EXELON CORPORATION
Debt Securities
Common Stock
Preferred Stock
Stock Purchase Contracts
Stock Purchase Units
FORM OF UNDERWRITING AGREEMENT
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1. Introductory. Exelon Corporation, a Pennsylvania corporation
("Company"), proposes to issue and sell from time to time certain of its
unsecured senior debt securities ("Debt Securities"), shares of its common
stock, no par value per share ("Common Stock"), shares of its preferred stock,
no par value per share ("Preferred Stock") and contracts to purchase Common
Stock (the "Stock Purchase Contracts"), which may be offered separately or as
part of units consisting of one or more such securities ("Units"), registered
under the registration statement referred to in Section 2(a) (such Debt
Securities, Common Stock, Preferred Stock and Stock Purchase Contracts and Units
are collectively referred to as the "Registered Securities"). The Registered
Securities constituting Debt Securities or Units containing Debt Securities will
be issued under an indenture, dated as of May 1, 2001 (the "Indenture"), between
the Company and Chase Manhattan Trust Company, N.A., as Trustee (the "Trustee"),
in one or more series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms. The Stock Purchase
Contracts and Units containing the foregoing will be issued under one or more
purchase contract agreements (the "Purchase Contract Agreements") between the
Company and the Purchase Contract Agent identified in the Purchase Contract
Agreement. Particular series or offerings of Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3 for resale in accordance
with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities." The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives," as used in this Agreement (other than in Sections
2(b), the second sentence of Section 3, and Section 6), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as of
the date of each Terms Agreement referred to in Section 3, represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-______), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective, which registration statement also constitutes a
post-effective amendment to registration statement (No. 333-57640)
relating to the Debt Securities, which has been filed with the
Commission and has become effective. Such registration statements, as
amended at the time of any Terms Agreement referred to in Section 3,
are hereinafter referred to collectively as the "Registration
Statement," and the prospectuses included in such Registration
Statement, as supplemented as contemplated by Section 3 to reflect the
terms of the Offered Securities (if they are Debt Securities, Stock
Purchase Contracts or Units) and the terms of the offering of the
Offered Securities, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act
of 1933 ("Act"), including all material incorporated by reference
therein, are hereinafter referred to collectively as the "Prospectus."
No document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all respects to the requirements of
(i) the Act, (ii) if applicable, the Trust Indenture Act of 1939
("Trust Indenture Act"), and (iii) the rules and regulations of the
Commission under said acts ("Rules and Regulations") and did not
include 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 on the date of each Terms
Agreement referred to in Section 3, the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act,
the Trust Indenture Act, if applicable, and the Rules and Regulations,
and neither of such documents will include 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, in light of the
circumstances under which they were made, not misleading, except that
the foregoing does not apply to statements in or omissions from any of
such documents based upon written information furnished to the Company
by any Underwriter through the Representatives, if any, specifically
for use therein or, if applicable, to any statements in or omissions
from the Statement of Eligibility and Qualification of the Trustee
under the Indenture.
(c) PricewaterhouseCoopers, LLP are independent certified public
accountants as required by the Act and the Rules and Regulations.
(d) The Company's authorized capitalization is as set forth or
incorporated by reference in the Prospectus 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.
(e) The Company is a validly subsisting corporation in good standing
under the laws of the Commonwealth of Pennsylvania. Each of the
Company's subsidiaries which constitutes a "gas utility company" or an
"electric utility company," as defined in the Public Utility Holding
Company Act of 1935, as amended ("PUHCA"), is a validly existing
corporation or limited liability company under the laws of its
jurisdiction of incorporation or organization (each a "Utility
Subsidiary"). The Company and each Utility Subsidiary have all
requisite corporate or limited liability company power and authority to
own and occupy their respective properties and carry on their
respective businesses as presently conducted and as described in the
Prospectus and are duly qualified as foreign organizations to do
business and in good standing in every jurisdiction in which the nature
of the business conducted or property owned by them makes such
qualification necessary and in which the failure to so qualify would
have a materially adverse effect on the Company; and the capital stock
or membership interests of each Utility Subsidiary listed in Schedule I
that is owned directly or indirectly by the Company, is owned free from
liens, encumbrances and defects.
