n\nprovided pursuant to provisions of the certificate of incorporation of the\ncorporation (including any Preferred Stock Designation) fixing the powers,\nprivileges or rights of any class or series of stock other than the Common Stock\nin respect of action by written consent of the holders of such class or series\nof stock, any action required or permitted to be taken by the stockholders of\nthe corporation must be effected at a duly called annual or special meeting of\nsuch holders and may not be effected by any consent in writing by such holders.\n\n                  Effective upon and commencing as of the Trigger Date, except\nas otherwise provided pursuant to provisions of the certificate of incorporation\nof the corporation (including any Preferred Stock Designation) fixing the\npowers, privileges or rights of any class or series of stock other than the\nCommon Stock, special meetings of stockholders of the corporation of any class\nor series of capital stock for any purpose or purposes may be called only by the\nChairman, President or a majority of the board of directors pursuant to a\nresolution stating the purpose or purposes thereof and, effective as of the\nTrigger Date, any power of stockholders to call a special meeting is\nspecifically denied. No business other than that stated in the notice shall be\ntransacted at any special meeting.\n\n                  In addition to any other affirmative vote or written consent\nrequired by applicable law, this Article EIGHTH may not be amended, modified or\nrepealed except by the affirmative vote of the holders of not less than sixty\nsix and two-thirds percent (66 2\/3%) of the voting power of all outstanding\nshares of capital stock of the corporation entitled to vote generally in the\nelection of directors, considered for purposes hereof as a single class.\n\n                  NINTH. A director of the corporation shall not be liable to\nthe corporation or its stockholders for monetary damages for breach of fiduciary\nduty as a director, except to the extent that such exemption from liability or\nlimitation thereof is not permitted under the Delaware\n\n\n                                     - 7 -\n   8\n\nGeneral Corporation Law as currently in effect or as the same may hereafter be\namended. No amendment, modification or repeal of this Article NINTH shall\nadversely affect any right or protection of a director with respect to events\noccurring prior to such amendment, modification or repeal.\n\n                  TENTH. Certain Transactions With Stockholders and Corporate\nOpportunities.\n\n                  (a)      Certain Acknowledgments; Certain Fiduciary Duties.\n\n                  In anticipation (i) that the corporation will cease to be a\nwholly owned subsidiary of Southern, but that Southern will remain a stockholder\nof the corporation and have continued contractual, corporate, and business\nrelations with the corporation, and in anticipation that the corporation and\nSouthern may enter into contracts and\/or otherwise transact business with each\nother and that the corporation may derive benefits therefrom, (ii) that\ndirectors, officers and\/or employees of Southern and\/or of its Affiliated\nCompanies (as defined below in this Article TENTH) may serve as directors and\/or\nofficers of the corporation, (iii) that Southern and\/or its Affiliated Companies\nengage and are expected to continue to engage in the same, similar or related\nlines of business as those in which the corporation, directly or indirectly, may\nengage and\/or other business activities in each case that may overlap with or\ncompete with those in which the corporation and its Affiliated Companies,\ndirectly or indirectly, may engage, and that Southern and\/or its Affiliated\nCompanies may compete with the corporation in any of such business lines and\/or\nbusiness activities and with respect to business opportunities relating to any\nsuch business lines and\/or business activities, (iv) that the corporation and\nits Affiliated Companies may engage in material business transactions with\nSouthern and its Affiliated Companies, and (v) that, as a consequence of the\nforegoing, it is in the best interests of the corporation that the respective\nrights and duties of the corporation and of Southern and their\n\n\n                                     - 8 -\n   9\n\nAffiliated Companies, and the duties of any directors or officers of the\ncorporation who are also directors, officers or employees of Southern or its\nAffiliated Companies, be determined and delineated in respect of any\ntransactions between, or opportunities that may be suitable for, both the\ncorporation and its Affiliated Companies, on the one hand, and Southern and its\nAffiliated Companies, on the other hand, the provisions of this Article TENTH\nshall regulate and define the conduct of certain of the business and affairs of\nthe corporation in relation to Southern and its Affiliated Companies. Any\ncontract or business relation that does not comply with the procedures set forth\nin this Article TENTH, shall not by reason thereof be deemed void or voidable or\nunfair or result in any breach of fiduciary duty or duty of loyalty or failure\nto act in good faith or in the best interests of the corporation or constitute\nderivation of any improper personal benefit, but shall be governed by the\nprovisions of this Amended and Restated Certificate of Incorporation, the\nby-laws of the corporation, the General Corporation Law of the State of Delaware\nand other applicable law.