UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



FORM 8-K



CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934



Date of Report: June 7, 2020
(Date of earliest event reported)



Commission File Number
 
Exact Name of Registrant
as specified in its charter
 
State or Other
Jurisdiction of Incorporation or Organization
 
IRS Employer Identification Number
001-12609
 
PG&E CORPORATION
 
California
 
94-3234914
001-02348
 
PACIFIC GAS AND ELECTRIC COMPANY
 
California
 
94-0742640

GRAPHIC     GRAPHIC
77 BEALE STREET
 
77 BEALE STREET
P.O. BOX 770000
 
P.O. BOX 770000
SAN FRANCISCO, California 94177
 
SAN FRANCISCO, California 94177
(Address of principal executive offices) (Zip Code)
 
(Address of principal executive offices) (Zip Code)
(415) 973-1000
 
(415) 973-7000
(Registrants telephone number, including area code)
 
(Registrants telephone number, including area code)
     

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class
Trading Symbol(s)
Name of each exchange
on which registered
Common stock, no par value
PCG
The New York Stock Exchange
First preferred stock, cumulative, par value $25 per share, 5% series A redeemable
PCG-PE
NYSE American LLC
First preferred stock, cumulative, par value $25 per share, 5% redeemable
PCG-PD
NYSE American LLC
First preferred stock, cumulative, par value $25 per share, 4.80% redeemable
PCG-PG
NYSE American LLC
First preferred stock, cumulative, par value $25 per share, 4.50% redeemable
PCG-PH
NYSE American LLC
First preferred stock, cumulative, par value $25 per share, 4.36% series A redeemable
PCG-PI
NYSE American LLC
First preferred stock, cumulative, par value $25 per share, 6% nonredeemable
PCG-PA
NYSE American LLC
First preferred stock, cumulative, par value $25 per share, 5.50% nonredeemable
PCG-PB
NYSE American LLC
First preferred stock, cumulative, par value $25 per share, 5% nonredeemable
PCG-PC
NYSE American LLC

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company
PG&E Corporation
Emerging growth company
Pacific Gas and Electric Company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

PG&E Corporation
Pacific Gas and Electric Company





Item 1.01  Material Definitive Agreement.

As previously disclosed, on January 29, 2019, PG&E Corporation (the “Corporation”) and its subsidiary, Pacific Gas and Electric Company (the “Utility,” and together with the Corporation, the “Debtors”) filed voluntary petitions for relief under chapter 11 of title 11 (“Chapter 11”) of the United States Code in the U.S. Bankruptcy Court for the Northern District of California (the “Bankruptcy Court”). The Debtors’ Chapter 11 cases are being jointly administered under the caption In re: PG&E Corporation and Pacific Gas and Electric Company, Case No. 19-30088 (DM) (the “Chapter 11 Cases”). On May 22, 2020, the Debtors, certain funds and accounts managed or advised by Abrams Capital Management, L.P., and certain funds and accounts managed or advised by Knighthead Capital Management, LLC filed the Debtors’ and Shareholder Proponents’ Joint Chapter 11 Plan of Reorganization dated May 22, 2020 [Docket No. 7521] with the Bankruptcy Court (as may be further modified, amended, or supplemented from time to time and, together with all exhibits and schedules thereto, the “Plan”).

Backstop Amendments

On June 8, 2020, the Corporation entered into separate agreements (each, a “Consent Agreement”) with investors (each, a “Backstop Party”) holding 89% of the equity backstop commitments to amend the Chapter 11 Plan Backstop Commitment Letters between the Corporation and each such Backstop Party (each, a “Backstop Commitment Letter”) and provide for certain other arrangements.  The Consent Agreements address, among other things:

 
Amended and Restated Backstop Commitment Letters:  Subject to the effectiveness of each Consent Agreement, each Backstop Party’s Backstop Commitment Letter will be amended and restated to provide that the Corporation may issue common stock (or forward purchase contracts or other equity-linked securities) to finance the transactions contemplated by the Plan at any price per share, as long as the Implied P/E Multiple (as defined in each Backstop Commitment Letter) exceeds the Backstop Multiple (as defined in each Backstop Commitment Letter).
     
 
Greenshoe Backstop:  As the Corporation announced on June 8, 2020, the Corporation expects to pursue underwritten offerings of up to $5.75 billion of equity securities to finance the transactions contemplated by the Plan, of which up to $523 million (the “Option Amount”) would be issuable pursuant to customary options granted to the underwriters thereof to purchase additional securities (the “Option Securities”).  Each Consent Agreement contemplates that, subject to the effectiveness of each Consent Agreement, the Backstop Party will enter into a prepaid forward contract (a “Forward Contract”) to purchase its pro rata share of the Option Amount, which amount would be funded shortly prior to the effective date of the Plan.  To the extent that the underwriters exercise their option to purchase additional securities under any applicable underwriting agreement, the Corporation would redeem each Forward Contract ratably at par on or after the effective date of the Plan.  Any amount of the Forward Contract that is not redeemed after 30 days would be settled in shares of PG&E Corporation common stock at a per share price equal to the lesser of (i) the offering price in any public offering of PG&E Corporation common stock and (ii) the price per share offered to an investor in a substantially concurrent private transaction for shares of PG&E Corporation common stock as described below under the heading “Investment Agreements”.  The terms of the Forward Contract are described in Exhibit B to each Consent Agreement.
     
 
Additional Backstop Commitment Share Premium:  Subject to the conditions set forth in each Consent Agreement, the Corporation would issue to each Backstop Party its pro rata share of 50,000,000 shares of PG&E Corporation common stock, determined in accordance with each Consent Agreement.  Such shares will only be payable in the event that the Corporation completes a Permitted Equity Offering (as defined in the Backstop Commitment Letters).

The effectiveness of each Consent Agreement is subject to certain conditions, including that by June 30, 2020, the Corporation must obtain Bankruptcy Court approval of the Consent Agreements (including the Additional Backstop Commitment Share Premium and the Amended and Restated Backstop Commitment Letters).

The foregoing description of each Consent Agreement, each Amended and Restated Backstop Commitment Letter and the terms for each Forward Contract does not purport to be complete and is qualified in its entirety by reference to the text of each such document, which are attached hereto as Exhibits 10.1, 10.2 and 10.3, respectively, and incorporated by reference herein. The Company will offer each other entity that currently is a party to an existing Chapter 11 Plan Backstop Commitment Letter the opportunity to enter into a Consent Agreement.



Investment Agreement

On June 7, 2020, the Corporation entered into an Investment Agreement (the “Investment Agreement”) with affiliates of Appaloosa Management, LP, Third Point LLC, Zimmer Partners, LP, Fidelity Management & Research Company, LLC and GIC Pte Ltd (each, an “Investor” and together, the “Investors”), relating to the issuance and sale to the Investors of an aggregate of $3.25 billion of the Corporation’s Common Stock, no par value (the “Common Stock”), for a price per share that will be equal to (a) if the Public Equity Offering Price (as defined below) is greater than $10.5263, the lesser of (i) 95% of the Public Equity Offering Price and (ii) $10.50 and (b) if the Public Equity Offering Price is equal to or less than $10.5263, the lesser of (i) the Public Equity Offering Price and (ii) $10.00.  “Public Equity Offering Price” means the lower of (a) the lowest per share “Price to public” of the Common Stock sold on an underwritten basis in the Public Equity Offerings (as defined below), as disclosed on the cover page of the applicable prospectus or prospectus supplement, and (b) the exercise price for any rights to purchase Common Stock issued as a rights offering in the Public Equity Offerings.  “Public Equity Offering” means one or more public offerings of Common Stock or Equity Securities (as defined in the Investment Agreement) in respect of Common Stock, which may be consummated in the form of a rights offering, consummated subsequent to the date hereof and on or prior to the Closing Date to fund a portion of the Plan Funding, and in each case, the payment of certain fees and expenses related thereto.

Issuance of Common Stock and consummation of the other transactions contemplated by the Investment Agreement is conditioned upon, among other things, consummation by the Corporation of at least $5.75 billion of gross proceeds of sales of Common Stock or Equity Securities in respect of Common Stock other than pursuant to the Investment Agreement (of which at least $2.5 billion must be an underwritten offering of Common Stock). In addition, each Investor will have the right to terminate the Investment Agreement solely as to itself if the Corporation notifies one or more Backstop Parties that it will be required to purchase shares of Common Stock as described in Section 2(a) of their respective Backstop Commitment Letters, or if the closing of the transactions contemplated by the Investment Agreement has not taken place on or prior to the 45th day following the date of the Investment Agreement.  Closing is expected to occur on the effective date of the Plan, unless otherwise agreed by the applicable Investor (such date, the “Closing Date”).

Each Investor will be subject to certain transfer restrictions, including that such Investor will be restricted from transferring any shares of Common Stock purchased pursuant to the Investment Agreement (such shares, “Shares”) or engaging in hedging transactions with respect to the Shares, until the 90-day anniversary of the Closing Date, subject to certain exceptions.  The Investors and their affiliates will have certain customary registration rights with respect to the Shares held by such Investor pursuant to the terms of the Investment Agreement.

The foregoing description of the terms of the Investment Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Investment Agreement and the schedules thereto, which is attached hereto as Exhibit 10.4, and is incorporated herein by reference.

Item 3.02.  Unregistered Sale of Equity Securities.

The information contained in Item 1.01 under the heading “Investment Agreement” is incorporated herein by reference.

As described in Item 1.01, pursuant to the terms of the Investment Agreement, the Corporation has agreed to issue shares of Common Stock to the Investors. This issuance and sale will be exempt from registration under the Securities Act, pursuant to Section 4(a)(2) of the Securities Act. The Investors represented to the Corporation that they are “accredited investors” as defined in Rule 501 of the Securities Act and that the Common Stock is being acquired for investment purposes and not with a view to, or for sale in connection with, any distribution thereof, and the Common Stock acquired in connection with the Investment Agreement, or any transaction statement evidencing ownership of such Common Stock, will bear an appropriate restrictive legend.



Item 9.01  Financial Statements and Exhibits.

(d) Exhibits

Exhibit Number
 
Description
 
 
 
10.4
Investment Agreement among PG&E Corporation and the Investors listed in Schedule A thereto
104
 
Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document

Forward-Looking Statements

This Current Report on Form 8-K includes forward-looking statements that are not historical facts, including statements about the beliefs, expectations, estimates, future plans and strategies of the Corporation and the Utility, including but not limited to the private placement expected offerings, anticipated offering procedures and the Corporation’s and the Utility’s emergence from Chapter 11. These statements are based on current expectations and assumptions, which management believes are reasonable, and on information currently available to management, but are necessarily subject to various risks and uncertainties, including the possibility that the conditions to emergence in the Plan or to funding under equity financing commitments will not be satisfied. In addition to the risk that these assumptions prove to be inaccurate, factors that could cause actual results to differ materially from those contemplated by the forward-looking statements include factors disclosed in the Corporation and the Utility’s Annual Report on Form 10-K for the year ended December 31, 2019 and their subsequent reports filed with the Securities and Exchange Commission. Additional factors include, but are not limited to, those associated with the Corporation’s and the Utility’s Chapter 11 Cases. The Corporation and the Utility undertake no obligation to publicly update or revise any forward-looking statements, whether due to new information, future events or otherwise, except to the extent required by law.

Non-Solicitation

This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy securities, and shall not constitute an offer, solicitation or sale in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of that jurisdiction.



SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrants have duly caused this report to be signed on their behalf by the undersigned thereunto duly authorized.


  PG&E CORPORATION  
       
       
Date: June 8, 2020
By:
/s/ JASON P. WELLS  
    Name: 
Jason P. Wells
 
    Title: 
Executive Vice President and Chief Financial Officer
 
         


  PACIFIC GAS AND ELECTRIC COMPANY  
       
       
Date: June 8, 2020
By:
/s/ JANET C. LODUCA
 
    Name: 
Janet C. Loduca
 
    Title:  
Senior Vice President and General Counsel
 
         



Exhibit 10.1


CONSENT FORM

Reference is made to the Chapter 11 Plan Backstop Commitment Letter (the “Backstop Commitment Letter”) between PG&E Corporation (the “Company”) and the undersigned investor (the “Backstop Party”).  Capitalized terms used and not defined herein have the meanings given in the Backstop Commitment Letter.

1.  Amendment and Restatement of Backstop Commitment Letter.  Subject to the satisfaction or waiver of the conditions set forth in Section 4, as of the Effective Time the Backstop Commitment Letter shall be amended and restated in the form attached hereto as Exhibit A.

2.  “Greenshoe Backstop” Forward Contract.  The following provisions of this Section 2 are subject to the satisfaction or waiver of the conditions set forth in Section 4:

(a)  In connection with any underwritten public offering (an “Underwritten Offering”) of (x) shares of New HoldCo Common Stock or (y) securities convertible into any such shares or other equity-linked securities where the underlying security is New HoldCo Common Stock (“Other Equity Securities”), the Company will enter into an underwriting agreement with the representatives of the underwriters for each Underwritten Offering (an “Underwriting Agreement”), pursuant to which the underwriters for each Underwritten Offering may have the option to purchase additional shares of New HoldCo Common Stock (the “Option Shares”) and additional Other Equity Securities (together with the Option Shares, the “Option Securities”), as applicable.  The Company will not take any action to interfere with the underwriters’ exercise of their independent judgment with respect to the option to purchase the Option Securities at the close of the Underwritten Offering.  In connection with any Underwritten Offering, the Company expects to enter into one or more redeemable forward stock purchase contracts upon the terms and conditions set forth on Exhibit B (each, a “Forward Contract”) pursuant to which the Backstop Party and one or more Other Backstop Parties would agree to purchase shares of New HoldCo Common Stock for an aggregate amount not in excess of the aggregate gross proceeds that would be received by the Company from the sale of all Option Securities that the underwriters of the Underwritten Offerings have the option to purchase (the “Forward Contract Purchase Amount”) at a per share price equal to the lesser of (a) the price of the Underwritten Offering or (b) the price per share payable by any investor in any Permitted Equity Offering that is structured as a private transaction.  In no event will the Forward Contract Purchase Amount exceed $522,727,273 (the “Maximum Forward Contract Amount”).

(b) The Backstop Party commits to enter into the Forward Contract prior to commencement of any Underwritten Offering to purchase shares of New HoldCo Common Stock for an aggregate amount equal to the Backstop Party’s pro rata share of the Maximum Forward Contract Amount, based on the Backstop Commitment Amount immediately after the Allocation Date divided by $12 billion (the “Base Forward Contract Purchase Commitment”).1



1 For example, if the Backstop Party’s Backstop Commitment Amount were $120,000,000, the Base Forward Contract Purchase Commitment would equal $5,227,273.


2

(c)  In the event that as of 6:00 p.m. Eastern Time on June 9, 2020 (such date and time, the “Cut-off Date”) the Company has not received commitments from the Other Backstop Parties that, together with the Base Forward Contract Purchase Commitment, equal the Maximum Forward Contract Amount (a “Shortfall”), the Backstop Party commits to increase its Base Forward Contract Purchase Commitment by an additional amount of up to $_____ (the “Oversubscription Commitment”)2; provided that in the event that the Oversubscription Commitment, together with any oversubscription commitments of the Other Backstop Parties (the “Aggregate Oversubscription”), exceeds the Shortfall, the amount of the Oversubscription Commitment will be reduced to an amount equal to (i) the Shortfall, multiplied by (ii) the Oversubscription Commitment, divided by (iii) the Aggregate Oversubscription.3  Within two business days of the Cut-off Date, the Company will confirm in writing to the Backstop Party the amount of its purchase commitment (the Base Forward Contract Purchase Commitment, as may be adjusted by the Oversubscription Commitment calculated in accordance with this paragraph, the “Forward Contract Purchase Commitment”).

(d)  In the event that the Forward Contract Purchase Amount is less than the Maximum Forward Contract Amount (the “Final Forward Contract Purchase Amount”), the Forward Contract Purchase Commitment will be reduced by multiplying the amount of the Forward Contract Purchase Commitment by a percentage equal to (i) the Final Forward Contract Purchase Amount divided by (ii) the Maximum Forward Contract Amount (the “Final Forward Contract Purchase Commitment”).4

(e)  If the Backstop Commitment will be drawn or the Forward Contract Purchase Commitment will be funded, and as a result the Backstop Party’s and its affiliates’ aggregate beneficial ownership of shares of PG&E common stock would exceed 4.75% of the outstanding shares of PG&E common stock, then (i) the Debtors may reduce the amount of the Backstop Party’s Forward Contract Purchase Commitment in order to eliminate such excess and (ii) if the Debtors do not make such reduction, the Debtors may not impose any restriction on the transfer of any shares held by the Backstop Party or its affiliates (determined as of the date the transactions contemplated by this Consent and the Plan are consummated) pursuant to the terms of PG&E’s organizational documents.



2 Note to Backstop Parties:  This amount is to be filled in by the Backstop Party and may be zero.  The failure to include an amount for the Oversubscription Commitment will be treated as zero.

3 For example, if there is Shortfall of $100 million and Backstop Parties A, B and C make Oversubscription Commitments of $100 million, $60 million and $40 million, respectively, the Aggregate Oversubscription is $200 million and the adjusted Oversubscription Commitments would be $50 million, $30 million and $20 million, respectively.

4 For example, if the Final Forward Contract Purchase Amount is $392.0 million and the Backstop Party had a Forward Contract Purchase Commitment of $100 million, then the Forward Contract Purchase Commitment would be adjusted as follows:  $100 million x 75% = $75 million resulting in a Final Forward Contract Purchase Commitment of $75 million.


3

3.  Additional Backstop Commitment Share Premium.  Subject to the satisfaction or waiver of the conditions set forth in Section 4, as consideration for the delivery of this Consent on or prior to the Cut-off Date, the Company shall, on the Effective Date, pay the Additional Backstop Commitment Share Premium to the Backstop Party, provided, however, that the Additional Backstop Commitment Share Premium shall only be payable if the Company consummates a Permitted Equity Offering (even if the net proceeds of such offering are less than $9,000,000,000).  The “Additional Backstop Commitment Share Premium” means a number of shares of New HoldCo Common Stock (rounded to the nearest whole share) equal to (a) 50,000,000 shares, multiplied by (b) the Backstop Party’s Forward Contract Purchase, divided by (c) the Maximum Forward Contract Purchase Amount.  The provisions for the payment of the Additional Backstop Commitment Share Premium and the other provisions provided herein are an integral part of the transactions contemplated by this Backstop Commitment Letter and without these provisions the Backstop Party would not have entered into this Consent, and the Backstop Commitment Share Premium shall, pursuant to an order of the Bankruptcy Court approving this Consent, constitute allowed administrative expenses of the Debtors’ estates under sections 503(b) and 507 of the Bankruptcy Code.

Except as otherwise required by a final determination by an applicable taxing authority or change in applicable law: (A) the Backstop Party and the Company hereto agree to treat, for U.S. federal income tax purposes, the Backstop Party’s commitment to enter into this Consent as the sale of a put option by the Backstop Party to the Company and the Additional Backstop Commitment Share Premium as the sale price for such put option; and (B) the Backstop Party and the Company shall not take any position on any tax return or otherwise take any action related to taxes inconsistent with such treatment.

4.  Conditions to Effectiveness of this Consent.  The effectiveness of Sections 1, 2 and 3 of this Consent shall be subject to the satisfaction or waiver by the Company and the Backstop Party of the following conditions:

(a)  by no later than the Cut-off Date, the Company shall have received consents substantially in the form of this Consent representing the holders of at least a majority of the Aggregate Backstop Commitments;

(b) by no later than the Cut-off Date, the Company shall have obtained Forward Contract Purchase Commitments in an aggregate amount at least equal to the Maximum Forward Contract Amount;

(c) by June 12, 2020, the Company shall have (i) received written consents to the amendment and restatement of each Other Backstop Commitment Letter in the form attached hereto as Exhibit A from each of the Other Backstop Parties; or (ii) provided notice to the Other Backstop Parties that have not submitted similar Consents in accordance with Section 11(b) of the Backstop Commitment Letter;

(d) the Company and the Backstop Party shall have entered into the definitive documentation for the Forward Contract pursuant to which the Backstop Party has made the Forward Contract Purchase Commitment, which shall be enforceable against the Company and the Backstop Party subject only to the satisfaction or waiver of the conditions set forth in this Section 4; and


4

(e) by no later than June 30, 2020, the Backstop Commitment Letter in the form of Exhibit A and the terms of this Consent shall have been approved in accordance with the terms of the Backstop Approval Order.

The date that the foregoing conditions are satisfied or waived is referred to herein as the “Effective Time”.  The Company shall provide notice to the Backstop Party of the satisfaction of each condition.

5.  Cooperation; Definitive Documents.  The Company and the Backstop Party shall cooperate in good faith to enter into definitive documentation with respect to a Forward Contract.  Such definitive documentation shall be consistent with Exhibit B and shall be enforceable against the Company and the Backstop Party (subject only to the satisfaction or waiver of the conditions set forth in Section 4 of this Consent) prior to commencement of any Underwritten Offering, in each case unless otherwise agreed by the Company and the Backstop Party.

6.  Section 11(b) Matters. For the purposes of Section 11(b) of the Backstop Commitment Letter, the Backstop Party intends that this Consent constitute an amendment of the Backstop Commitment Letter and a waiver of any Backstop Party Termination Event, that could arise related to (a) the form of the Debtors’ and Shareholder Proponents’ Joint Chapter 11 Plan of Reorganization filed with the Bankruptcy Court on May 22, 2020, (b) the settlement agreement, as modified by the assigned commissioner’s Decision Different, approved by the CPUC on May 7, 2020 in its Order Instituting Investigation into the 2017 Northern California Wildfires and the 2018 Camp fire (Investigation 19-06-015) (c) the revised proposed decision issued by the CPUC on May 19, 2020 in its Order Instituting Investigation to Consider PG&E Corporation’s and the Utility’s Plan of Reorganization (Investigation 19-09-16), and approved by the CPUC on May 28, 2020, (d) the Case Resolution Contingency Process and the terms of the purchase option as set forth in the Debtors’ Motion for Entry of an Order Approving the Case Resolution Contingency Process and Granting Related Relief filed with the Bankruptcy Court on March 20, 2020 or (e) the consummation of an Equity Offering in violation of Section 1(a) of the Prior Commitment Letter (provided that such Equity Offering does not violate Section 1(a) of the Amended and Restated Backstop Commitment Letter).

7.  Any termination of the Backstop Commitment Letter (in accordance with the terms thereof) will constitute a termination of this Consent Form.

8.  Delivery of an executed counterpart of this consent form by e-mail or portable document format (PDF) will be effective as delivery of a manually executed counterpart of this consent form.

9.  Amendments. This Consent Form may not be amended without the consent of the Backstop Party. To the extent that the Company agrees to an amendment to this Consent Form that contains terms that are more favorable to any Backstop Party than the terms set forth in this Consent Form, whether by modification to this Consent Form, by a separate or side agreement, or otherwise, the Company shall provide notice of such terms to all other Backstop Parties no later than 5 days after the Cut-off Date, and, absent a written objection from the Backstop Party no later than 5 days after the date of such notice, such terms shall be deemed without further action to be incorporated into this Consent Form.

