AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of September 22, 1995
(this "Agreement"), by and among Baltimore Gas and Electric Company, a
corporation formed under the laws of the State of Maryland ("BGE"), Potomac
Electric Power Company, a corporation formed under the laws of the District of
Columbia and the Commonwealth of Virginia ("PEPCO"), and RH Acquisition Corp., a
corporation formed under the laws of the State of Maryland, 50% of whose
outstanding capital stock is owned by BGE and 50% of whose outstanding capital
stock is owned by PEPCO (the "Company").
WHEREAS, BGE and PEPCO have determined to engage in a
strategic business combination and, accordingly, have formed the Company to
participate in such business combination;
WHEREAS, in furtherance thereof, the respective Boards of
Directors of BGE, PEPCO and the Company have approved the merger of BGE and
PEPCO with and into the Company, all pursuant to the terms and conditions set
forth in this Agreement and, in connection therewith, have approved the
execution and delivery of the PEPCO Stock Option Agreement dated as of the date
hereof between PEPCO and BGE (the "PEPCO Option") and the BGE Stock Option
Agreement dated as of the date hereof between BGE and PEPCO (the "BGE Option");
WHEREAS, for federal income tax purposes, it is intended that
such merger will be a reorganization described in Section 368(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder,
and that BGE, PEPCO, the Company and the shareholders of each of BGE and PEPCO
who exchange their shares solely for stock of the Company will recognize no gain
or loss for federal income tax purposes as a result of the consummation of the
merger; and
WHEREAS, for accounting purposes, it is intended that the
merger will be accounted for as a pooling of interests in accordance with
generally accepted accounting principals ("GAAP") and applicable regulations of
the Securities and Exchange Commission (the "SEC").
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I.
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the
conditions of this
Agreement, at the Effective Time, each of BGE and PEPCO shall be merged with and
into the Company (the "Merger") in accordance with the laws of the State of
Maryland, the Commonwealth of Virginia and the District of Columbia. The Company
shall be the surviving corporation in the Merger and shall continue its
existence under the laws of the State of Maryland and the Commonwealth of
Virginia.
Section 1.2 Effective Time of the Merger. On the Closing Date
(as defined in Section 3.1), articles of merger shall be executed and filed by
the Company with the Secretary of State of the State of Maryland pursuant to the
Maryland General Corporation Act ("MGCA"), the Secretary of State of the
Commonwealth of Virginia pursuant to the Virginia Stock Corporation Act ("VSCA")
and the Mayor of the District of Columbia pursuant to the District of Columbia
Business Corporation Act ("DCBCA"). The Merger shall become effective at such
time as such articles of merger have all been so filed, such time being herein
called the "Effective Time".
Section 1.3 Articles of Incorporation. The Articles of
Incorporation shall be amended prior to closing to provide for those matters set
forth on Exhibit 1.3, and such other matters generally covered in such Articles
of Incorporation and, as so amended, shall be the Articles of Incorporation of
the Company after the Effective Time until duly amended.
Section 1.4 Bylaws. The Bylaws shall be amended prior to
closing to provide, for a period of two years after Closing, for those matters
set forth on Exhibit 1.4, and such other matters as are generally covered in
such By-laws and, as so amended, shall be the Bylaws of the Company after the
Effective Time until duly amended.
Section 1.5 Effects of Merger. The Merger shall have the
effects set forth in Section 3-113 of the MGCA, Section 13.1-721 of the VSCA and
Section 29-370 of the DCBCA.
ARTICLE II.
CONVERSION OF SHARES
Section 2.1 Effect of Merger on Capital Stock. At the
Effective Time, by virtue of the Merger and without any action on the part of
any holder of any capital stock of BGE, PEPCO or the Company:
(a) Cancelation of Company Capital Stock. Each share of the
capital stock of the Company issued and outstanding immediately prior to the
Effective Time shall be canceled and cease to exist, and no consideration shall
be delivered in exchange therefor.
(b) Cancelation of Certain Common Stock. Each share of Common
Stock, no par value, of BGE (the "BGE Common Stock") that is owned by BGE or any
of its subsidiaries (as defined in Section 4.1) or by PEPCO or any of its
subsidiaries shall be canceled
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and cease to exist. Each share of Common Stock, $1.00 par value, of PEPCO (the
"PEPCO Common Stock") that is owned by PEPCO or any of its subsidiaries or by
BGE or any of its subsidiaries shall be canceled and cease to exist.
(c) Conversion of Certain Common Stock. Each issued and
outstanding share of BGE Common Stock (other than shares canceled pursuant to
Section 2.1(b)) shall be converted into the right to receive one (the "BGE
Ratio") duly authorized, validly issued, fully paid and nonassessable share of
Common Stock, no par value, of the Company (the "Company Common Stock"), and
each issued and outstanding share of PEPCO Common Stock (other than shares
canceled pursuant to Section 2.1(b) and PEPCO Dissenting Common Shares (as
defined in Section 2.2(b))) shall be converted into the right to receive .997
(the "PEPCO Ratio") duly authorized, validly issued, fully paid and
nonassessable shares of Company Common Stock. Upon such conversions, all such
shares of BGE Common Stock and PEPCO Common Stock shall be canceled and cease to
exist, and each holder of a certificate representing any such shares shall cease
to have any rights with respect thereto, except the right to receive the number
of whole shares of Company Common Stock to be issued in consideration therefor
and any cash in lieu of fractional shares of Company Common Stock upon the
surrender of such certificate in accordance with Section 2.3.
(d) Cancelation of Certain Preferred Stock and Preference
Stock. Each share of BGE Preferred Stock, $100.00 par value ("BGE Preferred
Stock"), each share of BGE Preference Stock, $100.00 par value ("BGE Preference
Stock"), and each share of PEPCO Preferred Stock, $50.00 par value ("PEPCO
Preferred Stock"), that is owned by BGE or any of its subsidiaries or by PEPCO
or any of its subsidiaries shall be canceled and cease to exist.
(e) Conversion of BGE Preferred Stock. Each issued and
outstanding share of each series of BGE Preferred Stock (other than shares
canceled pursuant to Section 2.1(d) and BGE Dissenting Preferred Shares (as
defined in Section 2.2(a))) shall be converted into and become one duly
authorized, validly issued, fully paid and nonassessable share of preferred
stock, $100 par value, of the Company ("Company Class A Preferred Stock"), of
the respective series specified below, with equal stated value and dividends and
like redemption provisions and other terms and conditions:
BGE Company Class A
Preferred Stock Preferred Stock
--------------- ---------------
Series B 4 1/2% Series B 4 1/2%
Series C 4% Series C 4%
Series D 5.40% Series D 5.40%
Upon such conversion, all such shares of BGE Preferred Stock shall be canceled
and cease to exist, and each holder of a certificate representing any such
shares shall cease to have any rights with respect thereto, except the right to
receive the shares of Company Class A Preferred Stock to be issued in
consideration therefor upon surrender of such certificate in accordance with
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Section 2.3.
(f) Conversion of BGE Preference Stock. (i) Each issued and
outstanding share of each series of BGE Preference Stock, other than shares
canceled pursuant to Section 2.1(d) and BGE Dissenting Preference Shares (as
defined in Section 2.2(a)) shall be converted into the right to receive one duly
authorized, validly issued, fully paid and nonassessable share of preference
stock, $100 par value, of the Company ("Company Preference Stock"), of the
respective series specified below, with equal stated value and dividends and
like redemption provisions and other terms and conditions:
BGE Company
Preference Stock Preference Stock
----------------- ------------------
7.50% 1986 Series 7.50% 1986 Series
6.75% 1987 Series 6.75% 1987 Series
6.95% 1987 Series 6.95% 1987 Series
7.80% 1989 Series 7.80% 1989 Series
8.25% 1989 Series 8.25% 1989 Series
8.625% 1990 Series 8.625% 1990 Series
7.85% 1991 Series 7.85% 1991 Series
7.78% 1973 Series 7.78% 1973 Series
7.125% 1993 Series 7.125% 1993 Series
6.97% 1993 Series 6.97% 1993 Series
6.70% 1993 Series 6.70% 1993 Series
6.99% 1995 Series 6.99% 1995 Series
(ii) Each share of a series of BGE Preference Stock
(other than shares canceled pursuant to Section 2.1(d) and BGE
Dissenting Preference Shares (as defined in Section 2.2(a))) that is
issued in the period after the date of this Agreement and before the
Closing Date shall be converted into the right to receive and become
one duly authorized, validly issued, fully paid and nonassessable share
of an analogous series of Company Preference Stock with equal stated
value and dividends and like redemption provisions and other terms and
conditions.
(iii) Upon such conversion, all such shares of BGE
Preference Stock shall be canceled and cease to exist, and each holder
of a certificate representing any such shares shall cease to have any
rights with respect thereto, except the right to receive the shares of
Company Preference Stock to be issued in consideration therefor upon
surrender of such certificate in accordance with Section 2.3.
(g) Conversion of PEPCO Preferred Stock. (i) Each issued and
outstanding share of each series of PEPCO Preferred Stock, (other than shares
canceled pursuant to Section 2.1(d) and PEPCO Dissenting Preferred Shares (as
defined in Section 2.2(b))), shall be converted into and become one duly
authorized, validly issued, fully paid and nonassessable
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share of preferred stock, $50 par value, of the Company ("Company Class B
Preferred Stock") (Company Class A Preferred Stock and Company Class B Preferred
Stock being hereinafter referred to collectively as "Company Preferred Stock"),
of the respective series specified below with equal stated value and dividends
and like redemption provisions and other terms and conditions:
PEPCO Company Class B
Preferred Stock Preferred Stock
------------------------ ------------------------
$2.44 Series of 1957 $2.44 Series of 1957
$2.46 Series of 1958 $2.46 Series of 1958
$2.28 Series of 1965 $2.28 Series of 1965
$2.44 Convertible Series $2.44 Convertible Series
of 1966 of 1966
$3.82 Series of 1969 $3.82 Series of 1969
$3.37 Series of 1987 $3.37 Series of 1987
Auction Series A Auction Series A
$3.89 Series of 1991 $3.89 Series of 1991
$3.40 Series of 1992 $3.40 Series of 1992
(ii) Each share of a series of PEPCO Preferred Stock
(other than shares canceled pursuant to Section 2.1(d) and PEPCO
Dissenting Preferred Shares (as defined in Section 2.2(b))), that is
issued in the period after the date of this Agreement and before the
Closing Date shall be converted into and become the right to receive
one duly authorized, validly issued, fully paid and nonassessable share
of an analogous series of Company Preferred Stock with equal stated
value and dividends and like redemption provisions and other terms and
conditions as the canceled share of PEPCO Preferred Stock.
(iii) Upon such conversion, all shares of PEPCO Preferred
Stock shall be canceled and cease to exist, and each holder of a
certificate representing any such shares shall cease to have any rights
with respect thereto, except the right to receive the shares of Company
Class B Preferred Stock to be issued in consideration therefor upon
surrender of such certificate in accordance with Section 2.3.
Section 2.2 Dissenting Shares.
(a) BGE Dissenting Shares. All of the rights otherwise
accruing from shares of BGE Preferred Stock or shares of BGE Preference Stock
held by any holder entitled to and seeking relief as a dissenting shareholder
with respect to such shares (the "BGE Dissenting Preferred Shares" and the "BGE
Dissenting Preference Shares", respectively) including voting, dividend and
distribution rights, shall continue until the Merger shall have been
consummated, at which time all such rights shall be canceled and the BGE
Dissenting Preferred Shares and BGE Dissenting Preference Shares shall entitle
the holder only to the right to receive such
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consideration as may be due pursuant to the MGCA. If such right to consideration
is terminated other than by the purchase of such shares by the Company, then
such shares shall cease to be BGE Dissenting Preferred Shares or BGE Dissenting
Preference Shares, as the case may be, and shall be converted into and represent
the right to receive Company Class A Preferred Stock as provided in Section
2.1(e), or Company Preference Stock as provided in Section 2.1(f), as the case
may be.
(b) PEPCO Dissenting Shares. (i) Shares of PEPCO Common Stock
held by any holder entitled to and seeking relief as a dissenting shareholder
under either Section 13.1-730 of the VSCA or Section 29-373 of the DCBCA (the
"PEPCO Dissenting Common Shares") shall not be converted into the right to
receive Company Common Stock but shall be converted into such consideration as
may be due with respect to such shares pursuant to the applicable provisions of
the VSCA and the DCBCA, unless and until the right of such holder to receive
payment of fair value for such PEPCO Dissenting Common Shares terminates in
accordance with Section 13.1-730 of the VSCA and Section 29-373 of the DCBCA. If
such right is terminated other than by the purchase of such shares by the
Company, then such shares shall cease to be PEPCO Dissenting Common Shares and
shall be converted into and represent the right to receive Company Common Stock
as provided in Section 2.1(c).
(ii) All of the rights otherwise accruing from shares of
PEPCO Preferred Stock held by any holder entitled to and seeking relief
as a dissenting shareholder with respect to such shares (the "PEPCO
Dissenting Preferred Shares"), including voting, dividend and
distribution rights, shall continue until the Merger shall have been
consummated, at which time all such rights shall be canceled and the
PEPCO Dissenting Preferred Shares shall entitle the holder only to the
right to receive such consideration as may be due pursuant to the VSCA
and the DCBCA. If such right to consideration is terminated other than
by the purchase of such shares by the Company, then such shares shall
cease to be PEPCO Dissenting Preferred Shares and shall be converted
into and represent the right to receive Company Class B Preferred Stock
as provided in Section 2.1(g).
Section 2.3 Exchange of Certificates.
(a) Deposit with Exchange Agent. As soon as practicable after
the Effective Time, the Company shall deposit with a bank or trust company
mutually agreeable to BGE and PEPCO (the "Exchange Agent") certificates
representing shares of Company Common Stock, Company Preferred Stock and Company
Preference Stock required to effect the exchanges referred to in Section 2.1,
and shares that would be issued to the holders of PEPCO Common Stock but for the
provisions of Section 2.3(d).
(b) Exchange Procedures. As soon as practicable after the
Effective Time, the Exchange Agent shall mail to each holder of record of a
certificate or certificates that, immediately prior to the Effective Time,
represented outstanding shares of BGE Common Stock, BGE Preferred Stock, BGE
Preference Stock, PEPCO Common Stock or PEPCO Preferred
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Stock (collectively, the "Certificates") that were converted (collectively, the
"Converted Shares") into the right to receive shares of Company Common Stock,
Company Preferred Stock or Company Preference Stock (collectively, the "Company
Shares") pursuant to Section 2.1, (i) a form of letter of transmittal (which
shall specify that delivery shall be effected, and risk of loss and title to any
Certificate shall pass, only upon actual delivery of such Certificate to the
Exchange Agent) and (ii) instructions for use in effecting the surrender of
Certificates in exchange for certificates representing Company Shares. Upon
surrender of a Certificate to the Exchange Agent (or to such other agent or
agents as may be appointed by agreement of BGE and PEPCO), together with a duly
executed letter of transmittal and such other documents as the Exchange Agent
shall require, the holder of such Certificate shall be entitled to receive in
exchange therefor a certificate representing the number of whole Company Shares
that such holder has the right to receive pursuant to the provisions of this
Article II. In the event of a transfer of ownership of Converted Shares that is
not registered in the transfer records of BGE or PEPCO, as the case may be, a
certificate representing the proper number of Company Shares may be issued to
the transferee if the Certificate representing such Converted Shares is
presented to the Exchange Agent, accompanied by all documents required to
evidence and effect such transfer and by evidence satisfactory to the Exchange
Agent that any applicable stock transfer taxes have been paid. If any
Certificate shall have been lost, stolen, mislaid or destroyed, then upon
receipt of (x) an affidavit of that fact from the holder claiming such
Certificate to be lost, mislaid, stolen or destroyed, (y) such bond, security or
indemnity as the Company or the Exchange Agent may reasonably require, and (z)
any other documentation necessary to evidence and effect the bona fide exchange
thereof, the Exchange Agent shall issue to such holder a certificate
representing the number of Company Shares into which the shares represented by
such lost, stolen, mislaid or destroyed Certificate shall have been converted.
Until surrendered as contemplated by this Section 2.3, each Certificate shall be
deemed at any time after the Effective Time to represent only the right to
receive upon such surrender a certificate representing Company Shares and cash
in lieu of any fractional shares of Company Common Stock as contemplated by this
Section 2.3.
(c) Distributions with Respect to Unexchanged Shares. No
dividends or other distributions declared or made after the Effective Time with
respect to Company Shares with a record date after the Effective Time shall be
paid to the holder of any unsurrendered Certificate with respect to the Company
Shares represented thereby, and no cash payment in lieu of fractional shares
shall be made to any such holder pursuant to Section 2.3(d), until the holder of
record of such Certificate shall surrender such Certificate as contemplated by
Section 2.3(b). Subject to the effect of unclaimed property, escheat and other
applicable laws, following surrender of any such Certificate there shall be paid
to the holder of the certificates representing whole Company Shares issued in
exchange therefor, without interest, (i) at the time of such surrender or as
soon thereafter as may be practicable, the amount of any cash payable in lieu of
a fractional Company Share to which such holder is entitled pursuant to Section
2.3(d) and the amount of dividends or other distributions with a record date
after the Effective Time theretofore paid with respect to such whole Company
Shares and (ii) at the appropriate payment date, the amount of dividends or
other distributions with a record date after the Effective Time but prior to
surrender and a payment date subsequent to surrender payable with respect to
such
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whole Company Shares.
(d) No Fractional Securities. (i) No certificates or scrip
representing fractional Company Shares shall be issued upon the surrender for
exchange of Certificates, and such fractional share interests will not entitle
the owner thereof to vote or to any rights of a stockholder of Company Shares.
(ii) As promptly as practicable following the Effective
Time, the Exchange Agent shall determine the excess of (x) the number
of full shares of Company Common Stock delivered to the Exchange Agent
by the Company pursuant to Section 2.3(a) over (y) the aggregate number
of whole shares of Company Common Stock to be issued pursuant to
Section 2.1, such excess being herein called the "Excess Shares." As
soon after the Effective Time as practicable, the Exchange Agent, as
agent for the holders of PEPCO Common Stock, shall sell the Excess
Shares at then prevailing prices on the New York Stock Exchange, Inc.
("NYSE"), all in the manner provided in paragraph (iii) of this Section
2.3(d).
(iii) The sale of the Excess Shares by the Exchange Agent
shall be executed on the NYSE through one or more member firms of the
NYSE and shall be executed in round lots to the extent practicable.
Until the net proceeds of such sale or sales have been distributed to
the holders of PEPCO Common Stock, the Exchange Agent shall hold such
proceeds in trust for the holders of PEPCO Common Stock (the "Common
Shares Trust"). The Company shall pay all commissions, transfer taxes
and other out-of-pocket transaction costs, including the expenses and
compensation, of the Exchange Agent incurred in connection with such
sale of the Excess Shares. The Exchange Agent shall determine the
portion of the Common Shares Trust to which each holder of PEPCO Common
Stock is entitled.
(iv) As soon as practicable after the determination of
the amount of cash, if any, to be paid to holders of PEPCO Common Stock
in lieu of any fractional share interests, the Exchange Agent shall
distribute such amounts to such holders of PEPCO Common Stock in
accordance with this Section 2.3.
(e) Closing of Transfer Books. From and after the Effective
Time, the stock transfer books of BGE and PEPCO shall be closed and no transfer
of any capital stock of BGE or PEPCO shall thereafter be made. If after the
Effective Time Certificates are presented to the Company for registration of
transfer, they shall be canceled and exchanged for certificates representing the
number of whole Company Shares and the cash amount, if any, determined in
accordance with this Article II.
(f) Termination of Duties of Exchange Agent. Any certificates
representing Company Shares deposited with the Exchange Agent pursuant to
Section 2.3(a) and not exchanged within one year after the Effective Time
pursuant to this Section 2.3 shall be returned by the Exchange Agent to the
Company, which shall thereafter act as Exchange Agent. All
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funds held by the Exchange Agent for payment to the holders of unsurrendered
Certificates and unclaimed at the end of one year from the Effective Time shall
be returned to the Company, whereupon any holder of unsurrendered Certificates
shall look as a general unsecured creditor only to the Company for payment of
any funds to which such holder may be entitled, subject to applicable law. The
Company shall not be liable to any person for such shares or funds delivered to
a public official pursuant to any applicable abandoned property, escheat or
similar law.
ARTICLE III.
THE CLOSING
Section 3.1 Closing. The closing of the Merger (the "Closing")
shall take place at the offices of Winthrop, Stimson, Putnam & Roberts, One
Battery Park Plaza, New York, New York, 10004-1490 at 10:00 A.M., local time, on
the second business day immediately following the date on which the last of the
conditions set forth in Article VIII is fulfilled or waived (or, if such second
business day immediately falls on a record date for the payment of dividends on
the PEPCO or BGE Common Stock, on the first business day thereafter that is not
such a record date), or at such other time and date and place as PEPCO and BGE
shall mutually agree (the "Closing Date").
