Amendment No. 2 to
SEC File No.70-9629
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM U-1
APPLICATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 ("Act")
GPU, INC. ("GPU")
300 Madison Avenue
Morristown, New Jersey 07960
(Name of company filing this statement and addresses
of principal executive offices)
GPU, INC.
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(Name of top registered holding company parent of applicants)
T. G. Howson, Douglas E. Davidson, Esq.
Vice President and Treasurer Thelen Reid & Priest LLP
S. L. Guibord, Secretary 40 West 57th Street
GPU Service, Inc. New York, New York 10019
300 Madison Avenue
Morristown, New Jersey 07960
M. J. Connolly
Vice President - Law
GPU Service, Inc.
300 Madison Avenue
Morristown, New Jersey 07960
(Names and addresses of agents for service)
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GPU hereby amends its Application on Form U-1, docketed in SEC File No.
70-9629, as follows:
1. By amending Item 2 thereof in its entirety as follows:
ITEM 2. FEES, COMMISSIONS AND EXPENSES.
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The estimated fees, commissions and expenses expected to be incurred
in connection with the proposed transactions will be as follows:
Legal Fees and Expenses
Thelen Reid & Priest LLP $15,000
Ryan, Russell, Ogden & Seltzer LLP $ 1,000
Miscellaneous $ 2,500
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Total $18,500
2. By filing the following exhibits thereto:
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS.
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(a) Exhibits:
A(1) - Certificate of Incorporation of UMICO Holdings, Inc.
A(2) - By-Laws of UMICO Holdings, Inc.
B - Form of Subscription Agreement for UMICO Holdings, Inc.
F(1) - Opinion of Thelen Reid & Priest LLP.
F(2) - Opinion of Ryan, Russell, Ogden & Seltzer LLP.
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SIGNATURE
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PURSUANT TO THE REQUIREMENTS OF THE PUBLIC UTILITY HOLDING COMPANY
ACT OF 1935, THE UNDERSIGNED COMPANY HAS DULY CAUSED THIS STATEMENT TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED THEREUNTO DULY AUTHORIZED.
GPU, INC.
By: /s/ T. G. Howson
----------------
T. G. Howson,
Vice President and Treasurer
Date: May 17, 2000
- 2 -
EXHIBITS TO BE FILED BY EDGAR
Exhibit:
A(1) - Certificate of Incorporation of UMICO Holdings, Inc.
A(2) - By-Laws of UMICO Holdings, Inc.
B - Form of Subscription Agreement for UMICO Holdings, Inc.
F(1) - Opinion of Thelen Reid & Priest LLP.
F(2) - Opinion of Ryan, Russell, Ogden & Seltzer LLP.
Exhibit A(1)
CERTIFICATE OF INCORPORATION
OF
UMICO HOLDINGS INC.
under section 402 of the Business Corporation Law
THE UNDERSIGNED, being a natural person of at least eighteen years
of age and acting as the incorporator of the corporation hereby being formed
under the Business Corporation Law of the State of New York, does hereby certify
as follows:
FIRST: The name of the corporation is UMICO Holdings Inc.
(the "Corporation").
SECOND: The Corporation is formed for the following purposes:
To engage in any lawful act or activity for which corporations may be
organized under the Business Corporation Law, provided that the
Corporation is not formed to engage in any act or activity requiring the
consent or approval of any state official, department, board, agency or
other body without such consent or approval first being obtained.
THIRD: The office of the Corporation shall be located in the
County of Onondaga, State of New York.
FOURTH: The aggregate number of shares which the Corporation shall
have authority to issue is Two Hundred Thousand (200,000) designated as Common
Stock, $.01 par value per share.
FIFTH: Whenever the Corporation's Shareholders are required or
permitted to take any action by vote, such action may be taken without a meeting
on written consent, setting forth the action so taken, signed by the holders of
outstanding shares 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.
SIXTH: The Secretary of State of the State of New York is designated
as the agent of the Corporation upon whom process against the Corporation may be
served. The post office address within the State of New York to which the
Secretary of State shall mail a copy of any process against the Corporation
served upon him is UMICO Holdings Inc., 1304 Buckley Road, North Syracuse, NY
13212.