[Signature page follows]




  Backstop Party:  
       
       

By:
    
 
    Name:  
   
    Title:  
   
         





Accepted and agreed:

PG&E CORPORATION


By:
     
Name: 
 [●]
Title: 
 [●]




EXHIBIT A

[Amended and Restated Chapter 11 Plan Backstop Commitment Letter]







EXHIBIT B

[Forward Contract Term Sheet]






Exhibit 10.2


June [8], 2020

PG&E Corporation
77 Beale Street
P.O. Box 770000
San Francisco, California 94177

Re: Amended and Restated Chapter 11 Plan Backstop Commitment Letter

Ladies and Gentlemen:

Reference is hereby made to the chapter 11 bankruptcy cases, lead case no. 19-30088 (the “Chapter 11 Cases”), currently pending before the United States Bankruptcy Court for the Northern District of California (the “Bankruptcy Court”), in which PG&E Corporation (“PG&E” or the “Company”) and Pacific Gas and Electric Company (the “Utility” and together with PG&E, the “Debtors”) are debtors in possession.  Reference is further made to the Chapter 11 plan of reorganization that includes Abrams Capital Management, L.P. (or certain funds and accounts it manages) (“Abrams” or a “Shareholder Proponent”) and Knighthead Capital Management, LLC (or certain funds and accounts it manages) (“Knighthead” or a “Shareholder Proponent”) as plan proponents with the Debtors, filed on May 22, 2020 at Dkt. No. 7521, that is in a form acceptable to each Shareholder Proponent, in its individual determination, and the Debtors (as may be amended, modified or otherwise changed in accordance with this Backstop Commitment Letter, the “Plan”) to implement the terms and conditions of the reorganization of the Debtors as provided therein. Capitalized terms used in this amended and restated backstop commitment letter (this “Backstop Commitment Letter”) or in the exhibits hereto but not otherwise defined shall have the meanings ascribed to them in the Plan.  The word “including” means “including, without limitation”.

In order to facilitate the Debtors’ emergence from Chapter 11, pursuant to this Backstop Commitment Letter, and subject to the terms, conditions and limitations set forth herein and in consideration for the Backstop Commitment Premium, the undersigned Backstop Party (the “Backstop Party”) is willing to purchase, on the Effective Date, an amount of New HoldCo Common Stock and Backstop TBM Trust Interests (as defined herein) up to its Backstop Commitment Amount (as defined herein) at the Backstop Price (as defined herein).

In addition, PG&E has separately solicited and negotiated and expects to enter into substantially similar backstop commitment letters (“Other Backstop Commitment Letters”) with other funding sources (“Other Backstop Parties”) pursuant to which such Other Backstop Parties will commit to purchase New HoldCo Common Stock and Backstop TBM Trust Interests on the Effective Date (such commitments, “Other Backstop Commitments,” and together with this Backstop Commitment, the “Aggregate Backstop Commitments”).

1.           Equity Offerings.

a.           Structure.  The Plan, among other things, shall provide that, on the Effective Date, Reorganized HoldCo shall issue shares of New HoldCo Common Stock for up to $12 billion of aggregate net cash proceeds to Reorganized Holdco (the “Equity Offering Cap”).  PG&E shall structure the offering of any such shares of New HoldCo Common Stock (or rights, equity forward purchase contracts or other equity-linked instruments pursuant to which any such shares may be issued or other securities convertible into any such shares) (the “Equity Offering”) in accordance with the terms of this Section 1, including the following parameters:

(i)          if the Implied P/E Multiple with respect to such Equity Offering exceeds the Backstop Multiple, then PG&E shall be permitted to conduct the Equity Offering in any form of primary equity offering (including any public offering, regular way offering, at-the-market equity offering, block trade, modified Dutch auction or other auction pricing mechanism, rights offering, private placement, “PIPE” sale, redeemable forward stock purchase contract with the Backstop Party or an Other Backstop Party, or other registered or unregistered transaction) upon such terms and conditions as may be determined by the Board (a “Permitted Equity Offering”), including such terms and conditions that are reasonably advisable (based on the advice of the Debtors’ tax advisors after consultation with Jones Day) in order to avoid an “ownership change” within the meaning of Section 382 and the Treasury Regulations promulgated thereunder or to otherwise preserve the ability of the Debtors to utilize their net operating loss carryforwards and other tax attributes (collectively, the “NOLs”); and




(ii)          if a Permitted Equity Offering does not yield proceeds equal to the full amount of the Equity Offering (it being agreed that such full amount is $9,000,000,000 based on the capital structure contemplated by the Specified OII Testimony) or Reorganized HoldCo is unable to execute an Equity Offering as contemplated by clause (i), then Reorganized HoldCo shall issue shares at the Backstop Price pursuant to the Aggregate Backstop Commitments up to the amount of the Equity Offering Cap less the proceeds of any Additional Capital Sources less the proceeds of any Permitted Equity Offering.

Implied P/E Multiple” means, with respect to any Equity Offering, (A) the price per share at which shares of New Holdco Common Stock are offered to be sold in such Equity Offering (which price (x) in the case of an Equity Offering of rights, shall be the exercise price to acquire a share of New HoldCo Common Stock pursuant to such rights or (y) in the case of an Equity Offering of a security convertible into or exchangeable for shares of New HoldCo Common Stock, shall be the per share price implied by the conversion ratio used to convert the principal amount, liquidation preference or other face amount of such security into a number of shares of New HoldCo Common Stock) (the “Per Share Price”), times (B) the number of fully diluted shares of PG&E (calculated using the treasury stock method) that will be outstanding as of the Effective Date (assuming such Equity Offering and all other equity transactions contemplated by the Plan are consummated and settled on the Effective Date), divided by (C) the Normalized Estimated Net Income as of the Determination Date.

b.           Additional Capital Sources.  PG&E shall conduct the Equity Offering in accordance with the Plan.  The net cash proceeds to PG&E of the Equity Offering shall not exceed the Equity Offering Cap, less the sum of (i) the principal amount of debt that is issued by PG&E in excess of $7 billion in connection with the Plan; (ii) the proceeds of any preferred stock issued by the Utility (excluding any Utility Preferred Interests that are Reinstated pursuant to the Plan); (iii) the proceeds of any third-party transactions based upon or related to the utilization or monetization of any (x) NOLs or (y) tax deductions, in each case arising from the payment of Fire Claims, that are not otherwise utilized in the Plan (a “Tax Benefits Monetization Transaction”) in excess of $3 billion; and (iv) the principal amount of any other debt that is issued or reinstated by the Utility and its subsidiaries, excluding any Tax Benefits Monetization Transaction, in connection with the Plan in excess of $27.35 billion (the “Additional Capital Sources”).  During the term of the Backstop Commitment Letter, PG&E shall not issue any senior equity securities, other than as part of a Permitted Equity Offering.  Notwithstanding the foregoing, if the capital structure adopted by the Debtors in the Plan is consistent with the capital structure described on pages 2-15 through 2-18 in Volume 1 of PG&E’s Plan of Reorganization OII 2019 Prepared Testimony filed in Investigation 10-09-016 on January 31, 2020 (the “Specified OII Testimony”), then the Equity Offering shall be $9 billion and there shall be deemed to be $3 billion in Additional Capital Sources.  It is agreed that the capital structure described in the Specified OII Testimony shall be deemed to incorporate a $6 billion Tax Benefits Monetization Transaction.

c.            [Reserved]

d.          Subordinated Claims.  To the extent provided in the Plan, the Debtors may issue rights or New HoldCo Common Stock to holders of Claims against a Debtor that are subject to subordination pursuant to section 510(b) of the Bankruptcy Code and that arise from or are related to any equity security of such Debtor.

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e.            Documentation.  The definitive documentation for any Permitted Equity Offering shall be consistent with the Plan.  For the avoidance of doubt, the organizational documents of the Reorganized HoldCo (including its charter) may include limitations and other terms that are reasonably advisable (based on the advice of the Debtors’ tax advisors after consultation with Jones Day) in order to avoid an “ownership change” within the meaning of Section 382 and the Treasury Regulations promulgated thereunder or to otherwise preserve the ability of the Debtors to utilize their NOLs; provided, however, that the organizational documents shall not be modified or amended in a manner that would restrict existing holders of PG&E common stock (including any Entity) from acquiring shares that do not increase their aggregate beneficial ownership to more than 4.75% of the outstanding shares of PG&E common stock immediately after the completion of a Permitted Equity Offering; provided further, however, that if the Backstop Commitments will be drawn and as a result the Backstop Party’s and its affiliates’ aggregate beneficial ownership of shares of PG&E common stock would exceed 4.75% of the outstanding shares of PG&E common stock, then (i) the Debtors may reduce the amount of the Backstop Party’s Backstop Commitment in order to eliminate such excess and (ii) if the Debtors do not make such reduction, the Debtors may not impose any restriction on the transfer of any shares held by the Backstop Party or its affiliates (determined as of the date the transactions contemplated by this Backstop Commitment Letter and the Plan are consummated) pursuant to the terms of PG&E’s organizational documents.  The Plan filed by the Debtors shall include the Shareholder Proponents as plan proponents with the Debtors and be in a form reasonably acceptable to each Shareholder Proponent in its individual determination.

f.             Use of Proceeds.  The Debtors shall only use the proceeds of an Equity Offering to fund obligations to holders of Fire Claims under the Plan.

g.           Notices.  Promptly, and in any event, within two days of the Board’s determination of final pricing of any Equity Offering, PG&E shall publicly disclose the form, structure, amount and terms of such Equity Offering, including the Implied P/E Multiple for such Equity Offering.  PG&E shall give the Backstop Party, as soon as reasonably practicable, but in no event later than five business days prior to the Effective Date, (i) written notification setting forth (A) the amount to be funded pursuant to the Backstop Commitment, (B) an estimate of the Backstop Price and (C) the targeted Effective Date and (ii) a subscription form to be completed by the Backstop Party, or other instructions, to facilitate the Backstop Party’s subscription for the New HoldCo Common Stock.

h.            Cooperation.  As reasonably requested by the Debtors, the Backstop Party shall reasonably cooperate with the Debtors with respect to providing information relevant to the preservation of the Debtors’ tax attributes, including information regarding (i) the number of shares of PG&E common stock owned by such party (on a holder-by-holder basis) prior to a Permitted Equity Offering, (ii) shares of New HoldCo Common Stock or rights to purchase shares of New HoldCo Common Stock purchased or acquired by such persons in connection with a Permitted Equity Offering or purchased pursuant to the Backstop Commitment, and (iii) the amount of Backstop Party’s Shares (as defined below) at any time prior to the Allocation Date upon at least three business days’ notice to the Backstop Party.

2.           Backstop.

a.          Subject to the terms and conditions set forth herein and to the payment and provision of premium to the Backstop Party as provided in Section 2(c), the Backstop Party, solely on behalf of itself, hereby commits to purchase on the Effective Date at the Backstop Price (the “Backstop Commitment”) and up to the dollar amounts set forth on Exhibit A hereto as may be adjusted pursuant to the terms of this Agreement (the “Backstop Commitment Amount”), (i) an amount of shares of New HoldCo Common Stock and (ii) if the Backstop Commitment is drawn and a Tax Benefits Monetization Transaction is not expected to occur on the Effective Date, a pro rata share (calculated as a percentage equal to the Backstop Commitment Amount divided by the Aggregate Backstop Commitments) of Backstop TBM Trust Interests (as defined herein), provided, however, that the Backstop Commitment Amount shall be reduced as necessary to ensure that the aggregate beneficial ownership of the Backstop Party does not exceed 8.99% of the outstanding voting shares of PG&E immediately after the completion of a Permitted Equity Offering.  For the avoidance of doubt, in the event the Backstop Commitment is drawn and a Tax Benefits Monetization Transaction is not expected to occur on the Effective Date, the Backstop TBM Trust Interests shall be issued to the Backstop Party as provided in the foregoing clause (ii) for no additional consideration (other than payment of the Backstop Price).

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b.          PG&E and the Backstop Party shall cooperate in good faith to prepare and deliver a subscription agreement and any other documentation necessary to effect the private placement of New HoldCo Common Stock to the Backstop Party in accordance with the terms of this Backstop Commitment Letter, which documentation shall be consistent with this Backstop Commitment Letter and the Plan.  It is agreed that the form of subscription agreement attached hereto as Exhibit B is acceptable to PG&E and the Backstop Party.

c.          The Debtors agree to pay the Backstop Party the Backstop Commitment Premium to the extent provided on Exhibit A and to reimburse or advance on a regular basis the Backstop Party for the reasonable fees and expenses of Jones Day, Orrick Harrington & Sutcliffe LLP, and a financial advisor incurred after the commencement of the Chapter 11 Cases and prior to termination of this Backstop Commitment Letter in connection with the Plan, the Backstop Commitment Letter, the Chapter 11 Cases, and the transactions contemplated herein, provided that such reimbursement shall not exceed $31 million for Jones Day in the aggregate, $3 million for Orrick Harrington & Sutcliffe LLP in the aggregate, and $19 million for the financial advisor in the aggregate.  The provisions for the payment of the Backstop Commitment Premium and the other provisions provided herein are an integral part of the transactions contemplated by this Backstop Commitment Letter and without these provisions the Backstop Party would not have entered into this Backstop Commitment Letter, and the Backstop Commitment Premium shall, pursuant to an order of the Bankruptcy Court approving this Backstop Commitment Letter, constitute allowed administrative expenses of the Debtors’ estates under sections 503(b) and 507 of the Bankruptcy Code.

d.          (1)  Reorganized Holdco will enter into a registration rights agreement with the Backstop Party in respect of the shares of New HoldCo Common Stock that the Backstop Party may acquire in accordance with the Plan and this Backstop Commitment Letter (“Registrable Shares”), which registration rights agreement shall (i) provide for the filing by Reorganized Holdco of a shelf registration statement (whether on Form S-3 or on Form S-1) with the Securities and Exchange Commission (the “SEC”) covering the resale of Registrable Shares as soon following the Effective Date as is permissible under applicable rules and regulations of the SEC, and provide for the requirements to (x) use reasonable best efforts to cause such shelf registration statement to become effective on the earliest date practicable and (y) cause such registration statement to become effective in all events not later than 20 calendar days after the Effective Date, (ii) provide that PG&E’s obligation to maintain an effective shelf registration statement under the registration rights agreement will terminate no earlier than the time that Registrable Shares issued to the Backstop Party may be sold by the Backstop Party in a single transaction without limitation under Rule 144 of the Securities Act (as defined below), (iii) treat the Backstop Party no less favorably than the Other Backstop Parties with respect to its Registrable Shares, and (iv) otherwise be in form and substance reasonably acceptable to the holders of a majority of the Aggregate Backstop Commitments.

(2)  Upon the written request of the Backstop Party following the Effective Date, the Company shall use commercially reasonable efforts to obtain a Rule 144A CUSIP for the Backstop TBM Trust Interests. Upon the written request of Backstop Parties holding a majority of the Backstop TBM Trust Interests following the Effective Date, the Company shall use commercially reasonable efforts to (a) file a shelf registration statement (whether on Form S-3 or on Form S-1) with the SEC covering the resale of Backstop TBM Trust Interests as soon as practicable following such request and (b) cause such registration statement to be declared effective by the SEC.

e.          To the extent that a Tax Benefits Monetization Transaction is not expected to occur on the Effective Date, if the Backstop Commitment is drawn, no later than five (5) business days prior to the Effective Date, the Debtors shall form the Backstop TBM Trust (as defined herein) pursuant to the Backstop TBM Trust Agreement (as defined herein).  The Backstop TBM Trust shall enter into the Tax Receivables Agreement (as defined herein) with the Utility.

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f.          To the extent that PG&E agrees to terms that are more favorable to an Other Backstop Party in an Other Backstop Commitment Letter or related registration rights agreement or subscription agreement (excluding terms that apply proportionately relative to the size of such Other Backstop Party’s backstop commitment), PG&E shall provide notice of such terms to the Backstop Party no later than 10 days after the Allocation Date and, absent a written objection from the Backstop Party no later than 10 days after the date of such notice, such terms shall be deemed without further action to be incorporated into this Backstop Commitment Letter.

3.           Backstop Party Representations.  The Backstop Party hereby represents and warrants, solely as to itself, that (a) it has all limited partnership, corporate or other power and authority necessary to execute, deliver and perform this Backstop Commitment Letter, (b) the execution, delivery and performance of this Backstop Commitment Letter by it has been duly and validly authorized and approved by all necessary limited partnership, corporate or other organizational action by it, (c) this Backstop Commitment Letter has been duly and validly executed and delivered by it and, assuming due execution and delivery by the other parties hereto, constitutes a valid and legally binding obligation of it, enforceable against it in accordance with the terms of this Backstop Commitment Letter, (d) the execution, delivery and performance by the Backstop Party of this Backstop Commitment Letter do not (i) violate the organizational documents of the Backstop Party or (ii) violate any applicable law or judgment applicable to it, (e) as of the date of this Backstop Commitment Letter, its Backstop Commitment is, and as of the date of commencement of any Permitted Equity Offering and as of the Effective Date its Backstop Commitment will be, less than the maximum amount that it is permitted to invest in any one portfolio investment pursuant to the terms of its constituent documents or otherwise, and (f) it has, as of the date of this Backstop Commitment Letter, and will have, as of the Effective Date, in the aggregate available undrawn commitments and liquid assets at least in the sum of its Backstop Commitment Amount hereunder.

In addition, the Backstop Party hereby represents and warrants, solely as to itself, as of the date of this Backstop Commitment Letter and as of the Effective Date, that the Backstop Party (i) is acquiring the shares of New HoldCo Common Stock for its own account, solely for investment and not with a view toward, or for sale in connection with, any distribution thereof in violation of any foreign, federal, state or local securities or “blue sky” laws, or with any present intention of distributing or selling such shares in violation of any such laws, (ii) has such knowledge and experience in financial and business matters and in investments of this type that it is capable of evaluating the merits and risks of its investment in the shares of New HoldCo Common Stock and of making an informed investment decision, and (iii) is an “accredited investor” within the meaning of Rule 501 of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”).  The Backstop Party understands that Reorganized HoldCo will be relying on the statements contained herein to establish an exemption from registration under the Securities Act and under foreign, federal, state and local securities laws and acknowledges that the shares of New HoldCo Common Stock will not be registered under the Securities Act or any other applicable law and that such shares may not be transferred except pursuant to the registration provisions of the Securities Act (and in compliance with any other applicable law) or pursuant to an applicable exemption therefrom.

4.          Conditions to Backstop Party Commitment.  The obligations of the Backstop Party to fund its Backstop Commitment to PG&E in accordance with this Backstop Commitment Letter are further expressly conditioned upon and subject to the satisfaction or written waiver by the Backstop Party, in its sole discretion, at or prior to the Effective Date of each of the following conditions, which PG&E acknowledges are an integral part of the transactions contemplated by this Backstop Commitment Letter and without these conditions the Backstop Party would not have entered into this Backstop Commitment Letter.

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a.          by December 24, 2019, the Debtors shall have received valid and enforceable Other Backstop Commitments on substantially the same terms and conditions as set forth in this Backstop Commitment Letter that in the aggregate with this Backstop Commitment result in Aggregate Backstop Commitments of no less than the Equity Offering Cap;

b.          other than the consummation of any Permitted Equity Offering, the satisfaction of all of the other conditions to the Effective Date provided for in the Plan or the waiver of any such conditions by the Debtors in accordance with the Plan (to the extent the Plan expressly provides for the possibility of such a waiver);

c.          the Bankruptcy Court shall have entered the Confirmation Order, which shall confirm the Plan with such amendments, modifications, changes and consents as are approved by those entities having no less than a majority of the Aggregate Backstop Commitments (such approval not to be unreasonably withheld, conditioned or delayed), and such Confirmation Order shall be in full force and effect, and no stay thereof shall be in effect;

d.          this Backstop Commitment Letter shall have been approved by an order of the Bankruptcy Court and such order shall be in full force and effect, and no stay thereof shall be in effect;

e.          the transactions contemplated herein shall have been authorized by an order of the Bankruptcy Court (which may be the Confirmation Order) such order shall be in full force and effect, and no stay thereof shall be in effect;

f.          total PG&E weighted average earning rate base (including electric generation, electric transmission, electric distribution, gas distribution, gas transmission and storage) for estimated 2021 shall be no less than 95% of $48 billion;

g.          no result, occurrence, fact, change, event, effect, violation, penalty, inaccuracy or circumstance (whether or not constituting a breach of a representation, warranty or covenant set forth in the Plan) that, individually or in the aggregate with any such other results, occurrences, facts, changes, events, effects, violations, penalties, inaccuracies, or circumstances, (i) would have or would reasonably be expected to have a material adverse effect on the business, operations, assets, liabilities, capitalization, financial performance, financial condition or results of operations, in each case, of the Debtors, taken as a whole, or (ii) would reasonably be expected to prevent or materially delay the ability of the Debtors to consummate the transactions contemplated by this Backstop Commitment Letter or the Plan or perform their obligations hereunder or thereunder (each a “Material Adverse Effect”) shall have occurred; provided, however, that none of the following results, occurrences, facts, changes, events, effects, violations, penalties, inaccuracies, or circumstances shall constitute or be taken into account in determining whether a Material Adverse Effect has occurred, is continuing or would reasonably be expected to occur: (A) the filing of the Chapter 11 Cases, and the fact that the Debtors are operating in bankruptcy, (B) results, occurrences, facts, changes, events, effects, violations, inaccuracies, or circumstances affecting (1) the electric or gas utility businesses in the United States generally or (2) the economy, credit, financial, capital or commodity markets, in the United States or elsewhere in the world, including changes in interest rates, monetary policy or inflation, (C) changes or prospective changes in law (other than any law or regulation of California or the United States that is applicable to any electrical utility) or in GAAP or accounting standards, or any changes or prospective changes in the interpretation or enforcement of any of the foregoing, (D)  any decline in the market price, or change in trading volume, of any securities of the Debtors, (E) any failure to meet any internal or public projections, forecasts, guidance, estimates, milestones, credit ratings, budgets or internal or published financial or operating predictions of revenue, earnings, cash flow or cash position, (F) any wildfire occurring after the Petition Date and prior to January 1, 2020, and (G) one or more wildfires, occurring on or after January 1, 2020, that destroys or damages fewer than 500 dwellings or commercial structures (“Structures”) in the aggregate (it being understood that (I) the exceptions in clauses (D) and (E) shall not prevent or otherwise affect a determination that the underlying cause of any such change, decline or failure referred to therein is a Material Adverse Effect and (II) a Material Adverse Effect shall include the occurrence of one or more wildfires on or after January 1, 2020 destroying or damaging at least 500 Structures within PG&E’s service area at a time when the portion of PG&E’s system at the location of such wildfire was not successfully de-energized); and

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h.          PG&E has not breached any of its obligations, covenants, or commitments in Section 1(a) or (b) of this Backstop Commitment Letter.

