ML11285A036
| ML11285A036 | |
| Person / Time | |
|---|---|
| Site: | Calvert Cliffs, Nine Mile Point, Ginna  |
| Issue date: | 10/05/2011 |
| From: | Montgomery B Constellation Energy Nuclear Group |
| To: | Document Control Desk, Office of Nuclear Material Safety and Safeguards, Office of Nuclear Reactor Regulation |
| References | |
| Download: ML11285A036 (34) | |
Text
CENG.
a joint venture of
- 0Enertgy,
,eDF 100 Constellation Way Suite 200C Baltimore, Maryland 21202 October 5, 2011 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ATTENTION:
SUBJECT:
Document Control Desk Calvert Cliffs Nuclear Power Plant Unit Nos. I & 2; Docket Nos. 50-317 & 50-318 Calvert Cliffs Independent Spent Fuel Storage Installation Docket No. 72-8 Nine Mile Point Nuclear Station Unit Nos. I & 2; Docket Nos. 50-220 & 50-4 10 R. E. Ginna Nuclear Power Plant Docket No. 50-244 R.E. Ginna Independent Spent Fuel Storage Installation General License Docket No. 72-67 Notice Regarding Issuance of Minority Shareholding Interest in EDF Inc. to EDF Trading Limited The purpose of this letter is to notify the NRC of a corporate restructuring involving EDF Inc. (formerly EDF Development Inc.). Attachments (1) through (4) provide the details of the restructuring. This transaction does not involve any direct or indirect transfer of control of any license that would require approval pursuant to 10 CFR 50.80.
Attachment (6) is a statement of a regulatory commitment contained in this correspondence.
As described in the attached Affidavit of EDF Inc. (Attachment 5), this Notice and the attachments contain confidential commercial information.
On behalf of EDF Inc., we request that the expected shareholding interests contained in Attachments (1) and (2) be withheld from public disclosure in accordance with 10 CFR 2.390(b).
Should you have questions regarding the information in this response, please contact Bruce Montgomery at (410) 470-3777 or bruce.montgomery@cengllc.com.
Sincerely,
'Bf S. Mgomr Ma ager - Nuclear Safety and Security BSM/EMT/bjd This letter contains proprietary information (10 CFR 2.390). The balance of the letter may be considered non-proprietary upon removal of the indicated pages in Attachments (1) and (2). Aoo)
Document Control Desk October 5, 2011 Page 2 Attachments:
(1)
Discussion of the Restructuring (lb)
Redacted Discussion of the Restructuring (2)
Pre-and Post-Restructuring Simplified Organizational Charts (2b)
Redacted Pre-and Post-Restructuring Simplified Organizational Charts (3)
Form of Exchange Agreement (Draft)
(4)
List of the Current Directors and Principal Officers of EDF Inc., EDF Holdings SAS and EDF Trading Limited (5)
Affidavit of Patrick Blandin (6)
D. V. Pickett, NRC R. V. Guzman, NRC C. Haney, NMSS W. M. Dean, NRC Susan Uttal, Esq., NRC Thomas Fredrichs, NRC Resident Inspector, NRC (Calvert Cliffs)
Resident Inspector, NRC (Nine Mile Point)
Resident Inspector, NRC (Ginna)
ATTACHMENT (1b)
REDACTED DISCUSSION OF THE RESTRUCTURING Constellation Energy Nuclear Group, LLC October 5, 2011
ATTACHMENT (1b)
REDACTED DISCUSSION OF THE RESTRUCTURING
REFERENCES:
- 1.
Letter from Mr. R. V. Guzman (NRC) to Mr. H. B. Barron (CENG), dated October 30, 2009, Order Superseding October 9, 2009, Order Approving the Transfer of Renewed Facility Operating License Nos. DPR-53 and DPR-69 for the Calvert Cliffs Nuclear Power Plant, Unit Nos. 1 and 2 and Materials License No. SNM-2505 for the Calvert Cliffs Independent Spent Fuel Storage Installation, and Conforming Amendments (TAC Nos. ME0443 and ME0444)
- 2.
Letter from Mr. R. V. Guzman (NRC) to Mr. H. B. Barron (CENG), dated October 30, 2009, Order Superseding October 9, 2009, Order Approving the Transfer of Renewed Facility Operating License Nos. DPR-63 and NPF-69 for the Nine Mile Point Nuclear Station, Unit Nos.
I and 2 (TAC Nos. ME0446 and ME0447)
- 3.
Letter from Mr. R. V. Guzman (NRC) to Mr. H. B. Barron (CENG), dated October 30, 2009, Order Superseding October 9, 2009, Order Approving the Transfer of Renewed Facility Operating License No. DPR-18 for the R.E. Ginna Nuclear Power Plant (TAC No. ME0445)
- 4.
Letter from Ms. M. G. Korsnick (CENG) to Document Control Desk (NRC), dated February 1, 2010, Notice Regarding Name Change of EDF Development Inc.
References I through 3 approved certain direct and indirect transfers of control of the above licenses pursuant to 10 CFR 50.80. The transactions approved by the Nuclear Regulatory Commission (NRC) included the transfer of 49.99% of the ownership interests in Constellation Energy Nuclear Group, LLC (CENG) to EDF Inc. a U.S. corporation organized under the laws of the State of Delaware. EDF Inc. is currently a wholly-owned subsidiary of E.D.F-International SAS (EDF International), a limited company organized under the laws of France, which is in turn a wholly-owned subsidiary of Electricitd de France SA (EDF SA), a French limited company.
EDF Trading Limited (EDF Trading) is a United Kingdom limited company and an indirect wholly-owned subsidiary of EDF SA.
It currently owns EDF Trading North America Inc. (EDFTNA), a Delaware corporation, which manages a wholesale power trading and logistics operation in North America.
Reference 4 notified the NRC of a change in name from EDF Development Inc. to EDF Inc.