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SEVENTH: No person who is or was a director of the Corporation shall
be personally liable to the Corporation or its shareholders for monetary damages
for breach of duty as a director unless, and only to the extent that, a judgment
or other final adjudication adverse to such director establishes (i) that the
director's acts or omissions were in bad faith or involved intentional
misconduct or a knowing violation of the law or (ii) that he personally gained
in fact a financial profit or other advantage to which he was not legally
entitled or (iii) that his acts violated Section 719 of the Business Corporation
Law of the State of New York or any amendment thereto or successor provision
thereto. No amendment to repeal or adoption of any provision of the certificate
of incorporation inconsistent with this article shall apply to or have any
effect on the liability of any director of the Corporation for or with respect
to any acts or omissions of such director occurring prior to such amendment,
repeal, or adoption of an inconsistent provision.
EIGHTH: The Corporation shall, and hereby does, to the fullest
extent permitted by the Business Corporation Law of the State of New York,
indemnify any and all persons who it shall have the power to indemnify from and
against any and all expenses, costs, liabilities and other matters as provided
under Article 7 of the Business Corporation Law of the State of New York, as the
same may be amended and supplemented.
IN WITNESS WHEREOF, the undersigned has made, signed and affirmed as
true this Certificate of Incorporation under penalty of perjury this 13th day of
March, 2000.
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Brett Garver
Sole Incorporator
c/o Rosenman & Colin LLP
575 Madison Avenue
New York, New York 10022
2
Exhibit A(2)
UMICO HOLDINGS INC.
BY-LAWS
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ARTICLE I
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Shareholders
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Section 1. Annual Meeting. A meeting of shareholders of the Corporation
shall be held annually at the principal office of the Corporation in the State
of New York, or at such place within or without the State of New York, at such
time or on such date, as may from time to time be fixed by the Board of
Directors, for the election of directors and the transaction of such other
business as may properly come before the meeting.
Section 2. Special Meetings. Special meetings of shareholders of the
Corporation may be called by the Board of Directors, the Chairman or the
President, and shall be called by the Secretary upon the written demand of
shareholders of record holding at least a majority in number of the issued and
outstanding shares of the Corporation entitled to vote at such meeting, which
call or demand shall set forth the purpose or purposes for which the meeting is
called or demanded. Special meetings shall be held at the principal office of
the Corporation in the State of New York, or at such other place within or
without the State of New York as may be fixed by the Board of Directors. Special
meetings shall be held at such time and on such date as shall be specified in
the call thereof, but not more than 90 days from the date of the call thereof or
the date of such written demand. At any special meeting, only such business may
be transacted which is related to the purpose or purposes set forth in the
notice of such special meeting. Any special meeting for the election of
directors pursuant to Section 603(a) of the Business Corporation Law (the "BCL")
shall be held at the principal office of the Corporation.
Section 3. Record Date. The Board of Directors may fix, in advance, a
date, which date shall not be more than 60 nor less than ten days before the
date of any meeting of shareholders nor more than 60 days prior to any other
action, as the record date for the purpose of determining the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action. When a determination of shareholders of record
entitled to notice of or to vote at any meeting of shareholders has been made as
provided herein, such determination shall apply to any adjournment thereof,
unless the Board of Directors fixes a new record date for the adjourned meeting.
Section 4. Notice of Meetings. Notice of each meeting of shareholders
stating the place, date and hour thereof and, unless it is an annual meeting,
the purpose or purposes for which the meeting is called and that it is being
issued by or at the direction of the person or persons calling the meeting,
shall be
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given not fewer than ten nor more than 60 days before the date of such meeting,
to each shareholder entitled to vote at such meeting; provided, however, if such
notice is given by third class mail, such notice shall be given not fewer than
24 days before the date of such meeting. Notice may be written or electronic. If
mailed, such notice is given when deposited in the United States mail, with
postage thereon prepaid, directed to the shareholder at his or her address as it
appears on the record of shareholders or, if he or she shall have filed with the
Secretary a request that notices to him or her be mailed to some other address,
then directed to him or her at such other address. If transmitted
electronically, such notice is given when directed to the shareholder's
electronic mail address as supplied by the shareholder to the Secretary or as
otherwise directed pursuant to the shareholder's authorization or instructions.
If, at any meeting, action is proposed to be taken which would, if taken,
entitle shareholders fulfilling the requirements of Section 623 of the BCL to
receive payment for their shares, the notice of such meeting shall include a
statement of that purpose and to that effect and shall be accompanied by a copy
of Section 623 or an outline of its material terms.
Section 5. Waiver of Notice. Notice of any meeting of shareholders need
not be given to any shareholder who submits a signed waiver of notice whether
before or after the meeting. Waiver of notice may be written or electronic. The
attendance of any shareholder at a meeting, in person or by proxy, without
protesting prior to the conclusion of the meeting the lack of notice of such
meeting, shall constitute a waiver of notice by such shareholder.