\n\n                  (b)      Certain Agreements and Transactions Permitted.\n\n                  No contract, agreement, arrangement or transaction (or any\namendment, modification or termination thereof) between the corporation and\nSouthern or between the corporation and one or more of the directors or officers\nof the corporation, Southern, or any of its Affiliated Companies or between the\ncorporation and any Affiliated Company shall be void or voidable or be\nconsidered to be unfair to the corporation solely for the reason that Southern,\nany Affiliated Company, or any one or more of the officers or directors of the\ncorporation, Southern, or any Affiliated Company are parties thereto, or because\nany such directors or officers are present at or participate in any meeting of\nthe board of directors or committee thereof which authorizes the contract,\nagreement, arrangement, or transaction (or the amendment, modification\n\n\n                                      - 9 -\n   10\n\nor termination thereof), or because his, her or their votes are counted for such\npurpose. Further, no such agreement (or the amendment, modification or\ntermination thereof), or the performance thereof by the corporation or by\nSouthern, or by any Affiliated Company thereof, shall be considered to be for\nany of the foregoing reasons contrary to (x) any fiduciary duty that Southern or\nany Affiliated Company thereof may owe to the corporation or any Affiliated\nCompany thereof or to any stockholder or other owner of an equity interest in\nthe corporation or any Affiliated Company thereof by reason of Southern or any\nAffiliated Company thereof being a controlling stockholder of the corporation or\nparticipating in the control of the corporation or of any Affiliated Company\nthereof; or (y) any fiduciary duty of any director or officer of the corporation\nor of any Affiliated Company thereof who is also a director, officer or employee\nof Southern or any Affiliated company thereof to the corporation or such\nAffiliated Company, or to any stockholder thereof; and Southern, any Affiliated\nCompany, and such directors and officers shall be deemed to have acted in good\nfaith and in a manner such persons reasonably believe to be in and not opposed\nto the best interests of the corporation and shall be deemed not to have\nbreached their duties of loyalty to the corporation and its stockholders and not\nto have derived an improper personal benefit therefrom, if any of the following\nconditions shall have been satisfied:\n\n         (i)      such contract, agreement, arrangement or transaction (or the\namendment, modification or termination thereof) shall have been entered into\nbefore the corporation ceased to be a wholly owned subsidiary of Southern and\ncontinued in effect in respect of any such transaction or opportunity after such\ntime; or\n\n         (ii)     the material facts as to the contract, agreement, arrangement \nor transaction (or the amendment, modification or termination thereof) are\ndisclosed or are known to the board of directors or the committee thereof which\nauthorizes the contract, agreement, arrangement or\n\n\n                                     - 10 -\n   11\ntransaction (or the amendment, modification or termination thereof), and the\nboard of directors or such committee authorizes and approves the contract,\nagreement, arrangement or transaction (or the amendment, modification or\ntermination thereof) (a) by the affirmative vote of a majority of the\ndisinterested directors, even though the disinterested directors be less than a\nquorum; (b) by the affirmative vote of a majority of the members of a committee\nconstituted solely of members who are not Interested Persons (as hereinafter\ndefined) in respect of such contract, agreement, arrangement, transaction,\namendment, modification or termination or (c) by one or more officers or\nemployees of the corporation (including officers or employees of the corporation\nacting as directors, officers, trustees, partners or members of, or in any\nsimilar capacity on behalf of, any Affiliated Company of the corporation) who in\neach case is not an Interested Person in respect of such contract, agreement,\narrangement, transaction, amendment, modification or termination and to whom the\nauthority to approve such contract, agreement, arrangement, transaction,\namendment, modification or termination has been delegated either by the board of\ndirectors by the same affirmative vote required by subclause (a) of this\nsubparagraph for approval of such contract, agreement, arrangement, transaction,\namendment, modification or termination by the board of directors or by a\ncommittee of the board of directors constituted as provided by and acting by the\nsame affirmative vote as required by subclause (b) of this subparagraph for\napproval of such contract, agreement, arrangement, transaction, amendment,\nmodification or termination by such committee or, in the case of an employee, to\nwhom such authority has been delegated by an officer to whom authority