Description It is expected that in October 2011, the issuance of a minority shareholding interest in EDF Inc. to EDF Trading will be submitted for approval to the EDF Inc., EDF International and EDF Trading boards of directors. Such stock issuance is planned as part of a legal entity restructuring between EDF Inc., EDF International, EDF Trading, and EDFTNA, all direct or indirect wholly-owned subsidiaries of EDF SA.
The attached diagrams (Attachments 2 and 2b) illustrate the organization structure before and after the restructuring. Specifically, through a share exchange agreement, EDF Inc. will acquire 100% of the outstanding stock of EDFTNA, solely in exchange for newly issued voting common stock shares of EDF Inc. (the form of the share Exchange Agreement is contained in Attachment 3).
If the restructuring is approved by their respective boards of directors, EDF Trading and EDF International will collectively own 100% of EDF Inc. in proportion to the relative fair market value of EDFTNA and EDF Inc. immediately before the proposed restructuring. Therefore, EDF International I
ATTACHMENT (1b)
REDACTED DISCUSSION OF THE RESTRUCTURING will continue to be the majority shareholder of EDF Inc, holding no less than [ ]% of EDF Inc.'s common stock. EDF Trading would own the remaining common stock, not to exceed [ ]%, and become a minority shareholder of EDF Inc.
It is also anticipated that EDFTNA will convert from a Delaware corporation to a Delaware limited liability company (LLC) and will change its name to EDF Trading Holdings LLC.
Rationale The proposed transaction is driven by a number of goals.
In particular, EDF International and EDF Trading wish to consolidate their interests in EDF Inc. and EDFTNA to support closer cooperation and coordination of commercial and investment strategies and maximize cross-business efficiencies.
It is also expected that the reorganization will further enhance the image and strategic positioning of EDF Inc. across the energy sector in the United States.
Analysis This transaction does not involve any direct or indirect transfer of control of any license requiring approval pursuant to 10 CFR 50.80. Specifically:
- 1. No transfer of a controlling interest in EDF Inc. is involved.
EDF Trading will become a minority shareholder of EDF Inc. EDF International will continue to hold a majority of EDF Inc.'s voting stock.
- 2. Governance arrangements will not shift control of EDF Inc. from EDF International to EDF Trading. Under the proposed governance structure, the board of directors of EDF Inc. is to be comprised of ten directors, with eight directors to be designated by EDF International and two directors to be designated by EDF Trading. A draft form of the amended and restated By-laws of EDF Inc. can be found in Exhibit A to Attachment (3). Decisions of the board of directors of EDF Inc. will be taken on the vote of the majority of directors present at a meeting (without veto right being granted to EDF Trading), and the presence of six directors will be necessary to constitute a quorum for board decisions. In addition, no separate shareholder agreement between EDF International and EDF Trading is being contemplated.
- 3. All entities involved in the restructuring, including EDF Inc., EDF International, EDFTNA and EDF Trading, will remain wholly-owned subsidiaries of EDF SA (see Attachments 2 and 2b).
- 4.
EDF Inc. will continue to hold a 49.99% membership interest in CENG. The restructuring does not change the existing CENG Negation Action Plan or implicate any of the other conditions contained in the NRC Orders in References 1 through 3.
- 5. The existing Support Agreement provided by EDF International to the licensees for the CENG nuclear plants remains in place and there will be no material change to the Support Agreement provided by EDF International to the CENG licensees. EDF Inc. is not a party to such Support Agreement.
For the NRC's information, Attachment (4) provides a list of the current directors and principal officers of EDF Inc., EDF Holdings SAS and EDF Trading, because these companies will be in the corporate chain above EDF Inc.
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ATTACHMENT (1b)
REDACTED DISCUSSION OF THE RESTRUCTURING Closing date The transaction is expected to close by December 9, 2011. Confirmation will be provided to the NRC once the transaction is effective.
As described in the attached affidavit of EDF Inc. (Attachment 5), this notice and the attachments contain confidential commercial information. On behalf of EDF Inc. we request that the expected shareholding interests contained in Attachments (1) and (2) be withheld from public disclosure in accordance with 10 CFR 2.390(b).
3
ATTACHMENT (2b)
REDACTED PRE-AND POST-RESTRUCTURING SIMPLIFIED ORGANIZATIONAL CHARTS Constellation Energy Nuclear Group, LLC October 5, 2011
Simplified Ownership Structure Before Reorganization Constellation Nuclear Power Plants, LLC All corporate shareholdings are 100%, unless otherwise indicated.
I
Simplified Ownership Structure After Reorganization All corporate shareholdings are 100%, unless otherwise indicated.
2
ATTACHMENT (3)
FORM OF EXCHANGE AGREEMENT (DRAFT)
Constellation Energy Nuclear Group, LLC October 5, 2011
ATTACHMENT (3)
FORM OF EXCHANGE AGREEMENT (DRAFT)
EXCHANGE AGREEMENT THIS EXCHANGE AGREEMENT ("Agreement") is entered into this [ ] day of [ ], 2011 by and between EDF Inc., a Delaware corporation ("EDF"), and EDF Trading Limited, a corporation existing under the laws of England and Wales ("EDFT").
RECITALS EDFT wholly and directly owns all of the issued and outstanding shares of common stock of EDF Trading North America, Inc. ("EDFTNA" and such shares, the "EDFTNA Stock").
E.D.F. International SAS, a French soci~t6 par actions simplifide ("EDFI"), wholly and directly owns all of the issued and outstanding shares of common stock of EDF.
EDFI and EDFT wish to consolidate their interests in EDF and EDFTNA to, among other things, support closer cooperation and establish an integrated portfolio across the North American energy value chain, consisting of power generation and other energy assets and energy markets trading expertise.
In connection with such strategic realignment and consolidation, EDFT wishes to transfer all of the EDFTNA Stock to EDF in exchange for the issuance by EDF of [
] shares of common stock to EDF, representing
% of all of the common stock of EDF (post-issuance) (the shares so issued to EDFT, the "EDF Stock"), in accordance with the terms and conditions set forth herein.