Section 6. Adjournment. When any meeting of shareholders is adjourned to
another time or place, it shall not be necessary to give any notice of the
adjourned meeting if the time and place to which the meeting is adjourned are
announced at the meeting at which the adjournment is taken, and at the adjourned
meeting any business may be transacted that might have been transacted on the
original date of the meeting. However, if after such adjournment the Board of
Directors fixes a new record date for the adjourned meeting, a notice of the
adjourned meeting shall be given to each shareholder of record on the new record
date entitled to vote at such meeting.
Section 7. Quorum. The holders of a majority of the shares entitled to
vote at any meeting of shareholders shall constitute a quorum thereat for the
transaction of any business, except as otherwise provided in Section 603(b) of
the BCL. When a quorum is once present to organize a meeting, it is not broken
by the subsequent withdrawal of any shareholders. The shareholders present may
adjourn a meeting despite the absence of a quorum.
Section 8. Proxies. Every shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent without a meeting may authorize
another person or persons to act for him or her by proxy. No proxy shall be
valid after the expiration of eleven months from the date thereof unless
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otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the shareholder executing it, except as otherwise provided in Section 609 of
the BCL.
Section 9. Voting. Every shareholder of record shall be entitled at every
meeting of shareholders to one vote for every share standing in his or her name
on the record of shareholders. Directors shall, except as otherwise required by
law, be elected by a plurality of the votes cast at a meeting of shareholders by
the holders of shares entitled to vote in such election. Whenever any corporate
action, other than the election of directors, is to be taken by vote of the
shareholders, it shall, except as otherwise required by law, be authorized by a
majority of the votes cast in favor of or against such action at a meeting of
shareholders by the holders of shares entitled to vote thereon. An abstention
shall not constitute a vote cast. Shares standing in the name of another
domestic or foreign corporation of any type or kind may be voted by any officer
thereof.
Section 10. Action Without a Meeting. Any action required or permitted to
be taken by shareholders by vote may be taken without a meeting on written
consent, setting forth the action so taken, signed by the holders of outstanding
shares 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.
Section 11. Inspectors. The Board of Directors may appoint one or more
inspectors, and one or more alternate inspectors to replace any inspector who
fails to act, to act at a meeting of shareholders or any adjournment thereof and
make a written report thereof. If no inspector or alternate has been appointed,
or if such persons are unable to act, the person presiding at the meeting may
appoint one or more inspectors to act at the meeting.
Section 12. Conduct of Meetings. The Chairman, or in his or her absence
the President, or such other person as the Board of Directors shall designate,
shall preside at and conduct every meeting of shareholders, shall establish the
order of business to be conducted, shall establish the procedures and
requirements for the nomination of directors, and shall establish the procedures
with respect to the making of shareholder proposals. The person presiding at a
meeting shall have the power to adjourn the meeting, but not over the objection
of a majority of the votes cast at the meeting by the holders of shares entitled
to vote thereat. The powers of the person presiding at a meeting shall be
exercised in a fair and even-handed manner.
ARTICLE II
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Directors
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Section 1. Number of Directors. The number of directors constituting the
entire Board of Directors shall be thirteen, or such other number as the
shareholders or a majority of the entire 4
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Board of Directors may from time to time determine. For the purposes of these
By-Laws, the `entire Board of Directors' means the total number of directors
which the Corporation would have if there were no vacancies.
Section 2. Qualifications. Directors need not be shareholders of the
Corporation. Each of the directors shall be at least eighteen years of age
Section 3. Election and Term of Office. At each annual meeting of
shareholders, directors shall be elected to hold office until the next annual
meeting of shareholders. Each director shall hold office until the expiration of
such term, and until his or her successor has been elected and qualified, unless
he or she sooner dies, resigns or is removed.
Section 4. Removal; Resignation. Any or all of the directors may be
removed for cause or without cause by vote of the shareholders, and any of the
directors may be removed for cause by action of the Board of Directors, in
accordance with Section 706(a) of the BCL. Any director may resign at any time,
such resignation to be made in writing and to take effect immediately or on any
future date stated in such writing, without acceptance by the Corporation.
Section 5. Vacancies. Newly created directorships resulting from an
increase in the number of directors and vacancies occurring in the Board of
Directors for any reason (including the removal of directors without cause) may
be filled by vote of the Board of Directors. If the number of directors then in
office is less than a quorum, such newly created directorships or vacancies may
be filled by vote of a majority of the directors then in office. Any vacancies
occurring in the Board of Directors by reason of the removal of directors
without cause may be filled only by vote of the shareholders. A director elected
to fill a vacancy shall hold office until the next meeting of shareholders at
which the election of directors is in the regular order of business, and until
his or her successor has been elected and qualified, unless he or she shall
sooner die, resign or be removed.