5.          Termination by the Backstop Party.  Subject to the penultimate paragraph of this Section 5, the Backstop Party may terminate this Backstop Commitment Letter, solely as to itself, by written notice (which shall describe the basis for such termination), on or after the occurrence of any of the following (each a “Backstop Party Termination Event”):

a.          the Plan (including as may be amended, modified or otherwise changed) filed by the Debtors does not include either Shareholder Proponent as a plan proponent and is not in a form acceptable to each Shareholder Proponent in its individual determination, or (ii) does not provide for substantially the same classification and treatment, including releases, of all Claims as provided in the Debtors’ and Shareholder Proponents’ Joint Chapter 11 Plan of Reorganization filed with the Bankruptcy Court on May 22, 2020;

b.          the condition set forth in Section 4(a) is not satisfied as of December 24, 2019;

c.          the Bankruptcy Court has not entered an order approving this Backstop Commitment Letter (the “Backstop Approval Order”) on or before June 30, 2020;

d.          subject to Section 11, after May 22, 2020, (i) the Plan has been amended, modified or changed, in each case without the consent of the entities holding a majority of the Aggregate Backstop Commitments (such consent not to be unreasonably withheld, conditioned or delayed) or (ii) any Plan Supplement or any Plan Document shall have been filed or finalized without the consent of entities holding a majority of the Aggregate Backstop Commitments (such consent not to be unreasonably withheld, conditioned or delayed);

e.          the Confirmation Order has not been entered by the Bankruptcy Court on or before June 30, 2020 (the “Outside Date”);

f.          the Effective Date has not occurred on or before 60 days after entry of the Confirmation Order;

g.          the Debtors have failed to perform any of their obligations set forth in this Backstop Commitment Letter, which failure to perform (i) would give rise to the failure of a condition set forth in Section 4(b), 4(c), or 4(h) and (ii) is incapable of being cured or, if capable of being cured by the Outside Date, the Debtors have not cured within 10 calendar days following receipt by the Debtors of written notice of such failure to perform from the Backstop Party stating the Backstop Party’s intention to terminate this Backstop Commitment Letter pursuant to this Section 5(g) and the basis for such termination;

h.          the occurrence of a Material Adverse Effect;

i.           the occurrence of one or more wildfires in the Debtors’ service territory after the Petition Date and prior to January 1, 2020 that is asserted by any person to arise out of the Debtors’ activities and that destroys or damages more than 500 Structures; provided, however, that any notice of termination under this clause (i) must be given on or before the entry of the Backstop Approval Order;

j.           the Debtors’ aggregate liability with respect to Fire Claims is determined (whether (i) by the Bankruptcy Court (or the District Court to which the reference has been partially withdrawn for estimation purposes), (ii) pursuant to an agreement between the Debtors and the holders of Fire Claims, or (iii) through a combination thereof) to exceed $25.5 billion;

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k.          the CPUC fails to issue all necessary approvals, authorizations and final orders to implement the Plan prior to the Outside Date, and to participate in the Go-Forward Wildfire Fund, including: (i) provisions satisfactory to entities holding a majority of the Aggregate Backstop Commitments (such approval not to be unreasonably withheld, conditioned or delayed) pertaining to authorized return on equity and regulated capital structure (it being agreed that the provisions included in (A) the CPUC’s final decision dated December 19, 2019 in the 2020 Cost of Capital Proceeding and (B) the Utility’s application dated October 1, 2018, as modified by the application dated May 9, 2019, as updated by the annual update filing dated November 27, 2019, in the Transmission Owner Rate Case for 2019 are satisfactory to the Backstop Party), (ii) a disposition, satisfactory to entities holding a majority of the Aggregate Backstop Commitments (such approval not to be unreasonably withheld, conditioned or delayed), of proposals for certain potential changes to PG&E’s corporate structure and authorizations for the Utility to operate as a utility (it being agreed that the proposed decision issued by the CPUC on April 20, 2020 in its Order Instituting Investigation to Consider PG&E Corporation’s and the Utility’s Plan of Reorganization (Investigation 19-09-16) is satisfactory to the Backstop Party), (iii) a resolution, satisfactory to entities holding a majority of the Aggregate Backstop Commitments (such approval not to be unreasonably withheld, conditioned or delayed), of claims for monetary fines or penalties under the California Public Utilities Code for conduct prior to the Petition Date (it being agreed that (A) the settlement agreement dated October 3, 2019, as modified by the decision dated January 17, 2020, with respect to the Order Instituting Investigation to assess the Utility’s locate and mark practices (Investigation 18-12-007), (B) the settlement agreements approved by the CPUC on April 26, 2018 and December 5, 2019 in the Order Instituting Investigation regarding violations of the ex parte communications rules (Investigation 15-08-019), (C) the settlement agreement, as modified by the assigned commissioner’s Decision Different, approved by the CPUC on May 7, 2020 in its Order Instituting Investigation into the 2017 Northern California Wildfires and the 2018 Camp fire (Investigation 19-06-015) and (D) the revised proposed decision issued by the CPUC on May 19, 2020 in its Order Instituting Investigation to Consider PG&E Corporation’s and the Utility’s Plan of Reorganization (Investigation 19-09-16), and approved by the CPUC on May 28, 2020, are satisfactory to the Backstop Party), and (iv) approval (or exemption from approval) of the financing structure and securities to be issued under the Plan;

l.             if at any time after the first day of the Confirmation Hearing, either (i) asserted Administrative Expense Claims exceed $250 million, excluding (A) all ordinary course Administrative Expense Claims, (B) all Professional Fee Claims, (C) all Disallowed Administrative Expense Claims; and (D) the portion of an Administrative Expense Claim that is covered by insurance (the Administrative Expense Claims in clauses (A) through (D) shall be referred to collectively as “Excluded Administrative Expense Claims”), or (ii) the Debtors have reserved for and/or paid more than $250 million in the aggregate for Administrative Expense Claims, excluding the Excluded Administrative Expense Claims;

m.          (i) there is in effect an order of a governmental authority of competent jurisdiction permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by the Plan, or (ii) any law, statute, rule, regulation or ordinance is adopted that makes consummation of the transactions contemplated by the Plan illegal or otherwise prohibited;

n.           the occurrence of one or more wildfires on or after January 1, 2020 destroying or damaging at least 500 Structures within PG&E’s service area at a time when the portion of PG&E’s system at the location of such wildfire was not successfully de-energized;

o.          if as of the Effective Date, the Utility has not both (i) elected, and received Bankruptcy Court approval, to participate in the Go-Forward Wildfire Fund and (ii) satisfied the other conditions to participation in the Go-Forward Wildfire Fund set forth in the Wildfire Legislation;

p.          the Debtors breach the provisions of Section 14(b) and either (i) such breach is incapable of being cured or (ii) if capable of being cured by the Outside Date, the Debtors have not cured within 5 business days following receipt by the Debtors of written notice of such breach from the Backstop Party stating the Backstop Party’s intention to terminate this Backstop Commitment Letter pursuant to this Section 5(p);

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q.          if at any time the Bankruptcy Court determines that the Debtors are insolvent;

r.          if the Company and/or any of its subsidiaries shall enter into any Tax Benefit Monetization Transaction, and the net cash proceeds thereof to the Company (or such subsidiary) attributable to NOLS and tax deductions arising, in each case, from the payment of Fire Claims shall be less than $3 billion (excluding, for the avoidance of doubt, $1.35 billion of Tax Benefits utilized in the Plan); or

s.          the Plan, any Plan Supplement or any Plan Document has been amended, modified or changed, in each case without the consent of the entities holding at least 66 2/3% of the Aggregate Backstop Commitments to include a process for transferring the license and operating assets of the Utility to the State of California or a third party (a “Transfer”) or PG&E effects a Transfer other than pursuant to the Plan, it being agreed that the Backstop Party consents to the Case Resolution Contingency Process and the terms of the purchase option as set forth in the Debtors’ Motion for Entry of an Order Approving the Case Resolution Contingency Process and Granting Related Relief filed with the Bankruptcy Court on March 20, 2020.

PG&E shall promptly, but in no event later than two business days after the relevant occurrence, provide notice to the Backstop Party of (i) the occurrence of any fact, event, or omission that is not publicly disclosed that gives rise or reasonably can be expected to give rise to a termination right under this Section 5 and (ii) the receipt of any termination notice from any Other Backstop Party, including the asserted basis for such termination, whether or not PG&E concurs therewith.

Upon valid termination of this Backstop Commitment Letter by the Backstop Party (such terminating Backstop Party, a “Terminating Backstop Party”) pursuant to any of Section 5(a) through (s), this Backstop Commitment Letter shall be void and of no further force or effect solely with respect to such Terminating Backstop Party is obligated herein, such Terminating Backstop Party shall be released from its Backstop Commitment, undertakings and agreements under or related to this Backstop Commitment Letter, including its Backstop Commitment, except as explicitly provided herein and there shall be no liability or obligation on the part of such Terminating Backstop Party hereunder, except as expressly provided herein.  Notwithstanding any termination by a Terminating Backstop Party, PG&E shall remain liable for the payment of all Backstop Commitment Premiums and expense reimbursement obligations in this Backstop Commitment Letter.

The Backstop Party’s obligations under this Backstop Commitment Letter shall automatically terminate in the event that PG&E has not returned a counter-signed copy of this Backstop Commitment Letter agreeing to its terms on or before the date that is two weeks from the day the Backstop Party furnished a signed copy of this Backstop Commitment Letter to PG&E.

The Backstop Party may not seek to (i) assert the failure of any condition precedent to any of its obligations or agreements under this Backstop Commitment Letter or (ii) terminate this Backstop Commitment Letter (including pursuit of any other remedies), in each case unless the Backstop Party has given written notice to PG&E of such assertion or termination.

Notwithstanding anything in this Backstop Commitment Letter to the contrary, any notice of termination under clauses (d), (g), (h), (k), (l) and (m)(ii) shall not be effective unless PG&E has received notices of termination from entities constituting a majority of the outstanding Aggregate Backstop Commitments with respect to the event or circumstance that is the basis for such notice of termination.  PG&E shall provide the Backstop Party with a notice of such effective termination within two business days of the effectiveness of the termination.

In the event that any fact or circumstance would give the Backstop Party the right to terminate under more than one clause in this Section 5, the exercise of a termination right under any one clause shall not prejudice the Backstop Party from exercising a termination right under any other clause based on the same event or circumstance.

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6.           Termination by PG&E; Defaulting Backstop Party; Extension Options.  PG&E may terminate this Backstop Commitment Letter (including all Backstop Commitments hereunder) (a) at any time prior to countersigning such Backstop Commitment Letter; (b) if, on any date after December 24, 2019, the condition set forth in Section 4(a) would not be satisfied if tested on such date; (c) in the event of a material breach of a representation or warranty of the Backstop Party set forth in Section 3; (d) in the event that the Backstop Party repudiates this Backstop Commitment Letter, purports to terminate this Backstop Commitment Letter if such purported termination is not a valid termination of this Backstop Commitment Letter as determined in a final order of a court with jurisdiction or fails to fund its Backstop Commitment when required to do so in accordance with this Backstop Commitment Letter; (e) if the Backstop Commitment Amount has been reduced to zero in accordance with Section 7; (f) if the Backstop Party has the right to terminate this Backstop Commitment Letter under clause (h), (i), (m) or (q) of Section 5; or (g) if (i) a third party makes a binding proposal to acquire at least 50% of the outstanding PG&E common stock (including by means of a merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange, business combination or similar transaction), (ii) either (x) the implementation of such proposal would require the approval of holders of a majority of the PG&E common stock or (y) the price contemplated by such proposal would exceed 160% of the Equity Offering Cap, and (iii) the Board determines in good faith, after consultation with PG&E’s outside legal counsel, that the failure to terminate this Backstop Commitment Letter in response to such proposal would be inconsistent with the exercise of its fiduciary duties to the stockholders of PG&E under applicable law.  In the event of a breach, repudiation, purported termination or failure to fund contemplated by the foregoing clause (c) or (d), the Backstop Party shall be deemed to be a “Defaulting Backstop Party”.  In the event that the Backstop Party becomes a Defaulting Backstop Party, then PG&E may, upon notice to such Defaulting Backstop Party, require the Backstop Party to assign and delegate, without recourse, all its interests, rights (other than any Backstop Commitment Premiums earned prior to the date of such assignment and delegation) and obligations under this Backstop Commitment Letter to a third party that shall assume such obligations (which assignee may be an Other Backstop Party, if an Other Backstop Party accepts such assignment and delegation).  PG&E shall not exercise a termination right under Section 6(b) unless it has used commercially reasonable efforts to replace the Other Backstop Commitment Letter giving rise to the termination right within fourteen (14) calendar days of the termination of the applicable Other Backstop Commitment Letter and the condition in Section 4(a) is still not satisfied at the expiration of that fourteen (14) calendar day period.  Notwithstanding any termination by PG&E under Sections 6(b), (e), (f) or (g), PG&E shall remain liable for the payment of all earned Backstop Commitment Premiums and expense reimbursement obligations in this Backstop Commitment Letter.

In the event that any fact or circumstance would give PG&E the right to terminate under more than one clause in this Section 6, the exercise of a termination right under any one clause shall not prejudice PG&E from exercising a termination right under any other clause based on the same event or circumstance.

7.            Reduction of Commitments by PG&E.

a.          In the event that on or prior to December 24, 2019 (the “Commitment Deadline”), PG&E receives Aggregate Backstop Commitments that exceed the Equity Offering Cap (such excess, the “Overallotment Amount”), then, on the earlier of (x) five business days thereafter and (y) December 27, 2019 (the “Allocation Date”), the Backstop Commitment Amount shall (i) if the Backstop Party was a Backstop Party under a Prior Commitment Letter (an “Incumbent Backstop Party”), be unchanged, unless the Backstop Party otherwise agrees (provided that if the Aggregate Backstop Commitments of the Incumbent Backstop Parties exceed the Equity Offering Cap (such excess, the “Incumbent Overallotment Amount”), then the Backstop Commitment Amount of each Incumbent Backstop Party shall be reduced by an amount equal to the Incumbent Backstop Party’s pro rata share of the Incumbent Overallotment Amount, which shall be calculated as a percentage equal to the Backstop Commitment Amount divided by the Aggregate Backstop Commitments of the Incumbent Backstop Parties), or (ii) if the Backstop Party was not a Backstop Party under a Prior Commitment Letter, be equal to the Backstop Party’s pro rata share of the difference (which may be zero) between the Equity Offering Cap and the Aggregate Backstop Commitments of the Incumbent Backstop Parties after giving effect to the foregoing clause (a)(i), which shall be calculated as a percentage equal to the Backstop Commitment Amount divided by the Aggregate Backstop Commitments from any party to this Backstop Commitment Letter or Other Backstop Commitment Letter that is not an Incumbent Backstop Party. Notwithstanding the foregoing, on the Allocation Date, in the event there is an Overallotment Amount and for the purpose of curing such Overallotment Amount, PG&E may reduce the Backstop Commitment Amount as to any Backstop Party to the extent such reduction is reasonably advisable (based on the advice of the Debtors’ tax advisors after consultation with Jones Day) in order to avoid an “ownership change” within the meaning of Section 382 and the Treasury Regulations promulgated thereunder or to otherwise preserve the ability of the Debtors to utilize their NOLs; provided that such reduction may not be below the amount of Backstop Commitments at which such Backstop Party would maintain its existing percentage ownership of the total outstanding shares of PG&E common stock.  Within three business days of the Allocation Date, PG&E shall provide the Backstop Party with a notice of any adjustment to its Backstop Commitment Amount under this Section 7(a).

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b.           In the event that, after the Commitment Deadline, the Debtors (i) receive binding commitments providing for funding from any Additional Capital Sources that (A) have conditions to funding and commitment termination rights that are no less favorable to PG&E than those in this Backstop Commitment Letter and (B) are approved by an order of the Bankruptcy Court, or (ii) actually obtain funding from any Additional Capital Sources, then (x) in the case of clause (i), PG&E may reduce the Backstop Commitment Amount, and (y) in the case of clause (ii), the Backstop Commitment Amount shall be automatically reduced (if not already reduced pursuant to clause (i)), in each case by an amount equal to (A) the amount of such funding, times (B) a fraction, (1) the numerator of which is the Backstop Commitment Amount immediately prior to such reduction and (2) the denominator of which is the Aggregate Backstop Commitments as of immediately prior to such reduction.  Any reduction in the Backstop Commitment pursuant to this Section 7(b) shall not reduce any Backstop Commitment Premium.

c.           In the event that the Debtors consummate any Permitted Equity Offering, the Backstop Commitment Amount shall be automatically reduced by an amount equal to (i) the net cash proceeds of such Permitted Equity Offering, times (ii) a fraction, (A) the numerator of which is the Backstop Commitment Amount immediately prior to such reduction and (B) the denominator of which is the Aggregate Backstop Commitments as of immediately prior to such reduction.

d.          The Debtors shall provide notice to the Backstop Party in the event that the Backstop Commitment Amount is reduced as provided above.  References herein to “Backstop Commitment Amount” or “Backstop Commitment” mean such amounts as adjusted in accordance with the terms of this Backstop Commitment Letter. Any Backstop Commitments that have been terminated or reduced shall be terminated or reduced, as applicable, permanently.

8.           Assignment.  This Backstop Commitment Letter (a) is not assignable by the Backstop Party, and any purported assignment shall be null and void ab initio; provided, however, Backstop Party may assign its Backstop Commitment, in whole or in part, to (i) an Other Backstop Party, (ii) an affiliate of the Backstop Party, or (iii) an investment fund or separately managed account the primary investment advisor or sub advisor to which is a Backstop Party or an affiliate thereof, to the extent such assignee Backstop Party agrees in writing to assume all obligations hereunder of such Backstop Party in connection with such Backstop Commitment, and any assignment under this proviso shall not relieve the Backstop Party from its obligations under this Backstop Commitment Letter, and (b) is intended to be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person or entity other than the parties hereto.  Notwithstanding the foregoing, a Backstop Party may assign all or any portion of its rights and obligations hereunder to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended), without the consent of any party, provided, however, that (i) absent the prior written consent of PG&E, such assignee (including any Entity) does not, and as a result of such assignment will not, beneficially own more than 4.75% of the Aggregate Backstop Commitments and (ii) any assignment under this sentence shall not relieve the Backstop Party from its obligations under this Backstop Commitment Letter.

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9.           Entire Agreement.  This Backstop Commitment Letter, including all exhibits hereto, constitutes the entire understanding among the parties hereto with respect to the subject matter hereof and replaces and supersedes all prior agreements and understandings, both written and oral, between the parties hereto (or any of their respective affiliates) with respect to the subject matter hereof (including the Chapter 11 Plan Backstop Commitment Letter dated as of September 9, 2019, September 13, 2019, October 20, 2019, November 16, 2019, December 6, 2019 or March 6, 2020, if applicable) and, subject to the terms hereof, shall become effective and binding upon the mutual exchange of fully executed counterparts by each of the parties hereto.

10.          Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.  This Backstop Commitment Letter shall be governed by, and construed in accordance with, the internal laws of the State of New York, without giving effect to the principles of conflict of laws that would require the application of the law of any other jurisdiction.  By its execution and delivery of this Backstop Commitment Letter, each of the parties hereto irrevocably and unconditionally agrees for itself that any legal action, suit or proceeding against it with respect to any matter under or arising out of or in connection with this Backstop Commitment Letter or for recognition or enforcement of any judgment rendered in any such action, suit or proceeding, may be brought only in the Bankruptcy Court.  By execution and delivery of this Backstop Commitment Letter, each of the parties hereto irrevocably accepts and submits itself to the exclusive jurisdiction of the Bankruptcy Court with respect to any such action, suit or proceeding.  EACH PARTY HERETO UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO ABOVE.

11.           Amendment; Waiver; Counterparts.

a.          This Backstop Commitment Letter may not be amended or waived by or on behalf of the Backstop Party, and no consent may be given hereunder by or on behalf of the Backstop Party (including to an amendment or waiver of any provision of the Plan), except in writing signed by the holders of a majority of the Aggregate Backstop Commitments (whether or not the Backstop Party signs such amendment or waiver), and confirmed in writing by the Company; provided, however, that (i) without the prior written consent of the Backstop Party, this Backstop Commitment Letter may not be amended to (A) increase the amount of the Backstop Commitment Amount or Backstop Commitment; (B) decrease the Backstop Commitment Premium, change the time at which the Backstop Commitment Premium shall be fully earned, or change the definition of “Applicable Premium Reduction Percentage”, “Premium Clawback Event” or “Special Premium Clawback Event” in a manner adverse to the Backstop Party; (C) extend the Backstop Commitment beyond August 29, 2020; (D) amend the definition of “Backstop Price”, “Backstop Commitment Share Premium,” “Backstop Commitment Cash Premium,” or any component thereof; (E) amend, modify, or waive the conditions in clauses (d), (e) or (f) of Section 4; (F) increase the amount of the Equity Offering Cap; (G) amend, modify or waive Section 2(e) or 2(f); (H) amend, modify or waive clause (a), (b), (c), (e), (f), (i), (j), (m)(i), (n), (o), (p), (q), (r) or (s) of Section 5, the first sentence of the penultimate paragraph of Section 5, this proviso to Section 11(a), Section 11(b), Section 11(c), Section 11(d) or Section 14(b); (I) amend, modify or waive the third sentence of Section 1(b); (J) amend, modify or waive Section 2(d); (K) amend, modify or waive the second sentence of Section 1(e); or (L) amend, modify or waive Section 2(f); and (ii) except as set forth in Section 1(b) with respect to the capital structure described in the Specified OII Testimony, without the prior written consent of holders of more than sixty percent (60%) of the Aggregate Backstop Commitments, this Backstop Commitment Letter may not be amended to amend, modify or waive any provision of this Agreement so as to permit the aggregate amount of Additional Capital Sources plus the aggregate amount of proceeds of any Equity Offering plus the aggregate amount of proceeds funded under the Aggregate Backstop Commitments to exceed the Equity Offering Cap.  This Backstop Commitment Letter may be executed in any number of counterparts, each of which will be an original, and all of which, when taken together, will constitute one agreement.  Delivery of an executed counterpart of this Backstop Commitment Letter by e-mail or portable document format (PDF) will be effective as delivery of a manually executed counterpart of this Backstop Commitment Letter.

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b.          In the event that (i) PG&E seeks a waiver of a Backstop Party Termination Event (any such waiver, a “Waiver”) (ii) PG&E obtains written Waivers from the holders of a majority of the Aggregate Backstop Commitments (the “Waiver Threshold”), then PG&E shall provide the Backstop Party, to the extent it has not delivered a Waiver (a “Non-Waiving Backstop Party”), a notice of the occurrence of the specific Backstop Party Termination Event, including the facts giving rise to the specific Backstop Party Termination Event (the “Specified Backstop Termination Event”), and that PG&E has met the Waiver Threshold.  The Non-Waiving Backstop Party shall have five (5) business days from the date such notice is issued to exercise its right to terminate this Backstop Commitment Letter pursuant to Section 5 based on the Specified Backstop Termination Event; and the failure to exercise a termination right referred in the foregoing clause within this time period shall be deemed a waiver of the Specified Backstop Termination Event (but not any other Backstop Party Termination Event).

c.          In the event that PG&E seeks an amendment, modification or waiver contemplated by Section 11(a)(ii) (any such amendment, modification or waiver, a “ Specified Amendment”), and PG&E obtains written Waivers or Specified Amendments from the holders of more than 60% of the Aggregate Backstop Commitments (the “Specified Amendment Threshold”) then PG&E shall provide the Backstop Party, to the extent it has not delivered a Specified Amendment (a “Non-Amending Backstop Party”), or request for the Specified Amendment, including the specific terms of the request for the Specified Amendment, and that PG&E has met the Specified Amendment Threshold.  The Non-Amending Backstop Party shall have five (5) business days from the date such notice is issued to terminate this Backstop Commitment Letter solely as to itself by written notice under this Section 11(c); and the failure to exercise a termination right and the failure to exercise a termination right referred to in this Section 11(c) shall be deemed to be a consent to the Specified Amendment.

d.          Any deemed waiver of a Specified Backstop Termination Event under Section 11(b) and any deemed consent to the Specified Amendment under Section 11(c) are subject to the condition that PG&E has provided the Backstop Party with notice of the request for the Waiver, in the case of Section 11(b), or the request for the Specified Amendment, in the case of Section 11(c), no later than the time that such request is given to holders of no more than 25% of the Aggregate Backstop Commitments.

12.          Notices.  All notices required or permitted to be given under this Backstop Commitment Letter, unless otherwise stated herein, shall be given by overnight courier at the addresses specified below, or at such other address or addresses as a party may designate for itself in writing, or by email (if confirmed) at the email addresses specified below:

If to the Backstop Party, to the name, address and email address located on the Backstop Party’s signature page to this Backstop Commitment Letter.