to\napprove such contract, agreement, arrangement, transaction, amendment,\nmodification or termination has been so delegated; or\n\n         (iii)    the material facts as to the contract, agreement, arrangement\nor transaction (or the amendment, modification or termination thereof) are\ndisclosed or are known to the holders of\n\n\n                                     - 11 -\n   12\n\nvoting stock entitled to vote thereon, and the contract, agreement, arrangement,\nor transaction (or the amendment, modification or termination thereof) is\napproved by vote of the holders of a majority of the then outstanding voting\nstock not owned by Southern or a Affiliated Company, as the case may be; or\n\n         (iv)     such contract, agreement, arrangement or transaction (or the\namendment, modification or termination thereof) is fair as to the corporation as\nof the time it is authorized, approved or ratified by the board of directors, a\ncommittee thereof or the stockholders of the corporation; or\n\n         (v)      in the case of any such transaction that was not entered into\nin the performance of a contract, agreement, arrangement or transaction (or the\namendment, modification or termination thereof) that satisfied the requirements\nof clauses (i), (ii), (iii) or (iv) of this Section, such transaction shall\nhave been approved or ratified by (a) the board of directors of the corporation\nby the affirmative vote of a majority of the members (even though less than a\nquorum) who are not Interested Persons in respect of such transaction or (b) by\na committee of the board of directors of the corporation constituted solely of\nmembers who are not Interested Persons in respect of such transaction or (c) by\none or more officers or employees of the corporation (including officers or\nemployees of the corporation acting as directors, officers, trustees, partners\nor members of, or in any similar capacity on behalf of, any Affiliated Company\nof the corporation) who in each case is not an Interested Person in respect of\nsuch transaction and to whom the authority to approve such transaction has been\ndelegated either by the board of directors by the same affirmative vote required\nby subclause (a) of this subparagraph for approval of such transaction of the\nboard of directors or a committee of the board of directors constituted as\nprovided by and acting by the same affirmative vote as required by subclause (b)\nof this\n\n\n                                     - 12 -\n   13\n\nsubparagraph for approval of such transaction by such committee or, in the case\nof an employee, to whom such authority has been delegated by an officer to whom\nauthority to approve such transaction has been so delegated; provided, however,\nthat, before such approval or ratification, the material facts of the\nrelationship between the corporation or such Affiliated Company thereof, on the\none hand, and Southern or such Affiliated Company thereof, on the other hand,\nand the material facts as to such transaction were disclosed to or were known by\nthe members of the board of directors or of such committee or the officer or\nofficers or employee or employees who acted on approval or ratification of such\ntransaction, as the case may be; or\n\n         (vi)     in the case of any such transaction that was not entered into\nin the performance of a contract, agreement, arrangement or transaction (or the\namendment, modification or termination thereof) that satisfied the requirements\nof clause (i), (ii), (iii) or (iv) of this sentence, such transaction was fair\nto the corporation as of the time it was entered into by the corporation; or\n\n         (vii)    in the case of any such transaction that was not entered into\nin the performance of a contract, agreement, arrangement or transaction (or the\namendment, modification or termination thereof) that satisfied the requirements\nof clause (i), (ii), (iii) or (iv) of this sentence, such transaction was\napproved or ratified by the affirmative vote of the holders of a majority of the\nshares of capital stock of the corporation entitled to vote thereon and who do\nvote thereon, exclusive of Southern and any Affiliated Company thereof and any\nInterested Person in respect of such transaction.\n\n                  Neither Southern nor any Affiliated Company thereof, as a\nstockholder of the corporation or participant in control of the corporation,\nshall have or be under any fiduciary duty to refrain from entering into any\ncontract, agreement, arrangement or transaction (or the\n\n\n                                     - 13 -\n   14\n\namendment, modification or termination thereof) or participating in any\ntransaction that meets the requirements of any of clauses (i), (ii), (iii),\n(iv), (v), (vi) or (vii) of the immediately preceding sentence and no director,\nofficer or employees of the corporation who is also a director, officer or\nemployee of Southern or any Affiliated Company thereof shall have or be under\nany fiduciary duty to the corporation to refrain from acting on behalf of the\ncorporation or any Affiliated Company thereof in respect of any such contract,\nagreement, arrangement or transaction (or the amendment, modification or\ntermination thereof) or performing any such contract, agreement, arrangement