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PEPCO
PEPCO represents and warrants to BGE as follows:
Section 4.1 Organization and Qualification.
(a) Except as set forth in Section 4.1 or 4.2 of the PEPCO
Disclosure Schedule (as defined in Section 7.6(a)(i)), (i) PEPCO is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdictions of incorporation and (ii) each of PEPCO's subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation and each of PEPCO and its subsidiaries has
all requisite corporate power and authority, and is duly authorized by all
necessary regulatory approvals and orders, to own, lease and operate its assets
and properties and to carry on its business as it is now being conducted, and is
duly qualified and in good standing to do business in each jurisdiction in which
the nature of its business or the ownership or leasing of its assets and
properties makes such qualification necessary, other than, in the case of clause
(ii), such failures which, when taken together with all other such failures,
will not have a material adverse effect on the business, operations, properties,
assets, condition (financial or otherwise), prospects or results of operations
of PEPCO and its subsidiaries taken as a whole or on the consummation
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of the transactions contemplated by this Agreement (any such material adverse
effect being hereinafter referred to as a "PEPCO Material Adverse Effect").
(b) As used in this Agreement the term "subsidiary" with
respect to any person shall mean any corporation or other entity (including
partnerships and other business associations) in which such person directly or
indirectly owns at least a majority of the outstanding voting securities or
other equity interests having the power, under ordinary circumstances, to elect
a majority of the directors, or otherwise to direct the management and policies,
of such corporation or other entity.
Section 4.2 Subsidiaries.
(a) Section 4.2 of the PEPCO Disclosure Schedule sets forth a
description as of the date hereof of all subsidiaries and joint ventures of
PEPCO, including the name of each such entity, the state or jurisdiction of its
incorporation, a brief description of the principal line or lines of business
conducted by each such entity and PEPCO's interest therein.
(b) Except as set forth in Section 4.2 of the PEPCO Disclosure
Schedule, none of the entities listed in such Section 4.2 is a "public utility
company", a "holding company", a "subsidiary company" or an "affiliate" of any
public utility company within the meaning of Section 2(a)(5), 2(a)(7), 2(a)(8)
or 2(a)(11) of the Public Utility Holding Company Act of 1935, as amended (the
"1935 Act"), respectively.
(c) Except as set forth in Section 4.2 of the PEPCO Disclosure
Schedule, all of the issued and outstanding shares of capital stock of each
subsidiary of PEPCO are validly issued, fully paid, nonassessable and free of
preemptive rights and are owned directly or indirectly by PEPCO free and clear
of any liens, claims, encumbrances, security interests, equities, charges and
options of any nature whatsoever, and there are no outstanding subscriptions,
options, calls, contracts, voting trusts, proxies or other commitments,
understandings, restrictions, arrangements, rights or warrants, including any
right of conversion or exchange under any outstanding security, instrument or
other agreement, obligating any such subsidiary to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of its capital stock or
obligating it to grant, extend or enter into any such agreement or commitment.
(d) As used in this Agreement, the term "joint venture" with
respect to any person shall mean any corporation or other entity (including
partnerships and other business associations and joint ventures) in which such
person or one or more of its subsidiaries owns an equity interest that is less
than a majority of any class of the outstanding voting securities or equity,
other than equity interests held for passive investment purposes that are less
than 5% of any class of the outstanding voting securities or equity.
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Section 4.3 Capitalization.
(a) As of the date hereof, the authorized capital
stock of PEPCO consists of 200,000,000 shares of PEPCO Common Stock,
11,242,227 shares of PEPCO Preferred Stock and 8,800,000 shares of
PEPCO Preference Stock.
(b) As of the close of business on August 31, 1995,
(i) 118,491,960 shares of PEPCO Common Stock, (ii) 5,376,652 shares of
PEPCO Preferred Stock, and (iii) no shares of PEPCO Preference Stock
were issued and outstanding.
(c) All of the issued and outstanding shares of the
capital stock of PEPCO are validly issued, fully paid, nonassessable
and free of preemptive rights.
(d) Except for the PEPCO Option and as set forth in
Section 4.3(a) of the PEPCO Disclosure Schedule, there are no
outstanding subscriptions, options, calls, contracts, voting trusts,
proxies or other commitments, understandings, restrictions,
arrangements, rights or warrants, including any right of conversion or
exchange under any outstanding security, instrument or other agreement,
obligating PEPCO or any of its subsidiaries to issue, deliver or sell,
or cause to be issued, delivered or sold, additional shares of the
capital stock of PEPCO or obligating PEPCO or any of its subsidiaries
to grant, extend or enter into any such agreement or commitment.
Section 4.4 Authority; Non-Contravention; Statutory Approvals;
Compliance.
(a) Authority.
(i) PEPCO has all requisite power and authority to enter
into this Agreement and the PEPCO Option and, subject in the case of
this Agreement to the PEPCO Shareholders' Approvals (as defined in
Section 4.13) and the PEPCO Required Statutory Approvals (as defined in
Section 4.4(c)), to consummate the transactions contemplated hereby and
thereby.
(ii) The execution and delivery of this Agreement and the
PEPCO Option and, subject in the case of this Agreement to obtaining
the PEPCO Shareholders' Approvals, the consummation by PEPCO of the
transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action on the part of PEPCO.
(iii) This Agreement and the PEPCO Option have been duly
and validly executed and delivered by PEPCO and, assuming the due
authorization, execution and delivery hereof and thereof by BGE and, in
the case of this Agreement, the Company, constitute the valid and
binding obligations of PEPCO, enforceable against PEPCO in accordance
with their respective terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or other
similar laws
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affecting the enforcement of creditors' rights generally, and except
that the availability of equitable remedies, including specific
performance, may be subject to the discretion of any court before which
any proceedings may be brought.
(b) Non-Contravention. Except as set forth in Section 4.4(b)
of the PEPCO Disclosure Schedule, the execution and delivery of this Agreement
and the PEPCO Option by PEPCO do not, and the consummation of the transactions
contemplated hereby and thereby will not, violate, conflict with or result in a
breach of any provision of, or constitute a default (with or without notice or
lapse of time or both) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination, cancelation or
acceleration of any obligation or the loss of a material benefit under, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties or assets (any such violation, conflict, breach,
default, right of termination, cancelation or acceleration, loss or creation, a
"Violation") of, PEPCO or any of its subsidiaries or, to the knowledge of PEPCO,
any of its joint ventures, under any provisions of
(i) the articles of incorporation, bylaws or similar
governing documents of PEPCO or any of its subsidiaries or joint
ventures,
(ii) subject in the case of this Agreement to obtaining
the PEPCO Required Statutory Approvals and the receipt of the PEPCO
Shareholders' Approvals, any statute, law, ordinance, rule, regulation,
judgment, decree, order, injunction, writ, permit or license of any
court, governmental or regulatory body (including a stock exchange or
other self-regulatory body) or authority, domestic or foreign (each, a
"Governmental Authority") applicable to PEPCO or any of its
subsidiaries or joint ventures or any of their respective properties or
assets or
(iii) subject in the case of this Agreement to obtaining
the third-party consents or other approvals set forth in Section 4.4(b)
of the PEPCO Disclosure Schedule (the "PEPCO Required Consents"), any
note, bond, mortgage, indenture, deed of trust, license, franchise,
permit, concession, contract, lease or other instrument, obligation or
agreement of any kind to which PEPCO or any of its subsidiaries or
joint ventures is now a party or by which it or any of its properties
or assets may be bound or affected,
excluding from the foregoing clauses (ii) and (iii) such Violations as would
not, in the aggregate, reasonably likely have a PEPCO Material Adverse Effect.
(c) Statutory Approvals. Except as set forth in Section 4.4(c)
of the PEPCO Disclosure Schedule, no declaration, filing or registration with,
or notice to or authorization, consent or approval of any Governmental Authority
is necessary for the execution and delivery of this Agreement or the PEPCO
Option by PEPCO or the consummation by PEPCO of the transactions contemplated
hereby or thereby, the failure to obtain, make or give which would reasonably
likely have a PEPCO Material Adverse Effect (the "PEPCO Required Statutory
Approvals"), it being understood that references in this Agreement to
"obtaining" such PEPCO
-12-
Required Statutory Approvals shall mean making such declarations, filings or
registrations; giving such notice; obtaining such consents or approvals; and
having such waiting periods expire as are necessary to avoid a violation of law.
(d) Compliance.
(i) Except as set forth in Section 4.4(d) or 4.11 of the
PEPCO Disclosure Schedule, or as disclosed in the PEPCO SEC Reports (as
defined in Section 4.5), neither PEPCO nor any of its subsidiaries nor,
to the knowledge of PEPCO, any of its joint ventures is in violation of
or under investigation with respect to, or has been given notice or
been charged with any violation of, any law, statute, order, rule,
regulation, ordinance or judgment (including, without limitation, any
applicable environmental law, ordinance or regulation) of any
Governmental Authority, except for violations that do not have, and,
would not reasonably likely have, a PEPCO Material Adverse Effect.
(ii) Except as set forth in Section 4.4(d) or 4.11 of the
PEPCO Disclosure Schedule, PEPCO, its subsidiaries and, to the
knowledge of PEPCO, its joint ventures have all permits, licenses,
franchises and other governmental authorizations, consents and
approvals necessary to conduct their respective businesses as currently
conducted, except those the failure to obtain which would not
reasonably likely have a PEPCO Material Adverse Effect.
Section 4.5 Reports and Financial Statements.
(a) Since January 1, 1991, the filings required to be made by
PEPCO and its subsidiaries under the Securities Act of 1933, as amended (the
"Securities Act"), the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), applicable District of Columbia, Virginia, Maryland and
Pennsylvania laws and regulations, the Federal Power Act (the "Power Act") or
the 1935 Act have been filed with the SEC, the District of Columbia Public
Service Commission (the "D.C. Commission"), the Maryland Public Service
Commission (the "Maryland Commission") the Virginia State Corporation Commission
(the "Virginia Commission"), the Pennsylvania Public Utility Commission (the
"Pennsylvania Commission"), or the Federal Energy Regulatory Commission (the
"FERC"), as required by each such law or regulation, including all forms,
statements, reports, agreements and all documents, exhibits, amendments and
supplements appertaining thereto, and complied in all material respects with all
applicable requirements of the appropriate act and the rules and regulations
thereunder.
(b) PEPCO has made available to BGE a true and complete copy
of each report, schedule, registration statement and definitive proxy statement
filed by PEPCO with the SEC since January 1, 1992 (as such documents have since
the time of their filing been amended, the "PEPCO SEC Reports").
(c) The PEPCO SEC Reports, including without limitation any
financial statements or schedules included therein, at the time filed, and any
forms, reports or other
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documents filed by PEPCO with the SEC after the date hereof, did not and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(d) The audited consolidated financial statements and
unaudited interim financial statements of PEPCO included in the PEPCO SEC
Reports (collectively, the "PEPCO Financial Statements") have been prepared, and
will be prepared, in accordance with GAAP applied on a consistent basis (except
as may be indicated therein or in the notes thereto and except with respect to
unaudited statements as permitted by Form 10-Q) and fairly present in all
material respects the financial position of PEPCO as of the respective dates
thereof or the results of operations and cash flows for the respective periods
then ended, as the case may be, subject, in the case of the unaudited interim
financial statements, to normal, recurring audit adjustments.
(e) True, accurate and complete copies of the Articles of
Incorporation and Bylaws of PEPCO, as in effect on the date hereof, have been
delivered to BGE.
Section 4.6 Absence of Certain Changes or Events; Absence of
Undisclosed Liabilities.
(a) Except as set forth in the PEPCO SEC Reports or Section
4.6 of the PEPCO Disclosure Schedule, from December 31, 1994 through the date
hereof each of PEPCO and each of its subsidiaries has conducted its business
only in the ordinary course of business consistent with past practice and there
has not been, and no fact or condition exists that would reasonably likely have,
a PEPCO Material Adverse Effect.
(b) Neither PEPCO nor any of its subsidiaries has any
liabilities or obligations (whether absolute, accrued, contingent or otherwise)
of a nature required by GAAP to be reflected in a consolidated corporate balance
sheet, except liabilities, obligations or contingencies that are accrued or
reserved against in the consolidated financial statements of PEPCO or reflected
in the notes thereto for the year ended December 31, 1994 or that were incurred
after December 31, 1994 in the ordinary course of business and would not
reasonably likely have a PEPCO Material Adverse Effect.
Section 4.7 Litigation. Except as set forth in the PEPCO SEC
Reports or as set forth in Section 4.7 or 4.11 of the PEPCO Disclosure Schedule,
there are no
(i) claims, suits, actions or proceedings, pending or,
to the knowledge of PEPCO, threatened, nor are there, to the knowledge
of PEPCO, any investigations or reviews pending or threatened against,
relating to or affecting PEPCO or any of its subsidiaries or joint
ventures, or
(ii) judgments, decrees, injunctions, rules or orders of
any court, governmental department, commission, agency, instrumentality
or authority or any
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arbitrator applicable to PEPCO or any of its subsidiaries or joint
ventures, including any allegations of non-compliance with that certain
consent decree in effect pursuant to In re Potomac Electric Power
Company Employment Litigation, Civ. # 86-0603 (D.D.C. Mar. 1993)
(R.C.L.)
that would reasonably likely have a PEPCO Material Adverse Effect.
Section 4.8 Registration Statement and Proxy Statement.
(a) None of the information supplied or to be supplied by or
on behalf of PEPCO for inclusion or incorporation by reference in
(i) the registration statement on Form S-4 to be filed
with the SEC by the Company in connection with the issuance of shares
of Company Common Stock, Company Preferred Stock and Company Preference
Stock in the Merger (the "Registration Statement") will, at the time
the Registration Statement becomes effective under the Securities Act,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and
(ii) the joint proxy statement in definitive form
relating to the meetings of the shareholders of BGE and PEPCO to be
held in connection with the Merger and the prospectus relating to the
Company Common Stock, Company Preferred Stock and Company Preference
Stock to be issued in the Merger (the "Joint Proxy Statement") will, at
the date mailed to such shareholders and, as the same may be amended or
supplemented, at the times of such meetings, contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(b) Each of the Registration Statement and the Joint Proxy
Statement, as of such respective dates, will comply as to form in all material
respects with the applicable provisions of the Securities Act and the Exchange
Act and the rules and regulations thereunder.
Section 4.9 Tax Matters.
(a) Except as set forth on Schedule 4.9(a) of the PEPCO
Disclosure Schedule, PEPCO and each of its subsidiaries has
(i) filed all material Tax Returns required to be filed
by it within the time and in the manner prescribed by law,
(ii) paid all Taxes that are shown on such Tax Returns as
due and payable within the time and in the manner prescribed by law,
and
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(iii) paid all Taxes otherwise required to be paid.
(b) Except as set forth on Schedule 4.9(b) of the PEPCO
Disclosure Schedule, as of the date hereof,
(i) there are no claims, assessments, audits or
administrative or court proceedings pending against PEPCO or any of its
subsidiaries for any alleged deficiency in Tax, and
(ii) none of PEPCO or any of its subsidiaries has
executed any outstanding waivers or comparable consents regarding the
application of the statute of limitations with respect to any Taxes or
Tax Returns.
(c) PEPCO has established adequate accruals for Taxes and for
any liability for deferred Taxes in the PEPCO Financial Statements in accordance
with GAAP.
(d) "Taxes", as used in this Agreement, means any federal,
state, county, local or foreign taxes, charges, fees, levies or other
assessments, including, without limitation, all net income, gross income, sales
and use, ad valorem, transfer, gains, profits, excise, franchise, real and
personal property, gross receipt, capital stock, production, business and
occupation, disability, employment, payroll, license, estimated, stamp, custom
duties, severance or withholding taxes or charges imposed by any governmental
entity, and includes any interest and penalties (civil or criminal) on or
additions to any such taxes, charges, fees, levies or other assessments, and any
expenses incurred in connection with the determination, settlement or litigation
of any liability for any of the foregoing.
(e) "Tax Return", as used in this Agreement, means any report,
return or other information required to be supplied to a governmental entity
with respect to Taxes, including, where permitted or required, combined or
consolidated returns for any group of entities that includes PEPCO or any of its
subsidiaries on the one hand, or BGE or any of its subsidiaries on the other
hand.
Section 4.10 Employee Matters; ERISA.
(a) Benefit Plans. (i) Section 4.10(a) of the PEPCO Disclosure
Schedule contains a true and complete list, as of the date hereof, of:
(A) each benefit plan, program, policy or arrangement
providing for pension, profit sharing, supplemental death and
dismemberment, life and health insurance and benefits
(including medical, dental and hospitalization), savings,
bonus, deferred compensation, incentive compensation
(including stock options, restricted stock, stock appreciation
rights, performance units, dividend equivalents and each other
plan, program, policy, or arrangement under which shares of
PEPCO Common Stock are required to be transferred or could be
transferred),
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holiday, vacation, severance pay, sick pay, sick leave, short
and long-term disability, tuition assistance and relocation
benefits plan which has been adopted, approved or implemented
by PEPCO or any of its subsidiaries in writing covering a
group or classification of current or former employees or
directors of PEPCO (or any of its subsidiaries) or any group
or classification of their dependents or beneficiaries, or
providing benefits to such persons in respect of services
provided to any such entity, including, but not limited to,
any "employee benefit plan" within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") (whether or not terminated, if PEPCO or any
of its subsidiaries could have statutory or contractual
liability with respect thereto on or after the date hereof)
but not including any individual contract, award or agreement;
(B) each employment or severance contract (including
any payment, right or benefit resulting from any transaction
contemplated by this Agreement) and all stock options,
restricted stock, performance units, stock appreciation rights
or dividend equivalents, bonus or other contract for personal
services and each other contract under which shares of PEPCO
Common Stock are required to be transferred or could be
transferred and the amount of such shares (in the aggregate)
with or covering current or former officers or directors; and
(1) there are no other employment or severance
contracts covering current or former employees of
PEPCO below the level of officer which have not been
disclosed and made available to BGE with respect to
which PEPCO or any of its subsidiaries are reasonably
likely to have a PEPCO Material Adverse Effect; and
(2) with respect to any officer of PEPCO there have
been no awards of stock options, restricted stock,
performance units, stock appreciation rights or
dividend equivalents in respect of shares of PEPCO
Common Stock subsequent to the most recent PEPCO
proxy statement made outside of the ordinary course
or inconsistent with past practice, and with respect
to all employees of PEPCO below the level of officer
there have been no awards of stock options,
restricted stock, performance units, stock
appreciation rights or dividend equivalents, with
respect to shares of PEPCO Common Stock, which, in
the aggregate, have been made outside of the ordinary
course or inconsistent with past practice; and
(C) each "employee pension benefit plan" (within the
meaning of ERISA ss. 3(2)) subject to Title IV of ERISA or the
minimum funding requirements of ERISA ss. 302 (whether or not
included in (A) above) maintained or contributed to by PEPCO
or any entity required to be aggregated therewith pursuant to
Code ss. 414(b) or (c) (a "PEPCO ERISA Affiliate") at any time
during the six calendar year period immediately preceding the
date hereof
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(collectively, the "PEPCO Pension Benefit Plans");
(ii) For purposes of this Agreement, "PEPCO Benefit Plan"
shall mean each benefit plan, program, policy, contract and arrangement
described in subsections (i)(A) and (B) above (whether or not
terminated) if PEPCO or any of its subsidiaries could have statutory or
contractual liability with respect thereto on or after the date hereof.
(iii) With respect to each PEPCO Benefit Plan and PEPCO
Pension Benefit Plan, the source or sources of benefit payments under
the plan (including, where applicable, the identity of any trust
(whether or not a grantor trust), insurance contract, custodial
account, agency agreement, or other arrangement that holds the assets
of, or serves as a funding vehicle or source of benefits for such PEPCO
Benefit Plan or PEPCO Pension Benefit Plan).
(b) Contributions. Except as set forth in Section 4.10(b) of
the PEPCO Disclosure Schedule, all material contributions and other material
payments required to have been made by PEPCO or any of its subsidiaries or any
PEPCO ERISA Affiliate pursuant to any PEPCO Benefit Plan or PEPCO Pension
Benefit Plan (or to any person pursuant to the terms thereof) have been timely
made or the amount of such payment or contribution obligation has been reflected
in the PEPCO Financial Statements.
(c) Qualification; Compliance. Except as set forth in Section
4.10(c) of the PEPCO Disclosure Schedule:
(i) Each PEPCO Benefit Plan and PEPCO Pension Benefit
Plan that is intended to be "qualified" within the meaning of Code ss.