(f) If the Offered Securities are Debt Securities or Units
containing Debt Securities: the Offered Securities and the Indenture
have been duly authorized by the Company and will conform to the
description thereof in the Prospectus; the Indenture has been qualified
under the Trust Indenture Act; and when the Offered Securities are
delivered and paid for pursuant to the Terms Agreement on the Closing
Date (as defined below), the Indenture will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and the Indenture and such Offered
Securities will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
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bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(g) If the Offered Securities are Common Stock, Preferred Stock or
Units containing shares of Common Stock: the Offered Securities and all
other outstanding shares of capital stock of the Company have been duly
authorized; all outstanding shares of capital stock of the Company are,
and, when the Offered Securities have been delivered and paid for in
accordance with the Terms Agreement on the Closing Date, such Offered
Securities will have been, validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to its Common Stock and Preferred Stock.
(h) If the Offered Securities are convertible into or exercisable
for Common Stock: when the Offered Securities are delivered and paid
for pursuant to the Terms Agreement on the Closing Date, such Offered
Securities will be convertible into or exercisable for Common Stock of
the Company in accordance with the Indenture or the Purchase Agreement,
as the case may be; the shares of Common Stock initially issuable upon
conversion or exercise of such Offered Securities have been duly
authorized and reserved for issuance upon such conversion or exercise
and, when issued upon such conversion or exercise, will be validly
issued, fully paid and nonassessable; the outstanding shares of Common
Stock have been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Common Stock.
(i) If the Offered Securities are Stock Purchase Contracts or Units
containing Stock Purchase Contracts: the Offered Securities and the
Purchase Contract Agreement have been duly authorized by the Company
and will conform to the description thereof in the Prospectus; and when
the Offered Securities are delivered and paid for pursuant to the Terms
Agreement on the Closing Date, the Purchase Contract Agreement will
have been duly executed and delivered, such Offered Securities will
have been duly executed, authenticated, issued and delivered and the
Purchase Contract Agreement and such Offered Securities will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(j) If the Offered Securities are Common Stock, convertible into
Common Stock, Stock Purchase Contracts or Units containing shares of
Common Stock or Stock Purchase Contracts: (i) except as disclosed in
the Prospectus, there are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid
claim against the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment; and (ii) the
outstanding shares of Common Stock are listed on the New York Stock
Exchange (the "Stock Exchange") and the Offered Securities (if they are
Common Stock), the Common Stock into which the Offered Securities are
convertible (if they are convertible), the Common Stock for which the
Offered Securities are exercisable (if they are Stock Purchase
Contracts) or the Common Stock underlying the Units has been approved
for listing on the Stock Exchange, subject to notice of issuance.
(k) If the Offered Securities are Debt Securities, they have been
approved for listing on the stock exchange indicated in the Terms
Agreement, subject to notice of issuance.
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(l) Except for (a) the orders of the Commission making the
Registration Statement effective, (b) the Order of the Commission under
PUHCA authorizing the Company to issue and sell the Offered Securities
as contemplated by the Terms Agreement (including the provisions of
this Agreement), (c) qualification under the Trust Indenture Act if the
Offered Securities are Debt Securities or Units containing Debt
Securities, (d) permits and similar authorizations required under the
securities or "Blue Sky" laws of any jurisdiction, and (e) such
undertakings, if any, required pursuant to the Undertakings set forth
in Part II of the Registration Statement, no consent, approval,
authorization or other order of any governmental authority is legally
required for the valid issuance and sale of the Offered Securities.