Each of EDFT and EDF believes that it is in its respective best interests to contribute, or accept the contribution of, the EDFNA Stock in exchange for the issuance of the EDF Stock.
NOW, THEREFORE, intending to be legally bound and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- 1. Exchange of Stock. At the Closing (as defined below), EDFT shall transfer and convey to EDF all of the EDFTNA Stock and EDF shall issue the EDF Stock to EDFT. Each of the parties shall deliver to the other the stock certificates representing the EDFTNA Stock and EDF Stock, respectively, together with, in the case of the EDFTNA Stock, duly endorsed stock powers.
- 2. Representations and Warranties. Each of the parties (hereafter, a "Paty.") hereby represents and warrants to the other as follows:
2.1 Incorporation. The Party is duly organized, validly existing and, to the extent recognized, in good standing under the laws of its jurisdiction of organization. The Party has all legal authority needed to conduct its business as heretofore conducted and as proposed to be conducted.
2.2 Authorization and Execution. All action on the part of the Party necessary for the authorization, execution and delivery of this Agreement and the performance of all obligations of the Party hereunder has been taken or will be taken at or prior to the Closing and the Party has duly authorized, executed and delivered this Agreement. The Party has or will have prior to the Closing all corporate and other authority needed to consummate the Closing. This Agreement constitutes a valid and legally binding obligation of the Party, enforceable in accordance with its terms.
2.3 Consents. The Party has received all consents, approvals, authorizations, permits and waivers of all persons necessary for the Party to consummate the transactions contemplated by this Agreement.
I
ATTACHMENT (3)
FORM OF EXCHANGE AGREEMENT (DRAFT) 2.4 Ownership of the Shares. The Party owns all right, title and interest (legal and beneficial) in and to all of the shares of EDTFNA Stock or EDF Stock, as applicable (the "Shares"),
conveyed pursuant to this Agreement, free and clear of all liens or other encumbrances. At the Closing, the transferee will acquire such Shares free and clear of all liens or other encumbrances.
2.5 No Conflict.
The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not result in a breach by the Party of, or constitute a default by it under, any law, any constituent, governing or organizational document of the Party, any agreement, instrument, decree, jqdgment or order to which the Party is a party, to which the properties of the Party may be subject or by which the Party may be bound.
2.6 Litigation. There is no action, suit, proceeding or investigation pending or, to the Party's knowledge, currently threatened against the Party that questions the validity of this Agreement or the right of the Party to enter into this Agreement.
2.7 No other representation.
Each Party acknowledges that, except for the representations and warranties contained in this Article 2, no other representations or warranties have been made by the other party. EDFT hereby represents and warrants that it is fully familiar with the business, condition (financial and otherwise) and prospects of EDF and that EDF has made available to it any and all information relating to EDF requested by EDFT in connection with the transaction contemplated hereby. EDF hereby represents and warrants that it is fully familiar with the business, condition (financial and otherwise) and prospects of EDFTNA and that EDFT has made available to it any and all information relating to EDFTNA requested by EDF in connection with the transaction contemplated hereby.
- 3. Closing. The consummation of the transactions contemplated hereby (the "Closing") shall take place on [December 9, 2011] or such other date and/or place as the parties mutually agree.
At the Closing:
(1)
EDFT shall deliver, or cause to be delivered to EDF, free and clear of any liens and encumbrances, one or more certificates representing all of the EDFTNA Stock, together with duly executed stock powers; (2)
EDF shall deliver, or cause to be delivered to EDFT, free and clear of any liens and encumbrances, one or more certificates representing all of the EDF Stock; and (3)
All agreements, documents and instruments contemplated by Section 4 shall have been delivered.
- 4. Conditions to Closing.
The Closing shall be subject to the following conditions precedent:
(1) All regulatory and other governmental consents, approvals or notifications required, or desirable, to consummate the transactions contemplated hereby shall have been obtained or made, as appropriate; (2) The Bylaws of EDF as in effect immediately prior to the Closing shall have been amended and restated in their entirety in the form attached hereto as Exhibit A and EDF shall have delivered to EDFT duly adopted resolutions of the Board of EDF evidencing same; 2
ATTACHMENT (3)
FORM OF EXCHANGE AGREEMENT (DRAFT)
(3) The Certificate of Incorporation of EDF as in effect immediately prior to the Closing shall have been amended to increase the authorized numbers of shares of common stock thereunder from 1000 shares to [
] shares and EDF shall have delivered to EDFT duly adopted resolutions of the Board of EDF evidencing same, together with a copy of the amendment to the Certificate of Incorporation of EDF, certified by the Secretary of State of the State of Delaware; (4) The size of the Board of Directors of EDF shall have been increased to ten (10), and the Board of Directors shall be initially comprised of [ ], [ ], [ ], [ ], [ ], [ ], [ ], [ ], [ ]
and [ ] and EDF shall have delivered to EDFT duly adopted resolutions of the Board of EDF evidencing same; (5) Each Party's representations and warranties shall be true and accurate, in all material respects, as of the Closing and each Party shall have fully performed its covenants hereunder.
- 5. Cooperation.
The Parties shall use their respective best efforts to take all actions and to do all things necessary, proper or advisable to consummate the transactions contemplated hereby by the Closing. The Parties shall cooperate in order to timely secure the Consents and shall further provide such assistance to each other, post-Closing, as may be reasonably necessary to effect the intent and purpose of this Agreement, provided such assistance shall be at the cost and expense of the Party requesting same.
- 6. Tax Treatment and Covenants (a) The Parties intend that the exchange of EDFTNA Stock for the EDF Stock pursuant to this Agreement and the subsequent conversion of EDFTNA as described in section 6(b) below, will qualify as a "reorganization" as defined under section 368(a)(1) of the Internal Revenue Code of 1986, as amended
("Code"), and shall cooperate with each other as may be reasonably necessary to effect this intent. The Parties shall report the transaction in a manner consistent with this intent and shall not take any action (nor fail to take any action) which would jeopardize the qualification of the exchange as a "reorganization" under section 368(a)(1), unless otherwise required by applicable law. This Agreement is hereby adopted as a "plan or reorganization" under Code Section 368 and the regulations thereunder.