401(a) has been determined by the IRS to be so qualified, or
application for such a determination has been made prior to the
expiration of the applicable remedial amendment period and PEPCO agrees
to make such plan amendments as the IRS may require in order to issue a
favorable determination letter.
(ii) PEPCO and each of its subsidiaries are in compliance
with, and each PEPCO Benefit Plan is and has been operated in
compliance with, all applicable laws, rules and regulations governing
such plan, including, without limitation, ERISA and the Code, except
for violations that would not reasonably likely have a PEPCO Material
Adverse Effect.
(iii) To the knowledge of PEPCO, no individual or entity
has engaged in any transaction with respect to any PEPCO Benefit Plan
as a result of which PEPCO or any of its subsidiaries could reasonably
expect to be subject to liability pursuant to ERISA ss. 409 or ss. 502,
or subject to an excise tax pursuant to Code ss. 4975 which would
reasonably likely have a PEPCO Material Adverse Effect.
(iv) To the knowledge of PEPCO,
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(A) no PEPCO Benefit Plan is subject to any
ongoing audit, investigation, or other administrative
proceeding of the Internal Revenue Service, the Department of
Labor, or any other federal, state, or local governmental
entity, and
(B) no PEPCO Benefit Plan is the subject of any
pending application for administrative relief under any
voluntary compliance program of any governmental entity
(including, without limitation, the Internal Revenue Service's
Voluntary Compliance Resolution Program or Walk-in Closing
Agreement Program, or the Department of Labor's Delinquent
Filer Voluntary Compliance
Program).
(d) Liabilities. With respect to the PEPCO Pension Benefit
Plans, individually and in the aggregate, no termination or partial termination
of any PEPCO Pension Benefit Plan or other event has occurred, and, to the
knowledge of PEPCO, there exists no condition or set of circumstances, that
could subject PEPCO, any of its subsidiaries or any PEPCO ERISA Affiliate to any
liability arising under the Code, ERISA or any other applicable law (including,
without limitation, any liability to or under any such plan or to the Pension
Benefit Guaranty Corporation (the "PBGC")), or under any indemnity agreement to
which PEPCO, any of its subsidiaries or any PEPCO ERISA Affiliate is a party,
excluding liability for benefit claims and funding obligations payable in the
ordinary course and liability for PBGC insurance premiums payable in the
ordinary course, which liability would reasonably likely have a PEPCO Material
Adverse Effect.
(e) Welfare Plans. Except as set forth in Section 4.10(e) of
the PEPCO Disclosure Schedule, no PEPCO Benefit Plan that is a "welfare plan"
(within the meaning of ERISA ss. 3(1)) provides benefits for any retired or
former employees (other than as required pursuant to ERISA ss. 601).
(f) Documents Made Available. PEPCO has made available to BGE
a true and correct copy of each collective bargaining agreement to which PEPCO
is a party or under which PEPCO has obligations and, with respect to each PEPCO
Benefit Plan and each PEPCO Pension Benefit Plan (as of May 31, 1995), as
applicable:
(i) the current plan document (including all amendments
adopted since the most recent restatement) and its most recently
prepared summary plan description and all summaries of material
modifications prepared since the most recent summary plan description,
(ii) annual reports (IRS Form 5500 Series) including
financial statements for the last three years,
(iii) each related trust agreement, insurance contract,
service provider or investment management agreement (including all
amendments to each such document),
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(iv) the most recent IRS determination letter with
respect to the qualified status under Code ss. 401(a) of such plan, and
(v) actuarial reports or valuations for the last three
years.
To the extent that documents referred to in clauses (i) through (v) of this
Section 4.10(f) have not been made available to BGE with respect to the period
following May 31, 1995, no information that is disclosed in such documents (and
that has not been disclosed previously in documents that have been made
available to BGE) is reasonably likely to have a PEPCO Material Adverse Effect.
(g) Payments Resulting from Merger. Other than as set forth in
Section 4.10(g) of the PEPCO Disclosure Schedule, the consummation or
announcement of any transaction contemplated by this Agreement will not (either
alone or upon the occurrence of any additional or further acts or events) result
in any
(i) payment (whether of severance pay or otherwise)
becoming due from the Company or PEPCO or any of its subsidiaries to
any current or former officer or director thereof or to the trustee
under any "rabbi trust" or other funding arrangement,
(ii) benefit under any PEPCO Benefit Plan being
established or becoming accelerated, vested or payable, except for a
payment or benefit that would have been payable under the same terms
and conditions without regard to the transactions contemplated by this
Agreement, or
(iii) payment (whether of severance pay or otherwise)
becoming due from the Company or PEPCO or any of its subsidiaries to
any current or former employee of PEPCO below the level of officer
which such payments aggregated for such employees and former employees
as a group would reasonably likely have a PEPCO Material Adverse
Effect.
(h) Funded Status of Plans. Except as set forth in Section
4.10(h) of the PEPCO Disclosure Schedule, each PEPCO Pension Benefit Plan has
assets that, as of the date hereof, have a fair market value equal to or
exceeding the present value of the accrued benefit obligations thereunder on a
termination basis, as of the date hereof based on the actuarial methods, tables
and assumptions theretofore utilized by such plan's actuary in preparing such
plan's most recently prepared actuarial valuation report, except to the extent
that applicable law would require the use of different actuarial assumptions if
such plan was to be terminated as of the date hereof. No PEPCO Pension Benefit
Plan has incurred any "accumulated funding deficiency" (within the meaning of
ERISA ss. 302).
(i) Multiemployer Plans.
(i) Except as set forth in Section 4.10(i) of the PEPCO
Disclosure
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Schedule, no PEPCO Benefit Plan is or was a "multiemployer plan"
(within the meaning of ERISA ss. 4001(a)(3)), a multiple employer plan
described in Code ss. 413(c), or a "multiple employer welfare
arrangement" (within the meaning of ERISA ss. 3(40)); and none of
PEPCO, any subsidiary thereof or any PEPCO ERISA Affiliate has been
obligated to contribute to, or otherwise has or has had any liability
with respect to, any multiemployer plan, multiple employer plan, or
multiple employer welfare arrangement.
(ii) With respect to any PEPCO Benefit Plan that is
listed in Section 4.10(i) of the PEPCO Disclosure Schedule as a
multiemployer plan, none of PEPCO, any subsidiary thereof or any PEPCO
ERISA Affiliate has made or incurred a "complete withdrawal" or a
"partial withdrawal," as such terms are defined in ERISA ss.ss. 4203
and 4205, therefrom at any time during the six calendar year period
immediately preceding the date of this Agreement and the transactions
contemplated by the Agreement will not, in and of themselves, give rise
to such a "complete withdrawal" or "partial withdrawal."
(j) Modification or Termination of Plans. Except as set forth
in Section 4.10(j) of the PEPCO Disclosure Schedule or as permitted under
Section 6.9:
(i) neither PEPCO nor any subsidiary of PEPCO is subject
to any legal, contractual, equitable or other obligation to establish
as of any date any employee benefit plan of any nature, including
(without limitation) any pension, profit sharing, welfare,
post-retirement welfare, stock option, stock or cash award,
non-qualified deferred compensation or executive compensation plan,
policy or practice; and
(ii) the Company, PEPCO or one or more of its
subsidiaries or any PEPCO ERISA Affiliate have the right to, in any
manner, and without the consent of any employee, beneficiary or
dependent, employees' organization or other person, terminate, modify
or amend any PEPCO Benefit Plan or PEPCO Pension Benefit Plan (or its
participation in any such PEPCO Benefit Plan or PEPCO Pension Benefit
Plan) at any time sponsored, maintained or contributed to by PEPCO or
any of its subsidiaries or any PEPCO ERISA Affiliate, effective as of
any date before, on or after the Effective Time except to the extent
that any retroactive amendment would be prohibited by ERISA ss. 204(g)
or would adversely affect a vested accrued benefit or a previously
granted award under any such Plan not subject to ERISA ss. 204(g).
(k) Reportable Events; Claims. Except as set forth in Section
4.10(k) of the PEPCO Disclosure Schedule:
(i) no event constituting a "reportable event" (within
the meaning of ERISA ss. 4043(c)), for which the 30-day notice
requirement or penalty has not been waived by the PBGC, has occurred
with respect to any PEPCO Pension Benefit Plan, and
(ii) no liability, claim, action or litigation has been
made, commenced or,
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to the knowledge of PEPCO, threatened, by or against PEPCO or any of
its subsidiaries or any PEPCO ERISA Affiliate with respect to any PEPCO
Benefit Plan or any PEPCO Pension Benefit Plan (other than for benefits
or PBGC premiums payable in the ordinary course)
that would reasonably likely have a PEPCO Material Adverse Effect.
(l) Labor Agreements. Except as set forth in the PEPCO SEC
Reports or as set forth in Section 4.10(l) of the PEPCO Disclosure Schedule:
(i) neither PEPCO nor any of its subsidiaries is a party
to any collective bargaining agreement or other current labor agreement
with any labor union or organization. There is no current union
representation question involving employees of PEPCO or any of its
subsidiaries, nor does PEPCO or any of its subsidiaries know of any
activity or proceeding of any labor organization (or representative
thereof) or employee group (or representative thereof) to organize any
such employees;
(ii) there is no unfair labor practice charge or
grievance arising out of a collective bargaining agreement or other
grievance procedure against PEPCO or any of its subsidiaries pending,
or to the knowledge of PEPCO or any of its subsidiaries, threatened,
that has, or would reasonably likely have, a PEPCO Material Adverse
Effect;
(iii) there is no complaint, lawsuit or proceeding in any
forum by or on behalf of any present or former employee, any applicant
for employment or classes of the foregoing alleging breach of any
express or implied contract of employment, any law or regulation
governing employment or the termination thereof or other
discriminatory, wrongful or tortious conduct in connection with the
employment relationship against PEPCO or any of its subsidiaries
pending, or to the knowledge of PEPCO or any of its subsidiaries,
threatened, that has, or would reasonably likely have, a PEPCO Material
Adverse Effect;
(iv) there is no strike, dispute, slowdown, work stoppage
or lockout pending, or to the knowledge of PEPCO or any of its
subsidiaries, threatened, against or involving PEPCO or any of its
subsidiaries that has, or would reasonably likely have, a PEPCO
Material Adverse Effect;
(v) PEPCO and each of its subsidiaries are in compliance
with all applicable laws respecting employment and employment
practices, terms and conditions of employment, wages, hours of work and
occupational safety and health, except for non-compliance that does not
have, and would not reasonably likely have, a PEPCO Material Adverse
Effect; and
(vi) there is no proceeding, claim, suit, action or
governmental investigation pending or, to the knowledge of PEPCO or any
of its subsidiaries, threatened, in respect
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to which any current or former director, officer, employee or agent of
PEPCO or any of its subsidiaries is or may be entitled to claim
indemnification from PEPCO or any of its subsidiaries pursuant to their
respective articles of incorporation or by-laws or as provided in the
indemnification agreements listed on Section 4.10(l) of the PEPCO
Disclosure Schedule that has, or would reasonably likely have, a PEPCO
Material Adverse Effect.
Section 4.11 Environmental Protection.
(a) Compliance.
(i) Except as set forth in Section 4.11(a) of the PEPCO
Disclosure Schedule, each of PEPCO and each of its subsidiaries is in
compliance with all applicable Environmental Laws (as hereinafter
defined), except where the failure to be so in compliance would not
reasonably likely have a PEPCO Material Adverse Effect.
(ii) Except as set forth in Section 4.11(a) of the PEPCO
Disclosure Schedule, neither PEPCO nor any of its subsidiaries has
received any written communication from any person or Governmental
Authority that alleges that PEPCO or any of its subsidiaries is not in
compliance with applicable Environmental Laws, except where the failure
to be so in compliance would not reasonably likely have a PEPCO
Material Adverse Effect.
(b) Environmental Permits. Except as set forth in Section
4.11(b) of the PEPCO Disclosure Schedule, PEPCO and each of its subsidiaries has
obtained or applied for all environmental, health and safety permits and
authorizations (collectively, "Environmental Permits") necessary for the
construction of their facilities and the conduct of their operations, and all
such permits are in good standing or, where applicable, a renewal application
has been timely filed and is pending agency approval, and PEPCO and its
subsidiaries are in compliance with all terms and conditions of all such
Environmental Permits and are not required to make any expenditure in order to
obtain or renew any Environmental Permits, except where the failure to obtain or
be in such compliance and the requirement to make such expenditures would not
reasonably likely have a PEPCO Material Adverse Effect.
(c) Environmental Claims. Except as set forth in Section
4.11(c) of the PEPCO Disclosure Schedule, there is no Environmental Claim (as
hereinafter defined) pending, or to the knowledge of PEPCO and its subsidiaries,
threatened
(i) against PEPCO or any of its subsidiaries or joint
ventures,
(ii) against any person or entity whose liability for any
Environmental Claim PEPCO or any of its subsidiaries or joint ventures
has or may have retained or assumed either contractually or by
operation of law, or
-23-
(iii) against any real or personal property or operations
that PEPCO or any of its subsidiaries or joint ventures owns, leases or
manages, in whole or in part,
that, if adversely determined, would reasonably likely have a PEPCO Material
Adverse Effect.
(d) Releases. Except as set forth in Section 4.11(c) or
4.11(d) of the PEPCO Disclosure Schedule, PEPCO has no knowledge of any Release
(as hereinafter defined) of any Hazardous Material (as hereinafter defined) that
would be reasonably likely to form the basis of any Environmental Claim against
PEPCO or any subsidiaries or joint ventures of PEPCO, or against any person or
entity whose liability for any Environmental Claim PEPCO or any subsidiaries or
joint ventures of PEPCO has or may have retained or assumed either contractually
or by operation of law, except for Releases of Hazardous Materials the liability
for which would not reasonably likely have a PEPCO Material Adverse Effect.
(e) Predecessors. Except as set forth in Section 4.11(e) of
the PEPCO Disclosure Schedule, PEPCO has no knowledge, with respect to any
predecessor of PEPCO or any subsidiary or joint venture of PEPCO, of any
Environmental Claims pending or threatened, or of any Release of Hazardous
Materials that would be reasonably likely to form the basis of any Environmental
Claims that would have, or that would reasonably likely have, a PEPCO Material
Adverse Effect.
(f) Disclosure. To PEPCO's knowledge, PEPCO has disclosed to
BGE all material facts that PEPCO reasonably believes form the basis of a PEPCO
Material Adverse Effect arising from
(i) the cost of pollution control equipment currently
required or known to be required in the future,
(ii) current remediation costs or remediation costs
known to be required in the future, or
(iii) any other environmental matter affecting PEPCO or
its subsidiaries that would have, or that would reasonably likely have,
a PEPCO Material Adverse Effect.
As used in this Agreement:
(iv) "Environmental Claim" means
(A) any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives,
claims, liens, investigations, proceedings or notices of
noncompliance or violation in writing by any person or entity
(including any Governmental Authority) or
(B) any oral information provided to PEPCO (or to BGE,
for purposes
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of Section 5.11) by a Governmental Authority that written
action of the type described in clause (A) above is in
process,
alleging potential liability (including, without limitation, potential liability
for enforcement, investigatory costs, cleanup costs, governmental response
costs, removal costs, remedial costs, natural resources damages, property
damages, personal injuries, or penalties) arising out of, based on or resulting
from (a) the presence, or Release or threatened Release into the environment, of
any Hazardous Materials at any location, whether or not owned, operated, leased
or managed by PEPCO or any of its subsidiaries or joint ventures (for purposes
of this Section 4.11), or by BGE or any of its subsidiaries or joint ventures
(for purposes of Section 5.11), (b) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law or (c) any and all
claims by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from the presence or
Release of any Hazardous Materials.
(v) "Environmental Laws" means all federal, state and
local laws, rules and regulations relating to pollution or protection
of human health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface
strata), including, without limitation, laws and regulations relating
to Releases or threatened Releases of Hazardous Materials or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials.
(vi) "Hazardous Materials" means (a) any petroleum or
petroleum products, radioactive materials, asbestos in any form that is
or could become friable, urea formaldehyde foam insulation, and
transformers or other equipment that contain dielectric fluid
containing polychlorinated biphenyls, (b) any chemicals, materials or
substances which are now defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", or words, of similar import, under any
Environmental Law and (c) any other chemical, material, substance or
waste, exposure to which is now prohibited, limited or regulated under
Environmental Law in a jurisdiction in which PEPCO or any of its
subsidiaries or joint ventures operates (for purposes of this Section
4.11) or in which BGE or any of its subsidiaries or joint ventures
operates (for purposes of Section 5.11).
(vii) "Release" means any release, spill, emission,
leaking, injection, deposit, disposal, discharge, dispersal, leaching
or migration into the atmosphere, soil, surface water, groundwater or
property.
Section 4.12 Regulation as a Utility.
(a) PEPCO is regulated as a public utility in the State of
Maryland and in the District of Columbia and, to a limited extent, in the
Commonwealths of Pennsylvania and
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Virginia and in no other state.
(b) Except as set forth in Section 4.12 of the PEPCO
Disclosure Schedule, no subsidiary company or affiliate of PEPCO is subject to
regulation as a public utility or public service company (or similar
designation) by any other state in the United States or by any foreign country.
(c) As used in this Section 4.12 and in Section 5.12, the
terms "subsidiary company" and "affiliate" shall have the respective meanings
ascribed to them in the 1935 Act.
Section 4.13 Vote Required. The approval of the Merger by (a)
more than two-thirds of all votes entitled to be cast by all holders of PEPCO
Common Stock and (b) a majority of all votes entitled to be cast by all holders
of PEPCO Preferred Stock, each voting separately as a class (the "PEPCO
Shareholders' Approvals") are the only votes of the holders of any class or
series of the capital stock of PEPCO required to approve this Agreement, the
Merger and the other transactions contemplated hereby.
Section 4.14 Accounting Matters. PEPCO has not, through the
date hereof, taken or agreed to take any action that would prevent the Company
from accounting for the business combination to be effected by the Merger as a
pooling-of-interests in accordance with GAAP and applicable SEC regulations.
Section 4.15 Applicability of Certain Virginia Law. Assuming
the accuracy of the representation by BGE set forth in Section 5.18, neither the
control share acquisition provisions of Section 13.1-728.1 et seq. of the VSCA,
the affiliated transactions provisions of Section 13.1-725 et seq. of the VSCA
or any similar provisions of the VSCA, the Articles of Incorporation or Bylaws
of PEPCO are applicable to the transactions contemplated by this Agreement.
Section 4.16 Opinion of Financial Advisor. PEPCO has received
the opinion of Barr Devlin & Co. Incorporated, dated the date hereof, to the
effect that, as of the date hereof, the PEPCO Ratio is fair from a financial
point of view to the holders of PEPCO Common Stock.
Section 4.17 Insurance.
(a) Except as set forth in Section 4.17 of the PEPCO
Disclosure Schedule, each of PEPCO and each of its subsidiaries is, and has been
continuously since January 1, 1990, insured in such amounts and against such
risks and losses as are customary for companies conducting the respective
businesses conducted by PEPCO and its subsidiaries during such time period.
(b) Except as set forth in Section 4.17 of the PEPCO
Disclosure Schedule, neither PEPCO nor any of its subsidiaries has received any
notice of cancelation or termination
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with respect to any material insurance policy thereof.
(c) All material insurance policies of PEPCO and its
subsidiaries are valid and enforceable policies.
Section 4.18 Ownership of BGE Common Stock. PEPCO does not
"beneficially own" (as such term is defined in Rule 13d-3 under the Exchange
Act) any shares of BGE Common Stock.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF BGE
BGE represents and warrants to PEPCO as follows:
Section 5.1 Organization and Qualification. Except as set
forth in Section 5.1 or 5.2 of the BGE Disclosure Schedule (as defined in
Section 7.6(a)(ii)), (i) BGE is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdictions of incorporation and
(ii) each of BGE's subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdictions of
incorporation and each of BGE and its subsidiaries has requisite corporate power
and authority, and is duly authorized by all necessary regulatory approvals and
orders, to own, lease and operate its assets and properties and to carry on its
business as it is now being conducted, and is duly qualified and in good
standing to do business in each jurisdiction in which the nature of its business
or the ownership or leasing of its assets and properties makes such
qualification necessary, other than, in the case of clause (ii) such failures,
which, when taken together with all other such failures, will not have a
material adverse effect on the business, operations, properties, assets,
condition (financial or otherwise), prospects or results of operations of BGE
and its subsidiaries taken as a whole or on the consummation of the transactions
contemplated by this Agreement (any such material adverse effect being
hereinafter referred to as a "BGE Material Adverse Effect").
Section 5.2 Subsidiaries.