(m) The execution, delivery and performance of the Indenture (if the
Offered Securities are Debt Securities or Units containing Debt
Securities), the Purchase Contract Agreement (if the Offered Securities
are Stock Purchase Contracts or Units containing Stock Purchase
Contracts), the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts and the issuance and sale
of the Offered Securities and, if the Offered Securities are Debt
Securities, Units containing Debt Securities, Stock Purchase Contracts
or Units containing Stock Purchase Contracts, compliance with the terms
and provisions thereof, will not result in a breach of any of the terms
or provisions of, or constitute a default under, the Company's Amended
and Restated Articles of Incorporation or Bylaws or those of any of the
subsidiaries listed in Schedule I or any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company or any such
subsidiary is now a party, or any effective order of any court or
administrative agency entered in any proceedings to which the Company
was or is now a party or by which it is bound.
(n) The Terms Agreement (including the provisions of this Agreement)
and, if the Offered Securities are Debt Securities, any Delayed
Delivery Contracts (as defined below) have been duly authorized,
executed and delivered by the Company.
(o) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("Terms Agreement") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount or number
of shares to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters and (if the Offered Securities are Debt Securities, Stock
Purchase Contracts or Units containing Debt Securities or Stock Purchase
Contracts) the terms of the Offered Securities not already specified (in the
Indenture, in the case of Offered Securities that are Debt Securities or Units
containing Debt Securities, or in the Purchase Contract Agreement, in the case
of Offered Securities that are Stock Purchase Contacts or Units containing Stock
Purchase Contracts), including, but not limited to, interest rate (if Debt
Securities or Units containing Debt Securities), maturity (if Debt Securities or
Units containing Debt Securities), any redemption provisions and any sinking
fund requirements and whether any of the Offered Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of delivery and
payment (such time and date, or such other time not later than seven full
business days thereafter as the Underwriter first named in the Terms Agreement
(the "Lead Underwriter") and the Company agree as the time for payment and
delivery, being herein and in the Terms Agreement referred to as the "Closing
Date"), the place of delivery and payment and any details of the terms of
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offering that should be reflected in the prospectus supplement relating to the
offering of the Offered Securities. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the Closing Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering,
other than Contract Securities (as defined below) for which payment of funds and
delivery of securities shall be as hereinafter provided. The obligations of the
Underwriters to purchase the Offered Securities will be several and not joint.
It is understood that the Underwriters propose to offer the Offered Securities
for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contracts") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount or number of shares of Offered Securities to be
sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount or number of shares of Offered Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
or number of shares of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro rata and so advise
the Company. The Company will advise the Lead Underwriter not later than the
business day prior to the Closing Date of the principal amount or number of
shares of Contract Securities.
If the Offered Securities are Common Stock or Preferred Stock, the
certificates for the Offered Securities delivered to the Underwriters on the
Closing Date will be in definitive form, and if the Offered Securities are Debt
Securities, Stock Purchase Contracts or Units, the Offered Securities delivered
to the Underwriters on the Closing Date will be in definitive fully registered
form, in each case in such denominations and registered in such names as the
Lead Underwriter requests.
If the Offered Securities are Debt Securities, Stock Purchase Contracts
or Units and the Terms Agreement specifies "Book-Entry Only" settlement or
otherwise states that the provisions of this paragraph shall apply, the Company
will deliver against payment of the purchase price the Offered Securities in the
form of one or more permanent global securities in definitive form (the "Global
Securities") deposited with the Trustee as custodian for The Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent global securities will be held only in book-entry
form through DTC, except in the limited circumstances described in the
Prospectus. Payment for the Offered Securities shall be made by the Underwriters
in Federal (same day) funds by official check or checks or wire transfer to an
account previously designated by the Company at a bank acceptable to the Lead
Underwriter, in each case drawn to the order of at the place of payment
specified in the Terms Agreement on the Closing Date, against delivery to the
Trustee as custodian for DTC of the Global Securities representing all of the
Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters, one
signed copy of the Registration Statement, including all exhibits, in the form
it became effective and of all amendments thereto and that, in connection with
each offering of Offered Securities:
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(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Lead Underwriter, subparagraph (5) thereof)
not later than the second business day following the execution and
delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, 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 is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Lead Underwriter of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Lead Underwriter's consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(d) As soon as practicable, but not later than 16 months after the
date of each Terms Agreement, the Company will make generally available
to its securityholders an earnings statement covering a period of at
least 12 months beginning after the later of (i) the effective date of
the Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the date
of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such Terms Agreement, which will
satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the Lead
Underwriter reasonably requests. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and (if the Offered Securities are Debt Securities,
Stock Purchase Contracts or Units) the determination of their
eligibility for investment under the laws of such jurisdictions as the
Lead Underwriter designates and will continue such qualifications in
effect so long as required for the distribution; provided, however,
that the Company shall not be required to qualify as a foreign
corporation in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general service of process in
any jurisdiction where it is not now so subject.
