INVESTOR AGREEMENT
Exhibit
99.1
EXECUTION
COPY
THIS
INVESTOR AGREEMENT (this “Agreement”) made and
entered into this 20th day of July 2007, by and between Électricité de France
International, SA, a French société anonyme (“EDFI”), and
Constellation Energy Group, Inc., a Maryland corporation (“Constellation”);
W I T N E S S E T
H:
WHEREAS, EDFI and
Constellation have been engaged in discussions relating to their respective
businesses;
WHEREAS,
as a condition to such discussions, an affiliate of EDFI and Constellation
entered into a non-disclosure agreement, dated as of February 26, 2007 (the
“Nondisclosure
Agreement”);
WHEREAS,
in connection with such discussions, EDFI and Constellation, through their
respective affiliates, are concurrently entering into a joint venture to
participate in the development, ownership and operation of new nuclear projects
in the United States and Canada and related activities (the “Joint
Venture”);
WHEREAS,
also in connection with such discussions, EDFI has proposed that it may acquire
beneficial ownership of outstanding shares of Constellation common stock,
without par value (the “Constellation
Stock”); and
WHEREAS,
EDFI and Constellation wish to agree on the terms and conditions of such
acquisition of Constellation Stock as well as any related rights for
EDFI.
NOW,
THEREFORE, for and in consideration of the rights and obligations contained
herein, and for other good and valuable consideration, the adequacy of which is
hereby acknowledged, it is covenanted and agreed as follows:
ARTICLE
I
REPRESENTATIONS
Section
1.1 Representations of
Constellation. Constellation hereby represents and warrants to
EDFI as follows:
(a) Constellation
has all necessary corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The execution,
delivery and performance of this Agreement by Constellation have been duly and
validly authorized by all necessary corporate action of Constellation, and no
other corporate proceedings on the part of Constellation are necessary to
authorize this Agreement or the performance by Constellation of its obligations
hereunder.
(b) This
Agreement has been duly and validly executed and delivered by Constellation and,
assuming the due authorization, execution and delivery hereof by EDFI,
constitutes a legal, valid and binding obligation of Constellation enforceable
against Constellation in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors’ rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and any implied covenant of good faith and fair dealing.
(c) The
execution, delivery and performance of this Agreement by Constellation do not
and will not conflict with or violate (i) the articles of incorporation or
bylaws of Constellation, or (ii) any law, ordinance, rule, or regulation
applicable to Constellation.
Section
1.2 Representations of
EDFI. EDFI hereby represents and warrants to Constellation as
follows:
(a) EDFI
has all necessary corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The execution,
delivery and performance of this Agreement by EDFI have been duly and validly
authorized by all necessary corporate action of EDFI, and no other corporate
proceedings on the part of EDFI are necessary to authorize this Agreement or the
performance by EDFI of its obligations hereunder.
(b) This
Agreement has been duly and validly executed and delivered by EDFI and, assuming
the due authorization, execution and delivery hereof by Constellation,
constitutes a legal, valid and binding obligation of EDFI enforceable against
EDFI in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and any
implied covenant of good faith and fair dealing.
(c) The
execution, delivery and performance of this Agreement by EDFI do not and will
not conflict with or violate (i) the governing documents of EDFI, or
(ii) any law, ordinance, rule, or regulation applicable to
EDFI.
(d) EDFI,
each of its subsidiaries and, to the best of its knowledge, each of its
controlled affiliates (EDFI, its subsidiaries and controlled affiliates,
collectively, the “EDFI Group”)
currently are not beneficial owners (determined as hereinafter provided) of any
Constellation Stock; provided, however, this
representation shall not apply to any investments made or managed by outside
asset managers with EDFI funds relating to contingent nuclear liabilities,
whether such investments have previously been made or are made in the future
(any such investments whenever made are hereinafter referred to as, “Permitted EDFI
Investments”). EDFI has no control over the funds used by the asset
managers to make Permitted EDFI Investments. For purposes of
this Agreement, “controlled affiliate” shall mean any entity for which EDFI
Group would have the ability to direct the acquisition, disposition or voting of
Constellation Stock.