Section 6. Meetings. A meeting of the Board of Directors shall be held for
the election of officers and for the transaction of such other business as may
properly come before such meeting as soon as practicable after the annual
meeting of shareholders. Other regular meetings of the Board of Directors may be
held at such times as the Board of Directors may from time to time determine.
Special meetings of the Board of Directors may be called at any time by the
Chairman, the President or by a majority of the directors then in office.
Meetings of the Board of Directors shall be held at the principal office of the
Corporation in the State of New York, or at such other place within or without
the State of New York as may from time to time be fixed by the Board of
Directors.
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Section 7. Notice of Meetings; Adjournment. Regular meetings of the Board
of Directors may be held without notice if the time and place of such meetings
are fixed by the Board of Directors. Notice of each regular meeting the time and
place of which has not been fixed by the Board of Directors, and of each special
meeting of the Board of Directors, specifying the place, date and time thereof,
shall be given personally, by mail, by electronic mail or by facsimile to each
director at his or her address as such address appears upon the books of the
Corporation at least two business days (Saturdays, Sundays and legal holidays
not being considered business days for the purpose of these By-Laws) before the
date of such meeting. Notice of a meeting need not be given to any director who
submits a signed waiver of notice, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to him or her. A notice, or waiver of notice, need not state
the purpose of the meeting. A majority of the directors present, whether or not
a quorum is present, may adjourn any meeting to another time and place. Notice
of any adjournment of a meeting of the Board of Directors to another time or
place shall be given to the directors who were not present at the time of the
adjournment and, unless such time and place are announced at the meeting, to the
other directors.
Section 8. Quorum; Voting. At any meeting of the Board of Directors, a
majority of the entire Board of Directors shall constitute a quorum for the
transaction of business or of any specified item of business. Except as
otherwise required by law, the vote of a majority of the directors present at
the time of the vote, if a quorum is present at such time, shall be the act of
the Board of Directors.
Section 9. Action by Conference Call. Any one or more members of the Board
of Directors or any committee thereof may participate in a meeting of the Board
of Directors or such committee by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at a meeting.
Section 10. Action Without a Meeting. Any action required or permitted to
be taken by the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board of Directors or such committee consent in
writing to the adoption of a resolution authorizing the action. The resolution
and the written consents thereto by the members of the Board of Directors or
such committee shall be filed with the minutes of the proceedings of the Board
of Directors or such committee.
Section 11. Committees. The Board of Directors, by resolution adopted by a
majority of the entire Board of Directors, may designate from among its members
an Executive Committee and other committees, each consisting of one or more
directors. Each such committee, to the extent provided in such resolution, shall
have all the authority of the Board of
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Directors, except that no such committee shall have authority as to the
following matters: (a) the submission to shareholders of any action that needs
shareholders' approval pursuant to law, (b) the filling of vacancies in the
Board of Directors or in any committee, (c) the fixing of the compensation of
the directors for serving on the Board of Directors or on any committee, (d) the
amendment or repeal of these By-Laws, or the adoption of new By-Laws, or (e) the
amendment or repeal of any resolution of the Board of Directors which by its
terms shall not be so amendable or repealable. The Board of Directors may
designate one or more directors as alternate members of any such committee, who
may replace any absent or disqualified member or members at any meeting of such
committee. Each such committee shall serve at the pleasure of the Board of
Directors.
Section 12. Director Compensation. The Board of Directors shall have
authority to fix the compensation of directors for services in any capacity.
ARTICLE III
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Officers
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Section 1. Election; Qualifications. As soon as practicable after each
annual meeting of shareholders, the Board of Directors shall elect or appoint a
Chairman, a President, one or more Vice-Presidents, a Secretary and a Treasurer,
and may elect or appoint at such time and from time to time such other officers
as it may determine. Any two or more offices may be held by the same person.
Section 2. Term of Office; Vacancies. All officers shall be elected or
appointed to hold office until the meeting of the Board of Directors following
the next annual meeting of shareholders. Each officer shall hold office for such
term, and until his or her successor has been elected or appointed and
qualified, unless he or she shall earlier die, resign or be removed. Any vacancy
occurring in any office, whether because of death, resignation or removal or any
other reason, shall be filled by the Board of Directors.