(b) As part of an integrated plan and immediately after the Closing, on the date of the Closing, EDFTNA shall convert to a limited liability company pursuant to section 18-214 of the Delaware Limited Liability Company Act, and such limited liability company will be treated as a disregarded entity for U.S.
federal income tax purposes.
- 7. Miscellaneous.
7.1 Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties hereto (including transferees of any Shares). Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or delegate its obligations hereunder to a third party.
7.2 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware, without reference to rules of conflicts of laws.
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ATTACHMENT (3)
FORM OF EXCHANGE AGREEMENT (DRAFT) 7.3 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
7.4 Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
7.5 Severability.
In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement shall continue in full force and effect and shall be interpreted so as reasonably to effect the intent of the parties hereto. The parties hereto shall use their reasonable best efforts to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that shall achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
7.6 Entire Agreement.
This Agreement and the documents referred to herein constitute the entire agreement between the parties hereto and no party hereto shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein.
7.7 Additional Instruments and Actions. The parties hereto shall execute such additional instruments and take such further action as may reasonably be necessary to carry out the intent of this Agreement.
7.8 Expenses. Each party hereto shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery and performance of this Agreement.
7.9 Notices. All notices, consents and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered by hand or by Federal Express or a similarly reputable overnight courier, (b) upon receipt, if sent by registered or certified mail, return receipt requested or (c) when successfully transmitted by facsimile (with a confirming copy of such communication to be sent as provided in clause (a) or (b) above), in each case to the Party for whom intended, at the address or facsimile number for such party set forth below its signature line.
[SIGNATURE PAGE FOLLOWS]
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ATTACHMENT (3)
FORM OF EXCHANGE AGREEMENT (DRAKT)
IN WITNESS WHEREOF, the undersigned set their hands hereunto as of the date set forth above.
EDF TRADING LIMITED EDF INC.
By:.
Name:
Title:
By:
Name:
Title:
Address: EDF Trading Limited 80 Victoria Street Cardinal Place London SWIE 5JL United Kingdom Address:
EDF Inc.
5404 Wisconsin Avenue Suite 400 Chevy Chase, MD 20815 Facsimile: Facsimile:
Attention: Attention:
1-240-744-8049 5
ATTACHMENT (3)
FORM OF EXCHANGE AGREEMENT (DRAFT)
EXHIBIT A AMENDED & RESTATED BYLAWS [IN DRAFT FORM]
OF EDF INC.,
A DELAWARE CORPORATION (the "Corporation")
(As adopted on
,2011)
ARTICLE 1 OFFICES Section 1.1 The Corporation shall have and maintain in the State of Delaware a registered office which may, but need not be, the same as its place of business.
Section 1.2 The Corporation may also have offices at such other places as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE 2 STOCKHOLDERS Section 2.1 All meetings of the stockholders shall be held at such place, either within or without the State of Delaware, as may be designated by the stockholders and at such date and time as may be designated by the Board of Directors and as shall be specified in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2.2 An annual meeting of the stockholders, for the election of directors and for the transaction of such other business as may properly be brought before the meeting shall be held on or prior to June 30th each year at such date and time as the Board of Directors may designate and as shall be specified in the notice of the meeting or in a duly executed waiver of notice thereof. Business transacted at each annual meeting, which shall include, without limitation: (i) adoption of the financial statements of the Corporation together with any independent auditor's and Board of Directors' reports with respect thereto; and (ii) approval of any dividends to be distributed, or other distribution to be made, to the stockholders, or in the absence of any available dividends, the manner in which the Corporation will cover any losses for the applicable fiscal year, shall be confined to the purposes stated in the notice thereof.
Section 2.3 Special meetings of the stockholders, for any purpose or purposes, may be called by the Board of Directors, or the President and shall be called by the President or the Secretary at the request in writing of: (i) any director of the Corporation then in office or (ii) any Stockholder of the Corporation.
Such request shall state the purpose or purposes of the proposed meeting.
Business transacted at all special meetings shall be confined to the purposes stated in the notice thereof.
Section 2.4 Written notice of any annual or special meeting of stockholders shall be mailed to each stockholder entitled to vote thereat at such stockholder's address as it appears on the records of the Corporation, not fewer than fourteen Business Days nor more than sixty days before the date of such meeting in the case of an annual meeting, or such shorter time period in the case of a special meeting as agreed upon by the stockholders. Such notice shall be deemed to be given when deposited in the United 6
ATTACHMENT (3)
FORM OF EXCHANGE AGREEMENT (DRAFT)
States mail, postage prepaid, directed to each stockholder at such stockholder's address as it last appears on the records of the Corporation. Such notice shall state the place, date and time of the meeting, and shall state the purpose or purposes for which the meeting is called. For purposes of these By-laws, "Business Day" means any working day in France, the United Kingdom and the United States of America other than a Saturday, a Sunday or a day on which banks located in Paris, France, London, UK or New York, New York generally are authorized or required by Applicable law to close, where "Applicable Law" means any applicable national, municipal or state statute, law, ordinance, rule or regulation of any court, administrative agency, or commission or other governmental authority or instrumentality, whether domestic or foreign, and, to the extent applicable to the person, the rules of any applicable stock exchange.
Section 2.5 At any meeting of the stockholders, the holders of all of the issued and outstanding shares of stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum for all purposes. If a quorum shall fail to be present or represented at any meeting, the meeting shall be adjourned automatically to the same place, date and time in the following week with the same agenda; provided, however, that in the event the adjourned meeting date does not fall on a Business Day, the adjourned meeting shall take place on the immediately following Business Day. At any adjourned meeting, any business may be transacted that might have been transacted at the original meeting.