2
ARTICLE
II
ACQUISITIONS
AND DISPOSITIONS OF CONSTELLATION STOCK
Section
2.1 Acquisition of Constellation
Stock. Until the expiration of the Term (as that term is
defined herein) of the Agreement, EDFI or any member of the EDFI Group shall be
permitted to acquire and hold shares of Constellation Stock as
follows:
(a) prior
to the first anniversary of the date of this Agreement, beneficial ownership, in
the aggregate, of no more than 5.0% of the issued and outstanding shares of
Constellation Stock;
(b) from
and after the first anniversary of the date of this Agreement, beneficial
ownership, in the aggregate, of no more than 9.9% of the issued and outstanding
shares of Constellation Stock;
provided, that
(i) all such purchases made under this Section 2.1 shall be done in such a
manner as is consistent with then current professional practices for the
acquisition of shares of public companies, and (ii) if after the date of
the execution of this Agreement EDFI acquires a subsidiary or controlled
affiliate which owns Constellation Stock, EDFI shall have sixty days to divest
such Constellation Stock (and during such sixty-day period (i) such
Constellation Stock shall not be included in any calculations under this Section
2.1 and (ii) such sales shall not be subject to the limitations set forth in
Section 2.3).
Section
2.2 Standstill. Until
the expiration of the Term of this Agreement, without the prior written consent
of Constellation, EDFI shall not, and shall cause each member of the EDFI Group
not to, singly or as part of a group, directly or indirectly:
(a) acquire
or propose to acquire (other than as a result of a stock split, stock dividend
or other recapitalization of Constellation) beneficial ownership of any equity
securities of Constellation (“Equity Securities”)
or any rights to directly or indirectly acquire any Equity Securities, except as
contemplated by Section 2.1;
(b) participate
in any solicitation of proxies or become a participant in any election contest
with respect to Constellation;
(c) seek,
or offer or make any proposal to Constellation, its representatives or any
shareholder of Constellation, or otherwise make any public announcement with
respect to, (1) any merger, consolidation or sale of all or substantially
all of the assets, or a majority of the outstanding shares of Constellation
Stock, or any other form of business combination involving Constellation, (2)
any form of restructuring, recapitalization, liquidation or similar transaction
involving Constellation, or (3) any proposal or other statement inconsistent
with the terms of this Section 2.2, except as specifically contemplated by the
terms of this Agreement or the agreements governing the Joint
Venture;
(d) join
with any other parties to form a “group” with respect to Constellation Stock, as
determined pursuant to Section 13(d) of the U.S. Securities Exchange Act of
1934, as amended;
3
(e) otherwise
act, alone or in concert with others, to seek or offer to control or influence,
in any manner, the management, board of directors or policies of Constellation,
except as otherwise contemplated by the terms of this Agreement or the
agreements governing the Joint Venture; or
(f) enter
into any agreement, disclose any intention or knowingly advise, assist or
encourage any other person to do any of the above.
Notwithstanding
anything to the contrary in this Agreement, EDFI or any other member of the EDFI
Group may participate in any tender or exchange offer for Constellation Stock as
a seller or, subject to Section 3.2, vote any securities owned by it at any
special meeting of the holders of Constellation Stock to consider any such
business combination transaction.