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(g) The Company will pay all expenses incident to the performance of
its obligations under the Terms Agreement (including the provisions of
this Agreement), including (i) any filing fees or other expenses
(including fees and disbursements of counsel) in connection with
qualification of the Registered Securities for sale, listing on the
Stock Exchange (if the Offered Securities are Common Stock, securities
convertible into or exercisable for Common Stock or Preferred Stock)
and (if the Offered Securities are Debt Securities, Stock Purchase
Contracts or Units) any determination of their eligibility for
investment under the laws of such jurisdictions as the Lead Underwriter
may designate and the printing of memoranda relating thereto, (ii) any
fees charged by investment rating agencies for the rating of the
Offered Securities (if they are Debt Securities), (iii) any applicable
filing fee incident to, the review by the National Association of
Securities Dealers, Inc. of the Registered Securities, (iv) any travel
expenses of the Company's officers and employees, (v) any other
expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of Registered Securities and (vi)
expenses incurred in distributing the Prospectus, any preliminary
prospectuses, any preliminary prospectus supplements or any other
amendments or supplements to the Prospectus to the Underwriters.
(h) If the Offered Securities are Debt Securities or Units
containing Debt Securities, the Company will not offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly, or
file with the Commission a registration statement under the Act
relating to United States dollar-denominated debt securities issued or
guaranteed by the Company and having a maturity of more than one year
from the date of issue (if the Offered Securities are Debt Securities
or Units containing Debt Securities), or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms Agreement and ending
the number of days after the Closing Date specified under "Blackout" in
the Terms Agreement.
(i) If the Offered Securities are Common Stock, Preferred Stock,
Stock Purchase Contracts, convertible into Common Stock or Units
containing Common Stock or Stock Purchase Contracts, the Company will
not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any additional shares of its
Common Stock, Preferred Stock, Stock Purchase Contracts, Units or
securities convertible into or exchangeable or exercisable for any
shares of its Common Stock, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Lead Underwriter for a period beginning at the
time of execution of the Terms Agreement and ending the number of days
after the Closing Date specified under "Blackout" in the Terms
Agreement, except issuances of Common Stock pursuant to the conversion
or exchange of convertible or exchangeable securities or the exercise
of warrants or options, in each case outstanding on the date of the
Terms Agreement, grants of employee stock options pursuant to the terms
of a plan in effect on the date of the Terms Agreement, issuances of
Common Stock pursuant to the exercise of such options or issuances of
Common Stock pursuant to the Company's dividend reinvestment plan.
(j) The Company will use its best efforts to effect the listing of
(A) Offered Securities that are shares of Common Stock, (B) shares of
Common Stock issuable upon the conversion or exercise of the Offered
Securities, and (C) shares of Preferred Stock, as the case may be, on
the Stock Exchange, and to cause such Offered Securities to be
registered under the Securities Exchange Act of 1934, as amended ("1934
Act").
(k) In the case of the issuance of Offered Securities convertible
into or exercisable for Common Stock, the Company agrees to reserve and
keep available at all times, free of preemptive rights, shares of
Common Stock for the purpose of enabling the Company to satisfy any
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obligations to issue shares of Common Stock upon conversion or exercise
of the Offered Securities, as the case may be.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities will
be subject to the accuracy of the representations and warranties on the part of
the Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On the date of the Terms Agreement and the Closing Date, the
Representatives shall have requested and caused PricewaterhouseCoopers,
LLP to furnish to the Representatives letters, dated respectively the
date of the Terms Agreement and the Closing Date, in form and substance
satisfactory to the Representatives.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall be pending before, or
threatened by, the Commission.
