EXHIBIT 1-3
COMMONWEALTH EDISON COMPANY
CUMULATIVE PREFERENCE STOCK
(WITHOUT PAR VALUE)
FORM OF UNDERWRITING AGREEMENT
_________ __, 200_
To the Representatives named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
1. Introductory. Commonwealth Edison Company, an Illinois corporation
(the "Company"), proposes to issue and sell from time to time up to
______________ shares of its cumulative preference stock, without par value (the
"Shares"). The Company proposes to sell to the underwriters named in Schedule II
hereto (the "Underwriters") for whom you are acting as Representative or
Representatives (the "Representatives") the number of Shares and with the terms
specified in Schedule I hereto (the "Purchased Shares").
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Registration
No. 333-_____) relating to its debt securities, first mortgage bonds, trust
preferred securities and cumulative preference stock which include the Purchased
Shares, (the "Securities"), and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"Act"), and has filed such amendments thereto as may have been required to the
date hereof. Such registration statement, as so amended, has been declared
effective by the Commission. Such registration statement and the prospectus
relating to the sale of the Securities by the Company constituting a part
thereof, including all documents incorporated therein by reference, as from time
to time amended or supplemented pursuant to the Act or the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are referred to herein as the
"Registration Statement," and the prospectus relating to the Securities,
including all documents incorporated therein by reference, as from time to time
amended or supplemented pursuant to the Act or the Exchange Act, is referred to
herein as the "Prospectus"; provided, however, that a supplement to the
Prospectus relating to an offering of Securities, other than the Purchased
Shares, shall be deemed to have supplemented the Prospectus only with respect to
the offering of the other Securities to which it relates. All documents filed by
the Company with the Commission pursuant to the Exchange Act and incorporated by
reference in the Registration Statement or the Prospectus, as aforesaid, are
hereinafter referred to as the "Incorporated Documents."
(b) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective complied, as of the date hereof
comply and as of the Closing Date (as hereinafter defined) will comply, in all
material respects with the applicable requirements of the Act and the Exchange
Act, and the rules and regulations of the Commission under such Acts; the
Incorporated Documents, as of their respective dates of filing with the
Commission, complied and will comply as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder; the Registration Statement and any amendment thereof
(including the filing of any annual report on Form 10-K), at the time it became
effective, did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus, at the time the
Registration Statement became effective did not, as of the date hereof does not
and as of the Closing Date will not, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in this
Section 1(b) shall not apply to (i) that part of the Registration Statement
which constitutes the Statements of Eligibility and Qualification (Forms T-1 and
T-2) under the Trust Indenture Act of 1939, as amended or (ii) statements in or
omissions from the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the Company in writing by
any Underwriter expressly for use in the Registration Statement or the
Prospectus.
(c) PricewaterhouseCoopers LLP, the accountants who certified
certain of the financial statements included or incorporated by reference in the
Prospectus, are independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder.
(d) The financial statements included or incorporated by
reference in the Prospectus present fairly in all material respects the
financial position, results of operations and cash flows of the Company at the
respective dates and for the respective periods specified and, except as
otherwise stated in the Prospectus, such financial statements have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved. The Company has no material
contingent obligation which is not disclosed in the Prospectus.
(e) Except as set forth in or contemplated by the Prospectus,
no material transaction has been entered into by the Company otherwise than in
the ordinary course of business and no materially adverse change has occurred in
the condition, financial or otherwise, of the Company, in each case since the
respective dates as of which information is given in the Prospectus.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Illinois with corporate power and authority to own its properties and conduct
its business as described in the Prospectus.
(g) Each significant subsidiary of the Company, as defined in
Rule 1-02 of Regulation S-X of the Commission ("Significant Subsidiary"), has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its
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incorporation; all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly and validly issued and is fully paid and
non-assessable; and all of the capital stock of each Significant Subsidiary is
owned by the Company free and clear of any pledge, lien, encumbrance, claim or
equity.