If to the Debtors:

PG&E Corporation
77 Beale Street
P.O. Box 770000
San Francisco, California 94177
Attention: Janet Loduca, Senior Vice President and General Counsel

with a copy to:

Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, New York 10019
Attention:  Richard Hall; Paul Zumbro
Email:  RHall@cravath.com; PZumbro@cravath.com

13



Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York  10153
Attention:  Stephen Karotkin


13.           No Liability.  Notwithstanding anything that may be expressed or implied in this Backstop Commitment Letter, each party hereto acknowledges and agrees that no person other than the Backstop Party (and it permitted assigns) shall have any obligation hereunder (subject to the limitations provided herein) or in connection with the transactions contemplated hereby and that (a) notwithstanding that any Backstop Party may be a partnership, limited partnership or limited liability company, no recourse (whether at law, in equity, in contract, in tort or otherwise) hereunder or under any document or instrument delivered in connection herewith, or in respect of any oral representations made or alleged to be made in connection herewith or therewith, shall be had against any former, current or future direct or indirect equity holder, controlling person, general or limited partner, shareholder, member, investment manager or adviser, manager, director, officer, employee, agent, affiliate, assignee, representative or financing source of any of the foregoing) (any such person or entity, other than such Backstop Party, a “Related Party”) or any Related Party of any such Related Party, including, without limitation, any liabilities arising under, or in connection with, the Plan or this Backstop Commitment Letter and the transactions contemplated thereby and hereby, or in respect of any oral representations made or alleged to be made in connection therewith or herewith), whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by any Related Party of the Backstop Party or any Related Party of any such Related Party under this Backstop Commitment Letter or any document or instrument delivered in connection herewith or with the Plan Supplement or the Plan (or in respect of any oral representation made or alleged to be made in connection herewith or therewith) or for any action (whether at law, in equity, in contract, in tort or otherwise) based on, in respect of, or by reason of such obligations hereunder or by their creation.

14.           Plan Support.

a.          For as long as this Backstop Letter Agreement is in effect, the Backstop Party shall (i) use all reasonable efforts to support the Plan with respect to the treatment of HoldCo Common Interests and to act in good faith to consummate the Plan with respect to any Equity Offering and the Backstop Commitment, (ii) to the extent the Backstop Party is entitled to vote on the Plan and, with respect to Claims, controls the votes, timely vote (or cause to be voted) all of its HoldCo Common Interests and Claims to accept the Plan (and not to change or withdraw any such vote), and (iii) timely vote (or cause to be voted) its HoldCo Common Interests and Claims to reject any plan of reorganization other than the Plan; provided, however, that unless the Claims held by the Backstop Party receive no less favorable treatment than other similarly situated Claims under the Plan, then the obligations of the Backstop Party under clauses (i), (ii) and (iii) shall not apply to the Backstop Party’s Claims.  This Section 14 shall apply solely to the Backstop Party and not to any of its subsidiaries or other affiliates.

b.          To the extent that the Debtors provide, directly or indirectly, another creditor holding a Funded Debt Claim with more favorable treatment to such creditor’s Funded Debt Claim than provided to the Backstop Party holding a similarly situated Funded Debt Claim (it being understood that Funded Debt Claims are not similarly situated unless they have substantially the same interest rate and tenor and the same obligor), the Debtors shall take all actions so that such more favorable treatment shall apply to the Backstop Party’s similarly situated Funded Debt Claim, including by amending the Plan to provide for the application of such more favorable treatment to the Backstop Party’s Claims.

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c.          The rights of the Backstop Party under Section 5(p), Section 11 (with respect to Section 5(p) or Section 14(b)) and Section 14(b) are personal to the Backstop Party and may not be assigned to any person (it being agreed that the Backstop Party may assign its other rights under this Backstop Commitment Letter in accordance with Section 8).

15.          The Backstop Party shall not be required, pursuant to the terms of this Backstop Commitment Letter, to acquire or purchase any securities or indebtedness in connection with any Equity Offering that, pursuant to the terms of a Backstop Commitment Letter or other agreement, are to be acquired or subscribed for by any other party, nor shall the Backstop Party be required, pursuant to the terms of this Backstop Commitment Letter, to pay any money or other consideration, or exchange any claims whatsoever, which are owing from, or to be transferred from or by, any other party pursuant to the terms of another Backstop Commitment Letter or other agreement.  Nothing in this Backstop Commitment Letter shall be deemed to constitute an agreement or a joint venture or partnership with or between any other person or entity nor constitute any party as the agent of any other person or entity for any purpose.  For the avoidance of doubt, no Backstop Party shall, nor shall any action taken by a Backstop Party hereunder, be deemed to be acting in concert with any other person or entity with respect to the Backstop Commitment or any other matter nor shall the Backstop Commitments hereunder create a presumption that the Backstop Party is in any way acting in concert or as a group with any other person or entity whether as a result of this commitment or otherwise.

16.          Each party hereto confirms that it has made its own decision to execute this Backstop Commitment Letter based upon its own independent assessment of documents and information available to it, as it has deemed appropriate.

17.          Except as expressly provided in this Backstop Commitment Letter, (a) nothing herein is intended to, or does, in any manner waive, limit, impair or restrict the ability of each party hereto to protect and preserve its rights, remedies and interests, including, without limitation, any claims against or interests in any of the Debtors or other parties, or its full participation in any bankruptcy proceeding, and (b) the parties hereto each fully preserve any and all of their respective rights, remedies, claims and interests as of the date hereof and upon a termination of this Backstop Commitment Letter.  Further, nothing in this Backstop Commitment Letter shall be construed to prohibit any party hereto from appearing as a party-in-interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are consistent with this Backstop Commitment Letter and the Plan, and are not for the purpose of, and could not reasonably be expected to have the effect of, hindering, delaying or preventing the consummation of the transactions contemplated by the Plan.

18.          Tax Treatment of Backstop Commitment Premium. Except as otherwise required by a final determination by an applicable taxing authority (including with respect to an Other Backstop Commitment Letter) or change in applicable law:  (A) the Backstop Party and the Debtors hereto agree to treat, for U.S. federal income tax purposes, the entering into of the Backstop Commitment pursuant to this Backstop Commitment Letter as the sale of a put option by the Backstop Party to the Debtors and the Backstop Commitment Premium as the sale price for such put option; and (B) the Backstop Party and the Debtors shall not take any position on any tax return or otherwise take any action related to taxes inconsistent with such treatment  (which, for the avoidance of doubt, in the case of the Debtors, shall include any position or action with respect to the Other Backstop Commitment Letters).

19.          Press Releases.  The Debtors shall not issue any press release or otherwise make any public statement that identifies the Backstop Party without the Backstop Party’s prior written consent; provided that the Debtors shall be permitted to identify the Backstop Party in any filing required to be made with the SEC but only to the extent that the identification of the Backstop Party is expressly required.

[signature page follows]

15



 
Sincerely,
 
     
  Backstop Party:  
     
     
 
 

By:
 
 
    Name:    
    Title:    
 
 
  Notice Information:  
     
   
 









16



Accepted and agreed this ____ day of ___________, 2020, by:    
     
PG&E CORPORATION    
     
     
       
By:
  
   
  Name: [●]    
  Title:
[●]    
       









17



Exhibit A
Backstop Terms

Backstop Party
Backstop Commitment Amount
(rounded to the nearest cent)
 

[Backstop Party]

$

Payments

The Backstop Commitment Premium shall be earned in full upon entry of the Backstop Approval Order.

If PG&E terminates this Backstop Commitment Letter pursuant to Section 6(g), the Backstop Party may elect to receive either (a) the Backstop Commitment Share Premium on the effective date of a plan of reorganization (plus any Shortfall Shares due as part of the Backstop Commitment Share Premium on the 21st business day after such effective date) or (b) the Backstop Commitment Cash Premium three business days after the date of such termination, and PG&E shall pay the applicable Backstop Commitment Premium to the Backstop Party on the date specified in clause (a) or (b), as applicable.  In the event that a plan of reorganization for the Debtors that is not the Plan is confirmed by the Bankruptcy Court, then the Backstop Party may elect to receive either (y) the Backstop Commitment Share Premium on the effective date of such plan of reorganization (plus any Shortfall Shares due as part of the Backstop Commitment Share Premium on the 21st business day after such effective date) or (z) the Backstop Commitment Cash Premium on the effective date of such plan of reorganization.  For purposes of soliciting any such elections, PG&E shall establish a reasonable deadline prior to the applicable payment date by which the Backstop Party must make such election; if the Backstop Party does not make an election by such deadline, they will be deemed to have elected the Backstop Commitment Cash Premium.

Except as provided in the immediately preceding paragraph, PG&E shall pay the Backstop Commitment Share Premium to the Backstop Party on the Effective Date (plus any Shortfall Shares due as part of the Backstop Commitment Share Premium on the 21st business day after the Effective Date).


Certain Defined Terms

Applicable Premium Reduction Percentage” shall mean an amount equal to (a) 85% of the Backstop Commitment Premium if there is a Premium Clawback Event on or prior to January 20, 2020; (b) 60% of the Backstop Commitment Premium if there is a Premium Clawback Event after January 20, 2020 and on or before April 30, 2020; and (c) 10% of the Backstop Commitment Premium if there is a Premium Clawback Event after April 30, 2020 and on or prior to the Effective Date.  Notwithstanding the foregoing, (i) in the case of a Special Premium Clawback Event pursuant to Section 5(l) or Section 5(s), the “Applicable Premium Reduction Percentage” shall mean an amount equal to 75% of the Backstop Commitment Premium; and (ii) in the case of a Special Premium Clawback Event pursuant to Section 11(c), the “Applicable Premium Reduction Percentage” shall mean an amount equal to (x) 75% of the Backstop Commitment Premium if there is a Special Premium Clawback Event pursuant to Section 11(c) on or prior to April 30, 2020; (y) 50% of the Backstop Commitment Premium if there is a Special Premium Clawback Event pursuant to Section 11(c) after April 30, 2020 and on or prior to May 31, 2020; and (z) 25% of the Backstop Commitment Premium if there is a Special Premium Clawback Event pursuant to Section 11(c) after May 31, 2020.

Applicable Utility Index Multiple” shall mean the average normalized 2021 estimated price-to-earnings ratio of the U.S. regulated utilities in the S&P 500 Utilities (Sector) Index (after excluding AES, AWK, EXC, NRG, PEG, and PPL) over the 20-day trading period before the applicable measurement date per Capital IQ Consensus Estimates.

1



Backstop Commitment Cash Premium” shall mean an amount payable in cash equal to 636.4 basis points on the Backstop Commitment Amount immediately after the Allocation Date, provided, that in the event of a Premium Clawback Event or a Special Premium Clawback Event, the Applicable Premium Reduction Percentage of the Backstop Commitment Cash Premium shall be retained by PG&E and not paid to the Backstop Party.

Backstop Commitment Premium” shall mean either the Backstop Commitment Cash Premium or the Backstop Commitment Share Premium, as the case may be.

Backstop Commitment Share Premium” shall mean a number of shares of New HoldCo Common Stock (rounded to the nearest whole share) equal to the Backstop Party’s pro rata share, based on the Backstop Commitment Amount immediately after the Allocation Date divided by $12 billion, of (a) 119,000,000 shares of New HoldCo Common Stock, plus (b) if the value of 119,000,000 shares of New HoldCo Common Stock based on the Trading Price is less than $764,000,000 as of the 21st business day following the Effective Date (such difference, the “Shortfall Amount”), a number of additional shares of New HoldCo Common Stock having a value based on the Trading Price equal to the Shortfall Amount not to exceed 19,909,091 shares in the aggregate (the “Shortfall Shares”), provided, that in the event of a Premium Clawback Event or a Special Premium Clawback Event, the Applicable Premium Reduction Percentage of the Backstop Commitment Share Premium shall be retained by PG&E and not paid to the Backstop Party.

“Backstop Multiple” shall mean the lesser of (a) 10 and (b) 10 times one plus the percentage change of the Applicable Utility Index Multiple as measured on November 1, 2019 and the fifth business day prior to the Effective Date.  For the avoidance of doubt, the Backstop Multiple shall never exceed 10.

Backstop Price” means (a) the Backstop Multiple times (b) the Normalized Estimated Net Income as of the Determination Date, divided by (c) the number of fully diluted shares of PG&E (calculated using the treasury stock method) that will be outstanding as of the Effective Date (assuming the entirety of the Equity Offering is purchased pursuant to this Backstop Commitment Letter and all Other Backstop Commitment Letters).

Backstop TBM Trust” means a trust established by the Utility to monetize Tax Benefits for the benefit of the Backstop Party and the Other Backstop Parties.

Backstop TBM Trust Agreement” means a trust agreement by and between the Reorganized Utility, the Backstop TBM Trust, and the Backstop TBM Trustee, in a form reasonable acceptable to the holders of a majority of the Aggregate Backstop Commitments, which shall provide for the periodic distribution of assets of the Backstop TBM Trust to the holders of Backstop TBM Trust Interests.

Backstop TBM Trust Interests” means interests in the Backstop TBM Trust.

Backstop TBM Trustee” means an individual approved by a majority of the holders of the Aggregate Backstop Commitments to serve as trustee of the Backstop TBM Trust, and any successor thereto appointed pursuant to the Backstop TBM Trust Agreement.

Board” means the Board of Directors of PG&E.  With respect to any matter, references to the Board include a committee of the Board that is duly authorized to act with respect to such matter.

2



Code” means the Internal Revenue Code of 1986, as amended.

Determination Date” shall mean the earlier of (a) the date the Per Share Price for a Permitted Equity Offering is finally determined and (b) the date on which the Debtors, each Shareholder Proponent and the Official Committee of Tort Claimants have agreed upon the amount of Normalized Estimated Net Income, whether through a binding dispute resolution process or consensual agreement.

Normalized Estimated Net Income” shall mean, in each case with respect to the estimated year 2021, (a) on a component-by-component basis (e.g., distribution, generation, gas transmission and storage, and electrical transmission), the sum of (i) the Utility’s estimated earning rate base for such component, times (ii) the equity percentage of the Utility’s authorized capital structure, times (iii) the Utility’s authorized rate of return on equity for such component, less (b) the projected post-tax difference in interest expense or preferred dividends for the entire company and the authorized interest expense or preferred dividends expected to be collected in rates, less (c) the amount of the Utility’s post-tax annual contribution to the Go-Forward Wildfire Fund.

Premium Clawback Event” shall mean (i) the date that the Backstop Party terminates this Backstop Commitment Letter, or (ii) the date that PG&E terminates the Backstop Commitment Letter pursuant to Section 6(c) or 6(d) of the Backstop Commitment Letter.  Notwithstanding the foregoing, a Special Premium Clawback Event shall not constitute a “Premium Clawback Event”.

Prior Commitment Letter” means any equity backstop commitment letter executed by the Company on either November 16, 2019, December 6, 2019 or March 6, 2020.

Section 382” means Section 382 of the Code, or any successor provision or replacement provision.

Special Premium Clawback Event” means the date that the Backstop Party terminates this Backstop Commitment Letter pursuant to either Section 5(l), Section 5(s) or Section 11(c).

Tax Benefits” means the difference between (a) the income taxes actually paid by the Reorganized Utility and (b) the income taxes that the Reorganized Utility would have paid to the taxing authorities for such taxable year if the net operating losses of the Utility and any deductions arising from the payment of Fire Claims and Subrogation Claims were not available.

Tax Receivable Agreement” means an agreement between the Reorganized Utility and the Backstop TBM Trust pursuant to which the Reorganized Utility agrees to deposit cash into the Backstop TBM Trust in an amount equal to all Tax Benefits arising after the first $1.350 billion of Tax Benefits starting with fiscal year 2020.

Tort Claimants RSA” means that Restructuring Support Agreement dated as of December 6, 2019 among the Debtors, the Shareholder Proponents, the Official Committee of Tort Claimants, and the law firms representing holders of fire victim claims that are signatories thereto.

Trading Price” means the mean volume weighted average price per share of New HoldCo Common Stock for the 20 consecutive business days commencing on the business day immediately after the Effective Date.

Treasury Regulations” means final, temporary and proposed tax regulations promulgated under the Code, as amended.

3



Exhibit B
Form of Subscription Agreement




















4
Exhibit 10.3


 
EXHIBIT B

PG&E CORPORATION

TERM SHEET
REDEEMABLE FORWARD STOCK PURCHASE CONTRACT

This term sheet sets out the agreed terms and conditions of a form of redeemable forward stock purchase contract (the “Forward Contract”) pursuant to which one or more institutional accredited investors (each an “Investor”) will agree to purchase shares of common stock of the Company (as defined below) in connection with (i) the proposed offering by the Company of common stock (the “Equity Offering”), and (ii) the proposed offering by the Company of securities convertible into common stock or other equity-linked securities where the underlying security is common stock (the “Other Equity Offering” and, together with the Equity Offering, the “Offerings”).  The Company will enter into a separate underwriting agreement with the representatives of the underwriters for each Offering, pursuant to which the underwriters for each Offering will have the option to purchase additional shares of Common Stock (the “Option Shares”) and additional convertible or equity-linked securities (together with the Option Shares, the “Option Securities”), as applicable.

Issuer          
PG&E Corporation, a California corporation (the “Company”).
 
Underlying Security          
Common stock, no par value per share (the “Common Stock”).
 
Forward Contract Execution Date          
Prior to commencement of the Offerings.
 
Forward Contract Early Termination Date
In the event that (i) the Company does not enter into an underwriting agreement for the Equity Offering by the date that is two business days before the 60th day after the date the confirmation order is entered in the Company’s chapter 11 case or (ii) the Investor’s Backstop Commitment Letter has terminated, the Forward Contract will automatically terminate and no amount will be payable by the Investor.
 
Forward Contract Purchase Amount          
An amount equal to the aggregate gross proceeds that would be received by the Company from the sale of all Option Securities that the underwriters of the Offerings have the option to purchase (the “Forward Contract Purchase Amount”).
 
Price Per Share          
The lesser of (a) the price per share to the public in the Equity Offering and (b) the price per share payable by any investor in any Permitted Equity Offering (as defined in the Backstop Commitment Letter) that is structured as a private transaction.
 
Forward Contract Payment Date          
No earlier than the launch of the Offerings, the Company may give written notice to the Investor at least two business days prior to the expected pricing date of the Offerings (the “Funding Notice”).  Following receipt of the Funding Notice, the Investor shall fund its share of the Forward Purchase Contract Amount to an account designated by the Company (which account (i) must be a dedicated account that holds only the proceeds of the Forward Contracts and (ii) may not hold the proceeds from any Additional Capital Sources or any Offering) on the second business day following receipt of the Funding Notice.  No interest shall be payable under any circumstance on any such payment of the Forward Purchase Contract Amount.
 

 




 
 
Subject to the substantially concurrent occurrence of the effective date of the Company’s chapter 11 plan of reorganization (including the payment of the proceeds, or release of proceeds from escrow, of any Additional Capital Sources and the Offerings to the Company or Pacific Gas and Electric Company, as applicable) (such date, the “Effective Date”), on the Effective Date the Company may utilize the proceeds of the Forward Contracts to make distributions and payments in accordance with such plan of reorganization.
 
 
In the event that (x) the Effective Date does not occur on the closing date of the Offerings that is specified in the preliminary prospectus supplement for such Offerings or (y) the pricing date does not occur within two business days of the date of delivery of the Funding Notices, the Company shall, as promptly as practicable, but in no event more than one business day after the earliest to occur of any such event, return to the Investor its share of the Forward Purchase Contract Amount.
 
Outside Date          
The date that is 30 days following the date the underwriting agreements for the Offerings are executed (the “Outside Date”).
 
Mandatory Redemption          
If at any time and from time to time on or prior to the Outside Date the underwriters of either Offering exercise their option to purchase all or a portion of the Option Securities for such Offering (each such exercise, a “Mandatory Redemption Event”), the Company must redeem a portion of the Forward Contract equal to the gross proceeds received by the Company from the sale of such Option Securities (the “Redemption Amount”).  All Forward Contracts between the Company and all Investors will be redeemed pro rata from the proceeds received by the Company from the sale of such Option Securities. The applicable Redemption Amount will be payable to the Investor on the date that the Company receives the net proceeds from the sale of such Option Securities, which shall not exceed the 10th full business day following the applicable Mandatory Redemption Event (each, a “Mandatory Redemption Settlement Date”).
 
Settlement          
On the date that is the later of (x) the first business day following the Outside Date and (y) the last Mandatory Redemption Settlement Date (such later date, the “Share Settlement Date”), the Company will deliver to the Investor an aggregate number of shares equal to (i)(A) the Forward Contract Purchase Amount minus (B) the aggregate of all Redemption Amounts for each Mandatory Redemption Event, if any, divided by (ii) the Price Per Share.
 
Transfer Restrictions          
The Forward Contract and underlying shares of Common Stock will be offered in a private placement pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”).  The Forward Contract may not be resold or otherwise transferred, and the underlying shares of Common Stock may not be resold or otherwise transferred except in compliance (x) with an applicable exemption from the registration requirements of the Securities Act and any applicable state securities laws or (y) the registration statement referred to below.
 
 




 
Registration Rights          
On the Share Settlement Date the Company will file a registration statement with respect to the resale of any shares of Common Stock delivered pursuant to the Forward Contract and otherwise substantially consistent with the registration rights to be provided to the Investor pursuant to the Backstop Commitment Letter.
 
Governing Law          
New York law
 
 








































Exhibit 10.4

EXECUTION VERSION














INVESTMENT AGREEMENT

among

PG&E CORPORATION

and

THE INVESTORS LISTED ON SCHEDULE A HERETO

















TABLE OF CONTENTS

Page

ARTICLE I
DEFINITIONS
     
SECTION 1.1.
Definitions
1
     
ARTICLE II
AGREEMENT TO SELL AND PURCHASE
     
SECTION 2.1.
Sale and Purchase
8
SECTION 2.2.
Closing
8
SECTION 2.3.
Mutual Conditions
9
SECTION 2.4.
Conditions to Each Investor’s Obligations
10
SECTION 2.5.
Conditions to Company’s Obligations
10
SECTION 2.6.
Company Deliveries
11
SECTION 2.7.
Investor Deliveries
11
SECTION 2.8.
Notice of Closing
11
     
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
     
SECTION 3.1.
Existence
12
SECTION 3.2.
Capitalization; Shares
12
SECTION 3.3.
No Conflict
12
SECTION 3.4.
Authority
13
SECTION 3.5.
Private Placement
13
SECTION 3.6.
Consents and Approvals
13
SECTION 3.7.
Compliance with Laws
14
SECTION 3.8.
Legal Proceedings and Litigation
15
SECTION 3.9.
Company SEC Documents
15
SECTION 3.10.
Internal Controls
15
SECTION 3.11.
No Company Material Adverse Effect
16
SECTION 3.12.
Certain Fees
16
SECTION 3.13.
Tax Matters
16
SECTION 3.14.
Investment Company Status
16
SECTION 3.15.
Financial Statements
16
SECTION 3.16.
NYSE Listing
16
SECTION 3.17.
Rule 144
16
     
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
     
SECTION 4.1.
Existence
17
SECTION 4.2.
Due Authorization; Enforceability
17
SECTION 4.3.
No Conflict
17
SECTION 4.4.
No Side Agreements
17
SECTION 4.5.
Financing
18


i



SECTION 4.6.
Brokers and Other Advisors
18
SECTION 4.7.
Investment
18
SECTION 4.8.
Restricted Securities
19
SECTION 4.9.
Legend
19
SECTION 4.10.
Tax Matters
19
     
ARTICLE V
COVENANTS
     
SECTION 5.1.
Taking of Necessary Action
20
SECTION 5.2.
Listing Application
20
SECTION 5.3.
Access to Information
20
SECTION 5.4.
Use of Proceeds
21
SECTION 5.5.
Confidentiality
21
SECTION 5.6.
Tax Information
22
SECTION 5.7.
Transfer Restrictions
23
SECTION 5.8.
Rule 144 Information
24
SECTION 5.9.
Consent Support
24
SECTION 5.10.
GIC Information
24
     
ARTICLE VI
     
SECTION 6.1.
Shelf Registration
24
SECTION 6.2.
Registration Procedures
25
SECTION 6.3.
Free Writing Prospectuses
27
SECTION 6.4.
Suspension of Dispositions
27
SECTION 6.5.
Registration Expenses
27
SECTION 6.6.
Indemnification
27
SECTION 6.7.
Transfer of Registration Rights
29
SECTION 6.8.
Opt-Out
29
SECTION 6.9.
Legend
29
     
ARTICLE VII
MISCELLANEOUS
     
SECTION 7.1.
Interpretation of Provisions; Severability
29
SECTION 7.2.
Nonsurvival of Representations and Warranties
30
SECTION 7.3.
No Waiver; Modifications in Writing
30
SECTION 7.4.
Binding Effect; Assignment
31
SECTION 7.5.
Communications
31
SECTION 7.6.
Entire Agreement; No Other Representations or Warranties
32
SECTION 7.7.
Governing Law; Jurisdiction
33
SECTION 7.8.
Specific Enforcement
33
SECTION 7.9.
WAIVER OF JURY TRIAL
34
SECTION 7.10.
Execution in Counterparts
34
SECTION 7.11.
Termination
35
SECTION 7.12.
Expenses
36
SECTION 7.13.
Placement Agents
36


ii



SECTION 7.14.
Investors Not a Group
37

Schedule A
Schedule of Investors
Exhibit A
Ownership Form
Exhibit B
Form of Funding Notice
Exhibit C
Form of Authorized Signatory Letter


iii

INVESTMENT AGREEMENT

This INVESTMENT AGREEMENT, dated as of June 7, 2020 (this “Agreement”), is among PG&E Corporation, a California corporation (the “Company”), and the persons and entities (each, an “Investor” and collectively, the “Investors”) listed on the Schedule of Investors attached as Schedule A (the “Schedule of Investors”).