or\ntransaction (or the amendment, modification or termination thereof) in\naccordance with its terms. Directors of the corporation who are also directors\nor officers of Southern or any Affiliated Company may be counted in determining\nthe presence of a quorum at a meeting of the board of directors or of a\ncommittee which authorizes the contract, agreement, arrangement, or transaction\n(or the amendment, modification or termination thereof). Voting stock owned by\nSouthern and any Affiliated Companies thereof may be counted in determining the\npresence of a quorum at a meeting of stockholders which authorizes the contract,\nagreement, arrangement or transaction (or the amendment, modification or\ntermination thereof). Any person purchasing or otherwise acquiring any shares of\ncapital stock of the corporation, or any interest therein, shall be deemed to\nhave notice of and to have consented to the provisions of this Article TENTH.\nThe failure of any contract, agreement, arrangement or transaction (or the\namendment, modification or termination thereof) between the corporation or an\nAffiliated Company thereof, on the one hand, and Southern or an Affiliated\nCompany thereof, on the other hand, to satisfy the requirements of this Article\nTENTH shall not, by itself, cause such contract, agreement, arrangement or\ntransaction (or the amendment, modification or termination thereof) to\nconstitute any breach of any fiduciary duty to the corporation or to any\nAffiliated Company\n\n\n                                     - 14 -\n   15\n\nthereof, or, any to stockholder or other owner of an equity interest therein, by\nany controlling stockholder of the corporation or such Affiliated Company\nthereof or by any director or officer of the corporation.\n\n                  For purposes of this Article TENTH, any contract, agreement,\narrangement, or transaction (or amendment, modification, or termination thereof)\nwith any corporation, partnership, joint venture, association, or other entity\nin which the corporation owns (directly or indirectly) 50% or more of the\noutstanding voting stock, voting power, partnership interests, or similar\nownership interests, or with any officer or director thereof, shall be deemed to\nbe a contract, agreement, arrangement or transaction with the corporation.\n\n                  (c)      Certain Corporate Opportunities.\n\n         Southern and\/or its Affiliated Companies shall have no duty to refrain\nfrom engaging in the same or similar activities or lines of business as the\ncorporation, and except as provided below, neither Southern and\/or its\nAffiliated Companies nor any officer, director or employee thereof shall be\nliable to the corporation or its stockholders for breach of any fiduciary duty\nby reason of any such activities of Southern and\/or its Affiliated Companies or\nof such person. In the event that Southern acquires knowledge of a potential\ntransaction or matter which may be a corporate opportunity for both Southern\n(and\/or its Affiliated Companies) and the corporation (and\/or its Affiliated\nCompanies), Southern shall have no duty to communicate or offer such corporate\nopportunity to the corporation and\/or its Affiliated Companies and shall not be\nliable to the corporation or its stockholders for breach of any fiduciary duty\nas a stockholder of the corporation by reason of the fact that Southern pursues\nor acquires such corporate opportunity for itself or for its Affiliated\nCompanies, directs such corporate opportunity to another person\n\n\n                                     - 15 -\n   16\n\n(including one or more of its Affiliated Companies), or does not communicate\ninformation regarding such corporate opportunity to the corporation.\n\n         In the event that a director or officer of the corporation (and\/or one\nor more of its Affiliated Companies), who is also a director or officer of\nSouthern and\/or one or more of its Affiliated Companies, acquires knowledge of a\npotential transaction or matter which may be a corporate opportunity for both\nthe corporation (and\/or one or more of its Affiliated Companies) and Southern\n(and\/or one or more of its Affiliated Companies), such director or officer shall\nhave fully satisfied and fulfilled his or her fiduciary duty to the corporation\nand its stockholders with respect to such corporate opportunity, and shall not\nbe liable to the corporation or its stockholders for breach of any fiduciary\nduty by reason of the fact that Southern pursues or acquires such corporate\nopportunity for itself or its Affiliated Companies or directs such corporate\nopportunity to another person (including one or more of its Affiliated\nCompanies) or does not communicate information regarding such corporate\nopportunity to the corporation, if such director or officer acts consistent with\nthe following: a corporate opportunity offered to any person who is a director\nor officer of the corporation and\/or one or more of its Affiliated Companies,\nand who is also a director or officer of Southern and\/or its Affiliated\nCompanies, shall belong to the corporation and\/or one or more of its Affiliated\nCompanies if such opportunity is expressly offered to such person solely in his\nor her capacity as a director or officer of the corporation and\/or one or more\nof its Affiliated Companies. If such opportunity is not expressly offered to\nsuch person solely in such capacity, the opportunity shall belong solely to\nSouthern and\/or one or more of its Affiliated Companies.