Section
2.3 Dispositions of
Constellation Stock. During the Term of this Agreement, EDFI
shall provide Constellation with three business days’ prior written notice of
its intention to sell any shares of Constellation Stock, which notice shall
include EDFI’s then good faith estimate of the approximate number of shares of
Constellation Stock proposed to be sold. Subject to the limitations
set forth below, EDFI shall not be restricted in the actual number of shares it
may sell following the delivery of such notice regardless of the number of
shares intended to be sold as set forth in such notice. Also during
the Term of this Agreement, EDFI shall (and shall cause each member of the EDFI
Group to) only sell Constellation Stock in a manner that does not disrupt the
market for Constellation Stock and in any event in accordance with the limits
set forth below:
(a) until
three years after the date of this Agreement, EDFI shall not (and shall cause
each member of the EDFI Group not to) dispose of any shares of Constellation
Stock, provided, that this
restriction shall no longer apply from and after (i) such time as a
majority of the members of the Constellation board of directors are not
directors nominated by a majority of the then-existing board members, or
(ii) the actual dissolution of the Joint Venture as a result of a deadlock
between the parties thereto, and
(b) with
respect to any sales of Constellation Stock, the amount of Constellation Stock
sold by the EDFI Group, in the aggregate, shall not exceed, in any single day,
twenty percent (20%) of the average daily trading volume of Constellation Stock
over the preceding 30-trading day period (other than transfers to affiliates who
are bound by the terms and conditions of this Agreement).
Section
2.4 Beneficial
Ownership. For purposes of this Agreement, “beneficial
ownership” shall be determined in accordance with Rule 13d-3 under the U.S.
Securities Exchange Act of 1934, as amended.
Section
2.5 Constellation
Issuances. If Constellation elects to consummate a strategic
transaction, alliance or investment that is within a framework mutually
developed by Constellation and EDFI, prior to such transaction, alliance or
investment Constellation and EDFI may agree that all or a portion
of the funding for such transaction, alliance or investment will be
made by the issuance of Constellation securities to a member of the EDFI Group
in a form and containing
terms and conditions to be mutually agreed upon, which agreement the parties
acknowledge may entail amendments to this Agreement.
4
ARTICLE
III
OBSERVER;
VOTING; COMMERCIALLY REASONABLE EFFORTS
Section
3.1 Observer on Nuclear
Committee. For so long as each of EDFI (or any of its
affiliates or subsidiaries) and Constellation (or any of its affiliates or
subsidiaries) owns any membership interests in the Joint Venture, EDFI shall be
permitted to designate an observer to attend meetings of Constellation’s
Committee on Nuclear Power, provided, that such
observer shall not be permitted to attend any portion of a Committee on Nuclear
Power meeting at which the presence of such EDFI designated observer would
contravene any governmental law, regulation or clearance
requirement.
Section
3.2 Voting of Constellation
Stock. On any matters submitted to the holders of
Constellation Stock, EDFI shall (and shall cause each member of the EDFI Group
to) vote any shares of Constellation Stock that it beneficially owns in the
manner recommended by the Constellation board of directors.
Section
3.3 Cooperation. Constellation
and EDFI each agree to use all commercially reasonable efforts to facilitate the
consummation of the transactions contemplated hereby, including, without
limitation, by taking necessary actions to obtain antitrust approvals and
facilitating obtaining any necessary clearances so that an EDFI designee can
attend all Committee on Nuclear Power meetings.
ARTICLE
IV
MISCELLANEOUS
Section
4.1 Effectiveness. This
Agreement shall not become effective until the last to occur of the following
events:
(a) the
effectiveness of the Operating Agreement of UniStar Nuclear Energy, LLC, dated
as of the date hereof (the “Operating
Agreement”); and
(b) all
regulatory approvals required from governmental authorities (including the
expiration or termination of any applicable waiting period under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976) shall have been obtained
or concluded or, in the case of waiting or suspense periods, expired or
terminated;
provided, however, that this
Agreement shall terminate without further effect or obligation on the part of
either party if any of the above events has not occurred by September 30, 2007,
except in the case of clause (b) if the parties are working in good faith to
obtain any such outstanding regulatory approval(s) and such date has been
extended by written agreement of the parties.
Section
4.2 Term. The
term (the “Term”) of this
Agreement shall begin on the date hereof and continue until five years after the
date hereof. Sections 2.1, 2.2, 2.3 and 3.2 shall be of no further
force or effect following a change of control of Constellation.