WHEREAS, on January 29, 2019, the Company and its wholly owned subsidiary, Pacific Gas and Electric Company (the “Utility”), filed voluntary petitions for relief under chapter 11 of title 11 of the United States Bankruptcy Code (the “Bankruptcy Code”) with the United States Bankruptcy Court for the Northern District of California (the “Bankruptcy Court”) (the “Chapter 11 Cases”); on December 12, 2019, the Company and the Utility filed the Debtors’ and Shareholder Proponents’ Joint Chapter 11 Plan of Reorganization (as amended, modified or supplemented on January 31, 2020, February 7, 2020, March 9, 2020, March 16, 2020 and May 22, 2020, and as may be further amended, supplemented or otherwise modified from time to time, and together with all exhibits, schedules and supplements thereto, the “Plan”) with the Bankruptcy Court; on May 1, 2020, the Company and the Utility filed a Plan Supplement in connection with the Plan; on May 22, 2020, the Company and the Utility filed a Supplement to the Plan Supplement; on May 24, 2020, the Company and the Utility filed a Second Supplement to the Plan Supplement; and on June 2, 2020, the Company and the Utility filed a Third Supplement to the Plan Supplement.

WHEREAS, on March 17, 2020, the Bankruptcy Court approved the disclosure statement dated March 17, 2020 filed pursuant to section 1125 of the Bankruptcy Code by the Debtors (the “Disclosure Statement”); and on March 25, 2020, the Bankruptcy Court approved a supplement to the Disclosure Statement; and

WHEREAS, to fund a portion of the Plan Funding, as contemplated by the Plan, the Company desires to sell to each Investor, and each Investor desires to purchase from the Company, in separate transactions, a number of shares of Common Stock in accordance with the provisions of this Agreement (the “Investment”);

NOW THEREFORE, the Company and each Investor hereby agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.1.          Definitions.  As used in this Agreement, and unless the context requires a different meaning, the following terms have the meanings indicated:

Adverse Disclosure” means public disclosure of material non-public information that, in the Company’s good faith judgment, (a) would not be required to be made at such time but for filing or maintaining in effect a registration statement as contemplated by this Agreement and (b) would not be in the Company’s best interests.

Advice” has the meaning specified in Section 6.4.


1



Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries Controls, is Controlled by or is under common Control with, the Person in question.

Aggregate Purchase Price” means, with respect to an Investor, the dollar amount set forth in the column designated “Aggregate Purchase Price” opposite such Investor’s name on the Schedule of Investors.

Agreement” has the meaning set forth in the recitals.

Authorized Signatory List” has the meaning set forth in Section 2.8.

Backstop Commitment Letters” means the amended letter agreements dated around March 2, 2020, or such later date as may be applicable, pursuant to which the parties thereto (other than the Company) have agreed to purchase, on the terms and subject to the conditions thereof, shares of Common Stock to be issued as part of the Plan Funding.

Backstop Parties” means the parties to the Backstop Commitment Letters that have agreed to purchase, on the terms and subject to the conditions thereof, shares of Common Stock.

Bankruptcy Code” has the meaning set forth in the recitals.

Bankruptcy Court” has the meaning set forth in the recitals.

Board” means the Board of Directors of the Company.

Business Day” means a day other than (a) a Saturday or Sunday or (b) any day on which banks located in New York, New York, U.S.A. or San Francisco, California, U.S.A. are authorized or obligated to close or be closed.

Chapter 11 Cases” has the meaning set forth in the recitals.

Closing” has the meaning specified in Section 2.2.

Closing Date” has the meaning specified in Section 2.2.

Common Stock” means common stock of the Company as reorganized on and after the Plan Effective Date pursuant to and under the Plan, no par value.

Company” has the meaning set forth in the recitals.

Company Charter Documents” means the Company’s Amended and Restated Articles of Incorporation and Bylaws, each in the form attached to the Plan Supplement and as may be amended or supplemented from time to time thereafter, including pursuant to the Confirmation Order or the Company SEC Documents.

Company Disclosure Letter” has the meaning set forth in Article III.


2



Company Material Adverse Effect” means any result, occurrence, fact, change, event, effect, violation, penalty, inaccuracy or circumstance (whether or not constituting a breach of a representation, warranty or covenant set forth in the Plan) that, individually or in the aggregate with any such other results, occurrences, facts, changes, events, effects, violations, penalties, inaccuracies, or circumstances, (a) would have or would reasonably be expected to have a material adverse effect on the business, operations, assets, liabilities, capitalization, financial performance, financial condition or results of operations, in each case, of the Debtors, taken as a whole, or (b) would reasonably be expected to prevent or materially delay the ability of the Debtors to consummate the transactions contemplated by this Agreement or the Plan or perform their obligations hereunder or thereunder on a timely basis; provided, however, that none of the following results, occurrences, facts, changes, events, effects, violations, penalties, inaccuracies or circumstances shall constitute or be taken into account in determining whether a Company Material Adverse Effect has occurred, is continuing or would reasonably be expected to occur: (i) the filing of the Chapter 11 Cases, and the fact that the Debtors are operating in bankruptcy, (ii) results, occurrences, facts, changes, events, effects, violations, inaccuracies, or circumstances affecting (A) the electric or gas utility businesses in the United States generally or (B) the economy, credit, financial, capital or commodity markets, in the United States or elsewhere in the world, including changes in interest rates, monetary policy or inflation or the outbreak of pandemics (including the ongoing COVID-19 pandemic), (iii) changes or prospective changes in law (other than any law or regulation of California or the United States that is applicable to any electrical utility) or in GAAP or accounting standards, or any changes or prospective changes in the interpretation or enforcement of any of the foregoing, (iv) any decline in the market price, or change in trading volume, of any securities of the Debtors, (v) any failure to meet any internal or public projections, forecasts, guidance, estimates, milestones, credit ratings, budgets or internal or published financial or operating predictions of revenue, earnings, cash flow or cash position, (vi) any wildfire occurring after the Petition Date and prior to January 1, 2020, (vii) one or more wildfires, occurring on or after January 1, 2020, that destroys or damages fewer than 500 dwellings or commercial structures (“Structures”) in the aggregate and (viii) any results, occurrences, facts, changes, events, effects, violations, penalties, inaccuracies or circumstances arising out of the transactions contemplated hereby (it being understood that (1) the exceptions in clauses (iv) and (v) shall not prevent or otherwise affect a determination that the underlying cause of any such change, decline or failure referred to therein is a Company Material Adverse Effect and (2) a Company Material Adverse Effect shall include the occurrence of one or more wildfires on or after January 1, 2020 destroying or damaging at least 500 Structures within the Company’s service area at a time when the portion of the Company’s system at the location of such wildfire was not successfully de-energized).

Company SEC Documents” has the meaning specified in Section 3.9(a).

Company Subsidiary” means any Subsidiary of the Company.

Confirmation Date” has the meaning set forth in the Plan.

Confirmation Order” has the meaning set forth in the Plan.

Consent Form” has the meaning set forth in Section 7.11(b)(v).


3



Control” means the direct or indirect power to direct or cause the direction of management or policies of a Person, whether through the ownership of voting securities, general partnership interests or management member interests, by contract or trust agreement, pursuant to a voting trust or otherwise.  “Controlling” and “Controlled” have the correlative meanings.

Cut-Off Date” has the meaning set forth in Section 7.11(b)(v).

Debt Commitment Letters” means those certain commitment letters by and among the Company and the respective commitment parties thereto and by and among the Utility and the respective commitment parties thereto, dated as of October 4, 2019 and May 26, 2020, as applicable.

Debtors” means the Company and the Utility.

Disclosure Statement” has the meaning set forth in the recitals.

DOJ” means the U.S. Department of Justice.

Equity Securities” means, with respect to a Person, any and all shares of capital stock, limited liability company interests, partnership interests, units, warrants, rights, profits interests, or options of such Person, and all securities of such Person exchangeable for or convertible or exercisable into, or based on the value of, or any right to receive an economic benefit or any similar right in, any of the foregoing.

Evaluation Material” means confidential information made available by the Company or its Representatives relating to the Company, the Company’s Affiliates and the Investment (including notes, books, papers, diagrams, documents, drafts, term sheets, reports, projections, e-mail, memoranda, visual observations, oral communications and other data or information in various forms, including, without limitation, such information made available prior to the date of this Agreement), solely to assist the applicable Investor in its evaluation of the Investment.

Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder.

Filed SEC Documents” has the meaning set forth in Article III.

Final Order” has the meaning set forth in the Plan.

FTC” means the U.S. Federal Trade Commission.

Funding Notice” has the meaning set forth in Section 2.8.

GAAP” means United States generally accepted accounting principles in the United States as in effect from time to time.

GIC Investor” means GIC Pte. Ltd.


4



Governmental Authority” means, with respect to a particular Person, any nation or government, any foreign or domestic federal, state, county, municipal or other political instrumentality or subdivision thereof that exercises valid jurisdiction over any such Person or such Person’s property, and any court, agency, department, commission, board, bureau or instrumentality of any of them and any monetary authority that exercises valid jurisdiction over any such Person or such Person’s property. Unless otherwise specified, all references to Governmental Authority herein with respect to the Company mean a Governmental Authority having jurisdiction over the Company, the Utility or any of their respective properties.

Hedge” has the meaning specified in Section 5.7.

HSR Act” has the meaning specified in Section 2.3(c).

Indemnitee” has the meaning set forth in Section 6.6(a).

Indemnitor” has the meaning set forth in Section 6.6(c).

Investment” has the meaning set forth in the recitals.

Investment Banks” means Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC and Lazard Frères & Co. LLC and, as applicable, their respective Affiliates.

Investor Disclosure Letter” has the meaning set forth in Article IV.

Investor Material Adverse Effect” means, with respect to an Investor, any effect, change, event or occurrence that would prevent or materially delay, interfere with, hinder or impair (i) the consummation by such Investor of its Investment on a timely basis or (ii) the compliance by such Investor with its obligations under this Agreement.

Investors” has the meaning set forth in the recitals.

Knowledge” of the Company (or similar references to the Company’s Knowledge) means all information actually known by William D. Johnson, William Smith, John R. Simon, Jason P. Wells, Julie M. Kane, Janet C. Loduca, Dinyar B. Mistry, Andrew M. Vesey, Michael Lewis, Fong Wan, James M. Welsch or Laurie M. Giammona.

Law” means any federal, state, local or foreign order, writ, injunction, judgment, settlement, award, decree, statute, law, rule, regulation or other requirements with similar effect of any Governmental Authority.

Lien” means any interest in property securing an obligation owed to, or a claim by, a Person other than the owner of the property, whether such interest is based on the common law, statute or contract, and whether such obligation or claim is fixed or contingent, and including the lien or security interest arising from a mortgage, encumbrance, pledge, security agreement, conditional sale or trust receipt or a lease, consignment or bailment for security purposes. For the purpose of this Agreement, a Person shall be deemed to be the owner of any property that it has acquired or holds subject to a conditional sale agreement, or leases under a


5



financing lease or other arrangement pursuant to which title to the property has been retained by or vested in some other Person in a transaction intended to create a financing.

Lock-Up Period” has the meaning set forth in Section 5.7(a).

Losses” has the meaning set forth in Section 6.6(a)

Money Laundering Laws” has the meaning specified in Section 3.7(b).

NYSE” means The New York Stock Exchange, Inc.

OFAC” has the meaning specified in Section 3.7(c).

Operative Documents” means, collectively, this Agreement and all other documents, certificates or agreements executed in connection with the transactions contemplated by this Agreement and any amendments, supplements, continuations or modifications thereto.

Ownership Form” has the meaning set forth in Section 5.6.

Parties” means the Company and the Investors.

Permitted Hedging Transaction” means, with respect to an Investor, a Hedge with respect to securities of the same class as the Shares in connection with which the registered Shares delivered to the applicable Investor under this Agreement are not delivered to the counterparty, securities lender or other transferee under the Hedge.

Person” means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other form of entity.

Petition Date” means January 29, 2019.

Plan” has the meaning specified in the recitals.

Plan Effective Date” means the Effective Date as defined in the Plan.

Plan Funding” has the meaning set forth in the Plan.

Plan Supplement” has the meaning set forth in the Plan.

Proceeding” means any judicial, administrative or arbitral action, cause of action, suit, claim, demand, citation, summons, subpoena, investigation, examination, audit, review, inquiry or proceeding of any nature, civil criminal, regulatory or otherwise, in law or in equity, by, on behalf of, before or involving any court, tribunal, arbitrator or other Governmental Authority.

Public Equity Offering” means one or more public offerings of Common Stock or Equity Securities in respect of Common Stock, which may be consummated in the form of a rights offering, consummated subsequent to the date hereof and on or prior to the Closing Date to


6



fund a portion of the Plan Funding, and in each case, the payment of certain fees and expenses related thereto.

Public Equity Offering Price” means the lower of (a) the lowest per share “Price to public” of the Common Stock sold on an underwritten basis in the Public Equity Offerings, as disclosed on the cover page of the applicable prospectus or prospectus supplement, and (b) the exercise price for any rights to purchase Common Stock issued as a rights offering in the Public Equity Offerings. The Company shall notify each Investor in writing of the Public Equity Offering Price not less than two Business Days prior to the Closing, including (if applicable) a calculation thereof in reasonable detail. Any sale by the Company of Common Stock as part of a unit or bundled with another security shall, for purposes of this definition, be deemed not to be a sale of Common Stock or a right to purchase Common Stock.

Purchase Price” means a price per Share equal to (a) if the Public Equity Offering Price is greater than $10.5263, the lesser of (1) 95% of the Public Equity Offering Price and (2) $10.50 and (b) if the Public Equity Offering Price is equal to or less than $10.5263, the lesser of (1) the Public Equity Offering Price and (2) $10.00.

Registrable Securities” means (a) the Shares and (b) any equity security issued in exchange for or with respect to any Shares by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or similar transaction, or otherwise.  As to any particular Registrable Securities and any Investor, such securities shall cease to be Registrable Securities on the earliest of the date on which such securities:  (i) have been registered under the Securities Act and disposed of in accordance with a registration statement; (ii) have been sold pursuant to Rule 144; (iii) all Registrable Securities held by such Investors may be sold in a single day pursuant to, and in accordance with, Rule 144; (iv) cease to be outstanding (whether as a result of exercise, redemption, repurchase, conversion or otherwise); or (v) are transferred to any third Person; provided, however, that this clause (v) shall not apply to a Transfer pursuant to Section 5.7(b).

Representatives” of any Person means the officers, directors, managers, employees, representatives, advisors (including attorneys, financial advisors and accountants) agents, controlling persons and controlled affiliates of such Person.

Rule 144” means Rule 144 promulgated under the Securities Act.

SEC” means the United States Securities and Exchange Commission.

Schedule of Investors” has the meaning set forth in the recitals.

Securities Act” means the United States Securities Act of 1933, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder.

Shareholder Proponents” means Abrams Capital Management, L.P. and Knighthead Capital Management, LLC (or certain funds and accounts managed by each of them, respectively).

Shares” has the meaning specified in Section 2.1.


7



Shelf Registration” has the meaning specified in Section 6.1(a)(i).

Subsidiary” of a Person at any date means (i) any corporation, association or other legal entity of which fifty percent (50%) or more of the right to distributions or total voting power of shares or other voting or economic securities or interests outstanding is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof), the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such entity, or that is, as of such date, otherwise controlled by such Person and (ii) any partnership or limited liability company of which such Person or one or more of the other Subsidiaries of such Person (or any combination thereof) is a general partner or managing member.

Suspension Notice” has the meaning specified in Section 6.4.

Transfer” by any Person means, directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or otherwise dispose of or transfer (by the operation of law or otherwise, including by or through any derivative), either voluntarily or involuntarily, or enter into any contract, option or other arrangement, agreement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or other disposition or transfer (by the operation of law or otherwise), of any interest in any securities beneficially owned by such Person.

Utility” has the meaning set forth in the recitals.

ARTICLE II

AGREEMENT TO SELL AND PURCHASE

SECTION 2.1.          Sale and Purchase.  Subject to the terms and conditions hereof, the Company hereby agrees to issue and sell to each Investor in a separate issuance and sale to such Investor, and each Investor agrees, severally and not jointly, to purchase from the Company, on the Closing Date, a number of shares of Common Stock (rounded to the nearest whole number) equal to such Investor’s Aggregate Purchase Price divided by the Purchase Price (such Investor’s “Shares”). Each Investor shall pay the Company for such Investor’s Shares an amount in cash of U.S. dollars equal to such Investor’s Aggregate Purchase Price.

SECTION 2.2.          Closing.  The consummation of the purchase and sale to each Investor of its Shares hereunder (the “Closing”) shall take place at 10:00 a.m. (New York City time) on the Plan Effective Date, subject to the satisfaction or, to the extent permitted by applicable Law, waiver by the Party entitled to the benefit thereof of the conditions set forth in Sections 2.3, 2.4 and 2.5 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at such time), and shall be conducted remotely via the electronic exchange of documents and signatures, or at such other place, time and date as shall be agreed between the Company and the Investors (the date of such closing, the “Closing Date”).


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SECTION 2.3.          Mutual Conditions.  The respective obligations of each Party to consummate the issuance and sale and purchase of the Shares shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by the Party entitled to the benefit thereof in writing, in whole or in part, solely as to itself, to the extent permitted by applicable Law):

(a)          no Law shall have been enacted or promulgated, and no action shall have been taken, by any Governmental Authority of competent jurisdiction that temporarily, preliminarily or permanently restrains, precludes, enjoins or otherwise prohibits the consummation of the transactions contemplated hereby or makes the transactions contemplated hereby illegal;

(b)          there shall not be pending any suit, action or proceeding by any Governmental Authority seeking to restrain, preclude, enjoin or prohibit the transactions contemplated by this Agreement;

(c)          with respect to the applicable Investor, all necessary filings and notifications under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), shall have been made, including the filing of any required additional information or documents, and the waiting period referred to in the HSR Act applicable to the transactions contemplated hereby shall have expired or been terminated;

(d)          to the extent that the Debt Commitment Letters have not been terminated in accordance with their terms on or before the Closing Date, the Company shall have obtained the affirmative consent of all of the respective Commitment Parties (in each case, as defined in the applicable Debt Commitment Letter) thereto;

(e)          the Company Charter Documents shall have been filed with, and accepted and certified by, the Secretary of the State of California;

(f)          the Shares shall have been approved for listing on the NYSE, subject only to official notice of issuance;

(g)          the Confirmation Order shall have been entered and, on or prior to the Closing Date, shall have become a Final Order, shall be in full force and effect and shall not have been stayed, reversed, vacated, amended, supplemented or otherwise modified;

(h)          all of the conditions to the effectiveness of the Plan shall have been satisfied or waived (to the extent that Plan expressly provides for the possibility of such a waiver) in accordance with the Plan and the Plan Effective Date shall have occurred;

(i)          the Company shall have raised at least an amount from the sale of Common Stock or Equity Securities in respect of Common Stock other than pursuant to this Agreement, whether pursuant to the Public Equity Offerings, the Backstop Commitment Letters or a combination of them or otherwise, which when combined with all amounts raised pursuant to this Agreement shall equal $9,000,000,000 in gross proceeds; and


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(j)          the Company shall have raised at least $2,500,000,000 in gross proceeds from an underwritten offering of Common Stock in the Public Equity Offerings.

SECTION 2.4.          Conditions to Each Investor’s Obligations.  The obligation of each Investor, severally and not jointly, to consummate the purchase of its Shares shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by such Investor on behalf of itself in writing with respect to its Shares, in whole or in part, to the extent permitted by applicable Law):

(a)          the Company shall have performed and complied in all material respects with the covenants and agreements contained in this Agreement that are required to be performed and complied with by the Company at or prior to the Closing;

(b)          (i) the representations and warranties of the Company set forth in Sections 3.1, 3.2, 3.3, 3.4 and 3.11 shall be true and correct as of the Closing Date (except to the extent that such representation and warranty is made as of a specified date other than the Closing Date, in which case such representation and warranty shall be true and correct as of such date) and (ii) all other representations and warranties of the Company set forth in Article III shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Company Material Adverse Effect” and words of similar import set forth therein) as of the Closing Date (except to the extent that such representation and warranty is made as of a specified date other than the Closing Date, in which case such representation and warranty shall be true and correct as of such specified date) except where the failures of such representations and warranties to be so true and correct, in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect; and

(c)          the Company shall have delivered, or caused to be delivered, to such Investor at the Closing, the Company’s closing deliveries described in Section 2.6.

SECTION 2.5.          Conditions to Company’s Obligations.  The obligation of the Company to consummate the sale of the applicable Shares to each Investor shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions with respect to such Investor (any or all of which may be waived by the Company in writing, in whole or in part, to the extent permitted by applicable Law):

(a)          the Investor shall have performed and complied in all material respects with the covenants and agreements contained in this Agreement that are required to be performed and complied with by the Investor at or prior to the Closing;

(b)          (i) the representations and warranties of such Investor (A) set forth in Sections 4.1, 4.2(a), 4.3(b) and 4.6 shall be true and correct in all respects as of the Closing Date and (ii) all other representations and warranties of such Investor set forth in Article IV shall be true and correct in all respects (disregarding all qualifications or limitations as to “materiality”, “Investor Material Adverse Effect” and words of similar import set forth therein) as of the Closing Date (except to the extent that such representation and warranty is made as of a specified date other than the Closing Date, in which case such representation and warranty shall be true and correct in all respects as of such specified date), except where the failures of such


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representations and warranties to be so true and correct, individually or in the aggregate, would not reasonably be expected to have an Investor Material Adverse Effect; and

(c)          such Investor shall have delivered, or caused to be delivered, to the Company at the Closing such Investor’s closing deliveries described in Section 2.7.

