tm2222068-7_s4a - block - 2.3437646s
As filed with the Securities and Exchange Commission on August 15, 2022
No. 333-266488
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pre-Effective
Amendment No. 1
to
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXELON CORPORATION
(Exact name of registrant as specified in its charter)
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Pennsylvania
(State or other jurisdiction of incorporation
or organization)
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4931
(Primary Standard Industrial
Classification Code Number)
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23-2990190
(I.R.S. Employer Identification No.)
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10 South Dearborn Street
P.O. Box 805379
Chicago, Illinois 60680-5379
(800) 483-3220
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Joseph Nigro
Senior Executive Vice President and Chief Financial Officer
Exelon Corporation
10 South Dearborn Street
P.O. Box 805379
Chicago, Illinois 60603
800-483-3220
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
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Carter C. Culver, Esquire
Senior Vice President and Deputy General Counsel
Exelon Corporation
10 South Dearborn Street
P.O. Box 805379
Chicago, Illinois 60603
800-483-3220
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Patrick R. Gillard, Esquire
Ballard Spahr LLP
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103
215-665-8500
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Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
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Large accelerated filer ☒
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Accelerated filer ☐
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Non-accelerated filer ☐ (do not check if a smaller reporting company)
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Smaller reporting company ☐
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Emerging growth company ☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Exchange Act. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
Explanatory Note
This Amendment No. 1 to the Registration Statement on Form S-4 is being filed solely for the purpose of filing exhibits as indicated in Part II of this Amendment No. 1. Accordingly, this Amendment No. 1 consists only of the facing page, this explanatory note, Part II of the Registration Statement, the signature pages to the Registration Statement and the filed exhibits. The prospectus — Offer to Exchange is unchanged and has been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. 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.
Exelon’s Bylaws 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) including in connection with any proceeding. Exelon’s Bylaws 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 Exelon of a personal benefit to which the recipient is not legally entitled.
As permitted by PBCL Section 1713, Exelon’s Bylaws provide that directors generally will not be liable for monetary damages in any action, whether brought by shareholders directly or in the right of Exelon 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.
Exelon has entered into indemnification agreements with each of its directors. Exelon also currently maintains liability insurance for its directors and officers. In addition, the directors, officers and employees of Exelon are insured under policies of insurance, within the limits and subject to the limitations of the policies, against claims made against them for acts in the discharge of their duties, and Exelon is insured to the extent that it is required or permitted by law to indemnify the directors, officers and employees for such loss. The premiums for such insurance are paid by Exelon.
Item 21. Exhibits.
The “Exhibit Index” on page II-6 is hereby incorporated by reference.
Item 22. Undertakings.
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, as amended (the “Securities Act”); (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 (notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement); and (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.
(2) That, for the purpose of determining any liability under the Securities Act, 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 which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended) 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.
(7) That prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the registrant undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.
(8) That every prospectus (i) that is filed pursuant to paragraph (7) above, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Securities Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to this registration statement and will not be used until such amendment has become effective, and that for the purpose of determining liabilities under the Securities Act, 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.
(9) Insofar as indemnification for liabilities arising under the Securities Act 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue.
(10) To respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(11) To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in this registration statement when it became effective.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Amendment No. 1 to Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago, State of Illinois, on August 15, 2022.
EXELON CORPORATION
By:
/s/ Joseph Nigro
Joseph Nigro
Senior Executive Vice President and Chief Financial Officer (Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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Christopher M. Crane
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President and Chief Executive Officer and Director
(Principal Executive Officer)
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August 15, 2022
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Joseph R. Trpik
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Senior Vice President and Corporate Controller
(Principal Accounting Officer)
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August 15, 2022
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John F. Young
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Director and Chairman
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August 15, 2022
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Anthony K. Anderson
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Director
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August 15, 2022
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Ann C. Berzin
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Director
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August 15, 2022
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W. Paul Bowers
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Director
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August 15, 2022
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Marjorie Rodgers Cheshire
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Director
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August 15, 2022
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Carlos Gutierrez
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Director
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August 15, 2022
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Linda Jojo
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Director
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August 15, 2022
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Paul L. Joskow
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Director
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August 15, 2022
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*By:
/s/ Joseph Nigro
Joseph Nigro
Attorney-in-Fact
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INDEX TO EXHIBITS
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Exhibit No.