Section 2.6 At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing or any complete and reliable copy, facsimile telecommunication or other reproduction of the writing executed by such stockholder or by an authorized officer, director, employee or agent of such stockholder, to the extent permitted by law, and submitted to the Secretary at or before such meeting, but no proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Except as otherwise provided herein, in the Certificate of Incorporation or as required by law, each stockholder shall have one vote for each share of stock entitled to vote that is registered in his or her name on the record date for the meeting, including with respect to a decision to be decided by a poll only of the stockholders. Neither the election of directors nor any other voting need be by written ballot, except upon demand therefor by the Board of Directors or the officer of the Corporation presiding at the meeting of stockholders where the vote is to be taken. When a quorum exists at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one for which, by express provision of law or of the certificate of incorporation of the Corporation (the "Certificate of Incorporation"), of these By-laws, or of any agreement to which the Corporation is subject or by which it is bound, a different vote is required.
Section 2.7 At least ten days before every meeting of stockholders, the officer who has charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at such meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder of the Corporation who is present. The stock ledger of the Corporation shall be the only evidence as to the identities of the stockholders entitled to examine the list of stockholders required by this Section 2.8 or to vote in person or by proxy at any meeting of stockholders.
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ATTACHMENT (3)
FORM OF EXCHANGE AGREEMENT (DRAFT)
Section 2.8 The Board of Directors shall appoint either one or three inspectors of election, in advance of any meeting of stockholders, to act at such meeting of the stockholders or any adjournment thereof. Inspectors of election need not be stockholders, and no person who is a candidate for corporate office shall act as an inspector of election. If three inspectors of election are appointed, such inspectors of election shall act by majority vote. Each inspector of election shall sign an oath faithfully to execute the duties of inspector with strict impartiality and to the best of the inspector's ability and shall do all acts as are necessary and proper to conduct the election or vote and all such other acts as may be prescribed by law with fairness to all stockholders. Such inspectors of election shall make a written report of any matter determined by them and shall execute a certificate as to any fact found by them.
Section 2.9 The chairman of any meeting of the stockholders shall determine the order of business and the procedure to be followed at such meeting, including such regulation of the manner of voting and the conduct of discussion as the chairman shall deem to be fair and equitable.
Section 2.10 The stockholders may participate in any meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear one another, and such participation shall constitute presence in person at such meeting.
Section 2.11 Unless otherwise required by the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a written consent setting forth the action so taken shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of any corporate action without a meeting by less than unanimous written consent shall be given in conformity herewith to those stockholders who have not consented thereto in writing.
ARTICLE 3 BOARD OF DIRECTORS Section 3.1 The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors. In addition to the powers expressly conferred upon the Board of Directors by these By-laws, the Board of Directors may exercise all powers of the Corporation and perform all lawful acts as are not required to be exercised or performed by the stockholders pursuant to law, the Certificate of Incorporation or these By-laws. The President shall serve as Chairman of the Board and shall preside at all meetings of the Board of Directors.
Section 3.2 Directors shall be natural persons who need not be stockholders of the Corporation. The number of directors shall be ten, two of whom shall be designated by EDF Trading Limited (the "EDFT Directors"), and eight of whom shall be designated by E.D.F. International SAS (the "EDFI Directors"), in each case for so long as EDF Trading Limited and E.D.F. International SAS shall be stockholders of the Corporation. The number of directors may only be increased or decreased through the adoption of an appropriate amendment to these By-laws in accordance with Section 10.1.
Each director shall hold office until his or her successor is duly elected and qualified, subject, however, to such director's prior death, resignation, retirement, disqualification or removal from office. If the authorized number of directors is increased between annual meetings of the stockholders, a majority of the directors then in office shall have the power to elect such new directors, who shall serve until the next annual meeting of stockholders and until their successors are duly elected and qualified. Any decrease in the authorized number of directors shall not become effective until the expiration of the term of the directors then in office unless, at the time of such decrease, there shall be vacancies on the Board of Directors that are being eliminated by such decrease.
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ATTACHMENT (3)
FORM OF EXCHANGE AGREEMENT (DRAFT)
Section 3.3 The stockholder with the right to designate particular directors pursuant to Section 3.2 shall have the right to require the removal of any such directors then serving in such directorship at any time and for any reason (or for no reason). In all cases, removal shall be effected by notice to such director and to the Corporation and the non-Designating Holder (as defined below) shall vote in favor of the requested removal. In the event of the resignation, death, incapacity, inability to act, removal or disqualification of a director designated by a stockholder in accordance with Section 3.2 (each a "Designating Holder"), such Designating Holder shall promptly nominate a new director, and, after written notice of the nomination has been given by the Designating Holder to the other stockholder, each stockholder shall promptly vote its shares of capital stock of the Corporation to elect such nominee to the Board of Directors.
Section 3.4 The organizational meeting of each newly elected Board of Directors may be held immediately following the stockholders meeting at which such directors were duly elected without the necessity of notice to such directors or at such time and place as may be fixed by notice or a duly executed waiver of notice thereof.
Section 3.5 Regular meetings of the Board of Directors shall be held at least once each fiscal year at Chevy Chase, MD, or at such other time and place as shall from time to time be fixed by the Board of Directors. Notice of the place, date and time of each such regular meeting and the business to be transacted thereat shall be given to each director by whom it is not waived not less than ten Business Days before the meeting. Notwithstanding the foregoing, regular meetings of the Board of Directors may be convened upon shorter notice upon the prior written consent of all the members of the Board of Directors, as provided to the Secretary.
Section 3.6 Special meetings of the Board of Directors may be called by the President or by the Secretary or upon the written request of any director of the Corporation then in office. Notice of the place, date and time of each such special meeting and the business to be transacted thereat shall be given to each director by whom it is not waived not less than five Business Days before the meeting.
Notwithstanding the foregoing, special meetings of the Board of Directors may be convened upon shorter notice upon the prior written consent of all the members of the Board of Directors, as provided to the Secretary. Any and all business may be transacted at a special meeting, unless otherwise indicated in the notice thereof or provided by law, by the Certificate of Incorporation or by these By-laws.
Section 3.7 Members of the Board of Directors or any committee thereof may participate in any meeting of the Board of Directors or such committee, as the case may be, by means of conference telephone, video conference or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation shall constitute presence in person at such meeting.