(c) Subsequent to the effective date of the Terms Agreement and
prior to the Closing Date, there shall have been no material adverse
change in the financial condition, business or results of operations of
the Company and its subsidiaries, considered as a whole, except as set
forth in the Registration Statement and the Prospectus, including the
documents incorporated by reference therein.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, counsel for
the Company, to the effect that:
(i) The Company is a corporation duly incorporated and validly
subsisting under the laws of the Commonwealth of Pennsylvania and
has all requisite corporate power and authority to own its
properties and to conduct its business as described in the
Prospectus;
(ii) The Company's authorized capitalization is as set forth or
incorporated by reference in the Prospectus and all of the issued
and outstanding shares of capital stock of the Company have been
duly authorized and validly issued;
(iii) If the Offered Securities are Debt Securities or Units
containing Debt Securities: the Indenture has been duly authorized,
executed and delivered by the Company and has been qualified under
the Trust Indenture Act; the Offered Securities have been duly
authorized by the Company; the Offered Securities are in a form
contemplated by the Indenture; the Offered Securities have been duly
executed, issued and delivered by the Company; the Indenture and the
Offered Securities constitute valid and legally binding obligations
of the Company, enforceable in accordance with their respective
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general principles
of equity, including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing; and the Indenture and
the Offered Securities conform to the descriptions thereof contained
in the Prospectus;
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(iv) If the Offered Securities are Common Stock, Preferred Stock
or Units containing Common Stock: the Offered Securities and all
outstanding shares of the Common Stock and Preferred Stock of the
Company have been duly authorized and validly issued, are fully paid
and nonassessable and conform to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities;
(v) If the Offered Securities are convertible into or exercisable
for Common Stock: the Offered Securities other than any Contract
Securities are, and any Contract Securities, when (if the Offered
Securities are Debt Securities) executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant
to Delayed Delivery Contracts will be convertible into or
exercisable for Common Stock of the Company in accordance with the
Indenture or the Purchase Contract Agreement, as the case may be;
the shares of Common Stock initially issuable upon conversion or
exercise of the Offered Securities have been duly authorized and
reserved for issuance upon such conversion or exercise and, when
issued upon such conversion or exercise, will be validly issued,
fully paid and nonassessable; the outstanding shares of Common Stock
have been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in
the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Common Stock;
(vi) If the Offered Securities are Common Stock, Preferred Stock,
convertible into Common Stock, Stock Purchase Contracts or Units
containing Common Stock or Stock Purchase Contracts: there are no
contracts, agreements or understandings known to such counsel
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act;
(vii) If the Offered Securities are Stock Purchase Contracts or
Units containing Stock Purchase Contracts: the Offered Securities
and the Purchase Contract Agreement have been duly authorized by the
Company and will conform to the description thereof in the
Prospectus; and when the Offered Securities are delivered and paid
for pursuant to the Terms Agreement on the Closing Date, the
Purchase Contract Agreement will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and the Purchase Contract
Agreement and such Offered Securities will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(viii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940;
(ix) No consent, approval, authorization or order of, or filing
with, any state commission or regulatory authority or of any federal
commission or regulatory authority, or of any other governmental
9
agency or body or any court is required for the consummation of the
transactions contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the issuance or
sale of the Offered Securities by the Company, except (A) such as
have been obtained and made under the Act, (B) the Order of the
Commission under PUHCA authorizing the Company to issue and sell the
Offered Securities, (C) if the Offered Securities are Debt
Securities or Units containing Debt Securities, the Trust Indenture
Act, (D) such as may be required under state securities laws, and
(E) to the extent, if any, required pursuant to the Undertakings set
forth in Part II of the Registration Statement;
(x) The execution, delivery and performance by the Company of the
Indenture (if the Offered Securities are Debt Securities or Units
containing Debt Securities), the Terms Agreement (including the
provisions of this Agreement) and, if the Offered Securities are
Debt Securities, any Delayed Delivery Contracts and the issuance and
sale of the Offered Securities and, if the Offered Securities are
Debt Securities or Units containing Debt Securities, compliance with
the terms and provisions thereof will not conflict with or result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation or order
of any governmental agency or body or any court having jurisdiction
over the Company or any of its properties, or, to our knowledge, any
agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the properties of the
Company is subject, or the Articles of Incorporation or By-Laws of