(h) Neither the Company nor any Significant Subsidiary is in
violation of its articles or certificate of incorporation, or in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any mortgage or any material contract, lease, note or
other instrument to which it is a party or by which it may be bound, or
materially in violation of any law, administrative regulation or administrative,
arbitration or court order to which it is subject or bound, except in each case
to such extent as may be set forth in the Prospectus; and the execution and
delivery of this Agreement, the incurrence of the obligations herein set forth
and the consummation of the transactions herein contemplated will not conflict
with or constitute a breach of, or default under, the articles of incorporation
or by-laws of the Company or any mortgage, contract, lease, note or other
instrument to which the Company or any Significant Subsidiary is a party or by
which it or any Significant Subsidiary may be bound, or any law, administrative
regulation or administrative, arbitration or court order to which it is subject
or bound.
(i) The Company has filed with the Illinois Commerce
Commission ("ICC") a petition with respect to the issuance and sale of the
Securities and the ICC has issued its order authorizing and approving such
issuance and sale. No consent of or approval by any other public board or body
or administrative agency, federal or state, is necessary to authorize the
issuance and sale of the Purchased Shares, except as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Purchased Shares by the Underwriters in the manner
contemplated herein and in the Prospectus.
(j) There is no pending or threatened suit or proceeding
before any court or governmental agency, authority or body or any arbitration
involving the Company or any of its significant subsidiaries required to be
disclosed in the Prospectus which is not adequately disclosed in the Prospectus.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) The franchise granted to the Company by the City Council
of the City of Chicago under an ordinance effective January 1, 1992, is valid
and subsisting and duly authorizes the Company to engage in the electric utility
business conducted by it in such City. The several franchises of the Company
outside the City of Chicago are valid and subsisting and authorize the Company
to carry on its utility business in the several communities, capable of granting
franchises, located in the territory served by the Company outside the City of
Chicago (with immaterial exceptions).
(m) The Company has good and sufficient title to all property
described or referred to in the Company's Mortgage dated July 1, 1923, as
amended and supplemented (the "Mortgage") and purported to be conveyed thereby,
subject only to the lien of the Mortgage and permitted liens as therein defined
(except as to property released from the lien of the Mortgage in
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connection with the sale or other disposition thereof, and certain other
exceptions which are not material in the aggregate).
(n) Except for changes contemplated by the Prospectus, the
authorized and outstanding capital stock of the Company is as set forth in the
Prospectus.
Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters in connection with the
offering of the Purchased Shares shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered thereby.
3. Purchase, Offering and Delivery -- Closing Date. Subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company at the purchase price set forth in Schedule I hereto, the
number of Purchased Shares set forth opposite each Underwriter's name in
Schedule II hereto. It is understood that the Underwriters propose to offer the
Purchased Shares for sale to the public as set forth in the Prospectus
Supplement, as hereinafter defined, relating to the Purchased Shares. The time
and date of delivery and payment shall be the time and date specified in
Schedule I hereto; provided, however, that such time or date may be accelerated
or extended by agreement between the Company and the Representatives or as
provided in Section 9 hereof. The time and date of such delivery and payment are
herein sometimes referred to as the "Closing Date." Delivery of the Purchased
Shares shall be made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to the account specified by
the Company. Delivery of the Purchased Shares shall be made through the
facilities of The Depository Trust Company
4. Agreements. The Company agrees with the several Underwriters that:
(a) Promptly following the execution of this Agreement, the
Company will cause the Prospectus, including as part thereof a prospectus
supplement relating to the Purchased Shares (the "Prospectus Supplement"), to be
filed with the Commission pursuant to Rule 424 under the Act and the Company
will promptly advise the Representatives when such filing has been made. Prior
to such filing, the Company will cooperate with the Representatives in the
preparation of the Prospectus Supplement to assure that the Representatives have
no reasonable objection to the form or content thereof when filed.
