Registration No. 333-____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
EXELON CORPORATION
(Exact name of registrant as specified in its charter)
Pennsylvania 23-2990190
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
37th Floor, 10 South Dearborn Street
Post Office Box 805379
Chicago, Illinois 60680-5379
(312) 394-4321
(Address of principal executive offices)
EXELON CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
RUTH ANN M. GILLIS
Senior Vice President and Chief Financial Officer
Exelon Corporation
37th Floor, 10 South Dearborn Street
Chicago, Illinois 60680-5379
(312) 394-4321
(Name and address of agent for service)
CALCULATION OF REGISTRATION FEE
=====================================================================================================
Proposed
Title of securities maximum Proposed maximum Amount of
to be registered Amount to be offering price aggregate offering registration
registered per share price fee
-----------------------------------------------------------------------------------------------------
Common Stock, no par value(1) 2,000,000 $68.385 (1) $136,770,000 (1) $34,192.50
shares
=====================================================================================================
(1) Estimated pursuant to Rule 457(h) and (c) solely for the purpose of
calculating the registration fee, based upon the average of the high
and low sales prices of shares of the common stock of Exelon
Corporation as reported on the New York Stock Exchange on May 16, 2001.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, as filed by Exelon Corporation (the
"Registrant") with the Securities and Exchange Commission (the "Commission"),
are incorporated by reference in this Registration Statement and made a part
hereof:
(a) the Registrant's annual report on Form 10-K for the year
ended December 31, 2000;
(b) the Registrant's quarterly report on Form 10-Q for the
quarter ended March 31, 2001;
(c) the Registrant's Current Reports on Form 8-K dated January
12, 2001, January 30, 2001, February 26, 2001, March 16, 2001, April 4,
2001 and April 24, 2001; and
(d) the description of the Registrant's common stock contained
in the registration statement on Form 8-A filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendment thereto or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be part
hereof from the date of filing of such documents. Any statement contained in any
document, all or a portion of which is incorporated by reference herein, shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained or incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Chapter 17, Subchapter D of the Pennsylvania Business Corporation Law
of 1988, as amended (the "PBCL") contains provisions permitting indemnification
of officers and directors of a business corporation incorporated in
Pennsylvania. Sections 1741 and 1742 of the PBCL provide that a business
corporation may indemnify directors and officers against liabilities and
expenses he or she may incur in connection with a threatened, pending or
completed civil, administrative or investigative proceeding by reason of the
fact that he or she is or was a representative of the corporation or was serving
at the request of the corporation as a representative of another enterprise,
provided that the particular person acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful. In general, the power to
indemnify under these sections does not exist in the case of actions against a
director or officer by or in the right of the corporation if the person
otherwise entitled to indemnification shall have been adjudged to be liable to
the corporation, unless it is judicially determined that, despite the
adjudication of liability but in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnification for the expenses the
court deems proper. Section 1743 of the PBCL provides that the corporation is
required to indemnify directors and officers against expenses they may incur in
defending these actions if they are successful on the merits or otherwise in the
defense of such actions.
Section 1746 of the PBCL provides that indemnification under the other
sections of Subchapter D is not exclusive of other rights that a person seeking
indemnification may have under any by-law, agreement, vote of shareholders or
disinterested directors or otherwise, whether or not the corporation would have
the power to indemnify the person under any other provision of law. However,
Section 1746 prohibits indemnification in circumstances where the act or failure
to act giving rise to the claim for indemnification is determined by a court to
have constituted willful misconduct or recklessness.
Section 1747 of the PBCL permits a corporation to purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
representative of another enterprise, against any liability asserted against
such person and incurred by him or her in that capacity, or arising out of his
status as such, whether or not the corporation would have the power to indemnify
the person against such liability under Subchapter D.
The Registrant's by-laws provide that it is obligated to indemnify
directors and officers and other persons designated by the board of directors
against any liability, including any damage, judgment, amount paid in
settlement, fine, penalty, cost or expense (including, without limitation,
attorneys" fees and disbursements) incurred in connection with any proceeding.
The Registrant's by-laws provide that no indemnification shall be made where the
act or failure to act giving rise to the claim for indemnification is determined
by arbitration or otherwise to have constituted willful misconduct or
recklessness or attributable to receipt from the Registrant of a personal
benefit to which the recipient is not legally entitled.
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As permitted by PBCL Section 1713, the Registrant's by-laws provide
that directors generally will not be liable for monetary damages in any action,
whether brought by shareholders directly or in the right of the Registrant or by
third parties, unless they fail in the good faith performance of their duties as
fiduciaries (the standard of care established by the PBCL), and such failure
constitutes self-dealing, willful misconduct or recklessness.
The Registrant has purchased directors' and officers' liability
insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of exhibits filed as part of this Registration
Statement.
Exhibit
Number Description of Exhibit
4.1 Articles of Incorporation of Registrant (incorporated herein
by reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-4, Registration Statement No. 333-37082).
4.2 Exelon Corporation Employee Stock Purchase Plan.
5.1 Opinion of Sidley Austin Brown & Wood.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Sidley Austin Brown & Wood (included in its opinion
filed as Exhibit 5.1 hereof).
24.1 Form of Powers of Attorney.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
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(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Philadelphia, Pennsylvania on the 22nd day of May, 2001.
EXELON CORPORATION
By: /s/ Corbin A. McNeill, Jr.
-------------------------------
Corbin A. McNeill, Jr.
Chairman and Co-Chief Executive Officer
By: /s/ John W. Rowe
-------------------------------
John W. Rowe
President and Co-Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on May 22, 2001.
Signature Capacity Date
/s/ Corbin A. McNeill, Jr. Chairman, Co-Chief Executive Officer May 22, 2001
--------------------------- and Director
Corbin A. McNeill, Jr.
/s/ John W. Rowe President, Co-Chief Executive May 22, 2001
--------------------------- Officer and Director
John W. Rowe
/s/ Ruth Ann M. Gillis Senior Vice President and Chief May 22, 2001
--------------------------- Financial Officer
Ruth Ann M. Gillis (Principal Financial Officer)
/s/ Jean Gibson Vice President and Corporate May 22, 2001
--------------------------- Controller
Jean Gibson (Principal Accounting Officer)
This Registration Statement has also been signed by John W. Rowe in his
individual capacity as a Director and as Attorney-in-Fact, on behalf of the
following Directors on the date indicated:
Edward A. Brennan Carlos H. Cantu
Admiral Daniel L. Cooper M. Walter D'Alessio
Admiral Bruce DeMars G. Fred DiBona, Jr.
Sue Ling Gin Richard H. Glanton
Rosemarie B. Greco Edgar D. Jannotta
Corbin A. McNeill, Jr. John W. Rogers
John M. Palms Ronald Rubin
Richard L. Thomas
By: /s/ John W. Rowe
---------------------------
John W. Rowe
(Director and Attorney-in-Fact for the Directors set forth above)
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Exhibit Index
Exhibit
Number Description of Exhibit
4.1 Articles of Incorporation of Registrant (incorporated herein
by reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-4, Registration Statement No. 333-37082).
4.2 Exelon Corporation Employee Stock Purchase Plan.
5.1 Opinion of Sidley Austin Brown & Wood.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Sidley Austin Brown & Wood (included in its opinion
filed as Exhibit 5.1 hereof).
24.1 Form of Powers of Attorney.
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