Section 3.8 At any meeting of the Board of Directors, the presence of six directors shall constitute a quorum for the transaction of business, and the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless otherwise provided by law, by the Certificate of Incorporation of the Corporation, by these By-laws, or by any agreement to which the Corporation is subject or by which it is bound. If a quorum shall not be present at any meeting of the Board of Directors, a majority of the directors present may adjourn the meeting to any place, date or time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 3.9 At any meeting of the Board of Directors, each member of the Board of Directors shall be entitled to cast one vote.
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Section 3.10 Unless otherwise provided by law, by the Certificate of Incorporation or these By-laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing and such consent is filed with the minutes of proceedings of the Board of Directors or committee thereof.
Section 3.11 The Board of Directors will not grant compensation for Directors. The Directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors.
Section 3.12 A member of the Board of Directors or of any committee thereof shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or reports made to the Corporation by any of its officers, or by an independent certified public accountant, or by an appraiser selected with reasonable care by the Board of Directors or by any committee thereof, or in relying in good faith upon other records of the Corporation.
ARTICLE 4 COMMITTEES Section 4.1 The Board of Directors, by a vote of a majority of those directors constituting a quorum at a meeting of the Board of Directors may from time to time designate committees of the Board of Directors, including without limitation an Audit and Risk Committee, with such lawfully delegable powers and duties as it thereby confers or to act in an advisory capacity, to serve at the pleasure of the Board of Directors and shall, for those committees and any others provided for herein, appoint directors to serve as members and may designate, if it desires, one or more directors as alternate members who may replace any absent or disqualified member at any meeting of the committee. The Board of Directors may, from time to time, suspend, alter, continue or terminate any committee or the powers and functions thereof.
Section 4.2 The Board of Directors may appoint committees consisting of officers or other persons, with chairmanships, vice chairmanships and secretaryships and such duties and powers as the Board of Directors may from time to time designate and prescribe. The Board of Directors may from time to time suspend, alter, continue or terminate any of such committees or the powers and functions thereof.
Section 4.3 Any action that may be taken by a committee at a meeting may be taken without a meeting if all members thereof consent thereto in writing and such writing is filed with the minutes of the proceedings of such committee.
Section 4.4 Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws. Adequate provision shall be made for notice to all members of any committee of all meetings of that committee.
ARTICLE 5 OFFICERS Section 5.1 The officers of the Corporation shall consist of a President, who shall also be the Chief Executive Officer, a Secretary and a Treasurer. Officers shall be appointed from time to time by the Board of Directors. No officer except the President need be a member of the Board of Directors. Any number of offices may be held by the same person.
Section 5.2 The Board of Directors may appoint one or more Senior Vice Presidents, Executive Vice Presidents and/or Vice Presidents ("Vice Presidents") and such other officers, including 10
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FORM OF EXCHANGE AGREEMENT (DRAFT) assistant officers, and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.
Section 5.3 Each officer shall hold office until his or her successor is duly elected and qualified or until his or her earlier death, resignation, retirement or removal. Any officer appointed by the Board of Directors may be removed at any time by the Board of Directors without prejudice to his or her contract rights. If the office of any officer becomes vacant for any reason, such vacancy shall be filled by the Board of Directors. Any officer appointed to fill such a vacancy shall hold office until his or her successor is duly elected and qualified or until his or her earlier death, resignation, retirement or removal.
Section 5.4 The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers, employees or agents, notwithstanding any provision of these By-laws.
Section 5.5 The President shall have general management, direction and control of the business and affairs of the Corporation, subject to the direction of the Board of Directors. The President shall preside at all meetings of the stockholders and shall be the Chairman of the Board of Directors.
Unless otherwise directed by the Board of Directors from time to time, the President shall have the power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of stockholders of or with respect to any action of stockholders of any other corporation in which the Corporation may hold securities and otherwise to exercise any and all rights and powers which the Corporation may possess by reason of its ownership of securities in such other corporation.
Section 5.6 The President may delegate from time to time the powers entrusted to him or her pursuant to Section 5.5 to Vice-Presidents and other officers of the Corporation.
Section 5.7 Each Vice President shall have such powers and perform such duties as may be delegated to such Vice President by the Board of Directors or by the President.
Section 5.8 The Secretary shall attend all meetings of the Board of Directors and of the stockholders and shall record all votes and the minutes of all proceedings at such meetings in a book to be kept for that purpose and shall perform such other duties as the Board of Directors may from time to time prescribe. The Secretary shall perform the preceding duties for any committee of the Board of Directors upon the request of the Board of Directors or such committee. The Secretary shall give or cause to be given notice of all meetings of the stockholders and the Board of Directors. The Secretary shall have charge of the seal of the Corporation, and, where required, shall have the authority to affix such seal to any instrument. In the absence or disability of the Secretary, any Assistant Secretary shall perform the duties and exercise the powers of the Secretary.
Section 5.9 The Treasurer shall have the custody of the Corporation's funds and securities and shall deposit all monies and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors. The Treasurer shall make such disbursements of the Corporation's funds as are authorized by the Board of Directors or by the President, taking proper vouchers for such disbursements, and shall render to the Board of Directors an account of all such transactions and of the financial condition of the Corporation, at such times as the Board of Directors may require. The Treasurer shall also perform such other duties as the Board of Directors may from time to time prescribe. In the absence or disability of the Treasurer, any Assistant Treasurer shall perform the duties and exercise the powers of the Treasurer.
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ARTICLE 6 INDEMNIFICATION Section 6.1 The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (an "Indemnitee") who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding"), by reason of the fact that such person, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys' fees) reasonably incurred by such Indemnitee. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the Corporation shall be required to indemnify an Indemnitee in connection with a proceeding (or part thereof) commenced by such Indemnitee only if the commencement of such proceeding (or part thereof) by the Indemnitee was authorized by the Board of Directors.
