XML 132 R10.htm IDEA: XBRL DOCUMENT v3.3.0.814
Mergers, Acquisitions, and Dispositions
9 Months Ended
Sep. 30, 2015
Business Combinations [Abstract]  
Mergers, Acquisitions and Dispositions
Mergers, Acquisitions, and Dispositions (Exelon and Generation)
Proposed Merger with Pepco Holdings, Inc. (Exelon)
Description of Transaction
On April 29, 2014, Exelon and Pepco Holdings, Inc. (PHI) signed an agreement and plan of merger (as subsequently amended and restated as of July 18, 2014, the Merger Agreement) to combine the two companies in an all cash transaction. The resulting company will retain the Exelon name and be headquartered in Chicago. Under the Merger Agreement, PHI’s shareholders will receive $27.25 of cash in exchange for each share of PHI common stock. Based on the outstanding shares of PHI’s common stock as of September 30, 2015, PHI shareholders would receive $6.9 billion in total cash. In addition, in connection with the Merger Agreement, Exelon entered into a subscription agreement under which it has purchased $180 million of a class of nonvoting, nonconvertible and nontransferable preferred securities of PHI. The preferred securities are included in Other non-current assets on Exelon’s Consolidated Balance Sheet. PHI has the right to redeem the preferred securities at its option for the purchase price paid plus accrued dividends, if any.

On September 9, 2014, Exelon and PHI filed a Notification and Report Form with DOJ under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act). The HSR Act waiting period expired on December 22, 2014, and the HSR Act no longer precludes completion of the merger. Although the DOJ allowed the waiting period under the HSR Act to expire without taking any action with respect to the merger, the DOJ has not advised Exelon or PHI that it has concluded its investigation. Under the HSR Act, if the merger is not completed before December 23, 2015, Exelon and PHI are required to file again under the HSR Act and observe the required waiting period, which is 30 days from the new filing (and longer if the DOJ requests additional information), unless the DOJ terminates the waiting period earlier. Exelon and PHI intend to withdraw our pending HSR application and refile under the HSR Act on November 2, 2015.  This will trigger a new 30-day waiting period.  Unless a request for additional information is issued by DOJ during that waiting period, the waiting period will expire on December 2, 2015, and the parties will be free to close on or after December 2.

To date, the PHI stockholders, the Virginia State Corporation Commission, the New Jersey Board of Public Utilities (NJBPU), the Delaware Public Service Commission (DPSC), the Maryland Public Service Commission (MDPSC) and the FERC have approved the merger of PHI and Exelon. The Federal Communications Commission has also approved the transfer of certain PHI communications licenses.

On February 11, 2015, the NJBPU approved the proposed merger and the previously filed settlement signed and filed by Exelon, PHI, Atlantic City Electric (ACE), NJBPU staff, and the Independent Energy Coalition. The settlement provides a package of benefits to ACE customers and the state of New Jersey. This package of benefits includes the establishment of customer rate credit programs, with an aggregate value of $62 million for ACE customers and energy efficiency programs that will provide savings for ACE customers of $15 million. The March 6, 2015, order by the NJBPU approving the merger required that the consummation of the merger must take place no later than November 1, 2015 unless otherwise extended by the Board. On October 15, 2015, the NJBPU extended the November 1, 2015 date to June 30, 2016.

On February 13, 2015, Exelon and PHI announced that they had reached a settlement agreement in the proceeding before the DPSC to review the proposed merger. The settlement, which was amended on April 7, 2015, was signed and filed by Exelon, PHI, Delmarva Power & Light Company (DPL), the DPSC Staff, the Delaware Public Advocate, the Delaware Department of Natural Resources and Environment Control, the Delaware Sustainable Energy Utility, the Mid-Atlantic Renewable Energy Coalition and the Clean Air Council. As part of this settlement, Exelon and PHI proposed a package of benefits to DPL customers and the state of Delaware including the establishment of customer rate credits of $40 million for DPL customers in Delaware, $2 million of funding for energy efficiency programs for DPL low income customers, and $2 million of funding for workforce development. On June 2, 2015, the DPSC issued an order accepting the settlement and approving the merger between Exelon and PHI.