5
Section
4.3 Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Section
4.4 Dispute
Resolution.
(a) All
disputes arising out of or in connection with the present contract shall be
finally settled under the Rules of Arbitration of the International Chamber of
Commerce by three arbitrators. The disputing Member(s) and/or the
Company shall each appoint one arbitrator, and those two arbitrators shall then
appoint a third arbitrator. The place of arbitration shall be New
York. The language of the arbitration shall be
English. The arbitral tribunal shall render a reasoned award within
six months from the date of signature of the terms of reference. Any
party to this contract shall have the right to have recourse to and shall be
bound by the Pre-arbitral Referee Procedure of the International Chamber of
Commerce in accordance with its Rules for a Pre-Arbitral Referee
Procedure.
(b) Any
decision or award of the arbitral tribunal shall be final and binding upon the
parties to the arbitration proceeding. The parties hereto hereby
waive to the extent permitted by applicable law any rights to appeal or to
review of such award by any court or tribunal. The parties hereto
agree that the arbitral award may be enforced against the parties to the
arbitration proceeding or their assets wherever they may be found and that a
judgment upon the arbitral award may be entered in any court having jurisdiction
thereof.
(c) Each
party acknowledges that the other would not have an adequate remedy for money
damages in the event that any or all of the covenants contained in this
Agreement were not performed in accordance with their terms and therefore agrees
that the other party shall be entitled to other relief, including injunctive
relief and specific performance of such covenants, in addition to any other
remedy to which such party may be entitled. Notwithstanding any other
provision of this Section 4.4, EDFI and Constellation shall have the right to
obtain injunctive relief from any federal or state court located in the Borough
of Manhattan, City of New York. Each of EDFI and Constellation hereby
irrevocably consents to personal jurisdiction in any such action and to service
of process by mail in any manner permitted by the laws of the State of New York
and agrees that service of process by registered mail sent to its principal
executive office shall be effective service of process for such action, suit or
proceeding brought against such party in any such court, and waives any
objection to venue in any such New York court.
Section
4.5 Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon Constellation and EDFI and their respective affiliates, successors
and assigns, including any successor to Constellation or EDFI of substantially
all of Constellation’s or EDFI’s assets or business.
Section
4.6 Entire Agreement;
Amendment. This Agreement shall constitute the entire
agreement between the parties with regard to the subject matter hereof, provided, that
nothing in this Agreement is intended to amend or modify in any respect the
terms and conditions of the Nondisclosure Agreement or the Operating Agreement,
and each shall continue in full force and effect in accordance with its
terms. No modification, amendment or waiver of this Agreement shall
be binding without the written consent of the parties hereto.
6
Section
4.7 Waiver. It
is understood and agreed that no failure or delay in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise thereof preclude any further exercise thereof or the
exercise of any other right, power or privilege hereunder.
Section
4.8 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original, but both of which shall constitute the same agreement.
Section
4.9 Other
Agreements. In the event (a) Constellation enters
into a similar agreement with a strategic, industrial shareholder who owns at
least 5 percent of the issued and outstanding Constellation Stock, (b) such
agreement is on terms which are materially more favorable to such shareholder
than the terms of this Agreement are to EDFI, and (c) Constellation does
not agree to amend this Agreement to provide EDFI with the same terms and
conditions, then EDFI shall no longer be subject to the sales limitation set
forth in Section 2.3(a).
[Signature
page follows.]
7
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
respective duly authorized officers as of the date first above
written.
CONSTELLATION
ENERGY GROUP, INC.
By: /s/Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Executive Vice President
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ÉLECTRICITÉ
DE FRANCE INTERNATIONAL, SA
By /s/Xxxx-Xxxxx
Xxxxxxx
Name:
Xxxx-Xxxxx Xxxxxxx
Title:
C.O.O. EDF SA
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[Signature
Page to Investor Agreement]