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As Of Filer Filing For·On·As Docs:Size Issuer Agent 2/04/10 Baltimore Gas & Electric Co 8-K:8,9 2/02/10 6:493K Merrill Corp-MD/FA Constellation Energy Group Inc |
Document/Exhibit Description Pages Size 1: 8-K Current Report HTML 51K 2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 19K 3: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 52K 4: EX-99.1 Miscellaneous Exhibit HTML 122K 5: EX-99.2 Miscellaneous Exhibit HTML 62K 6: EX-99.3 Miscellaneous Exhibit HTML 52K
Exhibit 99.2
EXECUTION COPY
CONTRIBUTION AGREEMENT
dated as of February 4, 2010
among
Constellation Energy Group Inc.,
Baltimore Gas and Electric Company, and
RF HoldCo LLC
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ARTICLE I CONTRIBUTION; ISSUANCE OF CLASS A CERTIFICATE |
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3 |
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Section 1.1 |
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The Contribution |
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3 |
Section 1.2 |
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Intention of the Parties |
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4 |
Section 1.3 |
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The Closing |
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4 |
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ARTICLE II REPRESENTATIONS AND WARRANTIES |
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Section 2.1 |
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Representations and Warranties of Constellation |
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5 |
Section 2.2 |
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Representations and Warranties of BGE |
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5 |
Section 2.3 |
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Representations and Warranties of HoldCo |
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6 |
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ARTICLE III MISCELLANEOUS |
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Section 3.1 |
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Waivers; Amendments |
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7 |
Section 3.2 |
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Notices |
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7 |
Section 3.3 |
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Effectiveness; Assignability |
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7 |
Section 3.4 |
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Governing Law |
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8 |
Section 3.5 |
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Execution in Counterparts; Severability |
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9 |
Section 3.6 |
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Entire Agreement |
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9 |
Section 3.7 |
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Limitations on Liability |
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9 |
THIS CONTRIBUTION AGREEMENT (this “Agreement”) is made as of February 4, 2010 by and among Constellation Energy Group Inc., a Maryland corporation (“Constellation”), Baltimore Gas and Electric Company, a Maryland corporation (“BGE”), and RF HoldCo LLC, a Delaware limited liability company (“HoldCo). Each of Constellation, BGE and HoldCo are referred to herein as a “Party,” and collectively as the “Parties.”
W I T N E S S E T H
WHEREAS, Constellation is the holder of Stock Certificate No. R001 of BGE (the “Existing BGE Stock Certificate”), representing all 1,000 shares of the outstanding common stock of BGE (the “BGE Shares”);
WHEREAS, Constellation is the holder of Stock Certificate No. CA-1 of HoldCo (the “Class A Certificate”), representing all issued and outstanding Class A membership interests of HoldCo (the “Class A Membership Interests”);
WHEREAS, Constellation desires to contribute all of the BGE Shares to HoldCo, and to receive in exchange an increase in the value of the Class A Membership Interests, as represented by the Class A Certificate;
WHEREAS, HoldCo acknowledges and agrees that the Class A Certificate held by Constellation shall continue to represent all issued and outstanding Class A membership interests of HoldCo as of the Effective Date; and
WHEREAS, Constellation, BGE and HoldCo have adopted all necessary resolutions approving the transactions contemplated by this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants hereof, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the Parties hereby agree as follows:
ARTICLE I
CONTRIBUTION; ISSUANCE OF CLASS A CERTIFICATE
Section 1.2 Intention of the Parties. It is the intention of the Parties that the contribution of the BGE Shares made hereunder shall constitute an absolute conveyance from Constellation to HoldCo under applicable state law and federal bankruptcy law, which conveyance is absolute and irrevocable and which provides HoldCo with all rights of ownership of the BGE Shares, and that the beneficial interest and title to the BGE Shares shall not be property of Constellation’s estate in the event (i) Constellation becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due, (ii) Constellation makes a general assignment, arrangement or composition with or for the benefit of its creditors, (iii) of the occurrence of a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights in respect of Constellation, or (iv) Constellation seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets. None of the Parties intends the transactions contemplated hereunder to be, or for any purpose to be characterized as, loans from HoldCo to Constellation secured by the BGE Shares. The absolute conveyance of the BGE Shares by Constellation to HoldCo is made without recourse to Constellation; provided, however, that Constellation shall be liable to HoldCo for all representations, warranties and covenants made by Constellation with respect to the BGE Shares being conveyed by Constellation to HoldCo pursuant to the terms of this Agreement. Constellation hereby agrees to disclose in appropriate public filings that HoldCo is the owner of the BGE Shares and to respond to any inquiries made by third parties as to the ownership of the BGE Shares by confirming that the BGE Shares have been conveyed to HoldCo.