Section 6.2 The Corporation shall pay the expenses (including reasonable attorneys' fees) incurred by an Indemnitee in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Indemnitee to repay all amounts advanced if it should be ultimately determined that the Indemnitee is not entitled to be indemnified under this Article 6 or otherwise.
Section 6.3 If a claim for indemnification or payment of expenses under this Article 6 is not paid in full within sixty days after a written claim therefor by the Indemnitee has been received by the Corporation, the Indemnitee may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Indemnitee is not entitled to the requested indemnification or payment of expenses under applicable law.
Section 6.4 The rights conferred on any Indemnitee by this Article 6 shall not be exclusive of any other rights which such Indemnitee may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these By-laws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 6.5 The Corporation's obligation, if any, to indemnify or to advance expenses to any Indemnitee who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Indemnitee may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or nonprofit entity.
Section 6.6 Any repeal or modification of the foregoing provisions of this Article 6 shall not adversely affect any right or protection hereunder of any Indemnitee in respect of any act or omission occurring prior to the time of such repeal or modification.
Section 6.7 This Article 6 shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Indemnitees when and as authorized by appropriate corporate action.
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Section 6.8 Any provisions of the Certificate of Incorporation that provide more favorable indemnification rights than those set forth in this Article 6 to the Indemnitees shall take precedence over the provisions of this Article 6.
ARTICLE 7 STOCK Section 7.1 The certificates representing shares of stock of the Corporation shall be numbered and shall be entered in the books of the Corporation as they are issued. Each stockholder shall be entitled to a certificate exhibiting such stockholder's name and the number of shares held by such stockholder, which certificate shall be signed by the President or any Vice President, and by the Treasurer or the Secretary or any Assistant Secretary. Any or all of the signatures on such certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
Section 7.2 Transfers of stock shall be made only upon the transfer books of the Corporation maintained in an office of the Corporation or by transfer agents designated to transfer shares of the stock of the Corporation, and only by the person named in the certificate or by such person's attorney, lawfully constituted in writing, and upon surrender of the certificate therefor.
Section 7.3 In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 7.4 The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of the State of Delaware.
Section 7.5 The Board of Directors may authorize the issuance of a new certificate representing shares of stock in place of any certificate previously issued by the Corporation and alleged to have been lost, stolen or destroyed, pursuant to such regulations as the Board of Directors may establish concerning proof or advertisement of such alleged loss, theft or destruction and concerning the giving of a satisfactory bond or bonds sufficient to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate.
Section 7.6 The issue, transfer, conversion and registration of certificates of stock of the Corporation shall be governed by such other regulations as the Board of Directors may from time to time establish.
ARTICLE 8 NOTICES Section 8.1 Whenever notice is required to be given to any director, committee member, officer, stockholder, employee or agent, whether pursuant to law, the Certificate of Incorporation or these 13
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By-laws, it shall not be construed to mean personal notice, but such notice may be given, in the case of stockholders, in writing, by depositing the same in the mail, postage prepaid, or by overnight carrier addressed to such stockholder at such stockholder's last known address as the same appears on the books of the Corporation, and, in the case of directors, committee members, officers, employees and agents, by telephone, or by mail, postage prepaid, or by overnight carrier at his or her last known address as the same appears on the books of the Corporation.
All notices shall be deemed to be given when mailed or telephoned.
Section 8.2 Whenever notice is required to be given to any stockholder, director, committee member, officer, employee or agent, whether pursuant to law, the Certificate of Incorporation or these By-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except as otherwise provided by law. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in any written waiver of notice unless so required by the Certificate of Incorporation of the Corporation or by these By-laws.
ARTICLE 9 MISCELLANEOUS Section 9.1 The corporate seal shall be in the charge of the Secretary.
If and when so directed by the Board of Directors or a committee thereof, the Secretary may have duplicates of such seal made and deposited for use with other officers of the Corporation. It shall not be necessary to the validity of any instrument executed by any authorized officer or officers of the Corporation that the execution of such instrument be evidenced by the corporate seal.
Section 9.2 The fiscal year of the corporation shall end on the 31 st of December in each year.
Section 9.3 The Corporation shall operate pursuant to a written delegation of financial authority policy in favor of such officers and such other persons as may be designated by the Board of Directors (or by the Audit and Risk Committee, upon delegation by the Board of Directors).
Such delegation shall be reviewed and approved periodically by the Board of Directors (or by the Audit and Risk committee upon delegation by the Board of Directors).
Section 9.4 The Board of Directors shall determine from time to time whether, when and under what conditions and regulations, the books and records of the Corporation (except such as may by statute be specifically open to inspection) shall be open to the inspection of the stockholders, and the stockholders' rights in this respect are and shall be restricted and limited accordingly.
Section 9.5 Facsimile or scanned signatures of any officer of the Corporation may be used at such time and in such manner as authorized by the Board of Directors or a committee thereof.
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ARTICLE 10 AMENDMENT Section 10.1 These By-laws may be amended, suspended or repealed and new By-laws may be adopted in a manner consistent with law: (a) if authorized by the Certificate of Incorporation, by the vote of a majority of the directors constituting a quorum at a meeting of the Board of Directors, or (b) by a vote of the stockholders at any stockholders meeting called and maintained in accordance with Article 2 of these By-laws; provided, however, that a brief description of such proposed amendment, suspension or repeal and/or adoption of new By-laws is contained in the notice of such meeting of the Board of Directors or of such annual or special meeting of the stockholders.
Adopted as of
],2011 15
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LIST OF THE CURRENT DIRECTORS AND PRINCIPAL OFFICERS OF EDF INC., EDF HOLDINGS SAS AND EDF TRADING LIMITED Constellation Energy Nuclear Group, LLC October 5, 2011
ATTACHMENT (4)
LIST OF THE CURRENT DIRECTORS AND PRINCIPAL OFFICERS OF EDF INC., EDF HOLDINGS SAS AND EDF TRADING LIMITED NAME:
EDF Inc.