SECTION 2.6.          Company Deliveries.  At the Closing, subject to the terms and conditions hereof, the Company will deliver, or cause to be delivered, to each Investor:

(a)          such Investor’s Shares, which shall be registered in the name of the Investor with the transfer agent of the Company and delivered to such Investor (at the request of such Investor) either (1) in direct registry form or (2) in certificated form (which may be evidenced at the Closing by PDF or similar electronic or facsimile copies, with original physical certificates to follow promptly);

(b)          a certificate, dated as of the Closing Date and signed by the Chief Financial Officer of the Company, in his capacity as such, certifying that the conditions set forth in Sections 2.4(a) and 2.4(b) have been satisfied;

(c)          a copy of a supplemental listing application filed with the NYSE to list Common Stock that includes the Shares; and

(d)          any other certificates, agreements and other documents reasonably necessary to consummate or implement the transactions contemplated by this Agreement.

SECTION 2.7.          Investor Deliveries.  At the Closing, subject to the terms and conditions hereof, each Investor will deliver, or cause to be delivered, to the Company:

(a)          payment to the Company of such Investor’s Aggregate Purchase Price by wire transfer of immediately available funds to an account designated by the Company (which account the Company shall designate in writing at least three Business Days prior to the Closing Date);

(b)          a certificate, dated as of the Closing Date and signed by an officer of such Investor reasonably acceptable the Company, in his or her capacity as such, certifying that the conditions set forth in Sections 2.5(a) and 2.5(b) have been satisfied; and

(c)          any other certificates, agreements and other documents reasonably necessary to consummate or implement the transactions contemplated by this Agreement.

SECTION 2.8.          Notice of Closing.  The Company shall provide the Investors with at least three Business Days prior written notice of the anticipated Closing Date by electronic mail or facsimile substantially in the form attached hereto as Exhibit B and executed by a person set forth on the Authorized Signatory List (as defined below) (the “Funding Notice”).  No later than five Business Days prior to the Closing, the Company shall deliver to the Investors a notice substantially in the form attached hereto as Exhibit C (the “Authorized Signatory List”), setting forth those persons authorized to execute the Funding Notice.


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ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to each Investor as of the date of this Agreement and as of the Closing (except to the extent that a representation and warranty is made only as of a specified date, in which case such representation and warranty is made as of such date) that, except as (A) set forth in the confidential disclosure letter delivered by the Company to such Investor prior to the execution of this Agreement (the “Company Disclosure Letter”) (it being understood that any information, item or matter set forth on one section or subsection of the Company Disclosure Letter shall only be deemed disclosure with respect to, and shall only be deemed to apply to and qualify, the section or subsection of this Agreement to which it corresponds in number and each other section or subsection of this Agreement to the extent that it is reasonably apparent on its face that such information, item or matter applies to such other section or subsection), (B) disclosed in any report, schedule, form, statement (including any registration statement) or other document (including exhibits) of the Company filed with, or furnished to, the SEC and in each case publicly available after January 1, 2019, and prior to the date of this Agreement  (but excluding any “forward-looking statements” section and any other disclosures included therein to the extent that they are predictive or forward-looking in nature) (the “Filed SEC Documents”) or (C) disclosed in the Plan or the Disclosure Statement, as follows:

SECTION 3.1.          Existence.  The Company has been duly incorporated, is validly existing and is in good standing under the Laws of the State of California.  The Company has full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as currently conducted. The Utility is an entity duly incorporated, validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted.

SECTION 3.2.          Capitalization; Shares.  As of the date hereof, the Company has the authorized equity capitalization as set forth in the Filed SEC Documents, and all of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable. All of the issued and outstanding capital stock of the Utility (i) has been duly authorized and validly issued, (ii) is fully paid and non-assessable and (iii) is owned by the Company directly or indirectly, free and clear of any Lien except for such Lien that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

SECTION 3.3.          No Conflict.  After giving effect to the Plan and the transactions contemplated thereby, the issue and sale of the Shares, the execution, delivery and performance by the Company of this Agreement, the application of the proceeds from the sale of the Shares and the consummation of the transactions contemplated hereby (assuming the satisfaction of all conditions to Closing set forth herein) will not (a) conflict with or result in any violation of (i) the provisions of the articles of incorporation or by-laws (or similar organizational documents) of the Company or the Utility or (ii) any agreement or other terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other 


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agreement, obligation, condition, covenant or instrument to which the Company or the Utility is a party or by which it is bound or to which its property is subject or (b) violate any statute or any judgment, order, decree, rule or regulation of any court or Governmental Authority, except in the case of clauses (a)(ii) and (b), for such conflicts or violations (other than a conflict or violation of the Confirmation Order) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

SECTION 3.4.          Authority.

(a)          Subject to approval by the Bankruptcy Court of this Agreement, the Company has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby and thereby, and the execution, delivery and performance by the Company of this Agreement has been duly and validly authorized by all necessary action on part of the Company.  Upon the filing with, and certification by, the Secretary of the State of California of the Company Charter Documents in accordance with the Plan, the Shares will have been duly authorized and, upon their issuance pursuant to the terms hereof, each Share will be validly issued and outstanding, free of all liens, charges and encumbrances as fully paid and non-assessable, other than transfer restrictions under this Agreement, the Company Charter Documents and applicable federal and state securities Laws. On the Closing Date, all corporate action required to be taken by the Company, its officers, directors and shareholders for the authorization, issuance, sale and delivery of the Shares and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been validly taken.

(b)          This Agreement has been validly executed and delivered by the Company and, subject to approval by the Bankruptcy Court of this Agreement, constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general application affecting or relating to the enforcement of creditors’ rights generally is subject to general principles of equity, whether considered in a proceeding at law or in equity and including principles of commercial reasonableness, fair dealing and good faith (the “Bankruptcy and Equity Exception”). No approval from the holders of outstanding shares of Common Stock is required in connection with the Company’s issuance and sale of the Shares to the Investor.

SECTION 3.5.          Private Placement.  Assuming the accuracy of the representations and warranties set forth in Section 4.7, the issuance and sale of the Shares pursuant hereto are exempt from the registration requirements of the Securities Act and applicable state securities Laws. No form of general solicitation or general advertising within the meaning of Regulation D (including advertisements, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising) was used by the Company, or any Person acting on behalf of the Company in connection with the offer and sale of the Shares.

SECTION 3.6.          Consents and Approvals.  No consent, approval, authorization or order of, or filing, report, registration or qualification with, any Governmental Authority is


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required for the execution of this Agreement and the consummation by the Company of the transactions contemplated hereby or thereby (including the offering and sale of the Shares), except for such consents, approvals, authorizations, orders, registrations, filings or qualifications which shall have been obtained or made prior to the Closing Date as described in this Agreement or as may be required by the securities or “blue sky” Laws of the various states, the Securities Act and the securities Laws of any jurisdiction outside the United States in which the Shares are offered.  Other than that of the Backstop Parties, no consent, approval, or authorization of any other Person is required to be obtained by the Company in connection with the transactions contemplated hereby, except for such consents, approvals or authorizations which shall have been obtained or made prior to the Closing Date or except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

SECTION 3.7.          Compliance with Laws.

(a)          Since January 1, 2020, the Company and the Utility have complied and are in compliance with all applicable Laws, except for noncompliance that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.  Since January 1, 2020, the Company and the Utility have not received any notice from any Governmental Authority asserting any violation by such Person of any applicable Law.  Each of the Company and the Utility has obtained and is in compliance with all permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Authority necessary to conduct its business as presently conducted, except those the absence of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

(b)          The operations of the Company and the Utility are and have been conducted at all times in compliance in all material respects with applicable money laundering statutes, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority (collectively, the “Money Laundering Laws”) and as of the date hereof, no action, suit or proceeding by or before any Governmental Authority involving the Company or the Utility with respect to the Money Laundering Laws is pending or, to the Company’s Knowledge, threatened.

(c)          Neither the Company nor the Utility nor, to the Company’s Knowledge, any director, officer, agent, employee or Affiliate of the Company or the Utility is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or knowingly indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, for the purpose of financing the activities of any Person currently subject to any U.S. sanctions administered by OFAC.

(d)          Neither the Company nor the Utility nor, to the Company’s Knowledge, any director, officer, agent, employee or other Person authorized to act on behalf of the Company or the Utility has in the past five years (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, including with the intention of improperly influencing any act or decision of such 


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official; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.

SECTION 3.8.          Legal Proceedings and Litigation.  There is no action, suit, investigation, inquiry or legal or governmental proceeding pending to which the Company or any Company Subsidiary is a party or of which any property of the Company or any Company Subsidiary is the subject which if determined adversely to the Company or any Company Subsidiary would have a Company Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated under this Agreement or the performance by the Company of their obligations hereunder or thereunder; and, to the Company’s Knowledge, no such proceedings are threatened or contemplated by Governmental Authorities or threatened by others.

SECTION 3.9.          Company SEC Documents.

(a)          Since January 1, 2020, the Company has filed with the SEC on a timely basis all forms, registration statements, reports, schedules and statements required to be filed by it under the Exchange Act (all such documents, collectively the “Company SEC Documents”). The Company SEC Documents, at the time filed or in the case of registration statements, solely on their respective dates of effectiveness (in each case, except to the extent amended or supplemented by a subsequent Company SEC Document) (i) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) complied as to form in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as the case may be.

(b)          Since December 31, 2019, neither the Company nor the Utility has (i) incurred any material liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, have been adequately reserved against or reflected in the Company’s audited financial statements included in the Filed SEC Documents, are expressly contemplated by this Agreement or the Plan or have been discharged or paid prior to the date of this Agreement, (ii) entered into any material transaction that is required to be described in the Company SEC Documents or (iii) declared or paid any dividend on its capital stock.

SECTION 3.10.          Internal Controls.  The Company and the Utility each maintain a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed by, or under the supervision of, the Company’s and the Utility’s respective principal executive and principal financial officers, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company and the Utility each maintains internal accounting controls that are sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of the Company’s financial statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for


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its assets, (iii) access to the Company’s or the Utility’s assets, as applicable  is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for the Company’s or the Utility’s assets, as applicable, is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.  Neither the Company nor the Utility is aware of any material weakness in its respective internal controls over financial reporting.

SECTION 3.11.          No Company Material Adverse Effect.  Since January 1, 2020, no event has occurred or condition exists which would reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect.

SECTION 3.12.          Certain Fees.  Except for fees payable to the Company’s Investment Banks, neither the Company nor any Company Subsidiary is a party to any contract, agreement or understanding with any Person that could give rise to a valid claim against the Investor for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Shares.

SECTION 3.13.          Tax Matters.  (i) The Company and the Utility have filed all material federal, state, local and foreign income and franchise tax returns required to be filed through the date hereof, subject to permitted extensions, and paid all taxes due thereon and (ii) no material tax deficiency has been determined adversely to the Company or any Company Subsidiary, which deficiency has not been either paid or contested in good faith.

SECTION 3.14.          Investment Company Status.  Neither the Company nor the Utility is or, immediately after giving effect to the offer and sale of the Shares hereunder and the application of the proceeds therefrom, will be an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the SEC thereunder.

SECTION 3.15.          Financial Statements.  The consolidated financial statements (including the related notes and supporting schedules) of the Company included or incorporated by reference in the Company SEC Documents present fairly, in all material respects, the consolidated financial position of the Company as of the dates thereof and the consolidated results of its operations and its cash flows for the periods shown (subject, in the case of unaudited quarterly financial statements, to normal year-end adjustments), and have been prepared in all material respects in accordance with GAAP (except, in the case of unaudited quarterly statements, as permitted by Form 10-Q of the SEC or other rules and regulations of the SEC) applied on a consistent basis throughout the periods involved (except (i) as may be indicated in the notes thereto or (ii) as permitted by Regulation S-X).

SECTION 3.16.          NYSE Listing.  The Company has not received any notice of delisting from the NYSE with respect to the Common Stock that has not been withdrawn or fully addressed.

SECTION 3.17.          Rule 144.  The Company is in compliance with the requirements of Rule 144(c)(1).  As of the date hereof, the Company is not, and at no time in the preceding 12 months has been, the type of issuer described in Rule 144(i)(1).


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ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE INVESTOR

Each Investor (or, for each Investor acting as the nominee of one or more funds, such Investor on behalf of the funds for which it serves as nominee) hereby, severally and not jointly, represents and warrants to the Company as of the date of this Agreement and as of the Closing with respect to itself (and, for each Investor so representing or warranting on behalf of one or more funds for which it serves as nominee, all references to “Investor” in this Article IV shall be deemed to refer to the funds for which such Investor serves as nominee), that, except as set forth in any confidential disclosure letter delivered by such Investor to the Company prior to the execution of this Agreement (such letter, an “Investor Disclosure Letter”):

SECTION 4.1.          Existence.  The Investor is a duly organized and validly existing under the Laws of its jurisdiction of organization and the Investor has all requisite power and authority necessary to carry on its business as currently conducted and is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary.

SECTION 4.2.          Due Authorization; Enforceability.

(a)          The Investor has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby and thereby, and the execution, delivery and performance by the Investor of this Agreement has been duly and validly authorized by all necessary action on the part of Investor.

(b)          This Agreement has been validly executed and delivered by the Investor and this Agreement constitutes the legal, valid and binding obligation of the Investor, enforceable in accordance with its terms, subject to the Bankruptcy and Equity Exception.

SECTION 4.3.          No Conflict.  The execution, delivery and performance of this Agreement by the Investor and the consummation by the Investor of the transactions contemplated hereby will not (a) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material agreement to which the Investor is a party or by which the Investor is bound or to which any of the property or assets of the Investor is subject, (b) conflict with or result in any violation of the provisions of the organizational documents of the Investor, or (c) violate any statute, order, rule or regulation of any Governmental Authority, except in the cases of clauses (a) and (c), for such conflicts, breaches, violations or defaults as would not prevent the consummation of the transactions contemplated by this Agreement.

SECTION 4.4.          No Side Agreements.

(a)          Other than this Agreement, there are no other agreements by, among or between the Investor and any of its Affiliates, on the one hand, and the Company or any of its


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Affiliates, on the other hand, with respect to the transactions contemplated hereby, nor are there promises or inducements for future transactions between or among any of such parties.

(b)          The Investor acknowledges that it reached its decision to make the Investment independently from any other Person investing in Equity Securities of the Company or of the Utility (whether pursuant to another Investment or other transactions contemplated by the Plan) and does not otherwise have a formal or informal understanding with any other Person to make a coordinated acquisition of Equity Securities of the Company or of the Utility.

SECTION 4.5.          Financing.  The Investor currently has available capital commitments sufficient to, and at the Closing will have available funds necessary to, consummate the Investment and pay the Aggregate Purchase Price on the terms and conditions contemplated by this Agreement.  As of the date of this Agreement, the Investor is not aware of any reason why the funds necessary to fulfill its obligations under Article II (including paying the Aggregate Purchase Price) will not be available on the Closing Date.

SECTION 4.6.          Brokers and Other Advisors.  No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission, or the reimbursement of expenses in connection therewith, in connection with the Investment based upon arrangements made by or on behalf of the Investor or any of its Affiliates, except for Persons, if any, whose fees and expenses will be paid by the Investor.

SECTION 4.7.          Investment.  The Investor is an “accredited investor” (as defined in Rule 501 promulgated under the Securities Act) and an “institutional account” (as defined in Rule 4512(c) promulgated by the Financial Industry Regulatory Authority, Inc.), and is knowledgeable and experienced in finance, securities and investments and has had sufficient experience analyzing and investing in securities similar to the Shares so as to be capable of evaluating the merits and risks of an investment in the Shares and of making an informed investment decision.  The Investor (i) has been furnished with or has had access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the Shares, (ii) has had an opportunity to discuss with the Company and its Representatives the intended business and financial affairs of the Company and to obtain information necessary to verify any information furnished to it or to which it had access and (iii) can bear the economic risk of (a) an investment in the Company indefinitely and (b) a total loss in respect of such investment.   The Shares are being acquired for the Investor’s own account or the account of its Affiliates and, except as otherwise set forth in the signature page of the Investor hereto, not as a nominee or agent, and with no present intention of distributing the Shares or any part thereof, and the Investor has no present intention of selling or granting any participation in or otherwise distributing the same in any transaction in violation of the securities Laws of the United States or any state. If the Investor should in the future decide to dispose of any of the Shares, the Investor acknowledges and agrees (x) that it may do so only in compliance with, or pursuant to an exemption from, the Securities Act and applicable state securities Law, as then in effect, including a sale contemplated by any registration statement pursuant to which such securities are being offered and (y) that stop-transfer instructions to that effect will be in effect with respect to such securities. The Investor is not relying upon, and has not relied upon, any statement, representation or warranty made by either of the Investment Banks, any of their


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respective Affiliates or any of its or their respective control persons, officers, directors and employees, in making its investment or decision to invest in the Company.

SECTION 4.8.          Restricted Securities.  The Investor acknowledges that the Shares are characterized as “restricted securities” under the federal securities Laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such Laws and applicable regulations such securities may be resold without registration under the Securities Act only pursuant to an exemption from such registration requirements. In this connection, the Investor represents that it is knowledgeable with respect to Rule 144.

SECTION 4.9.          Legend.

(a)          The Investor acknowledges that the Shares, or any transaction statement evidencing ownership of the Shares, will bear a restrictive legend substantially as follows:

“THE SECURITIES REPRESENTED HEREBY ARE (1) SUBJECT TO TRANSFER AND OTHER RESTRICTIONS SET FORTH IN AN INVESTMENT AGREEMENT, DATED AS OF [DATE OF THIS AGREEMENT], 2020, A COPY OF WHICH IS ON FILE WITH THE CORPORATE SECRETARY OF THE ISSUER AND (2) HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE “SECURITIES ACT”) OR WITH THE SECURITIES COMMISSION OF ANY STATE AND, ACCORDINGLY, MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR AN EXEMPTION THEREFROM. THE ISSUER OF OR TRANSFER AGENT FOR THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE ISSUER, THE TRANSFER AGENT OR THEIR RESPECTIVE COUNSEL, THAT SUCH TRANSFER, SALE OR OTHER DISPOSAL OTHERWISE COMPLIES WITH THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.”

Additionally, if required by the authorities of any state in connection with the issuance or sale of the Shares, the Shares shall bear the legend required by such state authority.

SECTION 4.10.          Tax Matters.  The Investor has reviewed the Company Charter Documents in substantially the same form as provided in the Plan Supplement, and neither the Investor nor, to the Investor’s knowledge, any other Person would become a “Substantial Shareholder” (as defined in the Company Charter Documents) as a result of the Investment, alone or together with other acquisitions of Common Stock occurring as part of the Plan Funding.


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ARTICLE V

COVENANTS

SECTION 5.1.          Taking of Necessary Action.

(a)          Each of the Parties hereto shall use its commercially reasonable efforts promptly to take or cause to be taken all action and promptly to do or cause to be done all things necessary, proper or advisable under this Agreement and applicable Law and regulations to consummate and make effective the transactions contemplated by this Agreement.  The Company shall, subject to obtaining any required consents and approvals, use its commercially reasonable efforts to consummate the Public Equity Offerings as promptly as reasonably practicable following the date of this Agreement.

(b)          Without limiting the generality of this Section 5.1, if so required, the Company and the applicable Investor shall, and shall cause their respective Subsidiaries and Affiliates to, within two Business Days after the date hereof, make any filing with the FTC and the DOJ required under the HSR Act with respect to such Investor’s Investment.  The Company and the applicable Investor shall, and shall cause their respective Subsidiaries and Affiliates to, furnish to each other such information and assistance as such other Party may reasonably request in connection with its preparation of any such filing or notice that is necessary under the HSR Act or other antitrust Laws or that is otherwise requested by the FTC, DOJ or other Governmental Authority in the course of any review of such Investor’s Investment.

(c)          Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to (i) propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of, prohibition or limitation on the ownership or operation by it or any of its Affiliates of, or other arrangement regarding, any portion of the business, properties or assets of the Company or any of its Affiliates or (ii) initiate or participate in any Proceedings, whether judicial or administrative, in order to oppose or defend against any action by any Governmental Authority to prevent or enjoin the consummation of the applicable Investment, or take any action to overturn any regulatory action by any Governmental Authority to prohibit consummation of the applicable Investment, including defending any Proceeding brought by any Governmental Authority seeking the entry or affirmation of any injunction, order or decree that would cause any condition set forth in Section 2.3, 2.4 or 2.5 not to be satisfied.

SECTION 5.2.          Listing Application.  To the extent that it has not done so prior to the date hereof, the Company shall file prior to the Closing a supplemental listing application with the NYSE to list Common Stock that includes the Shares and obtain the approval of the NYSE, subject only to official notice of issuance, of the listing thereof.

SECTION 5.3.          Access to Information.  At all times prior to the Closing, the Company shall afford each Investor and its Representatives reasonable access to the Company’s officers and due diligence materials, at such reasonable times as the Investor may reasonably request upon reasonable notice; provided, however, that any investigation pursuant to this Section 5.3 shall be conducted in a manner as not to interfere unreasonably with the conduct of


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the business of the Company or the Utility.  Access that would be in contravention of an order of a Governmental Authority or in a manner that would jeopardize the health or safety of employees of the Company, the Utility or any of their respective Affiliates shall be deemed unreasonable for purposes of this Section 5.3.

SECTION 5.4.          Use of Proceeds.  The Company shall use the proceeds from the sale of the Shares to consummate the Plan and to pay certain fees and expenses related thereto.

SECTION 5.5.          Confidentiality.

(a)          Each Investor agrees that it shall, and shall cause its Affiliates and Representatives who have received or are given Evaluation Material to, treat confidentially all Evaluation Material; provided, however, that nothing herein shall prevent the Investor from disclosing any Evaluation Material (i) to the extent such Investor is advised by outside counsel that such disclosure is required pursuant to the order of any court or administrative agency or in any legal, judicial or administrative proceeding or other compulsory process or otherwise as required by applicable Law or regulations (in which case such Investor may disclose only the portion of such Evaluation Material that such Investor is advised by outside counsel is required to be disclosed, and provided that Investor shall promptly notify the Company, in advance, to the extent lawfully permitted to do so), (ii) upon the request or demand of any regulatory authority having jurisdiction over Investor (in which case Investor may disclose only the portion of such Evaluation Material that such Investor is advised by outside counsel is required to be disclosed, and provided that such Investor shall, except with respect to any audit or examination conducted by bank accountants or any governmental regulatory authority exercising examination or regulatory authority, promptly notify the Company, in advance, to the extent lawfully permitted to do so), (iii) to the Representatives of such Investor who need to know such information for the purpose of assisting such Investor in its evaluation of the Investment (or otherwise with the consent of the Company) so long as such Investor instructs its Representatives, and its Representatives have agreed, to treat the Evaluation Material in a confidential manner and in accordance with the terms hereof (it being understood that such Investor will be responsible for any breach of any provisions of this Agreement, which by their terms apply to such Investor’s Representatives, by any of such Investor’s Representatives), (iv) to the extent any such information becomes publicly available other than by reason of disclosure by such Investor or any of its Representatives in breach of this Agreement and (v) to the extent such information is lawfully received by such Investor from a third party that is not, to such Investor’s knowledge, subject to a confidentiality obligation to the Company or any of its subsidiaries with respect to such information or is not, to such Investor’s knowledge, prohibited from transmitting such information to such Investor.  Notwithstanding anything to the contrary herein, such Investor shall, (x) to the extent legally permissible, provide the Company with a list of any Evaluation Material that such Investor intends to disclose (and, if applicable, the text of the disclosure language itself), in advance of any such disclosure, and (y) to the extent legally permissible, reasonably cooperate (at the Company’s expense) with the Company to the extent the Company may seek to limit such disclosure, including, if requested, in connection with the Company seeking a protective order in connection with such disclosure of Evaluation Material.


