Exhibit 1-2
EXELON CAPITAL TRUST __
% Trust Preferred Securities (Liquidation Amount
of $ per Trust Preferred Security)
Underwriting Agreement
New York, New York
Tothe Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Exelon Capital Trust __ (the "Trust"), a Delaware statutory trust
organized under the Statutory Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. xx.xx. 3801 et
seq.), and Exelon Corporation, a corporation organized under the laws of the
Commonwealth of Pennsylvania (the "Company" and, together with the Trust, the
"Offerors"), propose to sell to the several underwriters named in Schedule II
hereto (the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, the ______% Trust Preferred Securities (liquidation amount of
$______ per security) issued by the Trust, with the terms specified in Schedule
I hereto, representing undivided beneficial interests in the assets of the Trust
(the "Preferred Securities"). The Preferred Securities will be guaranteed by the
Company (the "Guarantee" and, together with the Preferred Securities, the
"Offered Securities"), to the extent described in the Final Prospectus, with
respect to distributions and payments upon liquidation, redemption and otherwise
pursuant to the Guarantee Agreement (the "Preferred Securities Guarantee") to be
dated as of the Closing Date (as defined below) between the Company and Wachovia
Trust Company, National Association, as Trustee (the "Guarantee Trustee"). The
Offerors propose to sell to the Underwriters pursuant to this Agreement ______
Offered Securities as set forth in Schedule II hereto.
The entire proceeds from the sale of the Offered Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities"), and will be used by the Trust
to purchase $ in aggregate principal amount of the Company's % unsecured
subordinated debt securities (the "Debt Securities"). The Preferred Securities
and the Common Securities will be issued pursuant to the Amended and Restated
Declaration of Trust, to be dated as of the Closing Date (the "Declaration"),
among the Company, as sponsor, ____________, as administrative trustees (the
"Administrative Trustees"), Wachovia Trust Company, National Association, as
property trustee (the "Property Trustee") and as Delaware trustee (the "Delaware
Trustee," and together with the Property Trustee and the Administrative
Trustees, the "Trustees"). The Debt Securities will be issued
pursuant to an indenture, dated as of June 24, 2003 (the "Indenture"), between
the Company and Wachovia Bank, National Association, as trustee (the "Debenture
Trustee"). The Preferred Securities issued in book-entry form will be issued to
Cede & Co. as nominee of The Depository Trust Company ("DTC") pursuant to a
letter agreement, to be dated as of the Closing Date, among the Trust, the
Property Trustee and DTC. The Offered Securities and the Subordinated Notes are
hereinafter collectively referred to as the "Securities."
To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the terms Representatives and Underwriters shall mean
either the singular or plural as the context requires. Any reference herein to
the Registration Statement, the Basic Prospectus, any Preliminary Prospectus or
the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be; and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Offerors jointly and
severally represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 1.
(a) The Offerors meet the requirements for use of Form S-3 under the
Act and have prepared and filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto)
on Form S-3, including a related basic prospectus, for registration
under the Act of the offering and sale of the Securities. The Offerors
may have filed one or more amendments thereto, including a Preliminary
Prospectus, each of which has previously been furnished to you. The
Offerors will next file with the Commission one of the following: (1)
after the Effective Date of such registration statement, a final
prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b), (2) prior to the Effective Date of such
registration statement, an amendment to such registration statement
(including the form of final prospectus supplement) or (3) after the
Effective Date of such registration statement, a final prospectus in
accordance with Rules 415 and 424(b). In the case of clause (1), the
Offerors have included in such registration statement, as amended at
the Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in such
registration statement and the Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Prospectus) as the Offerors have advised you, prior to the
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Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplement thereto) will, comply
in all material respects with the applicable requirements of the Act,
the Exchange Act and the Trust Indenture Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date the Indenture
did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder; and,
on the Effective Date and at the Execution Time, the Final Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include any
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 Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statements of Eligibility and Qualification (Forms T-1) under the Trust
Indenture Act of the Debenture Trustee, the Guaranty Trustee and the
Delaware Trustee and Property Trustee or (ii) the information contained
in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Offerors by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) Neither of the Company or the Trust is, and after giving effect
to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus will be, an
"investment company" or an entity "controlled" by an investment company
within the meaning of the Investment Company Act.