(a) Section 5.2 of the BGE Disclosure Schedule sets forth a
description as of the date hereof of all subsidiaries and joint ventures of BGE,
including the name of each such entity, the state or jurisdiction of its
incorporation, a brief description of the principal line or lines of business
conducted by each such entity and BGE's interest therein.
(b) Except as set forth in Section 5.2 of the BGE Disclosure
Schedule, none of the entities listed in Section 5.2 is a "public utility
company", a "holding company", a "subsidiary company" or an "affiliate" of any
public utility company within the meaning of Section 2(a)(5), 2(a)(7), 2(a)(8)
or 2(a)(11) of the 1935 Act, respectively.
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(c) Except as set forth in Section 5.2 of the BGE Disclosure
Schedule, all of the issued and outstanding shares of capital stock of each
subsidiary of BGE are validly issued, fully paid, nonassessable and free of
preemptive rights and are owned directly or indirectly by BGE free and clear of
any liens, claims, encumbrances, security interests, equities, charges and
options of any nature whatsoever, and there are no outstanding subscriptions,
options, calls, contracts, voting trusts, proxies or other commitments,
understandings, restrictions, arrangements, rights or warrants, including any
right of conversion or exchange under any outstanding security, instrument or
other agreement, obligating any such subsidiary to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of its capital stock or
obligating it to grant, extend or enter into any such agreement or commitment.
Section 5.3 Capitalization.
(a) As of the date hereof, the authorized capital stock
of BGE consists of 175,000,000 shares of BGE Common Stock, 1,000,000
shares of BGE Preferred Stock and 6,500,000 shares of BGE Preference
Stock.
(b) As of the close of business on August 31, 1995, (i)
147,527,114 shares of BGE Common Stock, (ii) 591,849 shares of BGE
Preferred Stock and (iii) 4,910,000 shares of BGE Preference Shares
were issued and outstanding.
(c) All of the issued and outstanding shares of the
capital stock of BGE are validly issued, fully paid, nonassessable and
free of preemptive rights.
(d) Except for the BGE Option and as set forth in
Section 5.3(a) of the BGE Disclosure Schedule, there are no outstanding
subscriptions, options, calls, contracts, voting trusts, proxies or
other commitments, understandings, restrictions, arrangements, rights
or warrants, including any right of conversion or exchange under any
outstanding security, instrument or other agreement, obligating BGE or
any of its subsidiaries to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares of the capital stock of
BGE or obligating BGE or any of its subsidiaries to grant, extend or
enter into any such agreement or commitment.
Section 5.4 Authority; Non-Contravention; Statutory Approvals;
Compliance.
(a) Authority.
(i) BGE has all requisite power and authority to enter
into this Agreement and the BGE Option and, subject in the case of this
Agreement to the BGE Shareholders' Approvals (as defined in Section
5.13(c)) and the BGE Required Statutory Approvals (as defined in
Section 5.4(c), to consummate the transactions contemplated hereby and
thereby.
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(ii) The execution and delivery of this Agreement and the
BGE Option and, subject in the case of this Agreement to obtaining the
BGE Shareholders' Approvals, the consummation by BGE of the
transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action on the part of BGE.
(iii) This Agreement and the BGE Option have been duly and
validly executed and delivered by BGE and, assuming the due
authorization, execution and delivery hereof and thereof by PEPCO and,
in the case of this Agreement, the Company, constitute the valid and
binding obligations of BGE, enforceable against BGE in accordance with
their respective terms, except as would be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or other
similar laws affecting the enforcement of creditors' rights generally
and except that the availability of equitable remedies, including
specific performance, may be subject to the discretion of any court
before which any proceeding therefor may be brought.
(b) Non-Contravention. Except as set forth in Section 5.4(b)
of the BGE Disclosure Schedule, the execution and delivery of this Agreement and
the BGE Option by BGE do not, and the consummation of the transactions
contemplated hereby and thereby will not result in any Violation by BGE or any
of its subsidiaries or, to the knowledge of BGE, any of its joint ventures,
under any provisions of
(i) the articles of incorporation, bylaws or similar
governing documents of BGE or any of its subsidiaries or joint
ventures,
(ii) subject in the case of this Agreement to obtaining
the BGE Required Statutory Approvals and the receipt of the BGE
Shareholders' Approvals, any statute, law, ordinance, rule, regulation,
judgment, decree, order, injunction, writ, permit or license of any
Governmental Authority applicable to BGE or any of its subsidiaries or
joint ventures or any of their respective properties or assets, or
(iii) subject in the case of this Agreement to obtaining
the third-party consents or other approvals set forth in Section 5.4(b)
of the BGE Disclosure Schedule (the "BGE Required Consents"), any note,
bond, mortgage, indenture, deed of trust, license, franchise, permit,
concession, contract, lease or other instrument, obligation or
agreement of any kind to which BGE or any of its subsidiaries or joint
ventures is now a party or by which it or any of its properties or
assets may be bound or affected,
excluding from the foregoing clauses (ii) and (iii) such Violations as would
not, in the aggregate, reasonably likely have a BGE Material Adverse Effect.
(c) Statutory Approvals. Except as set forth in Section 5.4(c)
of the BGE Disclosure Schedule, no declaration, filing or registration with, or
notice to or authorization, consent or approval of any Governmental Authority is
necessary for the execution and delivery of this Agreement or the BGE Option by
BGE or the consummation by BGE of the transactions
-29-
contemplated hereby or thereby, the failure to obtain, make or give which would
reasonably likely have a BGE Material Adverse Effect (the "BGE Required
Statutory Approvals"), it being understood that references in this Agreement to
"obtaining" such BGE Required Statutory Approvals shall mean making such
declarations, filings or registrations; giving such notice; obtaining such
consents or approvals; and having such waiting periods expire as are necessary
to avoid a violation of law.
(d) Compliance.
(i) Except as set forth in Section 5.4(d) or 5.11 of the
BGE Disclosure Schedule or as disclosed in the BGE SEC Reports (as
defined in Section 5.5), neither BGE nor any of its subsidiaries nor,
to the knowledge of BGE, any of its joint ventures, is in violation of
or under investigation with respect to, or has been given notice or
been charged with any violation of, any law, statute, order, rule,
regulation, ordinance or judgment (including, without limitation, any
applicable environmental law, ordinance or regulation) of any
Governmental Authority, except for violations that do not have, and,
would not reasonably likely have, a BGE Material Adverse Effect.
(ii) Except as set forth in Section 5.4(d) or 5.11 of the
BGE Disclosure Schedule, BGE, its subsidiaries and, to the knowledge of
BGE, its joint ventures have all permits, licenses, franchises and
other governmental authorizations, consents and approvals necessary to
conduct their respective businesses as currently conducted, except
those the failure to obtain which would not reasonably likely have a
BGE Material Adverse Effect.
Section 5.5 Reports and Financial Statements.
(a) Since January 1, 1991, the filings required to be made by
BGE and its subsidiaries under the Securities Act, the Exchange Act, applicable
Maryland and Pennsylvania laws and regulations, the Power Act or the 1935 Act
have been filed with the SEC, the Maryland Commission, the Pennsylvania
Commission, the FERC or the Nuclear Regulatory Commission (the "NRC"), as
required by each such law or regulation, including all forms, statements,
reports, agreements and all documents, exhibits, amendments and supplements
appertaining thereto, and complied in all material respects with all applicable
requirements of the appropriate act and the rules and regulations thereunder.
(b) BGE has made available to PEPCO a true and complete copy
of each report, schedule, registration statement and definitive proxy statement
filed by BGE with the SEC since January 1, 1992 (as such documents have since
the time of their filing been amended, the "BGE SEC Reports").
(c) The BGE SEC Reports, including without limitation any
financial statements or schedules included therein, at the time filed, and any
forms, reports or other documents filed by BGE with the SEC after the date
hereof, did not and will not contain any
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untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) The audited consolidated financial statements and
unaudited interim financial statements of BGE included in the BGE SEC Reports
(collectively, the "BGE Financial Statements") have been prepared, and will be
prepared in accordance with GAAP applied on a consistent basis (except as may be
indicated therein or in the notes thereto and except with respect to unaudited
statements as permitted by Form 10-Q) and fairly present in all material
respects the financial position of BGE as of the respective dates thereof or the
results of operations and cash flows for the respective periods then ended, as
the case may be, subject, in the case of the unaudited interim financial
statements, to normal, recurring audit adjustments.
(e) True, accurate and complete copies of the Articles of
Incorporation and Bylaws of BGE, as in effect on the date hereof, have been
delivered to PEPCO.
Section 5.6 Absence of Certain Changes or Events; Absence of
Undisclosed Liabilities.
(a) Except as set forth in the BGE SEC Reports or Section 5.6
of the BGE Disclosure Schedule, from December 31, 1994 through the date hereof
each of BGE and each of its subsidiaries has conducted its business only in the
ordinary course of business consistent with past practice and there has not
been, and no fact or condition exists that would reasonably likely have, a BGE
Material Adverse Effect.
(b) Neither BGE nor any of its subsidiaries has any
liabilities or obligations (whether absolute, accrued, contingent or otherwise)
of a nature required by GAAP to be reflected in a consolidated corporate balance
sheet, except liabilities, obligations or contingencies that are accrued or
reserved against in the consolidated financial statements of BGE or reflected in
the notes thereto for the year ended December 31, 1994, or that were incurred
after December 31, 1994, in the ordinary course of business and would not
reasonably likely have a BGE Material Adverse Effect.
Section 5.7 Litigation. Except as set forth in the BGE SEC
Reports or as set forth in Section 5.7 or 5.11 of the BGE Disclosure Schedule,
there are no
(i) claims, suits, actions or proceedings, pending or,
to the knowledge of BGE, threatened, nor are there, to the knowledge of
BGE, any investigations or reviews pending or threatened against,
relating to or affecting BGE or any of its subsidiaries or joint
ventures,
(ii) judgments, decrees, injunctions, rules or orders of
any court, governmental department, commission, agency, instrumentality
or authority or any
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arbitrator applicable to BGE or any of its subsidiaries or joint
ventures, that would have, or would reasonably likely have, a BGE
Material Adverse Effect.
Section 5.8 Registration Statement and Proxy Statement.
(a) None of the information supplied or to be supplied by or
on behalf of BGE for inclusion or incorporation by reference in
(i) the Registration Statement will, at the time the
Registration Statement becomes effective under the Securities Act,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and
(ii) the Joint Proxy Statement will, at the date mailed
to the shareholders of BGE and PEPCO and, as the same may be amended or
supplemented, at the times of the meetings of such shareholders to be
held in connection with the Merger, contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which
they are made, not misleading.
(b) Each of the Registration Statement and the Joint Proxy
Statement, as of such respective dates, will comply as to form in all material
respects with the applicable provisions of the Securities Act and the Exchange
Act and the rules and regulations thereunder.
Section 5.9 Tax Matters.
(a) Except as set forth on Schedule 5.9(a) of the BGE
Disclosure Schedule, BGE and each of its subsidiaries has
(i) filed all material Tax Returns required to be filed
by it within the time and in the manner prescribed by law,
(ii) paid all Taxes that are shown on such Tax Returns as
due and payable within the time and in the manner prescribed by law,
and
(iii) paid all Taxes otherwise required to be paid.
(b) Except as set forth on Schedule 5.9(b) of the BGE
Disclosure Schedule, as of the date hereof,
(i) there are no claims, assessments, audits or
administrative or court proceedings pending against BGE or any of its
subsidiaries for any alleged deficiency in
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Tax, and
(ii) none of BGE or any of its subsidiaries has executed
any outstanding waivers or comparable consents regarding the
application of the statute of limitations with respect to any Taxes or
Tax Returns.
(c) BGE has established adequate accruals for Taxes and for
any liability for deferred Taxes in the BGE Financial Statements in accordance
with GAAP.
Section 5.10 Employee Matters; ERISA.
(a) Benefit Plans. (i) Section 5.10(a) of the BGE Disclosure
Schedule contains a true and complete list, as of the date hereof, of:
(A) each benefit plan, program, policy or arrangement
providing for pension, profit sharing, supplemental death and
dismemberment, life and health insurance and benefits
(including medical, dental and hospitalization), savings,
bonus, deferred compensation, incentive compensation
(including stock options, restricted stock, stock appreciation
rights, performance units, dividend equivalents and each other
plan, program, policy or arrangement under which shares of BGE
Common Stock are required to be transferred or could be
transferred), holiday, vacation, severance pay, sick pay, sick
leave, short and long-term disability, tuition assistance and,
relocation benefits plan which has been adopted, approved or
implemented by BGE or any of its subsidiaries in writing
covering a group or classification of current or former
employees or directors of BGE (or any of its subsidiaries) or
any group or classification of their dependents or
beneficiaries, or providing benefits to such persons in
respect of services provided to any such entity, including,
but not limited to, any "employee benefit plan" within the
meaning of ERISA ss. 3(3) (whether or not terminated, if BGE
or any of its subsidiaries could have statutory or contractual
liability with respect thereto on or after the date hereof)
but not including any individual contract, award or agreement;
(B) each employment or severance contract (including
any payment, right or benefit resulting from any transaction
contemplated by this Agreement) and all stock options,
restricted stock, performance units, stock appreciation rights
or dividend equivalents, bonus or other contract for personal
services and each other contract under which shares of BGE
Common Stock are required to be transferred or could be
transferred and the amount of such shares (in the aggregate)
with or covering current or former officers or directors; and
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(1) there are no other employment or severance
contracts covering current or former employees of BGE
below the level of officer which have not been
disclosed and made available to PEPCO with respect to
which BGE or any of its subsidiaries are reasonably
likely to have a BGE Material Adverse Effect; and
(2) with respect to any officer of BGE there have
been no awards of stock options, restricted stock,
performance units, stock appreciation rights or
dividend equivalents in respect of shares of BGE
Common Stock subsequent to the most recent BGE proxy
statement made outside of the ordinary course or
inconsistent with past practice, and with respect to
all employees of BGE below the level of officer there
have been no awards of stock options, restricted
stock, performance units, stock appreciation rights
or dividend equivalents, with respect to shares of
BGE Common Stock, which, in the aggregate, have been
made outside of the ordinary course or inconsistent
with past practice; and
(C) each "employee pension benefit plan" (within the
meaning of ERISA ss. 3(2)) subject to Title IV of ERISA or the
minimum funding requirements of ERISA ss. 302 (whether or not
included in (A) above) maintained or contributed to by BGE or
any entity required to be aggregated therewith pursuant to
Code ss. 414(b) or (c) (a "BGE ERISA Affiliate") at any time
during the six calendar year period immediately preceding the
date hereof (collectively, the "BGE Pension Benefit Plans");
(ii) For purposes of this Agreement, "BGE Benefit Plan"
shall mean each benefit plan, program, policy, contract and arrangement
described in subsections (i)(A) and (B) above (whether or not
terminated), if BGE or any of its subsidiaries could have statutory or
contractual liability with respect thereto on or after the date hereof.
(iii) With respect to each BGE Benefit Plan and BGE
Pension Benefit Plan, the source or sources of benefit payments under
the plan (including, where applicable, the identity of any trust
(whether or not a grantor trust), insurance contract, custodial
account, agency agreement, or other arrangement that holds the assets
of, or serves as a funding vehicle or source of benefits for such BGE
Benefit Plan or BGE Pension Benefit Plan).
(b) Contributions. Except as set forth in Section 5.10(b) of
the BGE Disclosure Schedule, all material contributions and other material
payments required to have been made by BGE or any of its subsidiaries or any BGE
ERISA Affiliate pursuant to any BGE Benefit Plan or BGE Pension Benefit Plan (or
to any person pursuant to the terms thereof) have been timely made or the amount
of such payment or contribution obligation has been reflected in the BGE
Financial Statements.
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(c) Qualification; Compliance. Except as set forth in Section
5.10(c) of the BGE Disclosure Schedule:
(i) Each BGE Benefit Plan and BGE Pension Benefit Plan
that is intended to be "qualified" within the meaning of Code ss. 401(a) has
been determined by the IRS to be so qualified, or application for such a
determination has been made prior to the expiration of the applicable remedial
amendment period and BGE agrees to make such plan amendments as the IRS may
require in order to issue a favorable determination letter.
(ii) BGE and each of its subsidiaries are in compliance
with, and each BGE Benefit Plan is and has been operated in compliance with all
applicable laws, rules and regulations governing such plan, including, without
limitation, ERISA and the Code, except for violations that would not reasonably
likely have a BGE Material Adverse Effect.
(iii) To the knowledge of BGE, no individual or entity
has engaged in any transaction with respect to any BGE Benefit Plan as a result
of which BGE or any of its subsidiaries could reasonably expect to be subject to
liability pursuant to ERISA ss. 409 or ss. 502, or subject to an excise tax
pursuant to Code ss. 4975 which would reasonably likely have a BGE Material
Adverse Effect.
(iv) To the knowledge of BGE,
(A) no BGE Benefit Plan is subject to any ongoing
audit, investigation, or other administrative proceeding of
the Internal Revenue Service, the Department of Labor, or any
other federal, state, or local governmental entity, and
(B) no BGE Benefit Plan is the subject of any
pending application for administrative relief under any
voluntary compliance program of any governmental entity
(including, without limitation, the Internal Revenue Service's
Voluntary Compliance Resolution Program or Walk-in Closing
Agreement Program, or the Department of Labor's Delinquent
Filer Voluntary Compliance
Program).
(d) Liabilities. With respect to the BGE Pension Benefit
Plans, individually and in the aggregate, no termination or partial termination
of any BGE Pension Benefit Plan or other event has occurred, and, to the
knowledge of BGE, there exists no condition or set of circumstances, that could
subject BGE, any of its subsidiaries or any ERISA Affiliate to any liability
arising under the Code, ERISA or any other applicable law (including, without
limitation, any liability to or under any such plan or to the PBGC), or under
any indemnity agreement to which BGE, any of its subsidiaries or any BGE ERISA
Affiliate is a party, excluding liability for benefit claims and funding
obligations payable in the ordinary course and liability for PBGC insurance
premiums payable in the ordinary course, which liability would reasonably likely
have a BGE Material Adverse Effect.
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(e) Welfare Plans. Except as set forth in Section 5.10(e) of
the BGE Disclosure Schedule, no BGE Benefit Plan that is a "welfare plan"
(within the meaning of ERISA ss. 3(1)) provides benefits for any retired or
former employees (other than as required pursuant to ERISA ss. 601).
(f) Documents Made Available. BGE has made available to PEPCO
a true and correct copy of each collective bargaining agreement to which BGE is
a party or under which BGE has obligations and, with respect to each BGE Benefit
Plan and each BGE Pension Benefit Plan (as of May 31, 1995), as applicable:
(i) the current plan document (including all amendments
adopted since the most recent restatement) and its most recently
prepared summary plan description and all summaries of material
modifications prepared since the most recent summary plan description,
(ii) annual reports (IRS Form 5500 Series) including
financial statements for the last three years,
(iii) each related trust agreement, insurance contract,
service provider or investment management agreement (including all
amendments to each such document),
(iv) the most recent IRS determination letter with
respect to the qualified status under Code ss. 401(a) of such plan, and
(v) actuarial reports or valuations for the last three
years.
To the extent that documents referred to in clauses (i) through (v) of this
Section 5.10(f) have not been made available to PEPCO with respect to the period
following May 31, 1995, no information that is disclosed in such documents (and
that has not been disclosed previously in documents that have been made
available to PEPCO) is reasonably likely to have a BGE Material Adverse Effect.
(g) Payments Resulting from Merger. Other than as set forth in
Section 5.10(g) of the BGE Disclosure Schedule, the consummation or announcement
of any transaction contemplated by this Agreement will not (either alone or upon
the occurrence of any additional or further acts or events) result in any
(i) payment (whether of severance pay or otherwise)
becoming due from the Company or BGE or any of its subsidiaries to any
current or former officer or director thereof or to the trustee under
any "rabbi trust" or other funding arrangement,
(ii) benefit under any BGE Benefit Plan being established
or becoming accelerated, vested or payable, except for a payment or
benefit that would have been payable under the same terms and
conditions without regard to the transactions
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contemplated by this Agreement, or
(iii) payment (whether of severance pay or otherwise)
becoming due from the Company or BGE or any of its subsidiaries to any
current or former employee of BGE below the level of officer which such
payments aggregated for such employees and former employees as a group
would reasonably likely have a BGE Material Adverse Effect.
(h) Funded Status of Plans. Except as set forth in Section
5.10(h) of the BGE Disclosure Schedule, each BGE Pension Benefit Plan has assets
that, as of the date hereof, have a fair market value equal to or exceeding the
present value of the accrued benefit obligations thereunder on a termination
basis, as of the date hereof based on the actuarial methods, tables and
assumptions theretofore utilized by such plan's actuary in preparing such plan's
most recently prepared actuarial valuation report, except to the extent that
applicable law would require the use of different actuarial assumptions if such
plan was to be terminated as of the date hereof. No BGE Pension Benefit Plan has
incurred any "accumulated funding deficiency" (within the meaning of ERISA ss.