the Company, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by
the Terms Agreement (including the provisions of this Agreement);
(xi) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission in the manner
specified in and within the time period required by Rule 424(b)
specified in such opinion on the date specified therein, and, to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Act, and the Registration
Statement, as of its effective date, the Registration Statement and
the Prospectus, as of the date of the Terms Agreement, and any
amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; such counsel have no
reason to believe that such Registration Statement, as of its
effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that such
Registration Statement, as of the date of the Terms Agreement or as
of the Closing Date, or any amendment thereto, as of its date or as
of the Closing Date, or the Prospectus, as of the date of the Terms
Agreement or as of such Closing Date, or any amendment or supplement
thereto, as of its date or as of the Closing Date, contained any
untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and
such counsel do not know of any contracts or documents of a
character required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement
which are not described and filed as required; it being understood
that such counsel need express no opinion as to the financial
statements or other financial data contained in the Registration
Statement or the Prospectus;
10
(xii) The Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are Debt Securities, any
Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company; and
(xiii) To the knowledge of such counsel, there are no material
pending legal proceedings to which the Company or any subsidiary is
a party and which are required to be set forth in the Prospectus
other than those referred to in the Prospectus.
(e) The Representatives shall have received from Winston & Xxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as the Representatives may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters. In rendering such opinion, Xxxxxxx & Xxxxxx may rely as
to the incorporation of the Company and all other matters governed by
Pennsylvania law upon the opinion of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx,
LLP referred to above.
(f) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers,
to the best of their knowledge after reasonable investigation, shall
state that (i) the representations and warranties of the Company in
this Agreement are true and correct, (ii) the Company has complied with
all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date, (iii) no stop
order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission and (iv)
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial
condition, business or results of operations of the Company and its
subsidiaries, considered as a whole, except as set forth in the
Registration Statement and the Prospectus, including the documents
incorporated by reference therein, as of the effective date of this
Agreement.
(g) At the Closing, there shall be in full force and effect an Order
issued by the Commission under PUHCA permitting the issuance and sale
of the Offered Securities and the transactions relating thereto
substantially in accordance with the terms and conditions set forth in
the Terms Agreement and containing no provision unacceptable to the
Representative.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of any material fact, or an omission or alleged
omission to state a material fact required to be stated or necessary to make the
statements therein not misleading, contained in the Registration Statement or
the Prospectus at the time that the Registration Statement became effective; or
(ii) after the time that the Registration Statement became effective, any untrue
statement or alleged untrue statement of any material fact, or an omission or
alleged omission to state a material fact required to be stated or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, contained in any post-effective amendment to the
Registration Statement or the Prospectus as amended or supplemented after the
time that the Registration Statement became effective or any related preliminary
prospectus or preliminary prospectus supplement. The Company will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; 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 (i) an untrue
statement or alleged untrue statement in or omission or alleged omission from
11
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described in such Terms Agreement, or (ii) the failure of any
Underwriter to send to any purchaser to whom it had sent a preliminary
prospectus an amended prospectus together with such summary of material changes,
if any, made therein since the date of such preliminary prospectus as shall have
been furnished by the Company for such purpose, or (iii) any use of the
Prospectus by any Underwriter after the expiration of that period, if any,
during which the Underwriter is required by law to deliver a prospectus, unless
the Company shall have been advised in writing of such intended use, or (iv) if
applicable, any statements or alleged statements in or omissions or alleged
omissions from the Statement of Eligibility and Qualification on Form T-1 of the
Trustee under the Indenture. The term "preliminary prospectus" as used in this
paragraph includes the prospectus first complying with Section 10(a) of the Act.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person,
if any, who controls the Company within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or
any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the
Representatives, if any, specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in the
Terms Agreement.