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(b)          Each Investor acknowledges that it is aware, and agrees that it will advise its Representatives who are informed as to the matters that are the subject of this Agreement, that (i) the Evaluation Material being furnished to such Investor contains or may itself be material non-public information (“MNPI”) concerning the Company or its Affiliates, (ii) the unauthorized disclosure of any Evaluation Material could frustrate the success of the Investment, which could have a material adverse effect on the Company and its Affiliates, and (iii) the United States securities Laws prohibit any person who has received MNPI concerning the Company or its Affiliates or the matters that are the subject of this Agreement from purchasing or selling securities of the Company or its Affiliates or from communicating such MNPI to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.  Such Investor hereby agrees that it will follow its “need to know” confidentiality policies and will maintain proper information barriers and other procedures in accordance with firm policies and practices (including, without limitation, separate deal teams where appropriate and the use of “information walls”) to avoid unauthorized disclosure of Evaluation Material to persons not on its deal team.  Prior to the Closing, neither the Company nor any of its Representatives shall furnish any Investor with Evaluation Material that constitutes MNPI unless at or prior to the Closing the Company either (x) makes public all material nonpublic Evaluation Material provided to such Investor or its Representatives or (y) confirms to such Investor in writing that none of such Evaluation Material remains MNPI.  For the avoidance of doubt, the entry by an Investor into this Agreement shall not create any presumption that the Investor has in fact received Evaluation Material.

(c)          Upon written request of the Company, such Investor shall (and shall direct its Representatives to), within ten days of its receipt of such written request promptly destroy or return to the Company all Evaluation Material and any copies of documents, papers, reports, analyses, compilations, forecasts, memoranda, notes, studies or other written or electronic material that contain, are based on, reflect, are generated in whole or in part from or are otherwise derived from Evaluation Material provided by the Company or its Representatives (such return or destruction of Evaluation Material to be confirmed by a duly authorized representative of such Investor in writing); provided, however, that such Investor and its Representatives may retain any Evaluation Material that they are required to retain pursuant to their respective (i) record-keeping requirements mandated by applicable Law or regulation or (ii) internal record maintenance policies and controls, so long as in each case such Investor and its Representatives who have received Evaluation Material continue to hold such Evaluation Material in accordance with the terms of this Agreement, notwithstanding the expiration of the term of, or termination of, this Agreement.

(d)          Except as required by applicable Law or securities exchange rules, no Party shall issue any press release or make any similar public announcement or communication concerning the Investment that makes reference to another Party without the prior written consent of such other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if such announcement or communication is required by applicable Law, the Party making such announcement shall promptly provide such other Party with prior notice of such disclosure.

SECTION 5.6.          Tax Information.  As reasonably requested in writing by the Company, each Investor shall use commercially reasonable efforts to provide to the Company


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 information relevant to the preservation of the Company’s and the Utility’s tax attributes.  Without limiting the generality of the foregoing, each Investor shall use commercially reasonable efforts to provide to the Company a true, correct and complete information form in the form of Exhibit A (the “Ownership Form”) promptly after the date hereof and in no case later than the date that is five days after the Plan Effective Date, and if an Investor determines that any information on such Ownership Form is incorrect after its submission to the Company thereof, such Investor shall provide the Company with an updated Ownership Form reasonably promptly following such determination.  The Company shall use commercially reasonable efforts to cooperate with each Investor in connection with the completion of any Ownership Form.  The Company shall treat confidentially all information provided to the Company pursuant to this Section 5.6, subject to the exceptions in the proviso in Section 5.5(a), applied mutatis mutandis.

SECTION 5.7.          Transfer Restrictions.

(a)          Until the 90-day anniversary of the Closing Date (the “Lock-Up Period”), each Investor shall not (i) Transfer any Shares or (ii) make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a short sale of, or the purpose of which is to offset the loss which results from a decline in the market price of, any Shares, or otherwise establish or increase, directly or indirectly, a put equivalent position, as defined in Rule 16a-1(h) under the Exchange Act, with respect to the Shares (any such action, a “Hedge”); provided, however, that (1) nothing in clause (ii) above shall prohibit a Permitted Hedging Transaction and (2) following notice to the Company (and providing any information reasonably requested by the Company), each Investor shall be permitted to pledge Registrable Securities for a bona fide loan or other extension of credit, including any subsequent transfer of such Registrable Securities to such lender or collateral agent or other transferee in connection with the exercise of remedies under such loan or extension of credit, subject to such lender or collateral agent or other transferee agreeing not to sell or transfer such Registrable Securities for the remainder of the Lock-up Period.

(b)          Notwithstanding Section 5.7(a), each Investor shall be permitted to Transfer any portion or all of their Shares to an Affiliate of such Investor who is managed by the same investment manager as the transferor (other than any “portfolio company” as such term is customarily used among institutional investors) of such Investor; provided, however, that (x) in no event shall an Investor be permitted under this Section 5.7(b) to Transfer any portion or all of their Shares to (i) the Company or the Utility, (ii) any competitor of the Company or the Utility or any Affiliate of any such competitor or (iii) any person who would not be eligible to file on Schedule 13G if it owned over 5% of the Company, and (y) any transferee under this Section 5.7(b) must agree to comply with the transfer restrictions in this Section 5.7 and to be bound by all the other provisions and obligations contained herein applicable to the transferor, such agreement being in a form reasonably satisfactory to the Company.

(c)          Each Investor acknowledges the rights, remedies and restrictions included in the Company Charter Documents, including the restrictions on acquisitions, and that the Company intends to enforce such restrictions.

(d)          Any attempted Transfer or Hedge in violation of this Section 5.7 shall be null and void ab initio.


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SECTION 5.8.          Rule 144 Information.  From the Closing Date until the 12-month anniversary of the Closing Date, the Company shall timely file the reports required to be filed by it under the Exchange Act and the rules and regulations adopted by the SEC thereunder, to the extent necessary from time to time to permit the Investor to sell the Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 or any similar rule or regulation hereafter adopted by the SEC.

SECTION 5.9.          Consent Support.  Each Investor that is a Backstop Party, or that is Affiliated with a Backstop Party, shall execute and deliver (or, with respect to an Affiliated Backstop Party that cannot be caused to deliver such consent as a result of applicable Law, request in a manner consistent with such Investor’s relevant internal policies and procedures that such Affiliated Backstop Party execute and deliver) to the Company prior to the Cut-Off Date its affirmative consent, or (if applicable) the affirmative consent of its Affiliated Backstop Party, to the amendment and restatement of its respective Backstop Commitment Letter substantially in the form of the Consent Form.

SECTION 5.10.            GIC Information.  Notwithstanding anything else to the contrary herein or in any other document related hereto, the GIC Investor shall not be required to provide any non-public information with respect to itself or its Affiliates.

ARTICLE VI

SECTION 6.1.          Shelf Registration.

(a)

(i)          Subject to Section 6.1(b) and to the extent not previously filed or effective, as soon following the Plan Effective Date as is permissible under applicable rules and regulations of the SEC, the Company shall file with the SEC a registration statement (as may be amended, supplemented or replaced from time to time, the “Shelf Registration”) (on Form S-3 to the extent permissible) pursuant to applicable rules under the Securities Act covering the resale of all Registrable Securities, and any other securities desired by the Company, and shall (A) use reasonable best efforts to cause such registration statement to become effective on the earliest date practicable and (B) cause such registration statement to become effective in all events not later than 20 days after the Plan Effective Date.

(ii)          Subject to Section 6.1(b), the Company shall use commercially reasonable efforts to keep the Shelf Registration continuously effective under the Securities Act in order to permit the prospectus forming a part thereof to be usable by each Investor until the date as of which all Registrable Securities covered by the Shelf Registration are no longer Registrable Securities.

(iii)          Subject to Section 6.1(a)(ii), the Company shall, from time to time, supplement and amend, or replace by filing a new registration statement, the Shelf Registration if required in each case by the Securities Act, including the rules, regulations or instructions applicable to the registration form used by the Company for the Shelf Registration.



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(b)          Deferral of Filing; Suspension of Use.  The Company may defer the filing or the effectiveness, or suspend the use, of the Shelf Registration at any time if the Company determines, in its sole discretion acting in good faith, that such action or use (or proposed action or use) (i) would require the Company to make an Adverse Disclosure or (ii) would impede, delay or interfere with any financing, acquisition, corporate reorganization or other significant transaction then pending or proposed to be taken by the Company or any of its Subsidiaries (or any negotiations, discussions or pending proposals with respect thereto); provided, however, that the Company shall not exercise its rights to deferral or suspension pursuant to this Section 6.1(b), and shall not so effect any such deferral or suspension, for more than a total of 30 days (which need not be consecutive) in any three-month period.  The Company shall promptly notify each Investor of any deferral or suspension pursuant to this Section 6.1(b) and the Company agrees that it will terminate any such deferral or suspension as promptly as reasonably practicable and will promptly notify each Investor in writing of the termination of any such deferral or suspension.

SECTION 6.2.          Registration Procedures.

(a)          In connection with the registration statement required by or filed pursuant to Section 6.1(a), subject to the terms and conditions of this Agreement, the Company shall:

(i)          furnish to each Investor copies of reasonably complete drafts of the registration statement or any amendments thereto, and the Company shall consider in good faith any corrections reasonably requested by such Investor with respect to information related to such Investor prior to filing any such registration statement or amendment;

(ii)          comply with the provisions of Sections 6.1(a)(ii) and 6.1(a)(iii);

(iii)          furnish to each Investor, without charge, electronic copies of such registration statement and any post-effective amendment thereto (but excluding all schedules, all exhibits and all materials incorporated or deemed incorporated therein by reference) and the prospectus included in such registration statement as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor (it being understood that, subject to Sections 6.1(b), 6.3 and 6.4 and the requirements of the Securities Act and applicable state securities Laws, the Company consents to the use of the prospectus and any amendment or supplement thereto by such Investor in connection with the offering and sale of the Registrable Securities covered by the registration statement of which such prospectus, amendment or supplement is a part);

(iv)          promptly following its actual knowledge thereof, notify each Investor (A) when the prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to the registration statement or any post-effective amendment, when the same has become effective, (B) of the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Securities under state securities or “blue sky” Laws or the initiation of any proceedings for that purpose or (C) of the happening of any


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event that requires the making of any changes in such registration statement, prospectus or documents so that they shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, as promptly as practicable thereafter, prepare and file with the SEC and furnish a supplement or amendment to such prospectus so that, as thereafter deliverable to the purchasers of such Registrable Securities, such prospectus shall not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;

(v)          otherwise comply with all applicable rules and regulations of the SEC, including the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder, and use commercially reasonable efforts to make generally available to each Investor an earnings statement satisfying the provisions of Section 11(a) of the Securities Act, which requirement shall be deemed to be satisfied with respect to each Investor if the Company files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;

(vi)          cause the Registrable Securities included in the Shelf Registration to be listed on each securities exchange, if any, on which similar securities issued by the Company are then listed;

(vii)          maintain a transfer agent and registrar for all Registrable Securities registered hereunder;

(viii)          notify each Investor promptly of any request by the SEC for the amending or supplementing of such registration statement or prospectus or for additional information; and

(ix)          advise each Investor, promptly after it receives notice or obtains actual knowledge thereof, of the issuance of any stop order by the SEC suspending the effectiveness of such registration statement or the initiation of any proceeding for such purpose and promptly use commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued.

(b)          Each Investor shall reasonably cooperate with the Company in the preparation and filing of the registration statement under the Securities Act and any related prospectus, in each case pursuant to this Agreement, and any amendment or supplement thereto, and provide the Company with all information reasonably necessary to complete such preparation as the Company may, from time to time, reasonably request in writing, and the Company may exclude from such registration the Registrable Securities of an Investor (or not proceed with such registration) and be relieved of any related obligations hereunder if such Investor fails to furnish such information within a reasonable time after receiving such request.  Each Investor, within three business days of such Investor’s receipt of a reasonable written request of the Company, shall provide the Company with information with respect to its beneficial ownership of Common Stock and, promptly following the date on which such Investor


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determines that it no longer holds any Registrable Securities as a result of one or more sales or transfers thereof, shall notify the Company in writing thereof.

(c)          Each of the Parties shall treat all notices of transfers and proposed transfers and registrations, all notices of, and information relating to, any blackout periods under Section 6.1(b) and all Suspension Notices received from another Party with the strictest confidence (as Evaluation Material in accordance with Section 5.5 and in accordance with the terms of any applicable confidentiality agreement among the Company and the Investor) and shall not disseminate such information or disclose the existence thereof.

SECTION 6.3.          Free Writing Prospectuses.  Each Investor agrees that, unless it obtains the prior written consent of the Company, it shall not make any offer relating to the Registrable Securities that would constitute a “free writing prospectus”, as defined in Rule 405 under the Securities Act, required to be filed with the SEC.

SECTION 6.4.          Suspension of Dispositions.  Each Investor agrees that upon receipt of any notice (a “Suspension Notice”) from the Company of the happening of any event of the kind described in Sections 6.2(a)(iv)(B), 6.2(a)(iv)(C) or 6.2(a)(ix), such Investor shall forthwith discontinue disposition of Registrable Securities until such Investor’s receipt of the copies of the supplemented or amended prospectus, or until it is advised in writing (the “Advice”) by the Company that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the prospectus, and, if so directed by the Company, such Investor shall deliver to the Company all copies, other than permanent file copies then in such Investor’s possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice.  The Company shall use commercially reasonable efforts and take such actions as are reasonably necessary to render the Advice as promptly as practicable.

SECTION 6.5.          Registration Expenses.  The Company shall pay all of its fees and expenses incident to the performance of or compliance with its obligations under this Article VI, including fees and expenses of compliance with securities or blue sky Laws, SEC filing fees, listing application fees, printing expenses, transfer agent’s and registrar’s fees, cost of distributing prospectuses in final form and any supplements thereto and fees and disbursements of counsel for the Company and all independent certified public accountants for the Company and other Persons retained by the Company (but not including any commissions attributable to the sale of Registrable Securities or fees and expenses of counsel and any other Representative representing the Investor).  Each Investor shall pay all its own expenses, including fees and expenses of any counsel retained by it.

SECTION 6.6.          Indemnification.

(a)          Indemnification by the Company.  The Company agrees to indemnify and hold harmless, to the fullest extent permitted by Law, each Investor and the investment manager or managers acting on behalf of such Investor with respect to the Registrable Securities, Persons, if any, who Control any of them, and each of their respective Representatives (each, an “Indemnitee”), from and against any and all losses, penalties, judgments, suits, costs, claims, damages, liabilities and expenses, joint or several (including reasonable costs of investigation 


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and legal expenses) (“Losses”), arising out of or caused by any untrue statement or alleged untrue statement of a material fact contained in the registration statement or any related prospectus in each case relating to the Registrable Securities (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or arising out of or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in the case of the prospectus, in light of the circumstances in which they were made, not misleading, except insofar as such Losses arise out of or are caused by any such untrue statement or omission included or omitted in conformity with information furnished to the Company in writing by an Indemnitee or any Person acting on behalf of an Indemnitee expressly for use therein.

(b)          Indemnification by Each Investor.  Each Investor agrees, to the fullest extent permitted under applicable Law, to indemnify and hold harmless each of the Company, each Person, if any, who Controls the Company, and each of their respective Representatives to the same extent as the foregoing indemnity from the Company, but only with respect to Losses arising out of or caused by an untrue statement or omission included or omitted in conformity with information furnished in writing by or on behalf of such Investor expressly for use in any registration statement described herein or any related prospectus relating to the Registrable Securities (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto).

(c)          Indemnification Procedures.

(i)          In case any claim is asserted or any proceeding (including any governmental investigation) shall be instituted where indemnity may be sought by an Indemnitee pursuant to any of the preceding paragraphs of this Section 6.6, such Indemnitee shall promptly notify in writing the Person against whom such indemnity may be sought (the “Indemnitor”); provided, however, that the omission so to notify the Indemnitor shall not relieve the Indemnitor of any liability that it may have to such Indemnitee except to the extent that the Indemnitor was prejudiced by such failure to notify.  The Indemnitor, upon request of the Indemnitee, shall retain counsel reasonably satisfactory to the Indemnitee to represent (subject to the following sentences of this Section 6.6(c)(i)) the Indemnitee and any others the Indemnitor may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding.  In any such proceeding, any Indemnitee shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (A) the Indemnitor and the Indemnitee shall have mutually agreed to the retention of such counsel, (B) the Indemnitor fails to take reasonable steps necessary to defend diligently any claim within ten days after receiving written notice from the Indemnitee that the Indemnitee believes the Indemnitor has failed to take such steps, or (C) the named parties to any such proceeding (including any impleaded parties) include both the Indemnitor and the Indemnitee and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests or legal defenses between them and, in all such cases, the Indemnitor shall only be responsible for the reasonable fees and expenses of such counsel.  It is understood that the Indemnitor shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate law


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firm (in addition to any appropriate local counsel) for all such Indemnitees.  The Indemnitor shall not be liable for any settlement of any proceeding affected without its written consent.

(ii)          If the indemnification provided for in this Section 6.6 is held by a court of competent jurisdiction to be unavailable to an Indemnitee in respect of any Losses referred to herein, then the Indemnitor, in lieu of indemnifying such Indemnitee hereunder, shall contribute to the amount paid or payable by such Indemnitee as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the Indemnitor and the Indemnitee and Persons acting on behalf of or Controlling the Indemnitor or the Indemnitee in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations.  The relative fault of the Company, the Investor and Persons acting on behalf of or Controlling the Company or the Investor shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, the Investor or by Persons acting on behalf of the Company or the Investor and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.  The Indemnitor shall not be required to contribute pursuant to this Section 6.6(c)(ii) if there has been a settlement of any proceeding affected without its written consent.

SECTION 6.7.          Transfer of Registration Rights.  The rights to cause the Company to register Registrable Securities pursuant to this Agreement may not be transferred or assigned to any other Person, other than in connection with a transfer of Shares pursuant to Section 5.7(b).

SECTION 6.8.          Opt-Out.  At any time prior to the initial effectiveness of the Shelf Registration, any Investor may irrevocably elect to opt out of the registration rights under this Article VI.  Any Investor that elects to opt out (a) shall not be entitled to the inclusion of any of its Shares in any Shelf Registration, (b) shall not receive notices or notifications under this Article VI, (c) shall not be subject to Section 6.2(c) and (d) shall not have any other rights or obligations of an “Investor” under this Article VI.

SECTION 6.9.          Legend.  Upon or promptly following the effectiveness of the Shelf Registration, the Company shall take such actions as may be reasonably requested by the Company’s transfer agent so that each Investor may sell, pursuant to such registration statement, any of its Registrable Securities without any legend.

ARTICLE VII

MISCELLANEOUS

SECTION 7.1.          Interpretation of Provisions; Severability.  Article, Section and Schedule references are to this Agreement, unless otherwise specified. All references to instruments, documents, contracts, and agreements are references to such instruments, documents, contracts, and agreements as the same may be amended, supplemented, and


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otherwise modified from time to time, unless otherwise specified. The word “including” shall mean “including but not limited to.” Whenever any Party has an obligation under the Operative Documents, the expense of complying with that obligation shall be an expense of such Party unless otherwise specified. Whenever any determination, consent or approval is to be made or given by any Party to this Agreement, such action shall be in such Party’s sole discretion unless otherwise specified in this Agreement. If any provision in the Operative Documents is held to be illegal, invalid, not binding, or unenforceable, such provision shall be fully severable and the Operative Documents shall be construed and enforced as if such illegal, invalid, not binding, or unenforceable provision had never comprised a part of the Operative Documents, and the remaining provisions shall remain in full force and effect. The Operative Documents have been reviewed and negotiated by sophisticated parties with access to legal counsel and shall not be construed against the drafter.  The headings in this Agreement are for reference purposes only and will not in any way affect the meaning or interpretation of this Agreement.

SECTION 7.2.          Nonsurvival of Representations and Warranties.

(a)          None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Closing, other than the representations and warranties in Sections 3.5, 3.12, 3.14, 4.6, 4.7, 4.8 and 4.9 (the “Surviving Representations”).  After the Closing, no Party may assert in any action, claim or legal proceeding against any other Party, or assert as a defense in any action, claim or legal proceeding brought by any other Party, (i) any breach of, noncompliance with or inaccuracy of any representation or warranty in this Agreement or in any instrument delivered pursuant to this Agreement, other than a Surviving Representation, or (ii) any breach of Section 5.1 or 5.3.  This Section 7.2 shall not limit any covenant or agreement of the parties which by its terms contemplates performance after the Closing.

(b)          Notwithstanding anything to the contrary in this Agreement, including this Section 7.2, no Party shall be deemed to have waived any rights, claims, causes of action or remedies against another party with respect to claims for fraud.

SECTION 7.3.          No Waiver; Modifications in Writing.

(a)          No Waiver. No failure or delay on the part of any Party in exercising any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to a Party at law or in equity or otherwise.

(b)          Modifications in Writing. Except as otherwise provided herein, no amendment, waiver, consent, modification, or termination of any provision of this Agreement shall be effective unless in writing and signed by each of the Parties hereto affected by such amendment, waiver, consent, modification, or termination. Any amendment, supplement or modification of or to any provision of this Agreement, any waiver of any provision of this Agreement, and any consent to any departure by the Company from the terms of any provision of this Agreement shall be effective only in the specific instance and for the specific purpose for


30



which made or given. Except where notice is specifically required by this Agreement, no notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances.

(c)        To the extent that the Company agrees with any Person to terms for the purchase of Common Stock that are more favorable to any Investor than the terms set forth in this Agreement, with respect to this Investment or in a transaction with such Person that is of a similar nature as the Investment, taking into account, as the principal factors, the size of the Investment and the security being purchased (excluding allocation provisions that apply proportionately relative to the size of such Investor’s purchase of Common Stock and excluding any exceptions to Article IV, other than exceptions to Section 4.4(a), in any Investor Disclosure Letter), whether by modification to this Agreement, by a separate or side agreement or otherwise, the Company shall promptly provide notice of such terms to all other Investors, and such terms shall be deemed without further action to be incorporated into this Agreement for all Investors, except as to an Investor that shall object to such incorporation in writing. This Section 7.3(c) shall not apply to the Backstop Commitment Letters or any amendment thereto..

SECTION 7.4.          Binding Effect; Assignment.

(a)          Binding Effect. This Agreement shall be binding upon the Company, each Investor, and their respective successors and permitted assigns. Except as expressly provided in this Agreement, this Agreement shall not be construed so as to confer any right or benefit upon any Person other than the Parties to this Agreement and their respective successors and permitted assigns; provided, however, that each Party agrees that each of the Investment Banks, in their capacity as placement agent for the Company, may rely on, and shall have the benefit of, the representations, warranties and agreements of the Company contained in Sections 3.5, 3.14 and 3.17 and of each Investor contained in Sections 4.7, 4.8, 4.9 and 7.13.

(b)          Assignment of Rights. All or any portion of the rights and obligations of each Investor under this Agreement may be transferred by such Investor to any of its Affiliates with the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed); provided, however, that (i) in the event of such assignment, the assignee must agree in writing to be bound by the provisions of this Agreement, including the rights, interests and obligations so assigned, (ii) no such assignment will relieve such Investor of its obligations hereunder prior to the Closing, (iii) such Investor and assignee shall each provide a new or updated, as applicable, Exhibit A in connection with such assignment and (iv) no such assignment to any assignee shall be permitted if as a result of such assignment, the assignee, together with its Affiliates, would upon the consummation of the Investment pursuant to this Agreement beneficially own more than 4.75% of the Common Stock outstanding as of the time immediately preceding the Investment.  Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned or transferred (in whole or in part) by the Company (whether by operation of law or otherwise) without the prior written consent of the Investors.

