Filing includes Proposals to Elect Independent Candidates
– By Jack Bryar –
Exelon Corporation has announced that it has filed a preliminary proxy statement with the Securities and Exchange Commission in connection with its solicitation of proxies for the 2009 annual meeting of the shareholders of NRG Energy, Inc. (NYSE:NRG).
Exelon is seeking NRG shareholder approval for the following proposals:
* Election of Class III Directors: Elect independent candidates Betsy S. Atkins, Ralph E. Faison, Coleman Peterson and Thomas C. Wajnert to replace the four Class III directors of NRG whose terms expire at the 2009 annual meeting of NRG shareholders.
* Board Expansion: Expand the size of the NRG Board of Directors to provide for a board of 19 directors divided into three approximately equal classes.
* Election of Additional Directors: Elect John M. Albertine, Marjorie L. Bowen, Donald DeFosset, Jr., Richard H. Koppes and Ralph G. Wellington to fill five of the seven newly created directorships on the NRG Board.
* Restoration of the Bylaws: Repeal any amendments to the NRG bylaws adopted by the NRG Board without the approval of the NRG shareholders after February 26, 2008.
“Given the strong majority support we have already received from NRG shareholders participating in our exchange offer, we look forward to continuing to work closely with shareholders of both companies to ensure that the Exelon-NRG combination will create the greatest value,” said John Rowe, Exelon chairman and CEO. “NRG’s annual meeting is the next step in unlocking that value, and we believe that NRG shareholders are eager to have a board of directors that is independent, responsive to their interests, and committed to acting in the best interests of NRG and its shareholders, including exploring all opportunities for value creation.”
In its preliminary proxy statement to NRG shareholders, Exelon stated, “We believe the nominees are independent under the general standards of the New York Stock Exchange (the “NYSE”) for director independence. In addition, we believe the nominees are independent under the heightened independence standards applicable to audit committee members under the rules of the NYSE and the Securities and Exchange Commission. None of the nominees is affiliated with Exelon or any subsidiary of Exelon.”
The Exelon preliminary proxy statement further stated, “We believe approval of the Exelon Proposals will establish an NRG Board that is more likely to act in your best interests and will send a strong message to the NRG Board to constructively engage with Exelon regarding the [exchange offer] or another business combination with Exelon and, should the newly elected directors and other members of the NRG Board deem it appropriate in the exercise of their fiduciary duties, approve and recommend to the NRG stockholders the [exchange offer] and/or another business combination with Exelon, and take any other appropriate actions necessary to facilitate its consummation. However, the nominees are independent and, accordingly, they may in the exercise of their independent fiduciary judgment determine not to approve a business combination with Exelon.”
NRG’s annual meeting has not yet been scheduled but is required under Delaware law to take place within 13 months after NRG’s last meeting held May 14, 2008.
Exelon announced on October 19, 2008, its proposal to acquire all outstanding shares of NRG common stock at a fixed exchange ratio of 0.485 of a share of Exelon common stock for each share of NRG common stock, which represented a 37% premium for NRG shareholders based on closing prices on the NYSE on October 17, 2008, the last trading day prior to the public disclosure of the Exelon offer. After NRG twice rejected the Exelon offer, Exelon brought its exchange offer directly to NRG shareholders on November 12, 2008.