(d) Neither of the Company or the Trust has taken, directly or
indirectly, any action designed to cause or which has constituted or
which might reasonably be expected to cause or result, under the
Exchange Act or otherwise, in the stabilization or manipulation of the
price of any security of the Company or the Trust to facilitate the
sale or resale of the Securities.
(e) The Company has been duly organized and is validly subsisting as
a corporation in good standing under the laws of the Commonwealth of
Pennsylvania with full power and authority under its articles of
incorporation and bylaws to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Final Prospectus, and is duly qualified to do business as a foreign
entity and is in good standing under the laws of each jurisdiction
which requires such qualification.
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(f) The Trust has been duly created and is validly existing in good
standing as a statutory trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in
the Final Prospectus and to enter into and perform its obligations
under this Agreement, the Offered Securities, the Common Securities and
the Declaration; the Trust is duly qualified to transact business as a
foreign company and is in good standing in any other jurisdiction in
which such qualification is necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Final
Prospectus; the Trust is and will be classified for United States
federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; and the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(g) Except as disclosed in the Company's Form 10-K for the fiscal
year ended December 31, 2002, the Company does not have any significant
subsidiaries (as such term is defined in Rule 1.02 of Regulation S-X
promulgated under the Act).
(h) The descriptions in the Final Prospectus of the Declaration, the
Preferred Securities, the Preferred Securities Guarantee, the Common
Securities, the Indenture and the Debt Securities fairly summarize the
matters therein described.
(i) This Agreement has been duly authorized, executed and delivered
by each of the Offerors; the Indenture has been duly authorized and
when executed and delivered by the Company, will constitute a legal,
valid, binding instrument enforceable against the Company in accordance
with its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time in effect
and to general principles of equity).
(j) At the Closing Date, the Preferred Securities will have been
duly authorized for issuance and sale by the Trust and, when issued and
delivered against payment of the consideration therefor as provided
herein, will be validly issued and (subject to the terms of the
Declaration) fully paid and non-assessable undivided beneficial
interests in the Trust, and will be entitled to the benefits of the
Declaration; the issuance of the Preferred Securities is not subject to
preemptive or other similar rights of any securityholder of the Company
or the Trust; and (subject to the terms of the Declaration) holders of
Preferred Securities will be entitled to the same limitation of
personal liability under Delaware law as extended to stockholders of
private corporations for profit organized under the Delaware General
Corporation Law; provided, that the holders of the Preferred Securities
may be obligated, pursuant to the Declaration, to (i) provide indemnity
and/or security in connection with, and pay taxes or governmental
charges arising from, transfers or exchanges of Preferred Securities
certificates and the issuance of replacement Preferred Securities
certificates and (ii) provide security and indemnity in connection with
requests of or directions to the Property Trustee to exercise its
rights and remedies under the Declaration.
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(k) The Preferred Securities Guarantee, including the Guarantee, has
been duly authorized by the Company; at the Closing Date, the Preferred
Securities Guarantee will have been duly executed and delivered by the
Company and, assuming due authorization, execution and delivery of the
Preferred Securities Guarantee by the Guarantee Trustee, will
constitute a legal, valid, binding instrument, enforceable against the
Company in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity).
(l) The Common Securities have been duly authorized by the Trust
and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Final Prospectus, will be validly
issued and (subject to the terms of the Declaration) fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Date all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(m) The issuance and sale of the Debt Securities have been duly
authorized by the Company and, at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment therefor as
described in the Final Prospectus, will constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity); and the
Debt Securities will be in the form contemplated by, and entitled to
the benefits of, the Indenture.
(n) The Declaration has been duly authorized by the necessary
corporate action of the Offerors and, at the Closing Date, will have
been duly executed and delivered by the Company and the Trustees, and
assuming due authorization, execution and delivery of the Declaration
by the Property Trustee and the Delaware Trustee, the Declaration will,
at the Closing Date, constitute a legal, valid, binding instrument
enforceable against the Company, the Trust and the Trustees in
accordance with its terms, (subject, as to the enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity).