On March 17, 2015, Exelon and PHI announced that they had reached settlements with multiple parties in the Maryland proceeding to review the proposed merger after filing a Request for Adoption of Settlements with the MDPSC.  The settlements were signed and filed by Exelon, PHI, Montgomery County, Prince George’s County, The Alliance for Solar Choice, the National Consumer Law Center, National Housing Trust, the Maryland Affordable Housing Coalition, the Housing Association of Nonprofit Developers, and a consortium of recreational trail advocacy organizations led by the Mid-Atlantic Off-Road Enthusiasts.  On May 15, 2015, the MDPSC approved the merger after modifying a number of the conditions in the settlements, resulting in total rate credits of $66 million, funding for energy efficiency programs of $43.2 million, a Green Sustainability Fund of $14.4 million, 20 MWs of renewable generation development, ring-fencing, financial reporting conditions and increased penalties related to reliability commitments.  On May 18, 2015, Exelon and PHI accepted and committed to fulfill the conditions.

On June 11, 2015, the Maryland Office of People’s Counsel (OPC), the Sierra Club, and the Chesapeake Climate Action Network filed Petitions for Judicial Review of the MDPSC’s approval of the merger with the Circuit Court for Queen Anne’s County. On June 23, 2015, Public Citizen, Inc. filed its Petition for Judicial Review with the Circuit Court for Queen Anne’s County.  On July 10, 2015, Exelon and PHI filed a response in opposition to the Petitions for Review.

On July 21, 2015, the OPC filed a motion to stay the MDPSC order approving the merger and to set a schedule for discovery and presentation of new evidence. On July 29, 2015, Public Citizen, Inc. filed a response supporting OPC’s motion to stay, and on July 31, 2015 the Sierra Club and the Chesapeake Climate Action Network filed a joint motion to stay. In July and August, Exelon, PHI, the MDPSC, Prince George’s County and Montgomery County filed responses opposing the motions to stay. The presiding judge issued an order denying the motions for stay on August 12, 2015. A hearing on the underlying Petitions for Review is scheduled for December 8, 2015.

On August 27, 2015, the District of Columbia Public Service Commission (DCPSC) issued an Opinion and Order denying approval of the merger, asserting that the merger was not in the public’s interest. Exelon and PHI filed an Application for Reconsideration with the DCPSC on September 28, 2015. On October 6, 2015, Exelon, PHI, the District of Columbia Government, the Office of Peoples Counsel, the District of Columbia Water and Sewer Authority, the National Consumer Law Center, National Housing Trust and National Housing Trust - Enterprise Preservation Corporation, and the Apartment and Office Building Association of Metropolitan Washington (collectively, Settling Parties) entered into a Nonunanimous Full Settlement Agreement and Stipulation (Settlement Agreement) with respect to the merger. Exelon and PHI subsequently filed a motion of joint applicants requesting the DCPSC to reopen the approval application to allow for consideration of the Settlement Agreement and granting additional requested relief. The new package of benefits totals $78 million and includes commitments to provide relief of residential customer base rate increases of $26 million, one-time direct bill credits of $14 million, low-income energy assistance of $16 million, improved reliability, a cleaner and greener D.C. through funding energy efficiency programs and development of renewable energy, and investment in local jobs and the local economy through workforce development of $5 million. It also guarantees charitable contributions totaling $19 million over 10 years.

On October 28, 2015, the DCPSC at a public meeting agreed to reopen the approval application to allow for consideration of the Settlement Agreement and set a procedural schedule which would allow for completion of the merger in the first quarter of 2016. If the DCPSC does not approve the Settlement Agreement within the 150 day period after it was filed, either Exelon or PHI may terminate the Settlement Agreement.
The settlements reached and commission orders received to date in Delaware, Maryland and New Jersey include a “most favored nation” provision which, generally speaking, requires allocation of merger benefits proportionately across all the jurisdictions. When applying the most favored nation provision to the settlement terms and other conditions established in the merger approvals received to date, and as proposed in the Settlement Agreement filed with the DCPSC, Exelon and PHI currently estimate direct benefits of $430 million or more on a net present value basis (excluding charitable contributions and renewable generation commitments) will be provided, including rate credits, funding for energy efficiency programs, sustainability funds and other required commitments. Exelon and PHI anticipate substantially all of such amounts will be charged to earnings at the time of merger close and will be paid by the end of 2017. An additional $50 million will be charged to earnings for charitable contributions, which are required to be paid over a period of 10 years. Commitments to develop renewable generation, which are expected to be primarily capital in nature, will be recognized as incurred. Upon completion of the merger, the actual nature, amount, timing and financial reporting treatment for these commitments may be materially different from the current projection.