Section 1.3 The Closing. The Closing of the transactions contemplated hereby (the “Closing”) shall take place at the offices of Kirkland & Ellis LLP, 655 Fifteenth Street, N.W., Washington, D.C. 20005 on the date hereof, or at such other place or on such other date as may be mutually agreeable to the Parties. The date on which the Closing occurs shall be the “Effective Date” for all purposes of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Constellation. Constellation hereby represents and warrants that as of the Effective Date:
Section 2.2 Representations and Warranties of BGE. BGE hereby represents and warrants that as of the Effective Date:
Section 2.3 Representations and Warranties of HoldCo. HoldCo hereby represents and warrants that as of the Effective Date:
ARTICLE III
MISCELLANEOUS
Section 3.1 Waivers; Amendments. No failure or delay on the part of Constellation, BGE or HoldCo or any successor or permitted assignee thereof, in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other further exercise thereof or the exercise of any other power, right or remedy. The rights and remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by law. Any provision of this Agreement may be amended or waived only if such amendment or waiver is executed by the Parties in writing.
Section 3.2 Notices. Except as otherwise provided herein, all notices, demands, and requests that any Party is required or elects to give to any other shall be in writing, or by a telecommunications device capable of creating a written record, and any such notice shall become effective (a) upon personal delivery thereof, including delivery by overnight mail and courier service, (b) five days after it shall have been mailed by United States mail, first class, certified or registered, with postage, prepaid, or (c) in the case of notice by such a telecommunications device, when properly transmitted, in each case addressed to the Party to be notified as follows:
if to Constellation:
Constellation Energy Group Inc.
100 Constellation Way, Suite 1700P
Attn: Assistant Secretary
if to BGE:
Baltimore Gas and Electric Company
2 Center Plaza
110 West Fayette Street
Attn: Treasurer
if to HoldCo:
RF HoldCo LLC
100 Constellation Way, Suite 1700P
Attn: Assistant Secretary
Section 3.3 Effectiveness; Assignability. This Agreement shall become effective on the Effective Date and shall, from and after such date, be binding upon and inure to the benefit of Constellation, BGE and HoldCo and their respective successors and assignees. No provision of this Agreement shall in any manner restrict the ability of Constellation or HoldCo
Section 3.4 Governing Law.
Section 3.5 Execution in Counterparts; Severability. This Agreement may be executed by the Parties in separate counterparts (including by means of facsimile or electronic transmission in portable document format (pdf)), each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 3.6 Entire Agreement. This Agreement contains a final and complete integration of all prior expressions by the Parties with respect to the subject matter hereof and shall constitute the entire agreement among the Parties with respect to the subject matter hereof, superseding all previous oral statements and other writings with respect thereto.
Section 3.7 Limitations on Liability. None of the officers, employees, agents, shareholders, members, directors or managers, as applicable, of or in any Party, past, present or future, shall be under any liability to the other Parties, any of their successors or assignees, or any other person for any action taken or for refraining from the taking of any action in such capacities or otherwise pursuant to this Agreement or for any obligation or covenant under this Agreement, it being understood that this Agreement and the obligations created hereunder shall be, to the fullest extent permitted under applicable law, with respect to Constellation and BGE, solely the corporate obligations of Constellation or BGE, as applicable, and with respect to HoldCo, solely the limited liability company obligations of HoldCo.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first written above.
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CONSTELLATION: |
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CONSTELLATION ENERGY GROUP, INC. |
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By: |
/s/ Charles A. Berardesco |
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Name: |
Charles A. Berardesco |
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Title: |
Senior Vice President and General Counsel |
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BGE: |
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BALTIMORE GAS AND ELECTRIC COMPANY |
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By: |
/s/ Kenneth W. DeFontes, Jr. |
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Name: |
Kenneth W. DeFontes, Jr. |
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Title: |
President and Chief Executive Officer |
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HOLDCO: |
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RF HOLDCO LLC |
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By: |
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Name: |
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Title: |
President |
This ‘8-K’ Filing | Date | Other Filings | ||
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Filed on: | 2/4/10 | None on these Dates | ||
For Period End: | 2/2/10 | |||
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