(o) No consent, approval, authorization, filing with or order of any
court or state or federal governmental agency or body, including the
Commission and any applicable state regulatory authority, is required
in connection with the transactions contemplated herein or in the
Indenture, except such as will be obtained under the Act and the Trust
Indenture Act, and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Offered Securities by the Underwriters in the manner contemplated
herein and in the Final Prospectus.
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(p) Neither the execution and delivery of this Agreement, nor the
consummation of any of the transactions herein contemplated, nor the
fulfillment of the terms hereof will conflict with, result in a breach
or violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or the Trust pursuant to, (i) the
charter or bylaws of the Company; (ii) the Certificate of Trust or the
Declaration; (iii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
either the Company or the Trust is a party or bound or to which its
property is subject; or (iv) any statute, law, rule, regulation,
judgment, order or decree applicable to either Offeror of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over either the Company or the
Trust or any of its respective subsidiaries or any of its or their
properties.
(q) The consolidated historical financial statements and schedules
of the Company and its consolidated subsidiaries incorporated by
reference in the Final Prospectus present fairly in all material
respects the financial condition, results of operations and cash flows
of the Company, as of the date and for the period indicated, comply as
to form with the applicable accounting requirements of the Act and have
been prepared in conformity with generally accepted accounting
principles, and the presentation of non-GAAP financial measures, if
any, complies in all material respects with Regulation G and Item 10 of
Regulation S-K promulgated by the Commission.
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
either the Company or the Trust or any of its subsidiaries or its or
their property is pending or, to the best knowledge of the Company,
threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the Indenture,
or the consummation of any of the transactions contemplated hereby or
thereby; or (ii) could reasonably be expected to have a material
adverse effect on the financial condition, business or properties of
either the Trust or 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 Final
Prospectus (exclusive of any amendment or supplement thereto).
(s) PricewaterhouseCoopers, LLP, are independent public accountants
with respect to the Offerors within the meaning of the Act and the
applicable published rules and regulations thereunder.
(t) Each of the Administrative Trustees of the Trust is an employee
of the Company or an affiliate of the Company and has been duly
authorized by the Company to execute and deliver the Declaration; the
Declaration has been duly executed and delivered by the Administrative
Trustees and is a legal, valid, binding obligation of each
Administrative Trustee, enforceable against such Administrative Trustee
in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity).
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(u) 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, 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.
Any certificate signed by any officer or other representative of the
Company or the Trust and delivered to the Representatives or counsel for the
Underwriters in connection with the offering of the Offered Securities shall be
deemed a representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Trust
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust, at the purchase price set forth
opposite its name in Schedule II hereto, the principal amount of the Offered
Securities set forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. (a) Delivery of and payment for the Offered
Securities shall be made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities 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 an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
DTC unless the Representatives shall otherwise instruct.
(b) As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the
Offered Securities will be used to purchase Debt Securities of the
Company, the Company hereby agrees to pay at the Closing Date, or the
relevant date of delivery, as the case may be, to the Representatives
in immediately available funds, for the accounts of the several
Underwriters, $______ per Offered Security to be delivered by the Trust
hereunder at the Closing Date.
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(c) In accordance with Rule 15c6-1(d) promulgated under the Exchange
Act, the Underwriters agree to the payment of funds and delivery of the
Offered Securities in accordance with this Section 3 in lieu of that
required by paragraphs (a) and (c) of Rule 15c6-1 under the Exchange
Act.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Final Prospectus.