Exelon has been named in suits filed in the Delaware Chancery Court alleging that individual directors of PHI breached their fiduciary duties by entering into the proposed merger transaction and Exelon aided and abetted the individual directors’ breaches. The suits seek to enjoin PHI from completing the merger or seek rescission of the merger if completed. In addition, they also seek unspecified damages and costs. Exelon was also named in a federal court suit making similar claims. In September 2014, the parties reached a proposed settlement that would resolve all claims, which is subject to court approval. Final court approval of the proposed settlement is not anticipated until approximately 90 days after merger close. Exelon does not believe these suits will impact the completion of the transaction, and they are not expected to have a material impact on Exelon’s results of operations.  
 
Including 2014 and through September 30, 2015, Exelon has incurred approximately $226 million of expense associated with the proposed merger. Of the total costs incurred, $110 million is primarily related to acquisition and integration costs and $116 million is for costs incurred to finance the transaction. The financing costs include a net loss of $64 million related to the settlement of forward-starting interest-rate swaps. These swaps were terminated in connection with the $4.2 billion issuance of debt; refer to Note 10Derivative Financial Instruments and Note 11Debt and Credit Agreements for more information. The financing costs exclude costs to issue debt and equity.

During the three months ended September 30, 2015, Exelon, Generation, ComEd, PECO and BGE incurred acquisition and integration costs, including financing costs, of $21 million, $9 million, $3 million, $2 million and $2 million, respectively. During the nine months ended September 30, 2015, Exelon, Generation, ComEd, PECO and BGE incurred acquisition and integration costs of $47 million, $24 million, $10 million, $4 million and $5 million, respectively.

During the three months ended September 30, 2014, Exelon, Generation, ComEd, PECO and BGE incurred acquisition and integration costs, including financing costs, of $32 million, $3 million, $1 million, $1 million and $1 million, respectively. During the nine months ended September 30, 2014, Exelon, Generation, ComEd, PECO and BGE incurred acquisition and integration costs of $57 million, $4 million, $1 million,$1 million and $1 million, respectively.

The costs incurred are classified primarily within Operating and maintenance expense in the Registrants’ respective Consolidated Statement of Operations and Comprehensive Income, with the exception of the financing costs, which are included within Interest expense.

The Merger Agreement also provides for termination rights for both parties. Exelon and PHI have entered into a Letter Agreement related to the Settlement Agreement which has the practical effect of suspending their rights to terminate the Merger Agreement until November 20, 2015 if no schedule has been set by the DCPSC allowing for approval of the settlement by March 4, 2016, or until March 4, 2016, if a schedule is set for approval by March 4, 2016, but approval does not occur by that date. Under certain circumstances, if the Merger Agreement is terminated, PHI may be required to pay Exelon a termination fee ranging from $259 million to $293 million plus certain expenses. If the Merger Agreement is terminated due to a regulatory failure, Exelon may be required to pay PHI a termination fee equal to $180 million (the amount of purchased nonvoting preferred securities of PHI described above), through the redemption by PHI of the outstanding nonvoting preferred securities for no consideration other than the nominal par value of the stock, plus reimbursement of PHIs documented out-of-pocket expenses up to a maximum of $40 million.

Merger Financing
    
As of September 30, 2015, through the issuance of $5.4 billion of debt (including $1.15 billion of junior subordinated notes in the form of 23 million equity units), the issuance of $1.9 billion of common stock, and cash proceeds of $1.8 billion from asset sales primarily at Generation (after-tax proceeds of approximately $1.4 billion), Exelon has sufficient cash to fund the all-cash purchase price, acquisition and integration related costs, and merger commitments. See Note 11Debt and Credit Agreements and Note 17Common Stock for further information on the debt and equity issuances. See Note 4Merger and Acquisitions of the Exelon 2014 Form 10-K for further information on the asset sales.

Asset Divestitures (Exelon and Generation)

On January 21, 2015, Generation closed on the sale of the Quail Run generating facility. Generation has sold generating assets for total pre-tax proceeds of $1.8 billion (after-tax proceeds of $1.4 billion), including Quail Run and Safe Harbor, which are expected to be used primarily to finance a portion of the acquisition and related costs and expenses of PHI.

On August 8, 2014 Generation closed on the sale of its 67% economic equity interest in the 417 MW Safe Harbor Water Power Corporation hydroelectric facility on the Susquehanna River in Pennsylvania for a purchase price of approximately $615 million. Generation recorded a pre-tax gain on the sale of approximately $329 million within Gain on sales of assets on Exelon's and Generation's Consolidated Statements of Operations and Comprehensive Income.