(b) The Company will promptly advise the Representatives (i)
when any amendment to the Registration Statement shall have become effective,
(ii) of any request by the Commission for any amendment of the Registration
Statement or amendment or supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Purchased Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will not file any
amendment to the Registration Statement or amendment or
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supplement to the Prospectus unless the Company has furnished the
Representatives a copy for their review prior to filing and will not file any
such proposed amendment or supplement without the consent of the
Representatives, which consent shall not be unreasonably withheld. The Company
will use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the
Purchased Shares is required to be delivered under the Act, any event occurs as
a result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to amend
or supplement the Registration Statement or the Prospectus to comply with the
Act or the Exchange Act or the rules and regulations of the Commission under
such Acts, the Company promptly will prepare and file with the Commission,
subject to paragraph (b) of this Section 4, an amendment or supplement which
will correct such statement or omission or an amendment or supplement which will
effect such compliance.
(d) The Company will furnish without charge to (i) each of the
Representatives and counsel for the Underwriters a signed copy of the
Registration Statement (but without exhibits incorporated by reference), as
originally filed, all amendments thereto filed prior to the Closing Date and all
Incorporated Documents (including exhibits, other than exhibits incorporated by
reference), (ii) each other Underwriter a conformed copy of the Registration
Statement (but without exhibits), as originally filed, all amendments thereto
(but without exhibits) and all Incorporated Documents (but without exhibits
other than the Company's latest Annual Report to shareholders) and (iii) each
Underwriter as many copies of the Prospectus, the Prospectus Supplement thereto
and, so long as delivery of a prospectus or supplement thereto by an Underwriter
or dealer may be required under the Act, any amendments thereof and supplements
thereto (but without Incorporated Documents or exhibits), as soon as available
and in such quantities as the Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the
qualification of the Purchased Shares for sale under the laws of such
jurisdictions within the United States as the Representatives may designate and
will maintain such qualification in effect so long as required for the sale of
the Purchased Shares, provided, that in no event shall the Company be obligated
to qualify to do business in any jurisdiction where it is not now so qualified
or take any action that would subject it to service of process in suits (other
than those arising out of the offering or sale of the Purchased Shares) in any
jurisdiction where it is not now so subject. The Company will promptly advise
the Representatives of the receipt by the Company of any notification with
respect to the qualification of the Purchased Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(f) The Company agrees to pay the costs and expenses relating
to the following matters: (i) the preparation of the Prospectus and the issuance
of the Purchased Shares; (ii) the preparation, printing or reproduction of the
Prospectus and each amendment or supplement thereto; (iii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Prospectus, and all amendments
or supplements to it, as may, be reasonably requested for use in connection with
the
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offering and sale of the Purchased Shares; (iv) the preparation, printing,
authentication, issuance and delivery of certificates for the Purchased Shares,
including any stamp or transfer taxes in connection with the original issuance
and sale of the Purchased Shares; (v) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Purchased Shares; (vi) any registration or qualification of the Purchased
Shares for offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such registration and qualification); (vii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Purchased Shares; (viii) the fees and expenses of the Company's accountants
and counsel (including local and special counsel); (ix) the fees and expenses of
any rating agencies rating the Purchased Shares and (x) all other costs and
expenses incident to the performance by the Company of its obligations
hereunder.
(g) The Company will, if requested by the Representatives, use
its best efforts to cause the Purchased Shares to be listed on the New York
Stock Exchange.
(h) During the period beginning from the date of this
Agreement and continuing to and including the later of (i) the termination of
trading restrictions on the Purchased Shares, as notified to the Company by the
Representatives, and (ii) the Closing Date, the Company will not offer, sell,
contract to sell or otherwise dispose of any Shares which are substantially
similar to the Purchased Shares, without the prior written consent of the
Representatives; provided, however, that in no event shall the foregoing period
extend more than fifteen calendar days from the date of this Agreement.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Purchased Shares
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the date hereof and the Closing Date,
to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for that purpose
shall then be pending before, or threatened by, the Commission.
(b) The Company shall have furnished to the Representatives
the opinion of Sidley Xxxxxx Xxxxx & Xxxx, counsel for the Company, dated the
Closing Date and addressed to the Representatives, in form and substance
satisfactory to each of the Representatives and their counsel.