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Description
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3.1 |
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Amended and Restated Articles of Incorporation of Exelon Corporation, as amended July 24,
2018 (incorporated herein by reference to Exhibit 3.1 to Exelon Corporation’s Current Report
on Form 8-K, filed on July 27, 2018)
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3.2 |
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Exelon Corporation Amended and Restated Bylaws, as amended on August 3, 2022 (incorporated herein by reference to Exhibit 3.1 to Exelon Corporation’s Form 10-Q for the quarter ended June 30, 2022, filed on August 3, 2022)
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4.1 |
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Indenture, dated as of June 11, 2015, among Exelon Corporation and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated herein by reference to Exhibit 4.1 to Exelon Corporation’s Current Report on Form 8-K, filed on June 11, 2015)
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4.2 |
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Fifth Supplemental Indenture, dated as of March 7, 2022, among Exelon Corporation and The
Bank of New York Mellon Trust Company, N.A., as trustee (incorporated herein by reference
to Exhibit 4.2 to Exelon Corporation’s Current Report on Form 8-K, filed on March 7, 2022)
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4.3 |
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Registration Rights Agreement, dated as of March 7, 2022, among Exelon Corporation, Barclays Capital Inc., BoA Securities, Inc., Citigroup Global Markets Inc. and J.P. Morgan Securities LLC (incorporated herein by reference to Exhibit 1.1 to Exelon Corporation’s Current Report on Form 8-K, filed on March 7, 2022)
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5.1* |
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23.1* |
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23.2** |
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24.1*
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25.1** |
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99.1** |
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99.2** |
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99.3** |
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99.4** |
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107+**
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Filed herewith
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Filed previously
Exhibit 5.1
August 15, 2022
Exelon Corporation
10 South Dearborn Street,
49th Floor,
Chicago, Illinois 60603-3005
| RE: | Registration Statement on Form S-4 |
Ladies and Gentlemen:
We have acted as counsel to Exelon Corporation (the “Company”),
in connection with the exchange of: (i) up to $650,000,000 aggregate principal amount of the Company’s outstanding 2.750% Notes
due 2027 (CUSIP Nos. 30161NAZ4 and US30161NAZ42) (the “original 2027 notes”) for a like principal amount of the Company’s
2.750% Notes due 2027 that will be issued in a transaction registered under the Securities Act (CUSIP No. 30161NBB64) (the “exchange
2027 notes”), (ii) up to $650,000,000 aggregate principal amount of the Company’s outstanding 3.350% Notes due 2032 (CUSIP
Nos. 30161NBC4 and US30161NBC48) (the “original 2032 notes”) for a like principal amount of the Company’s 3.350% Notes
due 2032 that will be issued in a transaction registered under the Securities Act (CUSIP No. 30161NBE0) (the “exchange 2032
notes”) and (iii) up to $700,000,000 aggregate principal amount of the Company’s outstanding 4.100% Notes due 2052 (CUSIP
Nos. 30161NBF7 and US30161NBF78) (the “original 2052 notes” and, together with the original 2027 notes and the original 2032
notes, the “Original Notes”) for a like principal amount of the Company’s 4.100% Notes due 2052 that will be issued
in a transaction registered under the Securities Act (CUSIP No. 30161BH35) (the “exchange 2052 notes” and, together with
the exchange 2027 notes and the exchange 2032 notes, the “Exchange Notes” and, together with the Original Notes, the “Notes”).
The Exchange Notes are covered by the Registration Statement on Form S-4, No. 333-266488 (the “Registration Statement”),
filed by the Company with the U.S. Securities and Exchange Commission (“SEC”) on August 3, 2022, and as amended on the
date hereof, under the Securities Act of 1933, as amended.
The Notes were issued under the terms of the Indenture, dated as of
June 11, 2015 (the “Base Indenture”) between the Company and The Bank of New York Mellon Trust Company, N. A., as trustee
(the “Trustee”), as supplemented and amended by the First Supplemental Indenture, dated as of June 11, 2015 (the “First
Supplemental Indenture”), the Second Supplemental Indenture, dated as of December 2, 2015 (the “Second Supplemental Indenture”),
the Third Supplemental Indenture, dated as of April 7, 2016 (the “Third Supplemental Indenture”), the Fourth Supplemental
Indenture, dated as of April 1, 2020 (the “Fourth Supplemental Indenture”), and the Fifth Supplemental Indenture, dated
as of March 7, 2022 (the “Fifth Supplemental Indenture” and, together with the First Supplemental Indenture, the Second
Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, and the Base Indenture, the “Indenture”),
which Indenture is governed under the laws of the State of New York.
Exelon Corporation
August 15, 2022
Page 2
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of (i) the Registration Statement and all exhibits thereto, (ii) the Prospectus Supplement, (iii) the
Amended and Restated Articles of Incorporation of the Company, and (iv) the Amended and Restated Bylaws of the Company. We have also
examined such corporate records and other agreements, documents and instruments, such certificates or comparable documents of public officials
and officers and representatives of the Company, have made such inquiries of such officers and representatives and have considered such
matters of law as we have deemed appropriate as the basis for the opinions hereinafter set forth.
In delivering this opinion, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to originals
of all documents submitted to us as certified, photostatic or conformed copies, the authenticity of originals of all such latter documents,
and the accuracy and completeness of all records, information and statements submitted to us by officers and representatives of the Company.
In making our examination of documents executed by parties other than the Company, we have assumed that such parties had the power, corporate
or other, to enter into and perform all obligations thereunder and have also assumed the due authorization of all requisite action, corporate
or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof with respect to such
parties.
Based upon and subject to the limitations and assumptions set forth
herein, we are of the opinion that:
| 1. | The Company is a corporation duly organized and validly subsisting under the laws of the Commonwealth of Pennsylvania; and |
| 2. | When the Exchange Notes have been duly authorized, executed, and authenticated in accordance with the provisions of the Indenture,
the Exchange Notes will be legally issued and binding obligations of the Company enforceable against the Company in accordance with their
respective terms (except to the extent enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws affecting the enforcement of creditors’ rights generally and by the effect of general
principles of equity, regardless of whether considered in a proceeding in equity or at law). |
We express no opinion as to the law of any jurisdiction other than
the Commonwealth of Pennsylvania, the State of New York and the federal laws of the United States.
We hereby consent to the filing of this letter as Exhibit 5.1
to the Registration Statement, and to the use therein of this firm’s name therein under the caption “Legal Matters.”
In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Ballard Spahr LLP