5. Agreements. The Offerors agree with the several Underwriters
that:
(a) Each Offeror will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering
of the Offered Securities, the Offerors will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Basic Prospectus or
any Rule 462(b) Registration Statement unless the Offerors have
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Final Prospectus is otherwise required under Rule 424(b),
the Offerors will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Offerors will promptly advise the Representatives
(1) when the Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the Final Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Offered Securities, any amendment to
the Registration Statement shall have been filed or become effective,
(4) of any request by the Commission or its staff for any amendment of
the Registration Statement, or any Rule 462(b) Registration Statement,
or for any supplement to the Final Prospectus or for any additional
information, (5) 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 (6)
of the receipt by the Offerors of any notification with respect to the
suspension of the qualification of the Offered Securities for sale in
any jurisdiction or the institution or threatening of any proceeding
for such purpose. Each Offeror will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any 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 the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Offerors promptly will (1) notify the
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Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries,
including the Trust, which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(d) The Offerors will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Prospectus and
the Final Prospectus and any supplement thereto as the Representatives
may reasonably request. The Company will pay the expenses of printing
or other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Offered Securities for sale under the laws of such jurisdictions as
the Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Offered
Securities and will pay any fee of the NYSE, in connection with its
review of the offering; provided that in no event shall the Company or
the Trust be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to 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 Offered Securities, in any jurisdiction
where it is not now so subject.
(f) Neither the Company nor the Trust will, without the prior
written consent of the Representatives, offer, sell, contract to sell,
pledge, or otherwise dispose of, (or enter into any transaction which
is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or the
Trust, directly or indirectly, or announce the offering of, capital
securities, or the Debt Securities or any debt securities substantially
similar (including provisions with respect to the deferral of interest)
to the Debt Securities or any equity security substantially similar to
the Preferred Securities (except for the Securities issued pursuant to
this Agreement) or enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Preferred
Securities or the Debt Securities; provided, however, that the
foregoing restrictions shall not apply to any disposal of the Debt
Securities following any liquidation of the Trust; provided, further,
that the foregoing period shall only extend until the Business Day set
forth on Schedule I hereto.
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(g) The Offerors will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company or the Trust to facilitate the sale or resale of the Offered
Securities.
(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the issuance of the Offered Securities and the
fees of the Trustee; (ii) the preparation, printing or reproduction of
the Registration Statement, Preliminary Prospectus and Final Prospectus
and each amendment or supplement to either of them; (iii) the printing
(or reproduction) and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the
Preliminary Prospectus and Final Prospectus, and all amendments or
supplements to either of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the
Offered Securities; (iv) the preparation, printing, authentication,
issuance and delivery of certificates for the Preferred Securities and
the Debt Securities, including any stamp or transfer taxes in
connection with the original issuance and sale of the Preferred
Securities and the Debt Securities; (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 Offered Securities; (vi) any
registration or qualification of the Offered Securities 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 or Trust representatives in connection with presentations to
prospective purchasers of the Offered Securities; (viii) the fees and
expenses of the Offerors' accountants and counsel (including local and
special counsel); (ix) the fees and expenses of any rating agencies
rating the Preferred Securities and, if applicable, the Debt
Securities; (x) the fees and expenses of the Property Trustee and the
Guarantee Trustee; (xi) the fees and expenses of the Debenture Trustee;
and (xii) all other costs and expenses incident to the performance by
the Company or the Trust of its obligations hereunder.
(i) Each of the Company and the Trust will, if requested by the
Representative, use its best efforts to cause the Preferred Securities
to be listed on the New York Stock Exchange.
(j) The Offerors will cooperate with the Underwriters and use their
reasonable commercial efforts to permit the Preferred Securities to be
eligible for clearance and settlement through the facilities of DTC.
(k) The Trust will use the net proceeds received by it from the sale
of the Preferred Securities and the Common Securities, and the Company
will use the proceeds received by it from the sale of the Debt
Securities, in the manner specified in the Final Prospectus under "Use
of Proceeds."
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Offered Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Offerors contained herein as of the Execution Time and the Closing Date, to the
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accuracy of the statements of the Offerors made in any certificates pursuant to
the provisions hereof, to the performance by the Offerors of their obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later
than (i) 6:00 p.m. New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior
to 3:00 p.m. New York City time on such date or (ii) 9:30 a.m. on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 p.m. New York
City time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, counsel for the Company
and the Trust, shall have furnished to the Representatives its opinion,
dated the Closing Date and addressed to the Representatives, in form
and substance satisfactory to the Representatives and their counsel.
(c) The Offerors shall have furnished to the Representatives the
opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to
the Offerors, dated the Closing Date and addressed to the
Representatives, in form and substance satisfactory to the
Representatives and their counsel.