(c) Promptly after receipt by an indemnified party under this
Section 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 subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the failure to
notify the indemnifying party shall not relieve it from any liability
that it may have under subsection (a) or (b) above except to the extent
that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further
that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise
than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party,
12
be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on any claims that
are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act by or behalf of an indemnified party.
(d) If the indemnification provided for in this Section is held to
be unenforceable by the indemnified parties although applicable in
accordance with its terms (including the requirements of Section 6(c)),
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is equitable and appropriate to reflect both the relative
benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Offered Securities and the
relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters. The relative fault 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 or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. 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. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company, to each officer of the Company who has
13
signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under the Terms Agreement
and the aggregate principal amount (if Debt Securities) or number of shares (if
Common Stock or Preferred Stock), number of units (if Units) or number of
contracts (if Stock Purchase Contracts) of Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount (if Debt Securities) or number of
shares (if Common Stock or Preferred Stock), number of units (if Units) or
number of contracts (if Stock Purchase Contracts) of Offered Securities, the
Lead Underwriter may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments under the Terms Agreement (including the provisions of
this Agreement), to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount (if Debt Securities) or number of
shares (if Common Stock or Preferred Stock), number of units (if Units) or
number of contracts (if Stock Purchase Contracts) of Offered Securities with
respect to which such default or defaults occur exceeds 10% of the total
principal amount (if Debt Securities) or number of shares (if Common Stock or
Preferred Stock), number of units (if Units) or number of contracts (if Stock
Purchase Contracts) of Offered Securities and arrangements satisfactory to the
Lead Underwriter and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, the Terms
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company, except as provided in Section 8. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default. If the Offered Securities are Debt
Securities the respective commitments of the several Underwriters for the
purposes of this Section shall be determined without regard to reduction in the
respective Underwriters' obligations to purchase the principal amounts of the
Offered Securities set forth opposite their names in the Terms Agreement as a
result of Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7, the Company will reimburse the Underwriters for
all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at ______________, Attention: _____________.
14
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
15
SCHEDULE I
SUBSIDIARIES
Commonwealth Edison Company
PECO Energy Company
Exelon Generation Company, LLC
16
ANNEX I
(Three copies of this Delayed Delivery Contract should be
signed and returned to the address shown below so as to
arrive not later than 9:00 A.M.,
New York time, on ........................ ............, .....(a))
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
Exelon Corporation
c/o [Insert Name of Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Exelon Corporation, a
Pennsylvania corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on ________________________, ("Delivery Date"),]
[$]..............[shares]
--principal amount--of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated ____________, ____ and
a Prospectus Supplement dated _______________, ________ relating thereto,
receipt of copies of which is hereby acknowledged, at-- % of the principal
amount thereof plus accrued interest, if any,--$ per share plus accrued
dividends, if any,--and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the--principal--amounts
set forth below:
Principal Amount
----------------
Number
Delivery Date of Shares
------------- ---------
......................................... ..........
......................................... ..........
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
--------
(a) Insert date which is third full business day prior to Closing
Date under the Terms Agreement.
Payment for the Securities that the undersigned has agreed to purchase
for delivery on--the--each--Delivery Date shall be made to the Company or its
order in Federal (same day) funds by certified or official bank check or wire
transfer to an account designated by the Company, at the office of _____________
at _______ A.M. on--the--such--Delivery Date upon delivery to the undersigned of
the Securities to be purchased by the undersigned--for delivery on such Delivery
Date--in definitive [If debt issue, insert--fully registered] form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total--principal
amount--number of shares--of the Securities less the--principal amount---number
of shares--thereof covered by this and other similar Contracts. The undersigned
represents that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by--a copy--copies--of the opinion[s] of counsel for
the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
...........................................
(Name of Purchaser)
By.........................................
...........................................
(Title of Signatory)
...........................................
...........................................
(Address of Purchaser)
Accepted, as of the above date.