Section 3. Removal; Resignation. Any officer may be removed by the Board
of Directors with or without cause. Any officer may resign his or her office at
any time, such resignation to be made in writing and to take effect immediately
or on any future date stated in such writing, without acceptance by the
Corporation.
Section 4. Powers and Duties of the Chairman. The Chairman shall preside
at all meetings of shareholders and the Board of Directors.
Section 5. Powers and Duties of the President. The President shall be the
chief executive, operating and administrative officer of the Corporation and
shall have general
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charge and supervision of its business, affairs, administration and operations.
The President shall from time to time make such reports concerning the
Corporation as the Board of Directors may direct. The President shall have such
other powers and shall perform such other duties as may from time to time be
assigned to him or her by the Board of Directors. In the absence of the
Chairman, the President shall preside at all meetings of shareholders and the
Board of Directors. The President shall have the power to vote all of the shares
of any company which may be owned by the Corporation, including the shares of
the Corporation's subsidiary, Utilities Mutual Insurance Company.
Section 6. Powers and Duties of the Vice-Presidents. Each of the
Vice-Presidents shall have such powers and shall perform such duties as may from
time to time be assigned to him or her by the President.
Section 7. Powers and Duties of the Secretary. The Secretary shall record
and keep the minutes of all meetings of shareholders and the Board of Directors.
The Secretary shall attend to the giving and serving of all notices by the
Corporation. The Secretary shall be the custodian of, and shall make or cause to
be made the proper entries in, the minute book of the Corporation and such books
and records as the Board of Directors and or the President may direct. The
Secretary shall be the custodian of the seal of the Corporation and shall affix
or cause to be affixed such seal to such contracts, instruments and other
documents as the President or the Board of Directors may direct. The Secretary
shall have such other powers and shall perform such other duties as may from
time to time be assigned to him or her by the President.
Section 8. Powers and Duties of the Treasurer. The Treasurer shall be the
custodian of all funds and securities of the Corporation. Whenever required by
the President or the Board of Directors, the Treasurer shall render a statement
of the Corporation's cash and other accounts, and shall cause to be entered
regularly in the proper books and records of the Corporation to be kept for such
purpose full and accurate accounts of the Corporation's receipts and
disbursements. The Treasurer shall at all reasonable times exhibit the
Corporation's books and accounts to any director of the Corporation upon
application at the principal office of the Corporation during business hours.
The Treasurer shall have such other powers and shall perform such other duties
as may from time to time be assigned to him or her by the President or the Board
of Directors.
Section 9. Delegation. In the event of the absence of any officer of the
Corporation or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors may at any time and from time to time
delegate all or any part of the powers or duties of any officer to any other
officer or to any other person, including any director.
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ARTICLE IV
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Execution of Documents
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All contracts, instruments, agreements, bills payable, notes, checks,
drafts, warrants or other obligations of the Corporation shall be made in the
name of the Corporation and shall be signed by the President and/or such other
officer or officers as the Board of Directors may from time to time designate.
ARTICLE V
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Seal
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The seal of the Corporation shall contain the name of the Corporation, the
words "Corporate Seal", the year of its organization and the words "New York".
ARTICLE VI
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Indemnification
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The Corporation shall indemnify and advance the expenses of each person to
the full extent permitted, and in the manner provided, by the BCL, as the same
now exists or may hereafter be amended. The Corporation may also provide for
indemnification and advancement of expenses to any director or officer to the
extent provided in a resolution of shareholders, resolution of directors or an
agreement providing for such indemnification.
ARTICLE VII
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Fiscal Year
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The fiscal year of the Corporation shall end on December 31 of each year
or on such other date as shall be determined by the Board of Directors.
ARTICLE VIII
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Amendment of By-Laws
--------------------
These By-Laws may be amended or repealed, and any new By-Law may be
adopted, by a majority of the votes cast by the shares at the time entitled to
vote in the election of any directors or by a majority of the entire Board of
Directors, but any By-Law adopted by the Board of Directors may be amended or
repealed by the shareholders entitled to vote thereon as herein provided.
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Exhibit B
SUBSCRIPTION AGREEMENT
Utilities Mutual Insurance Company
4 Gatehall Drive, Suite 215
Parsippany, NJ 07054
Dear Sirs:
The undersigned is a policyholder of and holder of equitable shares in
Utilities Mutual Insurance Company (the "Company"), a mutual insurance company
which is currently in the process of obtaining the approval of the
Superintendent of Insurance of New York State (the "Superintendent") to convert
to stock company status ("demutualization"). It is contemplated that immediately
upon demutualization a holding company will be formed under New York law (the
"Holding Company") and all then shareholders of the Company will exchange their
stock in the Company for shares of stock in the Holding Company with the result
that the Company will become a wholly-owned subsidiary of the Holding Company.