302).
(i) Multiemployer Plans.
(i) Except as set forth in Section 5.10(i) of the BGE
Disclosure Schedule, no BGE Benefit Plan is or was a "multiemployer
plan" (within the meaning of ERISA ss. 4001(a)(3)), a multiple employer
plan described in Code ss. 413(c), or a "multiple employer welfare
arrangement" (within the meaning of ERISA ss. 3(40)); and none of BGE,
any subsidiary thereof or any BGE ERISA Affiliate has been obligated to
contribute to, or otherwise has or has had any liability with respect
to, any multiemployer plan, multiple employer plan, or multiple
employer welfare arrangement.
(ii) With respect to any BGE Benefit Plan that is listed
in Section 5.10(i) of the BGE Disclosure Schedule as a multiemployer
plan, none of BGE, any subsidiary thereof or any PEPCO ERISA Affiliate
has made or incurred a "complete withdrawal" or a "partial withdrawal,"
as such terms are defined in ERISA ss.ss. 4203 and 4205, therefrom at
any time during the six calendar year period immediately preceding the
date of this Agreement and the transactions contemplated by the
Agreement will not, in and of themselves, give rise to such a "complete
withdrawal" or "partial withdrawal."
(j) Modification or Termination of Plans. Except as set forth
in Section 5.10(j) of the BGE Disclosure Schedule or as permitted under Section
6.9:
(i) neither BGE nor any subsidiary of BGE is subject to
any legal, contractual, equitable or other obligation to establish as
of any date any employee benefit plan of any nature, including (without
limitation) any pension, profit sharing, welfare, post-retirement
welfare, stock option, stock or cash award, non-qualified deferred
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compensation or executive compensation plan, policy or practice; and
(ii) the Company, BGE or one or more of its subsidiaries
or any BGE ERISA Affiliate have the right to, in any manner, and
without the consent of any employee, beneficiary or dependent,
employees' organization or other person, terminate, modify or amend any
BGE Benefit Plan or BGE Pension Benefit Plan (or its participation in
any such BGE Benefit Plan or BGE Pension Benefit Plan) at any time
sponsored, maintained or contributed to by BGE or any of its
subsidiaries or any BGE ERISA Affiliate, effective as of any date
before, on or after the Effective Time except to the extent that any
retroactive amendment would be prohibited by ERISA ss. 204(g) or would
adversely affect a vested accrued benefit or a previously granted award
under any such Plan not subject to ERISA ss. 204(g).
(k) Reportable Events; Claims. Except as set forth in Section
5.10(k) of the BGE Disclosure Schedule:
(i) no event constituting a "reportable event" (within
the meaning of ERISA ss. 4043(c)), for which the 30-day notice
requirement or penalty has not been waived by the PBGC has occurred
with respect to any BGE Pension Benefit Plan, and
(ii) no liability, claim, action or litigation has been
made, commenced or, to the knowledge of BGE, threatened, by or against
BGE or any of its subsidiaries or any BGE ERISA Affiliate with respect
to any BGE Benefit Plan or any BGE Pension Benefit Plan (other than for
benefits or PBGC premiums payable in the ordinary course)
that would reasonably likely have a BGE Material Adverse Effect.
(l) Labor Agreements. Except as set forth in the BGE SEC
Reports or as set forth in Section 5.10(l) of the BGE Disclosure Schedule:
(i) neither BGE nor any of its subsidiaries is a party
to any collective bargaining agreement or other current labor agreement
with any labor union or organization. There is no current union
representation question involving employees of BGE or any of its
subsidiaries, nor does BGE or any of its subsidiaries know of any
activity or proceeding of any labor organization (or representative
thereof) or employee group (or representative thereof) to organize any
such employees;
(ii) there is no unfair labor practice charge or
grievance arising out of a collective bargaining agreement or other
grievance procedure against BGE or any of its subsidiaries pending, or
to the knowledge of BGE or any of its subsidiaries, threatened, that
has, or would reasonably likely have, a BGE Material Adverse Effect;
(iii) there is no complaint, lawsuit or proceeding in
any forum by or on behalf of any present or former employee, any
applicant for employment or classes of
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the foregoing alleging breach of any express or implied contract of
employment, any law or regulation governing employment or the
termination thereof or other discriminatory, wrongful or tortious
conduct in connection with the employment relationship against BGE or
any of its subsidiaries pending, or to the knowledge of BGE or any of
its subsidiaries, threatened, that has, or would reasonably likely
have, a BGE Material Adverse Effect;
(iv) there is no strike, dispute, slowdown, work stoppage
or lockout pending, or to the knowledge of BGE or any of its
subsidiaries, threatened, against or involving BGE or any of its
subsidiaries that has or, would reasonably likely have, a BGE Material
Adverse Effect;
(v) BGE and each of its subsidiaries are in compliance
with all applicable laws respecting employment and employment
practices, terms and conditions of employment, wages, hours of work and
occupational safety and health, except for non-compliance that does not
have, and would not reasonably likely have, a BGE Material Adverse
Effect; and
(vi) there is no proceeding, claim, suit, action or
governmental investigation pending or, to the knowledge of BGE or any
of its subsidiaries, threatened, in respect to which any current or
former director, officer, employee or agent of BGE or any of its
subsidiaries is or may be entitled to claim indemnification from BGE or
any of its subsidiaries pursuant to their respective articles of
incorporation or by-laws or as provided in the indemnification
agreements listed on Section 5.10(l) of the BGE Disclosure Schedule
that has, or would reasonably likely have, a BGE Material Adverse
Effect.
Section 5.11 Environmental Protection.
(a) Compliance.
(i) Except as set forth in Section 5.11(a) of the BGE
Disclosure Schedule, each of BGE and each of its subsidiaries is in
compliance with all applicable Environmental Laws, except where the
failure to be so in compliance would not reasonably likely have a BGE
Material Adverse Effect.
(ii) Except as set forth in Section 5.11(a) of the BGE
Disclosure Schedule, neither BGE nor any of its subsidiaries has
received any written communication from any person or Governmental
Authority that alleges that BGE or any of its subsidiaries is not in
compliance with applicable Environmental Laws, except where the failure
to be so in compliance would not reasonably likely have a BGE Material
Adverse Effect.
(b) Environmental Permits. Except as set forth in Section
5.11(b) of the BGE Disclosure Schedule, BGE and each of its subsidiaries has
obtained or has applied for all
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Environmental Permits necessary for the construction of their facilities and the
conduct of their operations, and all such permits are in good standing or, where
applicable, a renewal application has been timely filed and is pending agency
approval, and BGE and its subsidiaries are in compliance with all terms and
conditions of all such Environmental Permits and are not required to make any
expenditure in order to obtain or renew any Environmental Permits, except where
the failure to obtain or be in such compliance and the requirement to make such
expenditures would not reasonably likely have a BGE Material Adverse Effect.
(c) Environmental Claims. Except as set forth in Section
5.11(c) of the BGE Disclosure Schedule, there is no Environmental Claim pending,
or to the knowledge of BGE and its subsidiaries, threatened
(i) against BGE or any of its subsidiaries or joint
ventures,
(ii) against any person or entity whose liability for
any Environmental Claim BGE or any of its subsidiaries or joint
ventures has or may have retained or assumed either contractually or by
operation of law, or
(iii) against any real or personal property or
operations that BGE or any of its subsidiaries or joint ventures owns,
leases or manages, in whole or in part,
that, if adversely determined, would reasonably likely have a BGE Material
Adverse Effect.
(d) Releases. Except as set forth in Section 5.11(c) or
5.11(d) of the BGE Disclosure Schedule, BGE has no knowledge of any Release of
any Hazardous Material that would be reasonably likely to form the basis of any
Environmental Claim against BGE or any of its subsidiaries or joint ventures of
BGE, or against any person or entity whose liability for any Environmental Claim
BGE or any subsidiaries or joint ventures of BGE has or may have retained or
assumed either contractually or by operation of law, except for Releases of
Hazardous Materials the liability for which would not reasonably likely have a
BGE Material Adverse Effect.
(e) Predecessors. Except as set forth in Section 5.11(e) of
the BGE Disclosure Schedule, BGE has no knowledge, with respect to any
predecessor of BGE or any subsidiary or joint venture of BGE, of any
Environmental Claims pending or threatened, or of any Release of Hazardous
Materials that would be reasonably likely to form the basis of any Environmental
Claims that would have, or that BGE reasonably believes would reasonably likely
have a BGE Material Adverse Effect.
(f) Disclosure. To BGE's knowledge, BGE has disclosed to PEPCO
all material facts that BGE reasonably believes form the basis of a BGE Material
Adverse Effect arising from
(i) the cost of pollution control equipment currently
required or
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known to be required in the future,
(ii) current remediation costs or remediation costs
known to be required in the future, or
(iii) any other environmental matter affecting BGE or
its subsidiaries that would have, or that BGE reasonably believes would
reasonably likely have a BGE Material Adverse Effect.
Section 5.12 Regulation as a Utility.
(a) BGE is a public utility holding company as defined in the
1935 Act exempt from all provisions of the 1935 Act except section 9(a)(2), by
order of the SEC pursuant to section 3(a)(2) of the 1935 Act. BGE is regulated
as a public utility in the State of Maryland and, to a limited extent, in the
Commonwealth of Pennsylvania and in no other state.
(b) Except as set forth in Section 5.12 of the BGE Disclosure
Schedule, no subsidiary company or affiliate of BGE is subject to regulation as
a public utility or public service company (or similar designation) by any other
state in the United States or by any foreign country.
Section 5.13 Vote Required. The approval of the Merger by (i)
two-thirds of all votes entitled to be cast by all holders of BGE Common Stock,
voting separately as a class, (ii) two-thirds of all votes entitled to be cast
by all holders of BGE Preferred Stock, voting separately as a class, (iii)
two-thirds of all votes entitled to be cast by all holders of BGE Preference
Stock, voting separately as a class, and (iv) two-thirds of all votes entitled
to be cast by all holders of BGE Common Stock, BGE Preferred Stock, and BGE
Preference Stock, voting together as a class (collectively, the "BGE
Shareholders' Approvals") are the only votes of the holders of any class or
series of the capital stock of BGE required to approve this Agreement, the
Merger and the other transactions contemplated hereby.
Section 5.14 Accounting Matters. BGE has not, through the date
hereof, taken or agreed to take any action that would prevent the Company from
accounting for the business combination to be effected by the Merger as a
pooling-of-interests in accordance with GAAP and applicable SEC regulations.
Section 5.15 Applicability of Certain Maryland Law. Assuming
the accuracy of the representation by PEPCO set forth in Section 4.18, neither
the control share acquisition provisions of Section 3-701 et seq. of the MGCA
nor the business combination provisions of Section 3-602 et seq. of the MGCA or
any similar provisions of the MGCA, the Articles of Incorporation or Bylaws of
BGE are applicable to the transactions contemplated by this Agreement.
Section 5.16 Opinion of Financial Advisor. BGE has received
the opinion of
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Goldman, Sachs & Co., as of the date hereof, to the effect that, as of the date
hereof, the BGE Ratio is fair to the holders of BGE Common Stock.
Section 5.17 Insurance.
(a) Except as set forth in Section 5.17 of the BGE Disclosure
Schedule, each of BGE and each of its subsidiaries is, and has been continuously
since January 1, 1990, insured in such amounts and against such risks and losses
as are customary for companies conducting the respective businesses conducted by
BGE and its subsidiaries during such time period.
(b) Except as set forth in Section 5.17 of the BGE Disclosure
Schedule, neither BGE nor any of its subsidiaries has received any notice of
cancelation or termination with respect to any material insurance policy
thereof.
(c) All material insurance policies of BGE and its
subsidiaries are valid and enforceable policies.
Section 5.18 Ownership of PEPCO Common Stock. BGE does not
"beneficially own" (as such term is defined in Rule 13d-3 under the Exchange
Act) any shares of PEPCO Common Stock.
Section 5.19 NRC Actions. Except as set forth in Section 5.19
of the BGE Disclosure Schedule, BGE is not in violation of, is not under
investigation with respect to, has not been given notice of or been charged with
actual or potential violation of, and is not the subject of any ongoing
proceeding, inquiry, special inspection, diagnostic evaluation or other NRC
action (including rulemakings of general application that may affect the conduct
of BGE's business regarding the Calvert Cliffs Nuclear Power Plant) of which BGE
has actual knowledge, under the Atomic Energy Act, any applicable regulations
thereunder or the terms and conditions of any license granted to BGE regarding
the Calvert Cliffs Nuclear Power Plant (collectively, "NRC Actions"), which NRC
Actions would have, or BGE reasonably believes would reasonably likely have a
BGE Material Adverse Effect.
ARTICLE VI.
CONDUCT OF BUSINESS PENDING THE MERGER
Prior to the date hereof, each of PEPCO and BGE had delivered
to the other a business plan (respectively, the "PEPCO Financial Plan" and the
"BGE Financial Plan"). After the date hereof and prior to the Effective Time or
earlier termination of this Agreement, each of BGE and PEPCO agrees, as to
itself and its subsidiaries, to comply with the provisions of this Article VI.
Notwithstanding the foregoing, Section 6.1 through Section 6.8 (inclusive except
for Section 6.2(a)) shall not apply in the case of actions by PEPCO or BGE that
are (i) in the case of PEPCO, contemplated by the PEPCO Financial Plan or
consented to in writing
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by BGE, or (ii) in the case of BGE, contemplated by the BGE Financial Plan or
consented to in writing by PEPCO.
Section 6.1 Ordinary Course of Business. Each of PEPCO and BGE
shall, and shall cause its subsidiaries to, conduct their respective businesses
in the usual, regular and ordinary course in substantially the same manner as
heretofore conducted and use all commercially reasonable efforts to preserve
their respective business organizations and goodwill, preserve the goodwill and
relationships with customers, suppliers, distributors and others having business
dealings with them and, subject to prudent management of workforce needs and
ongoing programs currently in force, keep available the services of their
present officers and employees.
Section 6.2 Dividends. Neither PEPCO nor BGE shall, nor shall
either permit any of its subsidiaries to:
(a) declare or pay any dividends or make other distributions
in respect of any of their capital stock other than to such party or its
subsidiaries and other than
(i) stated dividends on their respective series of PEPCO
Preferred Stock, BGE Preferred Stock and BGE Preference Stock and
(ii) regular quarterly dividends on PEPCO Common Stock
with usual record and payment dates not, during any calendar year, in
excess of dividends consistent with prior practice subject to increases
that do not result in a dividend rate in excess of the indicated annual
dividend rate agreed to by PEPCO and BGE for the Company following the
Effective Time.
(b) split, combine or reclassify any of their capital stock or
issue or authorize or propose the issuance of any other securities in respect
of, in lieu of, or in substitution for, shares of its capital stock; or
(c) redeem, repurchase or otherwise acquire any shares of
their capital stock, other than
(i) redemptions, purchases or acquisitions required by
the respective terms of any series of PEPCO Preferred Stock, BGE
Preferred Stock or BGE Preference Stock,
(ii) in connection with refunding of PEPCO Preferred
Stock, BGE Preferred Stock or BGE Preference Stock with preferred or
preference stock or debt at a lower cost of funds,
(iii) intercompany acquisitions of capital stock, or
(iv) in connection with the administration of employee
benefit and dividend
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reinvestment plans as in effect on the date hereof in the ordinary
course of the operation of such plans.
Section 6.3 Issuance of Securities. Except as set forth on
Schedule 6.3 of the PEPCO Disclosure Schedule or the BGE Disclosure Schedule,
neither PEPCO nor BGE shall, nor shall either permit any of its subsidiaries to,
issue, agree to issue, deliver or sell, or authorize or propose the issuance,
delivery or sale of, any shares of their capital stock or any class or any
securities convertible into or exchangeable for, or any rights, warrants or
options to acquire, any such shares or convertible or exchangeable securities
except for:
(a) the issuance of capital stock upon the conversion of
convertible securities outstanding on the date hereof or permitted to be issued
under the terms hereof,
(b) the issuance of common stock or other securities by BGE
pursuant to the BGE Dividend Reinvestment and Stock Purchase Plan and the BGE
Continuous Offering Program for Common Stock or by PEPCO pursuant to the plans
listed on Schedule 6.3, in each case in the ordinary course of the operation of
such programs or plans in accordance with their present terms, or
(c) issuances by a wholly owned subsidiary of its capital
stock to a direct or indirect parent.
Section 6.4 Charter Documents. Except as set forth in Section
6.4 of the PEPCO Disclosure Schedule or the BGE Disclosure Schedule or as
required by law, neither PEPCO nor BGE shall amend or propose to amend its
respective articles of incorporation or bylaws in any way adverse to the other
party, except as contemplated herein and except to the extent that any document
setting forth the terms of a series of preferred stock or preference stock
permitted to be issued in accordance with this Article VI constitutes an
amendment to the articles of incorporation.
Section 6.5 No Acquisitions. Except as set forth in Section
6.5 of the PEPCO Disclosure Schedule or the BGE Disclosure Schedule, neither
PEPCO nor BGE shall, nor shall either permit any of its subsidiaries to,
acquire, or publicly propose to acquire, or agree to acquire, by merger or
consolidation, by purchase or otherwise, a substantial equity interest in or a
substantial portion of the assets of any business or any corporation,
partnership, association or other business organization or division thereof or
otherwise acquire or agree to acquire any assets, in each case that are
material, in the aggregate, to such party and its subsidiaries taken as a whole,
except for acquisitions by PEPCO and its subsidiaries on the one hand, and BGE
and its subsidiaries on the other, within existing lines of business, of less
than $30 million in the aggregate that are not set forth in Section 6.5 of the
PEPCO Disclosure Schedule or Section 6.5 of the BGE Disclosure Schedule,
respectively.
Section 6.6 Capital Expenditures. Except as set forth in
Section 6.6 of the PEPCO Disclosure Schedule or the BGE Disclosure Schedule or
as required by law, neither
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PEPCO nor BGE shall, nor shall either permit any of its subsidiaries to, make
any capital expenditures, except for:
(a) capital expenditures to repair or replace facilities
destroyed or damaged due to casualty or accident (whether or not covered by
insurance), or
(b) additional capital expenditures that in the aggregate do
not exceed $75 million.
Section 6.7 No Dispositions. Except as set forth on Schedule
6.7 of the PEPCO Disclosure Schedule or the BGE Disclosure Schedule, neither
PEPCO nor BGE shall, nor shall either permit any of its subsidiaries to, sell,
lease, license, encumber or otherwise dispose of, assets that are material, in
the aggregate, to such party and its subsidiaries taken as a whole, except for:
(a) dispositions not exceeding $10 million in the aggregate,
in the case of PEPCO and its subsidiaries on the one hand, and BGE and its
subsidiaries on the other hand, which dispositions do not have a PEPCO Material
Adverse Effect or a BGE Material Adverse Effect, as the case may be,
(b) as may be required by law to consummate the transactions
contemplated hereby, or
(c) in the ordinary course of business consistent with prior
practice.
Section 6.8 Indebtedness. Except as set forth in Section 6.8
of the PEPCO Disclosure Schedule or the BGE Disclosure Schedule, no party shall,
nor shall any party permit any of its subsidiaries to, incur or guarantee any
indebtedness (including any debt borrowed or guaranteed or otherwise assumed,
including, without limitation, the issuance of debt securities), except for:
(a) short-term indebtedness in the ordinary course of business
consistent with past practice,
(b) long-term indebtedness in connection with the refinancing
of existing indebtedness either at its stated maturity or at a lower cost of
funds,
(c) additional long-term indebtedness aggregating not more
than $75 million in the case of PEPCO and its subsidiaries, on one hand, and in
the case of BGE and its subsidiaries, on the other hand, or
(d) in connection with the refunding of PEPCO Preferred Stock,
BGE Preferred Stock or BGE Preference Stock as permitted in Section 6.3.
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Section 6.9 Compensation, Benefits. Except as set forth on
Schedule 6.9 of the PEPCO Disclosure Schedule or the BGE Disclosure Schedule, as
may be required by applicable law or as contemplated by this Agreement, no party
shall, nor shall any party permit any of its subsidiaries to, enter into, adopt
or amend or increase the amount of or accelerate the payment or vesting of any
benefit or amount payable under any employee benefit plan or any other contract,
agreement, commitment, arrangement, plan or policy maintained by, contributed to
or entered into by such party or any of its subsidiaries, or increase, or enter
into any contract, agreement, commitment or arrangement to increase in any
manner, the compensation or fringe benefits, or otherwise to extend, expand or
enhance the engagement, employment or any related rights, of any director,
officer or other employee of such party or any of its subsidiaries, except for
normal increases in the ordinary course of business consistent with past
practice that, in the aggregate, do not result in a material increase in
benefits or compensation expense to such party or any of its subsidiaries, or
enter into or amend any employment, severance, or special pay arrangement with
respect to the termination of employment or other similar contract, agreement or
arrangement with any director or officer or other employee other than in the
ordinary course of business consistent with past practice.