STATE OF Delaware corporation INCORPORATION &
CORPORATE FORM:
BUSINESS 5404 Wisconsin Avenue ADDRESS:
Chevy Chase, MD 20815 DIRECTORS Eric Bret, Chairman (France)
Patrick Blandin (France)
Marc Kugler (France)
Jean-Paul Palma (France)
OFFICERS Eric Bret, President and CEO (France)
Patrick Blandin (France)
Frangois Hedin (France)
Marc Kugler (France)
Daniel Leroy (France)
John Morris (United Kingdom)
Pauline Crane (France)
Adja Ba (Senegal)
I
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LIST OF THE CURRENT DIRECTORS AND PRINCIPAL OFFICERS OF EDF INC., EDF HOLDINGS SAS AND EDF TRADING LIMITED NAME:
EDF Holdings SAS STATE OF France INCORPORATION
& CORPORATE Soci6t6 par actions simplifi~e (Limited company organized under French FORM:
law)
BUSINESS 33 avenue de Wagram ADDRESS:
75017 Paris France DIRECTORS OR None MANAGEMENT COMMITTEE:
EXECUTIVE St~phane Tortajada, President (France)
PERSONNEL 2
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LIST OF THE CURRENT DIRECTORS AND PRINCIPAL OFFICERS OF EDF INC., EDF HOLDINGS SAS AND EDF TRADING LIMITED NAME:
EDF Trading Limited STATE OF England and Wales INCORPORATION
& CORPORATE Private Limited Company FORM:
BUSINESS 80 Victoria Street ADDRESS:
Cardinal Place 3r Floor London SWlE 5JL United Kingdom DIRECTORS Philippe Torrion, Chairman (France)
Beatrice Bigois (France)
Bdnddicte Gendry (France)
Marianne Laigneau (France)
Martin Lawrence (United Kingdom)
Pierre Lederer (France)
Bruno Lescoeur (France)
John Rittenhouse (United Kingdom)
St6phane Tortajada (France)
Gerard Wolf (France)
EXECUTIVE John Rittenhouse, Chief Executive (United Kingdom)
PERSONNEL B6atrice Bigois (France)
Philipp BUssensch(tt (Austria)
Emmanuel Deutsch (France)
Robert Quick (United Kingdom)
Justin Rowland (United Kingdom) 3
ATTACHMENT (5)
AFFIDAVIT OF PATRICK BLANDIN Constellation Energy Nuclear Group, LLC October 5, 2011
Affidavit of Patrick Blandin In Support of EDF Inc.'s Request for Withholding (a)
I am the Executive Vice-President, Finance, and Treasurer of EDF Inc., and as such have the responsibility of reviewing the proprietary information sought to be withheld from public disclosure in connection with financial assurance for decommissioning. I am authorized to apply for the withholding of such proprietary information from public disclosure on behalf of EDF Inc..
(b)
I am making this affidavit in conformance with the provisions of 10 C.F.R. § 2.390 of the regulations of the U.S. Nuclear Regulatory Commission ("NRC"), and in conjunction with EDF Inc.'s request for withholding which accompanies this affidavit.
(c)
I have knowledge of the criteria used by EDF Inc. in designating information as proprietary or confidential.
(d)
By this submittal, EDF Inc. seeks to protect from disclosure certain proprietary information (the expected shareholding interests) contained in the following document submitted to the NRC:
Notice Regarding of Issuance of Minority Shareholding Interest in EDF Inc.
to EDF Trading Limited (Attachment 1) and the simplified ownership organization depicted in (Attachment 2).
The document includes information that is commercially sensitive and that has been held in confidence by EDF Inc. Publication of the expected shareholding interests prior to financial close would provide competitors with data that they could use to harm EDF Inc.'s competitive position in ongoing and future negotiations. The information, if used by a competitor, could also reduce its expenditure of resources or improve its competitive position relative to EDF Inc.
(e)
Pursuant to the provisions of 10 C.F.R. § 2.390(b)(4), the following is furnished for consideration by the NRC in determining whether the proprietary information sought to be protected should be withheld from public disclosure.
(i)
The information for which protection from disclosure is sought has been held in confidence by EDF Inc. This information is commercially sensitive to EDF Inc., and EDF Inc. seeks to protect it as such. The information proprietary to EDF Inc. is found in the documents listed in paragraph (d),
above. EDF Inc. has provided the NRC with both a proprietary and a public version of the document.
(ii)
The information sought to be withheld is of a type that would customarily be held in confidence by EDF Inc. before a transaction has reached financial close. The information consists of commercial and financial information that provides a competitive advantage to EDF Inc.
(iii)
The information sought to be withheld is being provided to the NRC in confidence, and, under the provisions of 10 C.F.R. § 2.390, it is to be received in confidence by the NRC.
(iv)
The information sought to be withheld is not available in public sources, to the best of EDF Inc.'s knowledge and belief.
(v)
Public disclosure of the proprietary information EDF Inc. seeks to protect is likely to cause substantial harm to EDF Inc.'s competitive position within the meaning of 10 C.F.R. § 2.390(b)(4)(v). The information, if used by a competitor, could reduce its expenditure of resources or improve its competitive position relative to EDF Inc. The proprietary information has substantial commercial value to EDF Inc.
For all of the reasons discussed above, EDF Inc. requests that this proprietary information be withheld from public disclosure in its entirety.
I declare under penalty of perjury that the foregoing is true and correct Executed on Sept. 28 2011 Patrick Blandin Executive Vice-Plesident, Finance, and Treasurer EDF Inc.
5404 Wisconsin Avenue, Suite 400 Chevy Chase, MD 20815
ATTACHMENT (6)
REGULATORY COMMITMENTS Constellation Energy Nuclear Group, LLC October 5, 2011
ATTACHMENT (6)
REGULATORY COMMITMENTS The following table identifies actions committed to in this document.
Any other statements in this submittal are provided for information purposes and are not considered to be regulatory commitments.
REGULATORY COMMITMENT DUE Send the confirmation of the EDF restructuring When the restructuring transaction is complete.
transaction to the NRC.
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