EXELON CORPORATION
By........................................................
[Insert Title]
EXELON CORPORATION
("Company")
FORM OF TERMS AGREEMENT
-----------------------
To: The Representative[s] of the Underwriters identified herein
Ladies and Gentlemen:
The undersigned agrees to sell to the several Underwriters named in
Schedule A hereto for their respective accounts, and the Underwriters agree to
purchase from the Company, severally and not jointly, in the respective amounts
specified in Schedule A, on and subject to the terms and conditions of the
Underwriting Agreement filed as an exhibit to the Company's registration
statement on Form S-3 (No. 333-_______) ("Underwriting Agreement"), the
following securities ("Offered Securities") on the following terms:
Title: .
[Principal Amount] [Number of Shares] [Number of Contracts]
[Number of Units]:
Over-allotment: In addition, upon written notice from the
Representative[s] given to the Company from time to time not more than 30 days
subsequent to the date hereof, the Underwriters may purchase up to [$ additional
principal amount] [ additional shares] [ additional contracts] [ additional
units] of the Offered Securities (the "Optional Securities") at the purchase
price. The Company agrees to sell to the Underwriters the Optional Securities,
and the Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the Principal Amount of Offered Securities
set forth opposite such Underwriter's name on Schedule A hereto (subject to
adjustment by the Representative[s] to eliminate fractions) and may be purchased
by the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Offered Securities. No Optional Securities shall
be sold or delivered unless the Offered Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by the Representative[s] to the Company.
[Interest: [ % per annum, from _______________, ___, payable
semiannually on _____________ and _________________, commencing ______________,
___, to holders of record on the preceding _______________ or ____________, as
the case may be.] [Zero coupon.]]
[Maturity: , .]
[Optional Redemption: ]
[Sinking Fund: ]
Listing: [None.] [the New York Stock Exchange.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
________________________, ____________. Underwriters' fee is[____________% of
the principal amount] [$________________________ per share]
[$________________________ per contract] [$____________ per unit] of the
Contract Securities.]
Purchase Price: [____________ % of principal amount, plus
accrued interest[, if any,] from ____________ ,____________.] [$____________ per
share.] [$____________ per contract.] [$____________ per unit.]
Expected Reoffering Price: [____________ % of principal
amount, ] [$____________ per share][$____________ per contract] [$____________
per unit] subject to change by the [Representative[s] [Underwriters].
Closing: ____________ A.M. on ____________ , ____________ , at
____________ , in Federal (same day) funds.
[Underwriter[s']['s] Compensation: $ ____________ payable to
the [Representative[s] for the proportionate amounts of the] Underwriter[s] on
the Closing Date.
Settlement and Trading: [Physical certificated form.]
[Book-Entry Only via DTC.]
Blackout: Until ____________ days after the Closing Date.
Names and Addresses of the Representatives:
The respective [principal amounts] [numbers of shares] [numbers of
contracts] [number of units] of the Offered Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and
packaging ____________ at the office of at least 24 hours prior to the Closing
Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the ____________ paragraph under the caption "Underwriting" in the
prospectus supplement [If paragraph regarding passive market making is included,
insert--and the information contained in the ____________ paragraph under the
caption "Underwriting" in the prospectus supplement] [If applicable, insert--;
and (ii) the following information in the prospectus supplement furnished on
behalf of [insert name of Underwriter]: [insert description of information, such
as material relationship disclosure under the caption "Underwriting" in the
prospectus supplement].
2
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
EXELON CORPORATION
By:_______________________________________
Name:
Title:
The foregoing Terms Agreement is hereby confirmed and accepted as of the
date first above written.
[LEAD MANAGER]
_____________________
_____________________
Acting on behalf of themselves and as the Representatives of the several
Underwriters.
By: [LEAD MANAGER]
By:_______________________________________________________
Name:
Title:
3
SCHEDULE A
[Principal Amount]
[Number of Shares]
[Number of Units]
Underwriter [Number of Contracts]
----------- ---------------------
$
-------------
Total........................... [$]
=============