Section 6.10 1935 Act. Except as required or contemplated by
this Agreement: --------
(a) PEPCO shall not, nor shall PEPCO permit any of its
subsidiaries to engage in any activities that cause it to become a "holding
company" under the 1935 Act;
(b) BGE shall not, nor shall BGE permit any of its
subsidiaries to engage in any activities that cause it to lose its exemption
from registration as a "holding company" under the 1935 Act; and
(c) no party shall, nor shall any party permit any of its
subsidiaries to, engage in any activities that would require the approval of the
SEC under Section 9(a)(2) of the 1935 Act for any of the transactions
contemplated by this Agreement.
Section 6.11 Accounting. No party shall, nor shall any party
permit any of its subsidiaries to, make any changes in its or their accounting
methods, except as required by law, rule, regulation or GAAP.
Section 6.12 Pooling. No party shall, nor shall any party
permit any of its subsidiaries to, take any actions that would, or would be
reasonably likely to, prevent the Company from accounting for the business
combination to be effected by the Merger as a pooling-of-interests in accordance
with GAAP and applicable SEC regulations. If any impediments to accounting for
the business combination as a pooling-of-interests are discovered at any time,
the parties shall eliminate such impediments.
Section 6.13 Tax-Free Status. No party shall, nor shall any
party permit any of its subsidiaries to, take any actions that would, or would
be reasonably likely to, adversely affect the status of the Merger as a tax-free
reorganization under Code ss. 368(a) (except as to
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shareholders of BGE or PEPCO who exercise dissenters' rights or who receive cash
in lieu of fractional shares).
Section 6.14 Insurance. Each of PEPCO and BGE shall, and shall
cause its respective subsidiaries to, maintain with financially responsible
insurance companies (or through self-insurance not inconsistent with such
party's past practice) insurance in such amounts and against such risks and
losses as are customary for companies engaged in the electric and gas utility
industry and such other businesses as conducted by such party and its
subsidiaries and employing methods of generating electric power and fuel sources
similar to those methods employed and fuels used by the respective party or such
party's subsidiaries.
Section 6.15 Cooperation, Notification. Each of PEPCO and BGE
shall and shall cause its subsidiaries (directly or acting through its parent
company representative) to:
(a) confer on a regular and frequent basis with one or more
representatives of the other party to discuss material operational matters and
the general status of its ongoing operations,
(b) promptly notify the other party of any significant changes
in its business, properties, assets, condition (financial or otherwise),
prospects or results of operations,
(c) advise the other party of any change or event that has had
or, to the knowledge of such party, would reasonably likely have a PEPCO
Material Adverse Effect or a BGE Material Adverse Effect, and
(d) consult with each other prior to making any filings with
any state or federal court, administrative agency, commission or other
Governmental Authority in connection with this Agreement and the transactions
contemplated hereby, and promptly after each such filing provide the other with
a copy thereof.
Section 6.16 Rate Matters. No party shall make any filing to
change its or any of its utility subsidiaries' rates on file with any
Governmental Authority that could have a material adverse effect on the benefits
associated with the business combination provided herein.
Section 6.17 Third-Party Consents. Each of PEPCO and BGE
shall, and shall cause its subsidiaries to, use all commercially reasonable
efforts to obtain all PEPCO Required Consents or BGE Required Consents, as the
case may be. Each party shall promptly notify the other party of any failure or
prospective failure to obtain any such consents and, if requested by the other
party, shall provide to the other party copies of all PEPCO Required Consents or
BGE Required Consents, as the case may be, obtained by such party.
Section 6.18 Tax-Exempt Status. No party shall, nor shall any
party permit any subsidiary to, take any action that would likely jeopardize the
exclusion from gross income, for purposes of federal income taxation, of the
interest on the outstanding revenue bonds issued for
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the benefit of PEPCO or BGE, as the case may be, which qualify on the date
hereof under Code ss. 142(a) as "exempt facility bonds" or as tax-exempt
industrial development bonds under Section 103(b)(4) of the Internal Revenue
Code of 1954, as amended prior to the Tax Reform Act of 1986.
Section 6.19 Permits. Each of PEPCO and BGE shall use
commercially reasonable efforts to maintain in effect all existing material
permits pursuant to which such party operates.
Section 6.20 Certain Information Relating to Customers.
Without limiting the application of the Confidentiality Agreement, dated
February 15, 1995, between PEPCO and BGE (the "Confidentiality Agreement") no
party shall, nor shall any party permit any of its subsidiaries to, use any
Information (as defined in the Confidentiality Agreement) in connection with any
solicitation, inquiry, proposal, arrangement, understanding or agreement with
any person relating to the provision of electric or gas utility service by PEPCO
or any of its subsidiaries, on the one hand, or BGE or any of its subsidiaries,
on the other hand, to commercial and industrial customers in the service
territory of the other party.
ARTICLE VII.
ADDITIONAL AGREEMENTS
Section 7.1 Access to Information.
(a) Upon reasonable notice and during normal business hours,
each of PEPCO and BGE shall, and shall cause its subsidiaries to, afford to the
officers, directors, employees, accountants, counsel, investment banker,
financial advisor and other representatives of the other (collectively,
"Representatives") reasonable access, during normal business hours throughout
the period prior to the Effective Time, to all of its properties, books,
contracts, commitments and records (including, but not limited to, Tax Returns)
and, during such period, each shall, and shall cause its subsidiaries to,
furnish promptly to the other:
(i) a copy of each report, schedule and other document
filed by it or any of its subsidiaries with the SEC and any other
document pertaining to the transactions contemplated hereby filed with
any Governmental Authority that is not filed as an exhibit to an SEC
filing or described in an SEC filing, and
(ii) all information concerning themselves, their
subsidiaries, directors, officers and shareholders and such matters as
may be reasonably requested by the other party in connection with any
filings, applications or approvals required or contemplated by this
Agreement.
(b) Without limiting the application of the Confidentiality
Agreement, all
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documents and information furnished pursuant to Section 7.1(a) shall be subject
to the Confidentiality Agreement.
Section 7.2 Joint Proxy Statement and Registration Statement.
(a) Preparation and Filing.
(i) As promptly as reasonably practicable after the date
hereof, the parties shall prepare and file with the SEC the
Registration Statement and the Joint Proxy Statement (together the
"Joint Proxy/Registration Statement").
(ii) The parties shall take such actions as may be
reasonably required to cause the Registration Statement to be declared
effective under the Securities Act as promptly as practicable after
such filing.
(iii) The parties shall also take such action as may be
reasonably required to cause the shares of Company Common Stock,
Company Preferred Stock and Company Preference Stock issuable in
connection with the Merger to be registered or to obtain an exemption
from registration under applicable state "blue sky" or securities laws;
provided, however, that none of the Company, PEPCO or BGE shall be
required to register or qualify as a foreign corporation or to take any
other action that would subject it to general service of process in any
jurisdiction in which it will not, following the Merger, be so subject.
(iv) Each of the parties shall furnish all information
concerning itself that is required or customary for inclusion in the
Joint Proxy/Registration Statement.
(v) No representation, covenant or agreement contained
in this Agreement is made by any party hereto with respect to
information supplied by any other party hereto for inclusion in the
Joint Proxy/Registration Statement.
(vi) The Joint Proxy/Registration Statement shall comply
as to form in all material respects with the Securities Act, the
Exchange Act and the rules and regulations thereunder.
(vii) The parties shall take such action as may be
reasonably required to cause the shares of Company Common Stock to be
approved for listing on the NYSE; and, unless PEPCO and BGE shall
otherwise agree, to cause shares of the respective series of Company
Preferred Stock and Company Preference Stock issued in the Merger to be
approved for listing on the national and international securities
exchanges, if any, on which the respective series of PEPCO Preferred
Stock, BGE Preferred Stock and BGE Preference Stock convertible into
such series in the Merger are presently listed, and, in each case, to
cause such shares to be approved for listing on such other national and
international securities exchanges as the parties may select upon
official notice of
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issuance.
(b) Letter of BGE's Accountants. Following receipt by Coopers
& Lybrand, L.L.P., BGE's independent auditors, of an appropriate request from
PEPCO pursuant to SAS No. 72, BGE shall use best efforts to cause to be
delivered to the Company and PEPCO a letter of Coopers & Lybrand, L.L.P., dated
a date within two business days before the effective date of the Registration
Statement, and addressed to the Company and PEPCO, in form and substance
reasonably satisfactory to the Company and PEPCO and customary in scope and
substance for "cold comfort" letters delivered by independent public accountants
in connection with registration statements and proxy statements similar to the
Joint Proxy/Registration Statement.
(c) Letter of PEPCO's Accountants. Following receipt by Price
Waterhouse, L.L.P., PEPCO's independent auditors, of an appropriate request from
BGE pursuant to SAS No. 72, PEPCO shall use best efforts to cause to be
delivered to the Company and BGE a letter of Price Waterhouse, L.L.P., dated a
date within two business days before the effective date of the Registration
Statement, and addressed to the Company and BGE, in form and substance
reasonably satisfactory to the Company and BGE and customary in scope and
substance for "cold comfort" letters delivered by independent public accountants
in connection with registration statements and proxy statements similar to the
Joint Proxy/Registration Statement.
(d) Fairness Opinions. It shall be a condition to the mailing
of the Joint Proxy Statement to the shareholders of PEPCO and BGE that
(i) BGE shall have received an opinion from Goldman,
Sachs & Co., dated as of the date of the Joint Proxy Statement, to the
effect that, as of the date thereof the BGE Ratio is fair to the
holders of BGE Common Stock, and
(ii) PEPCO shall have received an opinion from Barr
Devlin & Co. Incorporated, dated the date of the Joint Proxy Statement,
to the effect that, as of the date thereof, the PEPCO Ratio is fair
from a financial point of view to the holders of PEPCO Common Stock.
Section 7.3 Regulatory Matters.
(a) HSR Filings. Each party hereto shall file or cause to be
filed with the Federal Trade Commission and the Department of Justice any
notifications required to be filed by their respective "ultimate parent"
companies under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), and the rules and regulations promulgated thereunder
with respect to the transactions contemplated hereby, and shall respond promptly
to any requests for additional information made by either of such agencies.
(b) Other Regulatory Approvals.
(i) Each party hereto shall cooperate and use its best
efforts to promptly
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prepare and file all necessary documentation, to effect all necessary
applications, notices, petitions, filings and other documents, and to
use all commercially reasonable efforts to obtain all necessary
permits, consents, approvals and authorizations of all Governmental
Authorities and all other persons necessary or advisable to consummate
the transactions contemplated by this Agreement, including, without
limitation, the BGE Required Statutory Approvals and the PEPCO Required
Statutory Approvals.
(ii) PEPCO shall have the right to review and approve in
advance all characterizations of the information relating to PEPCO, on
the one hand, and BGE shall have the right to review and approve in
advance all characterizations of the information relating to BGE, on
the other hand, in either case, which appear in any filing made in
connection with the transactions contemplated by this Agreement or the
Merger.
(iii) BGE and PEPCO shall each consult with the other with
respect to the obtaining of all such necessary or advisable permits,
consents, approvals and authorizations of Governmental Authorities.
Section 7.4 Shareholder Approvals.
(a) Approval of PEPCO Shareholders. PEPCO shall, as promptly
as reasonably practicable after the date hereof
(i) take all steps reasonably necessary to duly call,
give notice of, convene and hold special meetings of its shareholders
(the "PEPCO Special Meetings") for the purpose of securing the PEPCO
Shareholders' Approvals,
(ii) distribute to its shareholders the Joint Proxy
Statement in accordance with applicable federal and state law and its
Articles of Incorporation and Bylaws,
(iii) recommend to its shareholders the approval of the
Merger, this Agreement and the transactions contemplated hereby, and
(iv) cooperate and consult with BGE with respect to each
of the foregoing matters, provided, that nothing contained in this
Section 7.4(a) shall require the Board of Directors of PEPCO to take
any action or refrain from taking any action that such Board determines
in good faith with written advice of counsel could reasonably be
expected to result in a breach of its fiduciary duties under applicable
law.
(b) Approval of BGE Shareholders. BGE shall, as promptly as
reasonably practicable after the date hereof
(i) take all steps reasonably necessary to duly call,
give notice of, convene
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and hold special meetings of its shareholders (the "BGE Special
Meetings") for the purpose of securing the BGE Shareholders' Approvals,
(ii) distribute to its shareholders the Joint Proxy
Statement in accordance with applicable federal and state law and its
Articles of Incorporation and Bylaws,
(iii) recommend to its shareholders the approval of the
Merger, this Agreement and the transactions contemplated hereby, and
(iv) cooperate and consult with PEPCO with respect to
each of the foregoing matters,
provided that nothing contained in this Section 7.4(b) shall require the Board
of Directors of BGE to take any action or refrain from taking any action that
such Board determines in good faith with written advice of counsel could
reasonably be expected to result in a breach of its fiduciary duties under
applicable law.
(c) Meeting Date. The BGE Special Meetings and the PEPCO
Special Meetings shall be held on the same day unless otherwise agreed by BGE
and PEPCO.
(d) Fairness Opinions Not Withdrawn. It shall be a condition
to the obligation of PEPCO to hold the PEPCO Special Meetings that the opinion
of Barr Devlin & Co. Incorporated referred to in Section 7.2(d)(i) shall not
have been withdrawn, and it shall be a condition to the obligation of BGE to
hold the BGE Special Meetings that the opinion of Goldman, Sachs & Co. referred
to in Section 7.2(d)(ii) shall not have been withdrawn.
Section 7.5 Directors' and Officers' Indemnification.
(a) Indemnification.
(i) To the extent, if any, not provided by an existing
right of indemnification or other agreement or policy, from and after
the Effective Time, the Company shall, to the fullest extent not
prohibited by applicable law, indemnify, defend and hold harmless the
present and former directors, officers and employees of the parties
hereto and their respective subsidiaries (each an "Indemnified Party"
and, collectively, the "Indemnified Parties") against
(A) all losses, expenses (including reasonable
attorneys' fees and expenses), claims, damages, costs,
liabilities, judgments or amounts that are paid in settlement
of or in connection with any claim, action, suit, proceeding
or investigation (collectively, "Indemnified Liabilities") (x)
based in whole or in part on or arising in whole or in part
out of the fact that such person is or was a director, officer
or employee of such party or any subsidiary thereof, and (y)
pertaining to any matter existing or occurring at or prior to
the Effective Time,
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whether asserted or claimed prior to, at or after the
Effective Time, and
(B) all Indemnified Liabilities based in whole or
in part on, or arising in whole or in part out of, or
pertaining to this Agreement or the transactions contemplated
hereby,
provided, however, that the Company shall not be liable for any
settlement effected without its written consent (which consent shall
not be unreasonably withheld).
(ii) In the event of any such loss, expense, claim,
damage, cost, liability, judgment or settlement (whether or not arising
before the Effective Time),
(A) the Company shall pay the reasonable fees and
expenses of counsel selected by the Indemnified Parties, which
counsel shall be reasonably satisfactory to the Company,
promptly after statements therefor are received, and otherwise
advance to the Indemnified Parties upon request reimbursement
of documented expenses reasonably incurred, in either case to
the extent not prohibited by applicable law,
(B) the Company shall cooperate in the defense of
any such matter, and
(C) any determination required to be made with
respect to whether an Indemnified Party's conduct complies
with the standards under applicable law or as set forth in the
Company's Articles of Incorporation or Bylaws shall be made by
independent counsel mutually acceptable to the Company and the
Indemnified Party,
provided, however, that the Company shall not be liable for any
settlement effected without its written consent (which consent shall
not be unreasonably withheld).
(iii) The Indemnified Parties as a group may retain only
one law firm (other than local counsel) with respect to each related
matter except to the extent there is, in the sole opinion of counsel to
an Indemnified Party, under applicable standards of professional
conduct, a conflict on any significant issue between positions of any
two or more Indemnified Parties, in which case each Indemnified Party
with a conflicting position on a significant issue shall be entitled to
separate counsel.
(b) Insurance. For a period of six (6) years after the
Effective Time, the Company shall cause to be maintained in effect the policies
of directors' and officers' liability insurance maintained by BGE and PEPCO;
provided that the Company may substitute therefor policies of at least the same
coverage containing terms that are no less advantageous with respect to matters
occurring prior to the Effective Time to the extent such liability insurance can
be maintained annually at a cost to the Company not greater than 200 percent of
the current aggregate annual premiums for the policies currently maintained by
BGE and PEPCO for their
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directors' and officers' liability insurance; provided, further, that if such
insurance cannot be so maintained or obtained at such cost, the Company shall
maintain or obtain as much of such insurance for each of BGE and PEPCO as can be
so maintained or obtained at a cost equal to 200 percent of the respective
current annual premiums of each of BGE and PEPCO for their directors' and
officers' liability insurance.
(c) Successors. In the event the Company or any of its
successors or assigns
(i) consolidates with or merges into any other person
and shall not be the continuing or surviving corporation or entity of
such consolidation or merger, or
(ii) transfers all or substantially all of its
properties and assets to any person,
then and in either such case, proper provision shall be made so that the
successors and assigns of the Company shall assume the obligations set forth in
this Section 7.5.
(d) Survival of Indemnification. To the fullest extent not
prohibited by law, from and after the Effective Time, all rights to
indemnification now existing in favor of the employees, agents, directors or
officers of BGE, PEPCO and their respective subsidiaries with respect to their
activities as such prior to the Effective Time, as provided in their respective
Articles of Incorporation or Bylaws in effect on the date of such activities or
otherwise in effect on the date hereof, shall survive the Merger and shall
continue in full force and effect for a period of six years from the Effective
Time.
(e) The provisions of this Section 7.5 are intended to be for
the benefit of, and shall be enforceable by, each Indemnified Party, his or her
heirs and his or her representatives.
Section 7.6 Disclosure Schedules.
(a) On or before the date of this Agreement,
(i) PEPCO shall deliver to BGE a schedule (the "PEPCO
Disclosure Schedule"), which shall be accompanied by a certificate
signed by the chief financial officer of PEPCO stating the Disclosure
Schedule is being delivered pursuant to this Section 7.6(a)(i) and
(ii) BGE shall deliver to PEPCO a schedule (the "BGE
Disclosure Schedule"), which shall be accompanied by a certificate
signed by the chief financial officer of BGE stating the BGE Disclosure
Schedule is being delivered pursuant to this Section 7.6(a)(ii).
(b) The Disclosure Schedules shall constitute an integral part
of this Agreement and shall modify or otherwise affect the respective
representations, warranties, covenants or
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agreements of the parties hereto contained herein to the extent that such
representations, warranties, covenants or agreements expressly refer to the
Disclosure Schedules.
(c) Any and all statements, representations warranties or
disclosures set forth in the Disclosure Schedules shall be deemed to have been
made on and as of the date of this Agreement.
(d) The PEPCO Disclosure Schedule and the BGE Disclosure
Schedule are collectively referred to herein as the "Disclosure Schedules".
(e) Without limiting the application of the Confidentiality
Agreement, the parties shall use their best efforts to keep the Disclosure
Schedules confidential.
Section 7.7 Public Announcements. BGE and PEPCO shall
cooperate with each other in the development and distribution of all news
releases and other public information disclosures with respect to this Agreement
or any of the transactions contemplated hereby and shall not issue any public
announcement or statement prior to consultation with the other party, however,
each party recognizes the other party's obligations imposed by law or any
applicable national securities exchange, and will endeavor to accommodate such
obligations.
Section 7.8 Rule 145 Affiliates. PEPCO shall identify in a
letter to BGE, and BGE shall identify in a letter to PEPCO, all persons who are,
at the Closing Date, "affiliates" of PEPCO and BGE, respectively, as such term
is used in Rule 145 under the Securities Act. PEPCO and BGE shall use their
respective best efforts to cause their respective affiliates to deliver to the
Company on or prior to the Closing Date a written agreement as described in
Section 8.2(f) and Section 8.3(f), respectively.
Section 7.9 Assumption of PEPCO and BGE Agreements and
Arrangements.
(a) The Company shall assume at the Effective Time each of the
individual employment agreements and arrangements of PEPCO and BGE in effect on
the Closing Date (or as amended in accordance with or as permitted by this
Agreement), subject to the right of the Company to thereafter amend, modify,
suspend, revoke or terminate such agreements and arrangements consistent with
the terms thereof and applicable law.