(d) The Offerors shall have furnished to the Representatives the
opinion of Xxxxxxxx, Xxxxxx & Finger, counsel to the Property Trustee
under the Declaration, the Debenture Trustee under the Indenture and
the Guarantee Trustee under the Preferred Securities Guarantee, dated
the Closing Date and addressed to the Representatives, in form and
substance satisfactory to the Representatives and their counsel.
(e) The Representatives shall have received from Winston & Xxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Preferred Securities, the Declaration, the
Indenture, the Preferred Securities Guaranty, this Agreement, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Offerors shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, and the Trust shall have furnished to the Representatives a
certificate of the Trust, signed by an Administrative Trustee of the
Trust, each dated the Closing Date, to the effect that the signers of
11
such certificates have carefully examined the Registration Statement,
the Final Prospectus, any supplements to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company and the
Trust, respectively, 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 and the Trust,
respectively, have complied with all the agreements and satisfied
all the conditions on their respective parts to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the financial condition, business or properties of
the Company and its subsidiaries, taken as a whole, or the Trust,
respectively, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Final Prospectus (exclusive of any supplement thereto).
(g) At the Execution Time and at the Closing Date, the Company shall
have requested and caused PricewaterhouseCoopers, LLP to furnish to the
Representatives letters, dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Representatives.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of
any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(e) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the financial condition, business
or properties of the Trust or 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 Final
Prospectus (exclusive of any 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 offering or delivery of
the Offered Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(i) On the Closing Date, (i) the Preferred Securities shall be rated
by ________________________ and ____________ by __________________, and
the Offerors shall have delivered to the Representatives evidence
satisfactory to the Representatives confirming that the Preferred
Securities have such ratings, and (ii) since the Execution Time, there
shall not have occurred a downgrading in the rating assigned to the
Preferred Securities or any of the Company's first mortgage bonds or
commercial paper by any "nationally recognized statistical rating
12
agency," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and no such securities rating agency shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Preferred Securities
or any of the Company's debt securities.
(j) Contemporaneously with the purchase of the Offered Securities on
the Closing Date (i) the Company shall purchase the Common Securities
from the Trust and (ii) the Trust shall purchase the Debt Securities
from the Company.
(k) Prior to the Closing Date, the Offerors 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 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and 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 counsel for the Underwriters, 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
cancelation 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 6 will be
delivered at the office of counsel for the Company, at Xxxxxxx Xxxxx Xxxxxxx &
Ingersoll, LLP, 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Offered Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of either of the Offerors to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally on 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 Offered
Securities.
8. Indemnification and Contribution. (a) The Offerors jointly and
severally agree 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) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement for
the registration of the Offered Securities as originally filed or in any
amendment thereof, or arise out of or are based upon an omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) arise out of or
13
are based upon any untrue statement or alleged untrue statement of a material
fact, in light of the circumstances in which it was made, 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 in which they were
made, not misleading, in the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus (as amended or supplemented if the Offerors shall have made any
amendments or supplements thereto and if used within any period during which an
Underwriter may be required by law to deliver a prospectus), 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 Offerors 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 Offerors 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 the Basic Prospectus or the 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) (i)
from whom the person asserting any such loss, claim, damage or liability
purchased the Offered Securities which are the subject thereof if such person
did not receive a copy of the Final Prospectus (or the Final Prospectus as then
amended or supplemented if the Offerors shall have furnished any amendments or
supplements thereto) at or prior to the confirmation of the sale of such Offered
Securities 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 Basic
Prospectus or Preliminary Prospectus was corrected in the Final Prospectus (or
the Final Prospectus as so amended or supplemented if the Offerors 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, or (ii) that uses the Final Prospectus after the expiration of such
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. This indemnity agreement will be in addition to any liability
which the Offerors may otherwise have. The Company agrees to indemnify the Trust
against all loss, liability claim, damage and expense whatsoever, as due from
the Trust under Section 8(a) hereunder.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Offerors, each of their respective directors and
officers, and each person who controls the Offerors within the meaning
of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Offerors to each Underwriter, but only
with reference to written information relating to such Underwriter
furnished to the Offerors by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents
referred to in Section 8(a) above. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The
Offerors acknowledge that (i) the statement set forth on the cover page
regarding delivery of the Securities and under the heading
"Underwriting," (ii) the list of Underwriters and their respective
participation in the sale of the Offered Securities, (iii) the
sentences related to concessions and reallowances and (iv) the
paragraph related to stabilization, syndicate covering transactions and
penalty bids in any Preliminary Prospectus and the Final Prospectus
14
constitute the only information furnished in writing by or on behalf of
the several Underwriters for inclusion in any Preliminary Prospectus or
the Final Prospectus.