(c) The Representatives shall have received from Winston &
Xxxxxx, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Purchased Shares, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have
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furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Treasurer or Assistant Treasurer of
the Company, dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Prospectus, any amendment or supplement
to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on the Closing
Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(ii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any amendment or
supplement thereto), there has been no material adverse change in the
financial condition, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated by the Prospectus (exclusive of any amendment or
supplement thereto); and
(iii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or, to his or her knowledge, threatened by
the Commission.
(e) On the date hereof and on the Closing Date, the Company
shall have requested and caused PricewaterhouseCoopers LLP to furnish to the
Representatives letters, dated respectively the date hereof and the Closing
Date, in form and substance satisfactory to the Representatives.
(f) Subsequent to the date of this Agreement, or, if earlier,
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been (i) any change or
decrease specified in the letter referred to in paragraph (e) of this Section 5
or (ii) any change, or any development involving a prospective change, in or
affecting the financial condition, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any amendment or supplement thereto) the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or delivery of
the Purchased Shares as contemplated by the Prospectus (exclusive of any
amendment or supplement thereto).
(g) Subsequent to the date of this Agreement, no downgrading
shall have occurred in the rating assigned the Company's debt securities or
cumulative preference stock by any "nationally recognized statistical rating
agency", as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act.
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(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions or certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 5 will
be delivered at the office of counsel for the Company, at Sidley Xxxxxx Xxxxx &
Xxxx, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, on the
Closing Date.
6. Conditions of Company's Obligation. The obligation of the
Company to deliver the Purchased Shares upon payment therefor shall be subject
to the following conditions:
On the Closing Date, the order of the ICC referred to in
subparagraph (i) of Section 2 hereof shall be in full force and effect
substantially in the form in which originally entered; and no stop order
suspending the effectiveness of the Registration Statement shall be in effect
and no proceedings for that purpose shall then be pending before, or threatened
by, the Commission.
In case any of the conditions specified above in this Section
6 shall not have been fulfilled, this Agreement may be terminated by the Company
by delivering written notice of termination to the Representatives. Any such
termination shall be without liability of any party to any other party except to
the extent provided in Sections 7 and 8 hereof.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Purchased Shares provided for herein is not consummated because any condition to
the obligations of the Underwriters or the Company set forth in Section 5 and
Section 6 hereof, respectively, is not satisfied because of any termination
pursuant to Section 10 hereof, or because of any refusal, inability or failure
on the part of the Company to perform any agreement herein or comply with any
provisions hereof other than by reason of a default by any of the Underwriters,
the Company will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Purchased Shares.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue
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statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, or in
any preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for inclusion
therein; provided, further, that the foregoing indemnity with respect to any
untrue statement contained in or omission from any preliminary prospectus shall
not inure to the benefit of any Underwriter (or any of the directors, officers,
employees and agents of such Underwriter or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased any of the Purchased Shares which are the subject thereof if
such person did not receive a copy of the Prospectus (or the Prospectus as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), excluding the Incorporated Documents, at or prior to the
confirmation of the sale of such Purchased Shares to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in such preliminary prospectus was corrected in the
Prospectus (or the Prospectus as so amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), and it is finally
judicially determined that such delivery was required to be made under the Act
and was not so made. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company and each of its directors, officers,
employees and agents, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in ____________________________ constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in the
Registration Statement, any preliminary prospectus or the Prospectus (or in any
amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event,
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relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is for any reason held to be unenforceable by an
indemnified party although applicable in accordance with its terms, the Company