(b) PEPCO and BGE shall consult with each other prior to
entering into, or amending, any individual employment or severance agreements
after the date hereof as contemplated or permitted in accordance with Section
6.9. Each of PEPCO and BGE shall promptly furnish to the other, upon reasonable
request by the other, detailed information, together with underlying
documentation, with respect to all such existing or proposed individual
employment or severance agreements or amendments thereto.
Section 7.10 Incentive, Stock and Other Plans.
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With respect to each of the plans and programs of PEPCO and
BGE identified in Section 6.3 of the PEPCO and BGE Disclosure Schedules that the
parties later determine shall survive the Closing and each other employee
benefit plan, program or arrangement of the Company under which the delivery of
PEPCO Common Stock, BGE Common Stock or Company Common Stock, as the case may
be, is required to be used for purposes of the payment of benefits, grant of
awards or exercise of options (each a "Stock Plan"),
(i) BGE and PEPCO shall take such action as may be
necessary so that, after the Effective Time, such Stock Plan
shall provide for the issuance only of Company Common Stock,
and
(ii) the Company shall
(A) take all corporate action necessary or
appropriate to obtain shareholder approval with respect
to such Stock Plan to the extent such approval is
required for purposes of the Code or other applicable
law, or, to the extent the Company deems it desirable,
to enable such Stock Plan to comply with Rule 16b-3
promulgated under the Exchange Act,
(B) reserve for issuance under such Stock
Plan or otherwise provide a sufficient number of shares
of Company Common Stock for delivery upon payment of
benefits, grants of awards or exercise of options under
such Stock Plan and
(C) as soon as practicable after the
Effective Time, file one or more registration
statements under the Securities Act with respect to the
shares of Company Common Stock subject to such Stock
Plan to the extent such filing is required under
applicable law and use its best efforts to maintain the
effectiveness of such registration statement(s) (and
the current status of the prospectuses contained
therein or related thereto) so long as such benefits,
grants or awards remain payable or such options remain
outstanding, as the case may be.
Section 7.11 No Solicitations.
(a) No party hereto shall, and each such party shall cause its
subsidiaries not to, shall not permit any of its Representatives to, and shall
use its best efforts to cause such persons not to, directly or indirectly,
initiate, solicit or encourage, or take any action to facilitate the making of
any offer or proposal that constitutes or is reasonably likely to lead to any
Takeover Proposal (as defined below), or, in the event of any unsolicited
Takeover Proposal, engage in negotiations or provide any confidential
information or data to any person relating to any Takeover Proposal.
(b) PEPCO and BGE shall notify the other orally and in writing
of any such
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inquiries, offers or proposals (including, without limitation, the terms and
conditions of any such proposal and the identity of the person making it) within
24 hours of the receipt thereof and shall give the other ten days' advance
notice of any agreement to be entered into with or any information to be
supplied to any person making such inquiry, offer or proposal.
(c) Each party hereto shall immediately cease and cause to be
terminated all existing discussions and negotiations, if any, with any other
persons conducted heretofore with respect to any Takeover Proposal.
(d) Notwithstanding anything in this Section 7.11 to the
contrary, unless the BGE Shareholders' Approvals and the PEPCO Shareholders'
Approvals have all been obtained, PEPCO or BGE may, to the extent that the Board
of Directors of such party determines in good faith with the written advice of
outside counsel that a failure to do so could reasonably be expected to result
in a breach of its fiduciary duties under applicable law, participate in
discussions or negotiations with, furnish information to, and afford access to
the properties, books and records of such party and its subsidiaries to any
person in connection with a possible Takeover Proposal with respect to such
party by such person.
(e) As used in this Section 7.11, "Takeover Proposal" shall
mean any tender or exchange offer, proposal for a merger, consolidation or other
business combination involving PEPCO, BGE or any of their respective material
subsidiaries, or any proposal or offer to acquire in any manner a substantial
equity interest in, or a substantial portion of the assets of, PEPCO, BGE or any
of their respective material subsidiaries, other than pursuant to the
transactions contemplated by this Agreement.
Section 7.12 Company Board of Directors.
(a) BGE's and PEPCO's Boards of Directors shall take such
action as may be necessary to cause the number of directors comprising the full
Board of Directors of the Company (the "Company Board") at the Effective Time to
be 16 persons, consisting of Mr. Edward F. Mitchell, Mr. John M. Derrick, Jr.,
Mr. Christian H. Poindexter, Mr. Edward A. Crooke, seven persons designated by
BGE prior to the Effective Time and five persons designated by PEPCO prior to
the Effective Time; provided, however, that if, prior to the Effective Time, any
of such designees shall decline or be unable to serve, the party that designated
such person shall designate another person to serve in such person's stead.
(b) The initial designation of directors among the three
classes of the Company Board shall be allocated among PEPCO and BGE designees as
set forth on Exhibit 7.12.
(c) The initial Company Board committees and committee
memberships shall be determined by the Company Board; provided that (i) there
shall be six committees; (ii) three committees shall be chaired by a designee of
the PEPCO Board; (iii) three committees shall be chaired by a designee of the
BGE Board; (iv) there shall be a Committee on Management
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(responsible for nominating, compensation and major organizational changes)
which shall be chaired by a designee of the BGE Board; and (v) there shall be an
Executive Committee (responsible for certain financing matters) which shall be
chaired by Mr. Edward F. Mitchell.
(d) From the Effective Time until two years after the Closing
Date, a vote of sixty six and two-thirds percent (66 2/3%) of the members of the
Company Board shall be required to approve a change in the Company's name or the
location of its headquarters or principal executive offices, to amend the
employment contracts identified in Section 7.14 or otherwise change any of the
titles or functions of the particular individuals referred to in Section 7.13 as
set forth in such employment contracts as in effect at the Effective Time, to
change any of the committee matters provided in Section 7.12(c) or to amend any
bylaw provisions corresponding to the provisions of this Section 7.12(d) adopted
pursuant to Section 1.4.
Section 7.13 Company Officers.
(a) From the Effective Time until one year after the Closing
Date, Mr. Edward F. Mitchell shall serve as Chairman of the Board. Mr. Christian
H. Poindexter shall serve as Chairman beginning at the earlier of one year from
the Closing Date or when Mr. Edward F. Mitchell is not available to serve as
Chairman. In addition, Mr. Christian H. Poindexter will be Chief Executive
Officer from the Effective Time. If Mr. Christian H. Poindexter is not available
at the Effective Time to serve as Chief Executive Officer, the then Chief
Executive Officer of BGE shall serve as Chief Executive Officer of the Company,
subject to confirmation by a majority of the members of the Company Board.
(b) From the Effective Time Mr. John M. Derrick, Jr. shall
serve as President and Chief Operating Officer of the Company, and Mr. Edward A.
Crooke will serve as Vice Chairman. If Mr. John M. Derrick, Jr. is not available
at the Effective Time to serve as President and Chief Operating Officer of the
Company, the then President of PEPCO shall serve as President and Chief
Operating Officer of the Company, subject to confirmation by a majority of the
members of the Company Board.
(c) The provisions of this Section 7.13 are subject to the
fiduciary duties of the Company Board and to the specific terms of the
employment contracts referred to in Section 7.14, and the duties and
responsibilities attributable to the positions referred to in this Section 7.13
shall be as set forth in such contracts.
Section 7.14 Employment Contracts.
The Company shall, as of or prior to the Effective Time, enter
into employment contracts in the forms set forth in Exhibit 7.14.1, Exhibit
7.14.2, Exhibit 7.14.3 and Exhibit 7.14.4.
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Section 7.15 Corporate Offices and Name.
(a) As soon as reasonably possible after the Effective Time,
the corporate headquarters and principal executive offices of the Company shall
be located in the Annapolis, Maryland area, and the Company shall maintain
significant operations in the District of Columbia and Baltimore, Maryland.
(b) At the Effective Time, the Company's name shall be as
agreed upon by the BGE Board of Directors and the PEPCO Board of Directors prior
to the Effective Time.
Section 7.16 Transition Management.
(a) As promptly as practicable after the date hereof, BGE and
PEPCO shall create a special transition management task force (the "Task Force")
that shall be comprised of representatives from each of the primary business
functions of each company and headed by Mr. Edward A. Crooke (or an individual
designated by him) and Mr. John M. Derrick, Jr. (or an individual designated by
him).
(b) The functions of the Task Force shall include (i) to serve
as a conduit for the flow of information and documents between the companies and
their subsidiaries as contemplated by Section 6.15, (ii) to review and evaluate
proposed exceptions to the restrictions on the conduct of business pending the
Merger set forth in Article VI, (iii) development of regulatory plans and
proposals, corporate organizational and management plans, workforce combination
proposals, and such other matters as they deem appropriate, and (iv) to evaluate
and recommend the manner in which best to organize and manage the business of
the Company after the Effective Time. A consent by either PEPCO or BGE to an
exception to the restrictions set forth in Article VI shall be effective only if
set forth in a writing that describes in reasonable detail the actions proposed
to be taken and that is signed by Mr. Edward A. Crooke (or his designee) or Mr.
John M. Derrick, Jr. (or his designee), as the case may be.
(c) From time to time, the Task Force shall report its
findings to Mr. Christian H. Poindexter and Mr. Edward F. Mitchell, each of whom
shall report on such matters as they deem appropriate to their respective board
of directors. After the date hereof and prior to the Effective Time, Mr. Edward
F. Mitchell shall frequently attend meetings of BGE's Board of Directors and Mr.
Christian H. Poindexter shall frequently attend meetings of PEPCO's Board of
Directors as appropriate in consultation with each other.
(d) In connection with their responsibilities as co-heads of
the Task Force, Messrs. John M. Derrick, Jr., and Edward A. Crooke shall
together recommend to Messrs. Christian H. Poindexter and Edward F. Mitchell
organizational matters and candidates to serve as the officers of the Company
who are not otherwise designated by this Agreement. All such organizational
matters and appointment of officers shall be subject to final approval by a
majority of the members of the Board of Directors of the Company, upon the
recommendation of Mr. Christian H. Poindexter.
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Section 7.17 Expenses. Subject to Section 9.3, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses, except
that those expenses incurred in connection with printing the Joint
Proxy/Registration Statement, as well as the filing fee relating thereto, shall
be shared equally by BGE, on the one hand, and PEPCO, on the other.
Section 7.18 Covenant to Satisfy Conditions.
(a) Each of PEPCO and BGE shall take all reasonable actions
necessary to comply promptly with all legal requirements that may be imposed on
it with respect to this Agreement.
(b) Subject to the terms and conditions hereof, and taking
into account the circumstances and giving due weight to the materiality of the
matter involved or the action required, PEPCO and BGE shall each use its best
efforts to take or cause to be taken all actions, and to do or cause to be done
all things, necessary, proper or advisable under applicable laws and regulations
to consummate and make effective the Merger and the other transactions
contemplated hereby (subject to the votes of its shareholders described in
Sections 4.13 and 5.13, respectively), including fully cooperating with the
other in obtaining the PEPCO Required Statutory Approvals, the BGE Required
Statutory Approvals and all other approvals and authorizations of any
Governmental Authorities necessary or advisable to consummate the transactions
contemplated hereby.
(c) In connection therewith, PEPCO and BGE agree that teams
consisting of members from both PEPCO and BGE will be designated to prepare the
regulatory filings listed below with the leaders of each team as noted:
FERC PEPCO
NRC BGE
1933 Act, 1934 Act, and
Blue Sky filing BGE
1935 Act, if any PEPCO
the Maryland Commission and BGE
the Pennsylvania Commission
the D.C. Commission and PEPCO
the Virginia Commission
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ARTICLE VIII.
CONDITIONS
Section 8.1 Conditions to Each Party's Obligation to Effect
the Merger. The respective obligations of each party to effect the Merger shall
be subject to the satisfaction on or prior to the Closing Date of the following
conditions, except, to the extent permitted by applicable law, that such
conditions may be waived in writing pursuant to Section 9.5:
(a) Shareholder Approvals. The PEPCO Shareholders' Approvals
and the BGE Shareholders' Approvals shall have been obtained.
(b) No Injunction. No temporary restraining order or
preliminary or permanent injunction or other order by any federal or state court
preventing consummation of the Merger shall have been issued and continuing in
effect, and the Merger and the other transactions contemplated hereby shall not
have been prohibited under any applicable federal or state law or regulation.
(c) Registration Statement. The Registration Statement shall
have become effective in accordance with the provisions of the Securities Act,
and no stop order suspending such effectiveness shall have been issued and
remain in effect.
(d) Listing of Shares. The shares of Company Common Stock
issuable in the Merger pursuant to Article II shall have been approved for
listing on the NYSE upon official notice of issuance.
(e) Pooling. Each of BGE and PEPCO shall have received a
letter of its independent public accountants, dated the Closing Date, in form
and substance reasonably satisfactory to PEPCO and BGE, respectively, stating
that the Merger will qualify as a pooling-of-interests transaction under GAAP
and applicable SEC regulations.
(f) Statutory Approvals. The BGE Required Statutory Approvals
and the PEPCO Required Statutory Approvals shall have been obtained at or prior
to the Effective Time, such approvals shall have become Final Orders (as
hereinafter defined), and no Final Order shall impose terms or conditions that
would have, or would be reasonably likely to have, a material adverse effect on
the business, operations, properties, assets, condition (financial or
otherwise), prospects or results of operations of the Company (a "Company
Material Adverse Effect"). A "Final Order" means action by the relevant
regulatory authority that has not been reversed, stayed, enjoined, set aside,
annulled or suspended, with respect to which any waiting period prescribed by
law before the transactions contemplated hereby may be consummated has expired,
and as to which all conditions to the consummation of such transactions
prescribed by law, regulation or order have been satisfied, and as to which all
opportunities for rehearing are exhausted (whether or not any appeal thereof is
pending).
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(g) Virginia Incorporation. The Company shall have become
validly existing as a domestic corporation of the Commonwealth of Virginia.
Section 8.2 Conditions to Obligation of PEPCO to Effect the
Merger. The obligation of PEPCO to effect the Merger shall be further subject to
the satisfaction, on or prior to the Closing Date, of the following conditions,
except as may be waived by PEPCO in writing pursuant to Section 9.5:
(a) Performance of Obligations of BGE. BGE shall have
performed in all material respects its agreements and covenants contained in or
contemplated by this Agreement required to be performed by it at or prior to the
Effective Time.
(b) Closing Certificates. PEPCO shall have received a
certificate signed by the Chief Executive Officer and Chief Financial Officer of
BGE, dated the Closing Date, to the effect that, to each such officer's
knowledge, the conditions set forth in Section 8.2(a) have been satisfied.
(c) BGE Material Adverse Effect. No BGE Material Adverse
Effect shall have occurred and there shall exist no fact or circumstance that
would have, or would be reasonably likely to have, a BGE Material Adverse
Effect.
(d) Tax Opinion. PEPCO shall have received an opinion of
counsel, in form and substance satisfactory to PEPCO, dated the Closing Date,
which opinion may be based on appropriate representations of BGE, PEPCO and the
Company, in form and substance reasonably satisfactory to such counsel, to the
effect that the Merger will be a tax-free reorganization under Code ss. 368(a)
and that PEPCO, the Company and the shareholders of PEPCO who exchange their
shares solely for stock of the Company will recognize no gain or loss for
federal income tax purposes as a result of the consummation of the Merger.
(e) BGE Required Consents. The BGE Required Consents shall
have been obtained, except those that in the aggregate would not result in and
would not reasonably likely result in a Company Material Adverse Effect.
(f) Affiliate Certificates. The Company shall have received
written agreement dated the Closing Date from each person who is an affiliate of
BGE to the effect that:
(i) such person has no present plan or intention to
transfer, sell or otherwise dispose of any Company Common Stock such
person may receive as a result of the Merger;
(ii) until such time as financial results covering at
least thirty (30) days of post-closing combined operations of PEPCO,
BGE and the Company have been published, such person shall not sell
such Company Common Stock in any transaction, private or public, or in
any other way reduce such person's risk relative to any Company
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Common Stock that such person receives as a result of the Merger,
except to the extent permitted pursuant to SAB No. 76;
(iii) any future disposition by such person of any Company
Common Stock such person receives as the result of the Merger will be
accomplished in accordance with Rule 145(d) under the Securities Act;
and
(iv) such person agrees that appropriate legends shall be
placed upon the certificates evidencing ownership of the Company Common
Stock that such person receives as a result of the Merger.
Section 8.3 Conditions to Obligation of BGE to Effect the
Merger. The obligation of BGE to effect the Merger shall be further subject to
the satisfaction, on or prior to the Closing Date, of the following conditions,
except as may be waived by BGE in writing pursuant to Section 9.5:
(a) Performance of Obligations of PEPCO. PEPCO shall have
performed in all material respects its agreements and covenants contained in or
contemplated by this Agreement required to be performed by it at or prior to the
Effective Time.
(b) Closing Certificates. BGE shall have received a
certificate signed by the Chief Executive Officer and Chief Financial Officer of
PEPCO, dated the Closing Date, to the effect that, to each such officer's
knowledge, the conditions set forth in Section 8.3(a) have been satisfied.
(c) PEPCO Material Adverse Effect. No PEPCO Material Adverse
Effect shall have occurred and there shall exist no fact or circumstance that
would have, or would be reasonably likely to have, a PEPCO Material Adverse
Effect.
(d) Tax Opinion. BGE shall have received an opinion of
counsel, in form and substance satisfactory to BGE, dated the Closing Date,
which opinion may be based on appropriate representations of BGE, PEPCO and the
Company, in form and substance reasonably satisfactory to such counsel, to the
effect that the Merger will be a tax-free reorganization under Code ss. 368(a)
and that BGE, the Company and the shareholders of BGE who exchange their shares
solely for stock of the Company will recognize no gain or loss for federal
income tax purposes as a result of the consummation of the Merger.
(e) PEPCO Required Consents. The PEPCO Required Consents shall
have been obtained except those that in the aggregate would not result in and
would not reasonably likely result in a Company Material Adverse Effect.
(f) Affiliate Certificates. The Company shall have received a
written agreement dated the Closing Date from each person who is an affiliate of
PEPCO to the effect that:
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(i) such person has no present plan or intention to
transfer, sell or otherwise dispose of any Company Common Stock such
person may receive as a result of the Merger;
(ii) until such time as financial results covering at
least thirty (30) days of post-closing combined operations of PEPCO,
BGE and the Company have been published, such person shall not sell
such Company Common Stock in any transaction, private or public, or in
any other way reduce such person's risk relative to any Company Common
Stock that such person receives as a result of the Merger, except to
the extent permitted pursuant to SAB No. 76;
(iii) any future disposition by such person of any Company
Common Stock such person receives as the result of the Merger will be
accomplished in accordance with Rule 145(d) under the Securities Act;
and
(iv) such person agrees that appropriate legends shall be
placed upon the certificates evidencing ownership of the Company Common
Stock that such person receives as a result of the Merger.
ARTICLE IX.