Ownership of stock in the Holding Company will be in the same proportions as
ownership of the Company both before and immediately after demutualization. In
furtherance thereof, the undersigned agrees as follows:
1. Exchange and Subscription. Subject to the terms and conditions set
forth below, the undersigned, intending to be legally bound, hereby irrevocably
agrees that the Company, in lieu of issuing to it shares of common stock of the
Company to which it is entitled (i) pursuant to an order of demutualization for
the Company expected to be entered by the New York State Insurance Department,
and (ii) pursuant to assignments to it from its affiliated policy holders of the
Company (the "Assignors") as evidenced by resolution of Assignors attached
hereto as Exhibit A, hereby subscribes for shares of common stock (the "Stock")
of UMICO Holdings Inc., a New York corporation in such number as will represent
(together with Stock which would have been issued to its Assignors) the same
proportion of the total number of shares of common stock of the Holding Company
to be outstanding upon demutualization as the undersigned (together with Stock
which would have been issued to its Assignors) would be entitled with respect to
the Company upon demutualization.
2. Agreements. The undersigned further agrees:
(a) To vote all of its shares of Stock to elect the incumbent
directors of the Company as directors of the Holding Company.
The undersigned further agrees that in the event of any future vacancy on
the Board of Directors of the Holding Company,
<PAGE>
it will vote all of its shares of Stock for a person nominated by the company
whose employee or designee previously filled that vacant seat.
(b) To vote all of its shares of Stock to elect the following
persons to the officerships of the Holding Company set forth below:
John Mack Chairman of the Board
John Graham President & CEO
Noel P. Schulz Treasurer
William Davis Secretary
(c) To vote all of its shares of Stock for the adoption of by-laws
for the Holding Company providing that the power to elect 13 directors of the
Company shall reside in the President of the Holding Company on behalf of the
Holding Company as sole shareholder of the Company. It is understood that the
President of the Holding Company will exercise this authority to re-elect the
current directors of the Company and as provided in Section 2(a) above.
(d) Except as provided in this paragraph (d), and except to
companies it controls or control it, or is under common control with (each, an
"affiliate transaction"), the undersigned shall not sell, assign, transfer,
hypothecate or otherwise dispose of the Stock. Except in the case of an
affiliate transaction, in the event that the undersigned receives a bona fide
offer for the purchase of the Stock, it will offer such Stock to the Holding
Company at the same price as is provided in the bona fide offer received. Such
offer shall remain open for 30 days. If the Holding Company shall, within such
30 day period, accept such offer, it shall pay for such Stock in cash, within 30
days of the closing of the purchase. In the event that the Holding Company is
unwilling or legally unable to purchase such Stock, the Holding Company shall so
notify the undersigned within the 30-day period referred to above, and the
undersigned shall offer such Stock to all of the other stockholders of the
Holding Company at the same price, pro rata to their ownership of Stock in the
Holding Company. For a 30-day period from the date of such offer, such
stockholders shall have the right, but not the obligation, to purchase such
Stock in the proportion so offered, or in such other proportion that they shall
mutually agree. Payment for the Stock shall be made to the undersigned within 30
days of the closing of the purchase. The undersigned shall be free to sell
pursuant to the terms of the bona fide offer any Stock not purchased from it as
above provided. Notwithstanding the above, no entity shall either directly or
indirectly (through a purchase by the Holding Company) become an owner of in
excess of 10% of the Stock prior to receipt of approval of such holding by the
Superintendent.
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The agreement contained in this paragraph (d) shall survive until the closing of
a transaction, approved by stockholders of the Holding Company, for the sale of
the Company and/or the Holding Company or substantially all its assets.
(e) The undersigned agrees that if holders of more than 66 2/3% of
the Stock shall agree to the sale of their Stock to a third party, the
undersigned will sell its Stock to such third party on the same terms and
conditions and for the same price. The undersigned hereby irrevocably
constitutes and appoints the Chairman of the Board of the Holding Company as its
attorney in fact to transfer its Stock on the books of the Holding Company for
purposes of any transfer of Stock required by the undersigned pursuant to the
preceding sentence.
(f) The undersigned will comply with all reporting requirements
applicable to it under New York Insurance Law.