and the Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
which the Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and by the Underwriters on the other from the offering
of the Purchased Shares; provided, however, that in no case shall any
Underwriters (except as may be provided in any agreement among the Underwriters
relating to the offering of the Purchased Shares) be responsible for any amount
in excess of the purchase discount or commission applicable to the Purchased
Shares purchased by such Underwriters hereunder; provided, further, that each
Underwriter's obligation to contribute to Losses hereunder shall be several and
not joint. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in
such Losses, as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total purchase
discounts
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and commissions in each case set forth on the cover of the Prospectus. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriters shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act and each
officer, director, employee or agent of the Company shall have the same rights
to contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Purchased Shares agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the number
of Purchased Shares set forth opposite their names in Schedule II hereto bears
to the aggregate number of Purchased Shares set forth opposite the names of all
the remaining Underwriters) the Purchased Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase, provided, however,
that in the event that the aggregate number of Purchased Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate number of the Purchased Shares set forth in Schedule
II hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Purchased Shares, and
if such nondefaulting Underwriters do not purchase all the Purchased Shares,
this Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding five business days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Prospectus
Supplement or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company or any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Purchased Shares, if at
any time after the date hereof and prior to the delivery of and payment for the
Purchased Shares (i) trading in Exelon Corporation's common stock shall have
been suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange; (ii) a
banking moratorium shall have been declared either by federal or New York State
authorities; or (iii) there shall have
11
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Purchased Shares as contemplated by the Prospectus.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Purchased Shares. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to them at the address specified in Schedule I
hereto, or, if sent to the Company, will be mailed, delivered or telefaxed to
Exelon Corporation, 00 Xxxxx Xxxxxxxx Xxxxxx, 00xx Floor, X.X. Xxx 000000,
Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Vice President and Treasurer (fax no.:
(000) 000-0000) and confirmed to the General Counsel of Exelon Corporation (fax
no.: (000) 000-0000).
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns and the officers and directors and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder. The term "successors and assigns" as used in this Agreement shall not
include any purchaser, as such purchaser, of any of the Purchased Shares from
any of the Underwriters.
14. Representation of the Underwriters. The Representatives
represent and warrant to the Company that they are authorized to act as the
representatives of the Underwriters in connection with this financing, and the
Representatives' execution and delivery of this Agreement and any action under
this Agreement taken by such Representatives will be binding upon all
Underwriters.
15. Interpretation When No Representatives. In the event no
Underwriters are named in Schedule II hereto, the term "Underwriters" shall be
deemed for all purposes of this Agreement to be the Representative or
Representatives named as such in Schedule I hereto, the principal amount of the
Purchased Shares to be purchased by any such Underwriter shall be that set
opposite its name in Schedule I hereto and all references to the "Underwriters"
shall be deemed to be the Representative or Representatives named in Schedule I
hereto.
16. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
17. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
12
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
between the Company and each of the several Underwriters.
Very truly yours,
COMMONWEALTH EDISON COMPANY
By:
--------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[ ]
----------------------
By:
---------------------------------
Name:
Title:
For themselves and the other several
Underwriters named in Schedule II
hereto.
13
SCHEDULE I
REPRESENTATIVES:
PURCHASE PRICE AND DESCRIPTION OF PURCHASED SHARES:
AGGREGATE NUMBER OF PURCHASED SHARES:
PURCHASE PRICE:
DIVIDEND RATE:
INITIAL PUBLIC OFFER-
ING PRICE:
DEALER DISCOUNT:
REALLOWANCE TO DEALERS:
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
LIQUIDATION PRICES PER SHARE:
VOLUNTARY:
INVOLUNTARY:
14
OTHER PROVISIONS:
TIME AND DATE OF DELIVERY AND PAYMENT:
TIME AND DATE ---
PLACE OF DELIVERY AND PAYMENT:
DELIVERY ---
PAYMENT ---
FUNDS ---
OFFICE FOR EXAMINATION OF PURCHASED SHARES:
------------------------
------------------------
------------------------
SPECIFIED DATE PURSUANT TO SECTION 3 OF UNDERWRITING AGREEMENT:
------------------------
ADDRESS FOR NOTICES TO REPRESENTATIVES PURSUANT TO SECTION 12 OF UNDERWRITING
AGREEMENT:
------------------------
------------------------
------------------------
15
SCHEDULE II
NUMBER OF
NAME OF UNDERWRITER PURCHASED SHARES
------------------- ----------------
16