\n\n\n                                     - 16 -\n   17\n\n                  (d)      Certain Definitions.\n\n                  For purposes of this Article TENTH, the following definitions\nshall apply:\n\n                  \"Affiliated Company\" shall mean in respect of Southern, any\ncompany which is controlled by Southern, controls Southern or is under common\ncontrol with Southern (other than the corporation and any company that is\ncontrolled by the corporation), and in respect of the corporation shall mean any\ncompany controlled by the corporation.\n\n                  \"Interested Person\" in respect of an agreement or transaction\nreferred to in this Article TENTH shall mean any director, officer or employee\nof Southern or an Affiliated Company thereof and any person who has a financial\ninterest that is material to such person in Southern or such Affiliated Company\nor otherwise has a personal financial interest that is material to such person\nin such agreement or transaction; provided, however, that no such financial\ninterest shall be considered material by reason of a person's ownership of\nsecurities of Southern or an Affiliated Company thereof, if such ownership of\nsecurities has been determined in good faith not to be reasonably likely to\ninfluence such individual's decision on behalf of the corporation or an\nAffiliated Company thereof in respect of the contract, agreement, arrangement or\ntransaction (or the amendment, modification or termination thereof) either in\nthe specific instance by, or pursuant to a policy adopted by, the board of\ndirectors of the corporation by the affirmative vote of a majority of the\nmembers (even though less than a quorum) who are not directors, officers or\nemployees of Southern or any Affiliated Company thereof or a committee of the\nboard of directors of the corporation constituted solely of members who are not\ndirectors, officers or employees of Southern or any Affiliated Company thereof\nby the affirmative vote of a majority of such committee.\n\n\n                                     - 17 -\n   18\n\n                  The provisions of this Article TENTH shall have no further\nforce or effect at such time as Southern and any company controlling, controlled\nby or under common control with Southern shall first cease to be the owner, in\nthe aggregate, of stock representing 20% or more of the votes entitled to the\ncast by the holders of all the then outstanding shares of stock entitled to\nvote; provided, however, that such termination shall not terminate the effect of\nsuch provisions with respect to (i) any contract, agreement, arrangement or\ntransaction (or the amendment, modification or termination thereof) between the\ncorporation or an Affiliated Company thereof and Southern or an Affiliated\nCompany thereof that was entered into before such time or any transaction\nentered into in the performance of any such contract, agreement, arrangement or\ntransaction (or the amendment, modification or termination thereof), whether\nentered into before or after such time, or (ii) any transaction entered into\nbetween the corporation or an Affiliated Company thereof and Southern or an\nAffiliated Company thereof or the allocation of any opportunity between them\nbefore such time.\n\n                  In addition to any other affirmative vote or written consent\nrequired by applicable law, this Article TENTH may not be amended, modified or\nrepealed except by the affirmative vote of the holders of not less than sixty\nsix and two-thirds percent (66 2\/3%) of the voting power of all outstanding\nshares of stock of the corporation entitled to vote generally in the election of\ndirectors, considered for purposes hereof as a single class.\n\n\n                                     - 18 -\n   19\n\n                  IN WITNESS WHEREOF, the corporation has caused this Restated\nCertificate of incorporation to be duly executed this 22nd day of August, 2000.\n\n\n                               Southern Energy, Inc.\n\n\n\n                               By: \/s\/ Elizabeth B. Chandler\n                                   ------------------------------------------\n                               Name: Elizabeth B. Chandler\n                               Title: Vice President and Corporate Secretary\n\n\n                                     - 19 -\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8237],"corporate_contracts_industries":[9534],"corporate_contracts_types":[9573,9575],"class_list":["post-41626","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-mirant-corp","corporate_contracts_industries-utilities__electric","corporate_contracts_types-formation","corporate_contracts_types-formation__incorporation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41626","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41626"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41626"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41626"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41626"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}