SECTION 7.5.          Communications.  All notices and demands provided for hereunder shall be in writing and shall be given by registered or certified mail, return receipt

31


requested, air courier guaranteeing overnight delivery, electronic mail or personal delivery to the following addresses:

(a)          If to the Investor, to the address provided on such Investor’s signature page to this Agreement (and any appended page thereto);

(b)          If to the Company:

PG&E Corporation
77 Beale Street
P.O. Box 770000
San Francisco, California 94177
Attention: Janet Loduca, Senior Vice President and General Counsel

with a copy to:

Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, New York 10019
Attention:  Richard Hall; Paul Zumbro; C. Daniel Haaren
Email:  RHall@cravath.com; PZumbro@cravath.com; DHaaren@cravath.com

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York  10153
Attention:  Stephen Karotkin
Email:  Stephen.karotkin@weil.com

or to such other address as the Company or an Investor may designate in writing. All notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; at the time of transmittal, if sent via electronic mail; upon actual receipt if sent by certified mail, return receipt requested; and upon actual receipt if delivered by an air courier guaranteeing overnight delivery.

SECTION 7.6.          Entire Agreement; No Other Representations or Warranties.

(a)          This Agreement and the Company Disclosure Letter are intended by the Parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the Parties hereto in respect of the  subject matter contained herein and therein. This Agreement supersedes all prior agreements and understandings between the Parties with respect to such subject matter.

(b)          Except for the representations and warranties of the Company expressly set forth in Article III and the representations and warranties of each Investor expressly set forth in Article IV, the Company and each Investor mutually acknowledge that none of the Company, any Investor, any of their respective Representatives or any other Person (i) has made or is making any express or implied representation or warranty with respect to the Company, any


32



Investor or their respective businesses, operations, assets, liabilities, condition (financial or otherwise) or prospects, and any such representation or warranty is hereby disclaimed by the Company or each Investor, as applicable, on behalf of itself and on behalf of its Representatives, or (ii) will have or be subject to any liability or indemnification obligation to any other Person resulting from the delivery, dissemination or any other distribution by such Party to any other Party or such other Party’s Representatives, or the use by such other Party or any of such other Party’s Representatives, of any information, documents, estimates, projections, forecasts or other forward-looking information, business plans or other material developed by or provided or made available to such other Party or any of such other Party’s Representatives, including in due diligence materials, or management presentations (formal or informal), in anticipation or contemplation of the Investment, and each Party, on behalf of itself and on behalf of its Representatives, expressly waives any such claim relating to the foregoing matters.

(c)          Each Party hereto further agrees that it shall not bring any action, claim or legal proceeding against any other Party (or any Representative of any other Party) arising out of or relating to this Agreement or the transactions contemplated hereby on the basis, or assert (whether affirmatively or as a defense) in any such action, claim or legal proceeding brought by any other Person, that in entering into this Agreement the first-mentioned Party actually relied on any statement, representation or warranty not expressly set forth in this Agreement of or made by any other Party (or any Representative of any other Party).

SECTION 7.7.          Governing Law; Jurisdiction.  This Agreement, and any claim arising out of or relating to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of New York (excluding any conflict of laws rules and principles of the State of New York that would result in the internal Laws of any other jurisdiction being applicable) applicable to contracts executed in and to be performed entirely within that State. All actions arising out of or relating to this Agreement or the transactions contemplated hereby shall be heard and determined in the United States District Court for the Southern District of New York located in the borough of Manhattan in the City of New York, or if such court does not have jurisdiction, the Supreme Court of the State of New York, New York County, and the Parties hereto hereby irrevocably submit to the exclusive jurisdiction and venue of such courts in any such action and irrevocably waive the defense of an inconvenient forum or lack of jurisdiction to the maintenance of any such action. The consents to jurisdiction and venue set forth in this paragraph shall not constitute general consents to service  of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the Parties hereto. To the extent that service of process by mail is permitted by applicable Law, each Party irrevocably consents to the service of process in any such suit, action or other proceeding in such courts by the mailing of such process by registered or certified mail, postage prepaid, at its address for notices provided for herein.

SECTION 7.8.          Specific Enforcement.  The Parties hereto agree that irreparable damage for which monetary relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached, including if the Parties hereto fail to take any action required of them hereunder to cause the Closing to occur. The Parties acknowledge and agree that (a) the Parties shall be entitled to an injunction or injunctions, specific performance or other

33



equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof (and the Investment to be consummated on the terms and subject to the conditions set forth in this Agreement) in the courts described in Section 7.7 without proof of damages or otherwise (in each case, subject to the terms and conditions of this Section 7.8), this being in addition to any other remedy to which they are entitled under this Agreement and (b) the right of specific enforcement is an integral part of the transactions contemplated hereby and without that right, neither the Company nor the Investors would have entered into this Agreement. The Parties hereto agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, and agree not to assert that a remedy of monetary damages would provide an adequate remedy or that the Parties otherwise have an adequate remedy at law. The Parties hereto acknowledge and agree that any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 7.8 shall not be required to provide any bond or other security in connection with any such order or injunction.

SECTION 7.9.          WAIVER OF JURY TRIAL.  EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 7.9.

SECTION 7.10.          Execution in Counterparts.  This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement. An executed copy of this Agreement delivered by facsimile, electronic mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement.  The words “executed,” signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable Law, including the Federal Electronic


34



Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable Law, including any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

SECTION 7.11.          Termination.

(a)          This Agreement may be terminated at any time at or prior to the Closing by the mutual written consent of the Company and Investors entitled to purchase a majority of the Shares to be purchased by the Investors.

(b)          Notwithstanding anything herein to the contrary, this Agreement shall automatically terminate at any time at or prior to the Closing:

(i)          if a statute, rule, order, decree or regulation shall have been enacted or promulgated, or if any action shall have been taken by any Governmental Authority of competent jurisdiction that permanently restrains, permanently precludes, permanently enjoins or otherwise permanently prohibits the consummation of the transactions contemplated by this Agreement or makes the transactions contemplated by this Agreement illegal;

(ii)          if, under the HSR Act or otherwise, the FTC or the DOJ shall have commenced or threatened to commence any proceeding to delay or enjoin or seek damages in connection with the transactions contemplated by this Agreement;

(iii)          upon the failure of the Closing to have occurred by December 31, 2020;

(iv)          upon the failure of the Confirmation Date to have occurred on or prior to June 30, 2020;

(v)          if (A) as of 6:00 p.m. Eastern Time on June 8, 2020 (the “Cut-Off Date”), the Company has not received affirmative consents substantially in the form attached as Exhibit A to the Company Disclosure Letter (the “Consent Form”) from the holders of at least a majority of the Aggregate Backstop Commitments or (B) as of 6:00 p.m. Eastern Time on June 10, 2020, the Company has not obtained Forward Contract Purchase Commitments (as defined in the Consent Form) in an aggregate amount at least equal to the Maximum Forward Contract Amount (as defined in the Consent Form); or

(vi)          the Public Equity Offering Price, when calculated by the Company, is less than the Backstop Price.

(c)          In the event of the termination of this Agreement as provided in Section 7.11(a) or 7.11(b), this Agreement shall forthwith become null and void (other than Section 5.5 and Section 7.12). In the event of such termination, there shall be no liability on the part of any Party hereto, except as set forth in this Section 7.11 and Section 7.12; provided, however, that nothing herein shall relieve any Party from any liability or obligation with respect to any willful breach of this Agreement.


35



(d)          An Investor may terminate this Agreement, solely as to itself, by written notice (which shall describe the basis for such termination), at any time on or after the occurrence of any of the following:

(i)          the Closing has not taken place on or prior to 11:59 p.m. New York City time on the 45th day after the date of this Agreement; or

(ii)          the Company has notified one or more Backstop Parties pursuant to such Backstop Parties’ respective Backstop Commitments that it will be required to purchase shares of Common Stock as described in Section 2(a) of their respective Backstop Commitment Letters, and the Company agrees to notify each Investor simultaneously with such notification by the Company to one or more Backstop Parties.

In the event of the termination of this Agreement by an Investor (such terminating Investor, a “Terminating Investor”) as provided in Sections 7.11(d)(i) through (ii), this Agreement shall forthwith become null and void (other than Section 5.5 and Section 7.12) solely with respect to such Terminating Investor.  In the event of such termination, there shall be no liability or obligation on the part of such Terminating Investor hereunder or on the part of any other Party with respect to such Terminating Investor, except as set forth in this Section 7.11 and Section 7.12; provided, however, that nothing herein shall relieve any Party from any liability or obligation with respect to any willful breach of this Agreement.

SECTION 7.12.          Expenses.  Except as otherwise expressly provided herein, all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the Investment shall be paid by the Party incurring such costs and expenses, whether or not the Closing shall have occurred.

SECTION 7.13.          Placement Agents.  Without limitation of the foregoing, each Investor hereby further acknowledges and agrees that (i) the Investment Banks are acting solely as placement agents in connection with the transactions contemplated hereby and are not acting as an underwriter, initial purchaser, dealer or in any other such capacity and are not and shall not be construed as a fiduciary for such Investor, the Company or any other person or entity in connection with the transactions contemplated hereby, (ii) the Investment Banks have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the transactions contemplated hereby, and (iii) the Investment Banks will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the transactions contemplated hereby or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) of any thereof, or (B) the financial condition, business, or any other matter concerning the Company or the transactions contemplated hereby.  Each Investor agrees that neither Investment Bank nor any of their respective Affiliates, control persons, officers, directors or employees shall be liable to such Investor for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with such Investor’s purchase of the Shares pursuant to this Agreement.




36



SECTION 7.14.            Investors Not a Group.  Each of the parties agrees and acknowledges that the Investors are executing a single agreement solely for purposes of convenience, that each of the Investors has separately negotiated regarding the terms of this Agreement with the Company, that this Agreement constitutes a separate agreement between the Company and each Investor and not an agreement among Investors, that no Investor shall be responsible or liable for the representations, warranties, agreements or covenants of any other Investor pursuant to this Agreement, that there is no agreement, arrangement or understanding among the Investors with respect to the subject matter of this Agreement or otherwise with respect to any Equity Securities of the Company and that none of the Investors is acting as a group (as that term is defined in Rule 13d-5 under the Exchange Act) with any other Investor.

[Signature pages follow]


37


IN WITNESS WHEREOF, the parties hereto execute this Agreement, effective as of the date first above written.

  PG&E CORPORATION,  
       

By:
/s/ Jason P. Wells  
    Name: 
Jason P. Wells  
    Title:     Executive Vice President and Chief Financial Officer  
       





[Company Signature Page to Investment Agreement]



Appaloosa LP, on behalf of certain foods for which its acts as manager or investment adviser


Signature:  /s/ James E. Bolin 

Name of Signatory:  James E. Bolin

Title:  Partner




[Investor Signature Page to Investment Agreement]






Third Point Loan LLC,
as nominee for funds managed and/or advised
by Third Point LLC

By:  THIRD POINT LLC, its Attorney-in-Fact


Signature:  /s/ James P. Gallagher

Name of Signatory:  James P. Gallagher

Title:  CAO


Third Point Loan LLC executes this signature page as nominee for funds managed and/or advised by Third Point LLC and not in its individual capacity. All information and representations and warranties of Third Point Loan LLC herein are provided by and with respect to such funds.



[Investor Signature Page to Investment Agreement]





ZP MASTER UTILITY FUND, LTD.
By: Zimmer Partners, LP, its investment manager


Signature:  /s/ Barbara Burger

Name of Signatory:  Barbara Burger

Title:  General Counsel and Authorized Person



[Investor Signature Page to Investment Agreement]




EP ZIMMER LTD.
By: Zimmer Partners, LP, its investment manager


Signature:  /s/ Barbara Burger

Name of Signatory:  Barbara Burger

Title:  General Counsel and Authorized Person


[Investor Signature Page to Investment Agreement]





ZP MASTER ENERGY FUND, L.P.
By: Zimmer Partners, LP, its investment manager


Signature:  /s/ Barbara Burger

Name of Signatory:  Barbara Burger

Title:  General Counsel and Authorized Person



[Investor Signature Page to Investment Agreement]
 





ZP ENERGY FUND, L.P.
By: Zimmer Partners, LP, its investment manager


Signature:  /s/ Barbara Burger

Name of Signatory:  Barbara Burger

Title:  General Counsel and Authorized Person



[Investor Signature Page to Investment Agreement]





Fidelity Puritan Trust: Fidelity Series Opportunities Fund



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory



[Investor Signature Page to Investment Agreement]






Fidelity Puritan Trust: Fidelity Low-Priced Stock Fund Principal All Sector Sub



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory


[Investor Signature Page to Investment Agreement]






Fidelity Low Priced Stock Commingled Pool Principal All Sector Sub



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory



[Investor Signature Page to Investment Agreement]




Fidelity Puritan Trust: Fidelity Low-Priced Stock K6 Fund Principal All Sector Sub-portfolio



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory



[Investor Signature Page to Investment Agreement]





Fidelity Puritan Trust: Fidelity Balanced K6 Utilities Sub-portfolio



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory


[Investor Signature Page to Investment Agreement]







Fidelity Devonshire Trust: Fidelity Series All-Sector Equity Fund Utilities Sub



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory



[Investor Signature Page to Investment Agreement]






Fidelity Advisor Series I: Fidelity Advisor Balanced Fund Utilities Sub



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory


[Investor Signature Page to Investment Agreement]






Fidelity Insurance Products Fund III: Balanced Portfolio Utilities Sub



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory



[Investor Signature Page to Investment Agreement]





Fidelity Puritan Trust: Fidelity Balanced Fund Utilities Sub



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory


[Investor Signature Page to Investment Agreement]





Fidelity Select Portfolios: Fidelity Telecom and Utilities Fund



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory


[Investor Signature Page to Investment Agreement]





MainStay VP Funds Trust MainStay VP Fidelity Institutional AM Utilities Portfolio



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory



[Investor Signature Page to Investment Agreement]





Fidelity Select Portfolios: Utilities Portfolio



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory

[Investor Signature Page to Investment Agreement]





Fidelity Central Investment Portfolios LLC: Fidelity Utilities Central Fund



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory


[Investor Signature Page to Investment Agreement]





Fidelity Advisor Series VII: Fidelity Advisor Utilities Fund



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory


[Investor Signature Page to Investment Agreement]
 




Variable Insurance Products Fund IV: Utilities Portfolio



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory


[Investor Signature Page to Investment Agreement]





Strategic Advisers Core Fund – FIAM Sector Managed Utilities Sub



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory


[Investor Signature Page to Investment Agreement]





Strategic Advisers Fidelity U.S. Total Stock Fund – FIAM Sector Managed - Utilities Sub



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory



[Investor Signature Page to Investment Agreement]
 




Fidelity Devonshire Trust: Fidelity Stock Selector Large Cap Value Fund – Utilities Sub



Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory



[Investor Signature Page to Investment Agreement]
 
 



Fidelity Devonshire Trust: Fidelity Series Stock Selector Large Cap Value Fund - Utilities
Subportfolio


Signature:  /s/ Chris Maher

Name of Signatory:  Chris Maher

Title:  Authorized Signatory


[Investor Signature Page to Investment Agreement]
 
 



GIC PTE LTD



Signature:  /s/ Yeo King Ming Bryan

Name of Signatory:  Yeo King Ming Bryan

Title:  Managing Director




Signature:  /s/ Elaine Chan Wei-Hsing

Name of Signatory:  Elaine Chan Wei-Hsing

Title:  Managing Director


[GIC Signature Page to Investment Agreement]




Copies of all notices and demands provided to the GIC Investor under Section 7.5 of the Agreement shall also be provided to the following persons (it being understood that the provision of such copies to the persons set forth below shall not constitute notice or demand to the GIC Investor under Section 7.5 of the Agreement):

GIC Pte. Ltd.
280 Park Avenue, 9th Floor
New York, New York 10017
Attention:    Ara Metupalle; Zachary Mitschrich

And

Sidley Austin LLP
787 7th Avenue
New York, New York 10019
Attention:    Asi Kirmayer


[GIC Signature Page to Investment Agreement]



Schedule A

SCHEDULE OF INVESTORS


Investor
 
Aggregate Purchase Price
Appaloosa LP
$750,000,000.00
Third Point Loan LLC
$750,000,000.00
ZP Master Utility Fund, Ltd
$506,340,450.00
EP Zimmer Ltd.
$24,517,350.00
ZP Master Energy Fund, L.P.
$55,509,975.00
ZP Energy Fund, L.P.
$88,632,225.00
Fidelity Puritan Trust: Fidelity Series Intrinsic Opportunities Fund
$131,250,000.00
Fidelity Puritan Trust: Fidelity Low-Priced Stock Fund - Principal All Sector Sub
$210,000,000.00
Fidelity Low Priced Stock Commingled Pool - Principal All Sector Sub
$34,650,000.00
Fidelity Puritan Trust: Fidelity Low-Priced Stock K6 Fund - Principal All Sector Sub-portfolio
$17,850,000.00
Fidelity Puritan Trust: Fidelity Balanced K6 Fund - Utilities Sub-portfolio
$419,506.50
Fidelity Devonshire Trust: Fidelity Series All-Sector Equity Fund - Utilities Sub
$5,219,235.00
Fidelity Advisor Series I: Fidelity Advisor Balanced Fund - Utilities Sub
$4,237,590.00
Variable Insurance Products Fund III: Balanced Portfolio - Utilities Sub
$5,225,178.00
Fidelity Puritan Trust: Fidelity Balanced Fund - Utilities Sub
$37,382,194.50
Fidelity Select Portfolios: Fidelity Telecom and Utilities Fund
$24,210,900.00
MainStay VP Funds Trust - MainStay VP Fidelity Institutional AM Utilities Portfolio
$25,495,050.00
Fidelity Select Portfolios: Utilities Portfolio
$25,832,100.00
Fidelity Central Investment Portfolios LLC: Fidelity Utilities Central Fund
$14,411,250.00
Fidelity Advisor Series VII: Fidelity Advisor Utilities Fund
$15,635,550.00





Variable Insurance Products Fund IV: Utilities Portfolio
$4,742,461.50
Strategic Advisers Core Fund - FIAM Sector Managed Utilities Sub
$3,540,820.50
Strategic Advisers Fidelity U.S. Total Stock Fund - FIAM Sector Managed - Utilities Sub
$8,552,334.00
Fidelity Devonshire Trust: Fidelity Stock Selector Large Cap Value Fund - Utilities Sub
$297,675.00
Fidelity Devonshire Trust: Fidelity Series Stock Selector Large Cap Value Fund - Utilities Subportfolio
$6,048,157.50
GIC Pte. Ltd.
$500,000,000.00




Exhibit A

OWNERSHIP FORM

A.  Basic Ownership Information

Investor

Number of Shares of the
Company Owned as of
the Plan Effective Date
 
(Excluding Shares Acquired Hereunder)
 
Aggregate Purchase Price of
Shares Acquired Hereunder
 
 
[●]
 
[●]
 
 
[●]
 
[●]
 

B.  Additional Ownership Information

–  The table below must be completed even if the information duplicates that contained in part A.

–  In completing the table below:

The terms “own” and “acquire” and any variation thereon shall as used herein mean as determined for U.S. federal income tax purposes.

If any Investor is the manager or advisor of multiple investment funds or accounts and acting on behalf of such funds or account, the beneficial owner(s) are the respective funds or accounts on whose behalf they are acting.

If any beneficial owner is disregarded for U.S. federal income tax purposes, the tax recognized owner should be listed as the beneficial owner.

–  If any beneficial owner is controlled by any Person, or if any Person owns (directly or indirectly) 50% or more of the equity interests, capital or profits of a beneficial owner, and such Person directly or indirectly (other than through the listed beneficial owner) owns or is acquiring Common Stock as part of the Plan Funding, then separately in the table below (i) identify such Person and the relationship to the beneficial owner (and if there is more than one beneficial owner listed in the table, which beneficial owner), and (ii) provide the requested ownership information for such Person (including the number of shares owned indirectly other than through the listed beneficial owner).

–  If any beneficial owner is an individual and other family members or trusts also own or acquire Common Stock, separately in the table below (i) identify such family members or trust(s) and the relationship to the beneficial owner (and if there is more than one beneficial owner listed in the table, the applicable beneficial owner), and (ii) include the requested ownership information for





such Person(s).  A family member only includes the beneficial owner’s spouse, children, grandchildren or parents.

–  If any Investor listed on the table above is required to file a Schedule 13D or 13G with any other Person, please (i) list such other Person(s) in the table below, and (ii) include the requested ownership information for such Person(s).


Beneficial Owner
 
(if such Person is disregarded
for U.S. federal income tax
purposes, the Person listed
should be its tax-regarded
owner)
 
Number of Shares of the
Company Owned as of
the Plan Effective Date
 
(Excluding Shares
Acquired Hereunder)
 
Aggregate Purchase Price of
Shares Acquired Hereunder
 
 
[●]
 
[●]
 
 
[●]
 
[●]
 
[Name of Controlling Person or
Ultimate Controlling Person]
 
[●]
 
[●]
 
[Family members, if they also
own or are acquiring shares]
 
[●]
 
[●]
 
[Schedule 13D or 13G
Co-filing Person]
 
[●]
 
[●]
 




Exhibit B

FORM OF FUNDING NOTICE

[___], 2020

[Letterhead]


RE:  Investment in PG&E Corporation

ANTICIPATED CLOSING NOTICE

Reference is made to the Investment Agreement, dated June [●], 2020 (the “Investment Agreement”), among PG&E Corporation, a California corporation, and the Investors listed on the Schedule of Investors attached thereto as Schedule A.  Capitalized terms used but not defined herein have the meanings ascribed to them in the Investment Agreement.

This letter is to provide the Investor with notice that the investment pursuant to the Investment Agreement is currently expected to close on [●], 2020 (the “Closing”).  Pursuant to the Investment Agreement, the Investor will be required to pay its Aggregate Purchase Price in the amount equal to $[●] on the Closing Date.  Please deliver such amount in immediately available funds on the Closing Date to the following account:

Bank:
Address
ABA#:
Swift Code:
AIC Name:
AlC#:
Attention:

Please call if you have any questions.

Sincerely,

[Signatory to be person listed on Authorized Signatory List]




Exhibit C

FORM OF AUTHORIZED SIGNATORY LETTER

(ON LETTERHEAD)

To
:
[Investor]
     
From
:
PG&E Corporation
     
Date
:
[___]


AUTHORIZED OFFICERS OF PG&E CORPORATION ACTING ON BEHALF OF PG&E CORPORATION

Reference is made to the Investment Agreement, dated June [●], 2020 (the “Investment Agreement”), among PG&E Corporation, a California corporation, and the Investors listed on the Schedule of Investors attached thereto as Schedule A.  Capitalized terms used but not defined herein have the meanings ascribed to them in the Investment Agreement.

WE HEREBY CONFIRM AND CERTIFY that:

(a)
Bank Wire Instructions of PG&E Corporation - The designated bank account(s) established for wiring of the Investor’s Aggregate Purchase Price set forth in the Investment Agreement is as follows:

[Please provide details]

(b)          Authorized Officers – Listed below are the particulars of the officers of the Company who are authorized to provide Funding Notices pursuant to the Investment Agreement:

Name
Title
E-mail address
 
Contact No.
 
Specimen signature
 
[Please provide details]
 
       
         
         
         
         
         






Any changes to the above are to be provided in writing and signed by an authorized signatory and shall be valid and binding on the Company and the Investor, as applicable.

The above information is hereby certified by the following authorized persons*:

PG&E CORPORATION        
         
         
  
   
  
 
Name:
   
Name:
 
Title:
   
Title:
 
Date:
    Date:
 




* - If the signatory entity has only one authorized officer in part (b), please arrange for another person of the right capacity to sign off on behalf thereof to certify the above information.