(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, 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 (i) includes an unconditional release
of each indemnified party from all liability arising out of such claim,
action, suit or proceeding and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(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
(including the requirements of Section 8(c) above), the Offerors and
the Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
15
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Offerors 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 Offered
Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating
to the offering of the Offered Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable
to the Offered Securities purchased by such Underwriter 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 Offerors and the Underwriters severally shall contribute in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Offerors 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 Offerors
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page
of the Final 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
Offerors on the one hand or the Underwriters on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The Offerors 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
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Offerors within the
meaning of either the Act or the Exchange Act, each officer and
director of the Company and each Trustee of the Trust shall have the
same rights to contribution as the Offerors, 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 Offered Securities 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
principal amount of Offered Securities set forth opposite their names in
Schedule II hereto bears to the aggregate principal amount of Offered Securities
set forth opposite the names of all the remaining Underwriters) the Offered
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
16
amount of Offered Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate principal amount
of Offered Securities 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 Offered Securities, and if such nondefaulting
Underwriters do not purchase all the Offered Securities, this Agreement will
terminate without liability to any nondefaulting Underwriter or the Offerors. 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 Final Prospectus 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 either of the
Offerors and 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 Offerors
prior to delivery of and payment for the Offered Securities, if at any time
prior to such time (i) trading in the common stock of Exelon Corporation 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, (iii) a major disruption of settlements of securities or
clearance services in the United States shall have occurred, or (iv) there shall
have 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, impractical or inadvisable to proceed with the offering
or delivery of the Offered Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Offerors or their 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 any Underwriter or the Offerors or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Offered
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancelation 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 provided on Schedule I hereto; or,
if sent to the Company or the Trust, 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 (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 the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
17
14. 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.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Agreement" shall mean this Underwriting Agreement including all
schedules attached hereto and made a part hereof.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the Effective
Date including any Preliminary Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Certificate of Trust" shall mean the certificate of trust filed
with the State of Delaware on May 9, 2003.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
18
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"NYSE" shall mean the New York Stock Exchange.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration Statement,
as the case may be. Such term shall include any Rule 430A Information deemed to
be included therein at the Effective Date as provided by Rule 430A.
"Rule 415," "Rule 424," "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section 1(a)
hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated thereunder.
[signature page follows]
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Trust and the several Underwriters.
Very truly yours,
EXELON CORPORATION
By:_______________________________________
Name:
Title:
EXELON CAPITAL TRUST __
By:_______________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
[INSERT UNDERWRITER]
By:__________________________________________________
Name:
Title:
[INSERT UNDERWRITER]
By:__________________________________________________
Name:
Title:
For themselves and the other
several Underwriters named
in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement, dated _______________, 2003
Registration Statement No. 333-
Representatives:__[Insert Underwriters]
Number and Description of Offered Securities:
Number:
Purchase Price:
Interest Rate: %
Initial Public Offering
Price: $
Dealer Discount: $ per security
Reallowance to Dealers: $ per security
Sinking Fund Provisions: None
Other Provisions:
Time and Date of Delivery and Payment:
Time and Date --- :00AM EST
, 2003
Place of Delivery:
Delivery --- Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Date referred to in Section 5(f) after which the Company may offer or sell
securities issued or guaranteed by the Company without the consent of the
Representative(s): _________________, 2003
Address for Notices to Representatives pursuant to Section 12 of Underwriting
Agreement:
c/o [Underwriter name & address]
Attention:
SCHEDULE II
Number of
Preferred
Securities to
Underwriters be Purchased
------------ --------------
................................................
................................................
................................................
................................................
Total........................