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination. This Agreement may be terminated and
the Merger abandoned at any time prior to the Closing Date, whether before or
after approval by the shareholders of the respective parties hereto contemplated
by this Agreement:
(a) by mutual written consent of the Boards of Directors of
BGE and PEPCO;
(b) by PEPCO or BGE, by written notice to the other, if the
Effective Time shall not have occurred on or before March 31, 1997; provided,
however, that such date shall automatically be changed to March 31, 1998 if, on
March 31, 1997:
(i) the condition set forth in Section 8.1(f) has not
been satisfied or waived;
(ii) the other conditions to the consummation of the
transactions contemplated hereby are then capable of being satisfied;
and
(iii) any approvals required by Section 8.1(f) that have
not yet been obtained are being pursued with diligence; provided,
further, that the right to terminate this Agreement under this Section
9.1(b) shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of, or resulted in,
the failure of the Effective Time to occur on or before the termination
date;
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(c) by PEPCO or BGE, by written notice to the other party if
the BGE Shareholders' Approvals shall not have been obtained at a duly held BGE
Special Meetings, including any adjournments thereof, or the PEPCO Shareholders'
Approvals shall not have been obtained at duly held PEPCO Special Meetings,
including any adjournments thereof;
(d) by PEPCO or BGE, if any state or federal law, order, rule
or regulation is adopted or issued, that has the effect, as supported by the
written opinion of outside counsel for such party, of prohibiting the Merger, or
by PEPCO or BGE, if any court of competent jurisdiction in the United States or
any State shall have issued an order, judgment or decree permanently
restraining, enjoining or otherwise prohibiting the Merger, and such order,
judgment or decree shall have become final and nonappealable;
(e) by PEPCO, upon two days' prior notice to BGE, if, as a
result of a tender offer or any written offer or proposal with respect to a
merger, sale of a material portion of its assets or other business combination
(each, a "Business Combination"), in each case by a party other than BGE or any
of its affiliates, the Board of Directors of PEPCO determines in good faith that
the fiduciary obligations of such directors under applicable law require that
such tender offer or other written offer or proposal be accepted; provided,
however, that
(i) the Board of Directors of PEPCO shall have been
advised in writing by outside counsel that, notwithstanding a binding
commitment to consummate an agreement of the nature of this Agreement
entered into in the proper exercise of their applicable fiduciary
duties, such fiduciary duties would also require the directors to
reconsider such commitment as a result of such tender offer or such
written offer or proposal, and
(ii) prior to any such termination, PEPCO shall, and
shall cause its respective financial and legal advisors to, negotiate
with BGE to make such adjustments in the terms and conditions of this
Agreement as would enable PEPCO to proceed with the transactions
contemplated herein;
(f) by BGE, upon two days' prior notice to PEPCO, if, as a
result of a tender offer or any written offer or proposal with respect to a
Business Combination, in each case by a party other than PEPCO or any of its
affiliates, the Board of Directors of BGE determines in good faith that the
fiduciary obligations of such directors under applicable law require that such
tender offer or other written offer or proposal be accepted; provided, however,
that
(i) the Board of Directors of BGE shall have been
advised in writing by outside counsel that, notwithstanding a binding
commitment to consummate an agreement of the nature of this Agreement
entered into in the proper exercise of their applicable fiduciary
duties, such fiduciary duties would also require the directors to
reconsider such commitment as a result of such tender offer or such
written offer or proposal, and
(ii) prior to any such termination, BGE shall, and shall
cause its respective financial and legal advisors to, negotiate with
PEPCO to make such adjustments in the
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terms and conditions of this Agreement as would enable BGE to proceed
with the transactions contemplated herein;
(g) by PEPCO, by written notice to BGE, if
(i) there shall have been any material breach of any
material representation or warranty, or any material breach of any
covenant or agreement, of BGE hereunder, and such breach shall not have
been remedied within twenty days after receipt by BGE of notice in
writing from PEPCO, specifying the nature of such breach and requesting
that it be remedied, or
(ii) the Board of Directors of BGE shall withdraw or
modify in any manner materially adverse to PEPCO its approval or
recommendation of this Agreement or the Merger or resolve to take such
action; or
(h) by BGE, by written notice to PEPCO, if
(i) there shall have been any material breach of any
material representation or warranty, or any material breach of any
covenant or agreement, of PEPCO hereunder, and such breach shall not
have been remedied within twenty days after receipt by PEPCO of notice
in writing from BGE, specifying the nature of such breach and
requesting that it be remedied, or
(ii) the Board of Directors of PEPCO shall withdraw or
modify in any manner materially adverse to BGE its approval or
recommendation of this Agreement or the Merger or resolve to take such
action.
Section 9.2 Effect of Termination. In the event of termination
of this Agreement by either BGE or PEPCO pursuant to Section 9.1, there shall be
no liability on the part of either BGE or PEPCO or their respective officers or
directors hereunder, except that
(i) Section 6.20, Section 7.1(b), Section 7.6(e),
Section 7.18, Section 9.3 and Section 10.2 shall survive and
(ii) no such termination shall relieve any party from
liability by reason of any willful breach of any representation,
warranty or covenant contained in this Agreement.
Section 9.3 Termination Damages.
(a) Damages Payable upon Termination for Breach. If this
Agreement is terminated pursuant to Section 9.1(g)(i) or Section 9.1(h)(i)
(breach of representation, warranty, covenant or agreement), then the breaching
party shall promptly (but not later than five business days after receipt of
notice that the amount is due from the other party) pay to the other party,
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as liquidated damages, $10 million in cash in respect of out-of-pocket expenses
and fees incurred by the other party, including, without limitation, fees and
expenses payable to all legal, accounting, financial, public relations and other
professional advisors arising out of, in connection with or related to the
Merger or the transactions contemplated by this Agreement (collectively,
"Out-of-Pocket Expenses").
(b) Damages Payable In Certain Other Events. If this Agreement
(i) is terminated
(A) pursuant to Section 9.1(e) or Section 9.1(f)
(fiduciary out),
(B) pursuant to Section 9.1(c) (failure to obtain
shareholder approval), following a failure of the shareholders
of PEPCO or BGE to grant the necessary approvals described in
Section 4.13 or Section 5.13, as the case may be (a
"Shareholder Disapproval"),
(C) as a result of a material breach of Section
7.4 (approval of shareholders), or
(D) pursuant to Section 9.1(g)(ii) or Section
9.1(h)(ii) (board withdrawal or modification of approval or
recommendation),
and
(ii) with respect to any termination referred to in
clause (i)(A), (B) or (C) above, at the time of such termination (or,
in the case of any termination following a Shareholder Disapproval,
prior to the shareholder meeting at which such Shareholder Disapproval
occurred), there shall have been a third-party tender offer for shares
of, or a third-party offer or proposal with respect to a Business
Combination involving, PEPCO or BGE (as the case may be, the "Target
Party") or the affiliates thereof which, at the time of such
termination (or of the meeting of the Target Party's shareholders, as
the case may be) shall not have been (x) rejected by the Target Party
and its Board of Directors and (y) withdrawn by the third-party,
then the Target Party shall pay the other party a termination fee equal to $75
million in cash and $10 million in cash in respect of Out-of-Pocket Expenses.
(c) Expenses.
(i) The parties agree that the agreements contained in
this Section 9.3 are an integral part of the transactions contemplated
by this Agreement and constitute liquidated damages and not a penalty.
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(ii) If one party fails to promptly pay to the other any
amounts due under this Section 9.3, such defaulting party shall pay the
costs and expenses (including reasonable legal fees and expenses) in
connection with any action, including the filing of any lawsuit or
other legal action, taken to collect payment, together with interest on
the amount of any unpaid fee at the publicly announced prime rate of
Citibank, N.A. in effect from time to time from the date such fee was
required to be paid.
(d) Limitation of Fees. Notwithstanding anything herein to the
contrary, the aggregate amount payable by BGE and its affiliates pursuant to
Section 9.3(a), Section 9.3(b) and the terms of the BGE Stock Option Agreement
shall not exceed $125 million and the aggregate amount payable by PEPCO and its
affiliates pursuant to Section 9.3(a), Section 9.3(b) and the terms of the PEPCO
Stock Option Agreement shall not exceed $125 million. For purposes of this
Section 9.3(d), the amount payable pursuant to the terms of the PEPCO Option or
the BGE Option, as the case may be, shall be the amount paid pursuant to
Sections 7(a)(i) and 7(a)(ii) thereof.
Section 9.4 Amendment.
(a) This Agreement may be amended by parties hereto pursuant
to action of their respective Boards of Directors, at any time before or after
approval hereof by the shareholders of BGE and PEPCO and prior to the Effective
Time, but after such approvals, no such amendment shall
(i) alter or change the amount or kind of shares, to be
received or exchanged for or on conversion of any class or series of
capital stock of either corporation as provided under Article II,
(ii) alter or change any of the terms and conditions of
this Agreement if any of the alterations or changes, alone or in the
aggregate, would materially and adversely affect the rights of holders
of BGE Common Stock, BGE Preferred Stock, BGE Preference Stock, PEPCO
Common Stock or PEPCO Preferred Stock, or
(iii) alter or change any term of the Articles of
Incorporation of the Company, except for alterations or changes that
could otherwise be adopted by the Board of Directors of the Company,
without the further approval of such shareholders, as applicable.
(b) This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto.
Section 9.5 Waiver.
(a) At any time prior to the Effective Time, the parties
hereto may
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(i) extend the time for the performance of any of the
obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant
hereto and
(iii) waive compliance with any of the agreements or
conditions contained
herein.
(b) Any agreement on the part of a party hereto to any such
extension or wavier shall be valid only if set forth in an instrument in writing
signed by a duly authorized officer of such party.
ARTICLE X.
GENERAL PROVISIONS
Section 10.1 Non-Survival of Representations, Warranties,
Covenants and Agreements. All representations, warranties, covenants and
agreements in this Agreement shall not survive the Merger, except the covenants
and agreements contained in this Section 10.1 and in Article II, Section 7.1(b)
(Access to Information), Section 7.5 (Directors' and Officers Indemnification),
Section 7.6(e) (Disclosure Schedules), Section 7.10 (Incentive, Stock and Other
Plans), Section 7.12 (Company Board of Directors), Section 7.13 (Company
Officers), Section 7.14 (Employment Contracts), Section 7.15 (Corporate Offices
and Name), Section 9.3 (Termination Damages) and Section 10.7 (Parties In
Interest), each of which shall survive in accordance with its terms.
Section 10.2 Brokers.
(a) BGE represents and warrants that, except for Goldman,
Sachs & Co., its investment banking firm, no broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in connection
with the Merger or the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of BGE.
(b) PEPCO represents and warrants that, except for Barr Devlin
& Co. Incorporated, its investment banking firm, no broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or commission in
connection with the Merger or the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of PEPCO.
Section 10.3 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given (a) if delivered
personally, or (b) if sent by overnight courier service (receipt confirmed in
writing), or (c) if delivered by facsimile transmission (with
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receipt confirmed), or (d) five days after being mailed by registered or
certified mall (return receipt requested) to the parties, in each case to the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) If to BGE, two copies, one each to:
By Mail: P.O. Box 1475
Baltimore, MD 21203
By Hand: Liberty and Lexington Streets
Baltimore, MD 21201
Attention: Charles W. Shivery
Vice President and CFO
Fax: (410) 234-5690
David A. Brune, Esq.
General Counsel
Fax: (410) 234-5513
with a copy to:
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004-1490
Attention: Stephen R. Rusmisel, Esq.
Fax: (212) 858-1500
(ii) If to PEPCO, to:
By Mail 1900 Pennsylvania Avenue, NW
and Hand: Washington, DC 20063
Attention: Dennis R. Wraase
Senior Vice President-Finance and
Accounting
Fax: (202) 331-6314
William T. Torgerson
Senior Vice President-Law &
Governmental Relations,
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General Counsel and Secretary
Fax: (202) 331-6314
with a copy to:
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019
Attention: Douglas W. Hawes, Esq.
Fax: (212) 424-8500
and a copy to:
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20044
Attention: George B. Reid, Jr., Esq.
Fax: (202) 662-6291
Section 10.4 Miscellaneous.
(a) This Agreement (including the documents and instruments
referred to herein):
(i) constitutes the entire agreement and supersedes all
other prior agreements and understandings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof
other than the Confidentiality Agreement;
(ii) shall not be assigned by operation of law or
otherwise; and
(iii) shall be governed by and construed in accordance
with the laws of the State of Maryland applicable to contracts executed
in and to be fully performed in such State, without giving effect to
its conflicts of laws statutes, rules or principles.
(b) (i) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement, which shall remain in full force and
effect.
(ii) The parties hereto shall negotiate in good faith to
replace any provision of this Agreement so held invalid or
unenforceable with a valid provision that is as similar as possible in
substance to the invalid or unenforceable provision.
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Section 10.5 Interpretation.
(a) When reference is made in this Agreement to Articles,
Sections or Exhibits, such reference shall be to an Article, Section or Exhibit
of this Agreement, as the case may be, unless otherwise indicated.
(b) The table of contents and headings contained in this
Agreement are for reference purposes and shall not affect in any way the meaning
or interpretation of this Agreement.
(c) Whenever the words "include", "includes", or "including"
are used in this Agreement, they shall be deemed to be followed by the words
"without limitation."
(d) Whenever "or" is used in this Agreement it shall be
construed in the nonexclusive sense.
Section 10.6 Counterparts; Effect. This Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same agreement.
Section 10.7 Parties in Interest.
This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and, except for rights of Indemnified Parties and
their heirs and representatives as set forth in Section 7.5, nothing in this
Agreement, express or implied, is intended to confer upon any person any rights
or remedies of any nature whatsoever under or by reason of this Agreement.
Section 10.8 Specific Performance.
(a) The parties hereto agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
(b) It is accordingly agreed that the parties hereto shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
Section 10.9 Further Assurances. Each party hereto shall
execute such further documents and instruments and take such further actions as
may reasonably be requested by any other party hereto in order to consummate the
Merger in accordance with the terms hereof.
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IN WITNESS WHEREOF, BGE, PEPCO and the Company have caused
this Agreement to be signed by their respective officers thereunto duly
authorized as of the date first written above.
BALTIMORE GAS AND ELECTRIC COMPANY
/s/ CHRISTIAN H. POINDEXTER
---------------------------------
Christian H. Poindexter
Chairman of the Board and
Chief Executive Officer
POTOMAC ELECTRIC POWER COMPANY
/s/ EDWARD F. MITCHELL
---------------------------------
Edward F. Mitchell
Chairman of the Board and
Chief Executive Officer
RH ACQUISITION CORP.
/s/ STEPHEN R. RUSMISEL
--------------------------------
Stephen R. Rusmisel
Director
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EXHIBIT 1.3
As of the Effective Time, the Articles of Incorporation of the
Company shall provide:
(a) that the corporate name shall be as determined in
accordance with Section 7.15(b);
(b) that the Company Class A Preferred Stock and the
Company Class B Preferred Stock are pari passu in
respect of dividends and other distribution and in
liquidation;
(c) that the Company Class A Preferred Stock and the
Company Class B Preferred Stock are senior to the
Company Preference Stock, and the Company Preference
Stock is senior to the Company Common Stock, in each
case, in respect of dividends and other distributions
and in liquidation;
(d) that Company Class A Preferred Stock and the Company
Class B Preferred Stock have the rights and
privileges set forth in Section 2.1(e) and 2.1(g),
respectively, of the Agreement;
(e) that the Board of Directors of the Company is
classified in accordance with provisions of Section
7.12 of the Agreement;
(f) such other provisions as are required by law and such
provisions as may be agreed upon by PEPCO and BGE;
and
(g) for indemnification of directors and officers.
EXHIBIT 1.4
As of the Effective Time, the Bylaws of the Company shall
include such provisions as are required by law, the supermajority provisions set
forth in Section 7.12(d) of the Agreement, the provisions on committee matters
provided for in Section 7.12(c) of the Agreement, and such other provisions as
shall be agreed upon by PEPCO and BGE.
EXHIBIT 7.12
Classes of Directors
Class 3 Class 2 Class 1
(three year term) (two year term) (one year term)
- ----------------- --------------- ---------------
Mr. Christian H. Poindexter Mr. Edward F. Mitchell 3 BGE Directors
Mr. Edward A. Crooke 3 BGE Directors
Mr. John M. Derrick, Jr.
One BGE Director 1 PEPCO Director 2 PEPCO Directors
Two PEPCO Directors
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AGREEMENT AND PLAN
OF MERGER
by and among
BALTIMORE GAS AND ELECTRIC COMPANY,
POTOMAC ELECTRIC POWER COMPANY,
and
RH ACQUISITION CORP.
Dated as of September 22, 1995
TABLE OF CONTENTS
Page
ARTICLE I.
THE MERGER
Section 1.1 The Merger...................................................... 2
Section 1.2 Effective Time of the Merger.................................... 2
Section 1.3 Articles of Incorporation....................................... 2
Section 1.4 Bylaws.......................................................... 2
Section 1.5 Effects of Merger............................................... 2
ARTICLE II.
CONVERSION OF SHARES
Section 2.1 Effect of Merger on Capital Stock............................... 2
Section 2.2 Dissenting Shares............................................... 6
Section 2.3 Exchange of Certificates........................................ 6
ARTICLE III.
THE CLOSING
Section 3.1 Closing......................................................... 9
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PEPCO
Section 4.1 Organization and Qualification.................................. 9
Section 4.2 Subsidiaries.................................................... 10
Section 4.3 Capitalization.................................................. 11
Section 4.4 Authority; Non-Contravention; Statutory Approvals; Compliance... 11
Section 4.5 Reports and Financial Statements................................ 13
Section 4.6 Absence of Certain Changes or Events; Absence of
Undisclosed Liabilities.................................... 14
Section 4.7 Litigation...................................................... 15
Section 4.8 Registration Statement and Proxy Statement...................... 15
Section 4.9 Tax Matters..................................................... 16
Section 4.10 Employee Matters; ERISA.................................... 17
Section 4.11 Environmental Protection....................................... 23
Section 4.12 Regulation as a Utility........................................ 26
Section 4.13 Vote Required.................................................. 26
Section 4.14 Accounting Matters............................................. 26
Section 4.15 Applicability of Certain Virginia Law.......................... 26
Section 4.16 Opinion of Financial Advisor................................... 27
Section 4.17 Insurance...................................................... 27
Section 4.18 Ownership of BGE Common Stock.................................. 27
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF BGE
Section 5.1 Organization and Qualification.................................. 27
Section 5.2 Subsidiaries.................................................... 28
Section 5.3 Capitalization.................................................. 28
Section 5.4 Authority; Non-Contravention; Statutory Approvals; Compliance... 29
Section 5.5 Reports and Financial Statements................................ 31
Section 5.6 Absence of Certain Changes or Events; Absence of
Undisclosed Liabilities.................................... 31
Section 5.7 Litigation...................................................... 32
Section 5.8 Registration Statement and Proxy Statement...................... 32
Section 5.9 Tax Matters..................................................... 33
Section 5.10 Employee Matters; ERISA.................................... 33
Section 5.11 Environmental Protection....................................... 39
Section 5.12 Regulation as a Utility........................................ 41
Section 5.13 Vote Required.................................................. 41
Section 5.14 Accounting Matters............................................. 41
Section 5.15 Applicability of Certain Maryland Law.......................... 41
Section 5.16 Opinion of Financial Advisor................................... 41
Section 5.17 Insurance...................................................... 42
Section 5.18 Ownership of PEPCO Common Stock................................ 42
Section 5.19 NRC Actions.................................................... 42
ARTICLE VI.
CONDUCT OF BUSINESS PENDING THE MERGER
Section 6.1 Ordinary Course of Business..................................... 43
Section 6.2 Dividends....................................................... 43
Section 6.3 Issuance of Securities.......................................... 44
Section 6.4 Charter Documents............................................... 44
Section 6.5 No Acquisitions................................................. 44
Section 6.6 Capital Expenditures............................................ 44
Section 6.7 No Dispositions................................................. 45
Section 6.8 Indebtedness.................................................... 45
Section 6.9 Compensation, Benefits.......................................... 45
Section 6.10 1935 Act....................................................... 46
Section 6.11 Accounting..................................................... 46
Section 6.12 Pooling........................................................ 46
Section 6.13 Tax-Free Status................................................ 46
Section 6.14 Insurance...................................................... 47
Section 6.15 Cooperation, Notification...................................... 47
Section 6.16 Rate Matters................................................... 47
Section 6.17 Third-Party Consents........................................... 47
Section 6.18 Tax-Exempt Status.............................................. 47
Section 6.19 Permits........................................................ 48
Section 6.20 Certain Information Relating to Customers...................... 48
ARTICLE VII.
ADDITIONAL AGREEMENTS
Section 7.1 Access to Information........................................... 48
Section 7.2 Joint Proxy Statement and Registration Statement................ 49
Section 7.3 Regulatory Matters.............................................. 50
Section 7.4 Shareholder Approvals........................................... 51
Section 7.5 Directors' and Officers' Indemnification........................ 52
Section 7.6 Disclosure Schedules............................................ 54
Section 7.7 Public Announcements............................................ 55
Section 7.8 Rule 145 Affiliates............................................. 55
Section 7.10 Incentive, Stock and Other Plans............................... 55
Section 7.11 No Solicitations............................................... 56
Section 7.12 Company Board of Directors..................................... 57
Section 7.13 Company Officers............................................... 58
Section 7.14 Employment Contracts........................................... 58
Section 7.15 Corporate Offices and Name..................................... 59
Section 7.16 Transition Management.......................................... 59
Section 7.17 Expenses....................................................... 60
Section 7.18 Covenant to Satisfy Conditions................................. 60
ARTICLE VIII.
CONDITIONS
Section 8.1 Conditions to Each Party's Obligation to Effect the Merger...... 61
Section 8.2 Conditions to Obligation of PEPCO to Effect the Merger.......... 62
Section 8.3 Conditions to Obligation of BGE to Effect the Merger............ 63
ARTICLE IX.
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination..................................................... 64
Section 9.2 Effect of Termination........................................... 66
Section 9.3 Termination Damages............................................. 66
Section 9.4 Amendment....................................................... 68
Section 9.5 Waiver.......................................................... 68
ARTICLE X.
GENERAL PROVISIONS
Section 10.1 Non-Survival of Representations, Warranties, Covenants
and Agreements............................................ 69
Section 10.2 Brokers........................................................ 69
Section 10.3 Notices........................................................ 69
Section 10.4 Miscellaneous.................................................. 71
Section 10.5 Interpretation................................................. 72
Section 10.6 Counterparts; Effect........................................... 72
Section 10.8 Specific Performance........................................... 72
Section 10.9 Further Assurances............................................. 72