(g) The undersigned agrees that pending issuance of its shares of
Stock to the undersigned, the Holding Company may hold, in trust for the
exclusive benefit of the undersigned, any dividend or other distribution
declared and paid by the Holding Company on its Stock, and to pay over to the
undersigned any such amounts simultaneously with the issuance of Stock to the
undersigned.
3. Representations and Warranties. The undersigned hereby represents
and warrants that:
(a) The undersigned is fully familiar with the affairs of the Company and
the Holding Company.
(b) The undersigned understands and agrees that the Stock cannot be
transferred without compliance with the terms of this Agreement. The Stock is
not registered under the Securities Act of 1933 (the "Securities Act") or any
state securities laws. The undersigned must bear the economic risk of the
investment indefinitely because the Stock may not be sold, hypothecated or
otherwise disposed of unless registered under the Securities Act and applicable
state securities laws or an exemption from registration is available. Legends
shall be placed on the certificates for the Stock to the effect that they have
not been registered under the Securities Act or applicable state securities laws
and appropriate notations thereof will be made in the Holding Company's stock
books.
(c) The undersigned is acquiring the Stock for its own account, for
investment purposes only, and not with a view to the sale or other distribution
thereof, in whole or in part.
3
<PAGE>
(d) This Agreement has been duly authorized, executed and delivered by
the undersigned and upon the undersigned's receipt of a required order from the
Securities and Exchange Commission under the Public Utility Holding Company Act
of 1935, as amended ("PUHCA"), will constitute the valid and legally binding
obligation of the undersigned. The execution and performance of the terms and
obligations of this Agreement will not (upon receipt of the aforesaid
authorization under the PUHCA) cause the undersigned to violate any judgment,
order, law, ordinance or rule, or any agreement or indenture, to which the
undersigned or the undersigned's property, is subject.
4. Irrevocability; Binding Effect. The undersigned hereby acknowledges and
agrees that its subscription and exchange agreement hereunder is irrevocable by
the undersigned, except as required by applicable law including, without
limitation, the PUHCA, and that this Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted assigns.
5. Modification. This Agreement shall not be modified or waived except by
an instrument in writing signed by the party against whom any such modification
or waiver is sought.
6. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or delivered by nationally recognized courier service
against receipt to the party to whom it is to be given (a) if to the Company or
the Holding Company, at the address set forth above, or (b) if to the
undersigned, at the address set forth on the signature page hereof (or, in
either case, to such other address as the party shall have furnished in writing
in accordance with the provisions of this Section 6). Any notice or other
communication given by certified mail shall be deemed given at the time of
certification thereof, except for a notice changing a party's address which
shall be deemed given at the time of receipt thereof.
7. Assignability. This Agreement and the rights, interests and obligations
hereunder are not transferable or assignable by the undersigned (except upon the
express written consent of the Company and the Holding Company) and the
undersigned further agrees that the transfer or assignment of the Stock shall be
made only in accordance with the terms of this Agreement and all applicable
laws.
8. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without regard to its
conflicts of laws principles. The undersigned hereby irrevocably submits to the
jurisdiction of any New York State or United States Federal court sitting in New
4
<PAGE>
York County over any action or proceeding arising out of or relating to this
Agreement or any agreement contemplated hereby, and the undersigned hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such New York State or Federal court. The undersigned
further waives any objection to venue in such state on the basis of a
non-convenient forum. The undersigned further agrees that any action or
proceeding brought against the Company shall be brought only in New York State
or United States Federal courts sitting in New York County. THE UNDERSIGNED
AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED
HEREBY.
9. Miscellaneous.
(a) The terms and provisions of this Agreement may be waived, or
consent for the departure therefrom granted, only by a written document executed
by the party entitled to the benefits of such terms or provision.
(b) The undersigned's representations and warranties made in this
Agreement shall survive the execution and delivery hereof and of the Stock of
the Holding Company.
(c) This Agreement may be executed in one or more counterparts each
of which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
(d) Each provision of this Agreement shall be considered separable
and if for any reason any provision or provisions hereof are determined to be
invalid or contrary to applicable law, such invalidity shall not impair the
operation of or affect the remaining portions of this Agreement.
(e) Paragraph titles are for descriptive purposes only and shall not
control or alter the meaning of this Agreement as set forth in the text.
5
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Agreement this ----
day of January, 2000.
GPU, INC.
By:
---------------------------------
Title
----------------------------------
[address]
6
Exhibit F-1
[Letterhead of Thelen Reid & Priest LLP]
May 17, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: SEC File No. 70-9629
--------------------
Ladies and Gentlemen:
We have examined the Application on Form U-1, dated February 18,
2000, under the Public Utility Holding Company Act of 1935, as amended (the
"Act"), filed by GPU, Inc. ("GPU") with the Securities and Exchange Commission
and docketed in SEC File No. 70-9629, as amended by Amendment No. 1 thereto,
dated March 30, 2000, Amendment No. 2 thereto, dated this date, of which this
opinion is to be a part. (The Application, as so amended and as thus to be
amended, is hereinafter referred to as the "Application").
The Application contemplates, among other things, that GPU would
acquire approximately 36% of the common stock, $0.01 par value, of UMICO
Holdings, Inc. ("UMICO") in exchange for all of GPU's current interests in
Utilities Mutual Insurance Company ("UMI"), a mutual insurance company in the
process of demutualization.
Lawyers of the firm have acted as counsel to GPU and to its
subsidiaries for many years. In such capacity, they have participated in various
proceedings relating to GPU and its subsidiaries, and are familiar with the
terms of the outstanding securities of the corporations comprising the GPU
holding company system.
We have examined copies, signed, certified or otherwise proven to
our satisfaction of the charter documents and by-laws of GPU. We have also
examined such other documents, instruments and agreements and have made such
further investigation as we have deemed necessary as a basis for this opinion.
<PAGE>
Securities and Exchange Commission
May 17, 2000
Page 2
We are members of the Bar of the State of New York and do not
purport to be expert on the laws of any jurisdiction other than the laws of the
State of New York and the federal laws of the United States. As to all matters
herein which are governed by the laws of the Commonwealth of Pennsylvania, we
have relied upon the opinion of Ryan, Russell, Ogden & Seltzer LLP which is
being filed as Exhibit F-2 to the Application.
Based upon the foregoing, we are of the opinion that,
(a) all State laws applicable to the proposed transactions
have been complied with (except that we express no view with respect
to any state "blue sky" or securities laws that will have been
complied with);
(b) GPU is validly organized and duly subsisting
in the Commonwealth of Pennsylvania;
(c) GPU will legally acquire the common stock of UMICO; and
(d) the consummation of the transactions proposed in the
Application will not violate the legal rights of the holders of any
securities issued by GPU or any "associate company" thereof, as
defined in the Act.
We hereby consent to the filing of this opinion as an exhibit to the
Application and in any proceedings before the Commission that may be held in
connection therewith.
Very truly yours,
THELEN REID & PRIEST LLP
Exhibit F-2
[Letterhead of Ryan, Russell, Ogden & Seltzer LLP]
May 17, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: SEC File No. 70-9629
--------------------
Ladies and Gentlemen:
We have examined the Application on Form U-1, dated February 18,
2000, under the Public Utility Holding Company Act of 1935, as amended (the
"Act"), filed by GPU, Inc. ("GPU") with the Securities and Exchange Commission
and docketed in SEC File No. 70-9629, as amended by Amendment No. 1 thereto,
dated March 30, 2000, Amendment No. 2 thereto, dated this date, of which this
opinion is to be a part. (The Application, as so amended and as thus to be
amended, is hereinafter referred to as the "Application").
The Application contemplates, among other things, that GPU would
acquire approximately 36% of the common stock, $0.01 par value, of UMICO
Holdings, Inc. ("UMICO") in exchange for all of GPU's current interests in
Utilities Mutual Insurance Company ("UMI"), a mutual insurance company in the
process of demutualization.
We have been Pennsylvania counsel to GPU and to its Pennsylvania
subsidiaries for many years. In such capacity, we have participated in various
Pennsylvania proceedings relating to GPU and its Pennsylvania subsidiaries.
We have examined copies, signed, certified or otherwise proven to
our satisfaction of the charter documents and by-laws of GPU. We have also
examined such other documents, instruments and agreements and have made such
further investigation as we have deemed necessary as a basis for this opinion.
<PAGE>
Securities and Exchange Commission
May 17, 2000
Page 2
We are members of the Bar of the Commonwealth of Pennsylvania and do
not purport to be expert in the laws of any other jurisdiction.
Based upon the foregoing, we are of the opinion, insofar as
matters of Pennsylvania law are concerned, that,
(a) all Pennsylvania laws applicable to the proposed
transactions have been complied with (except that we express no view
with respect to any state "blue sky" or securities laws that will
have been complied with); and
(b) GPU is validly organized and duly subsisting
in the Commonwealth of Pennsylvania.
We hereby consent to the filing of this opinion as an exhibit to the
Application and in any proceedings before the Commission that may be held in
connection therewith.
Very truly yours,
RYAN, RUSSELL, OGDEN & SELTZER LLP
