-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HrsYNuc/nKN0FpgbdRq9CyNUdaRUO12TGGIKxBWFvneJQWZjFzqT7Mc72BzcpHE5 qnxuCQK/31gGt5qxghbmLw== 0000928385-03-000120.txt : 20030124 0000928385-03-000120.hdr.sgml : 20030124 20030124171836 ACCESSION NUMBER: 0000928385-03-000120 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 14 FILED AS OF DATE: 20030124 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CONSTELLATION ENERGY GROUP INC CENTRAL INDEX KEY: 0001004440 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 521964611 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-102723 FILM NUMBER: 03524632 BUSINESS ADDRESS: STREET 1: 750 E PRATT ST CITY: BALTIMORE STATE: MD ZIP: 21202 BUSINESS PHONE: 4107832800 MAIL ADDRESS: STREET 1: 750 E PRATT STREET CITY: BALTIMORE STATE: MD ZIP: 21202 FORMER COMPANY: FORMER CONFORMED NAME: RH ACQUISITION CORP DATE OF NAME CHANGE: 19951205 FORMER COMPANY: FORMER CONFORMED NAME: CONSTELLATION ENERGY CORP DATE OF NAME CHANGE: 19951220 S-3 1 ds3.txt FORM S-3 Registration No. 333-. ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- CONSTELLATION ENERGY GROUP, INC. (Exact Name of Registrant as Specified in Its Charter) MARYLAND 52-1964611 (State of Incorporation) (IRS Employer Identification Number) E. Follin Smith, Senior Vice President and Chief Financial Officer 750 E. Pratt Street Baltimore, Maryland 21202 (410) 783-3014 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices and agent for service) ---------- Approximate date of commencement of proposed sale to the public: After the effective date of this Registration Statement as determined by market conditions. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please 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(c) 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 delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box.[ ] ---------- CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF SECURITIES TO BE REGISTERED REGISTERED (6)(7) UNIT(8)(9) PRICE(5)(6)(7)(9) REGISTRATION FEE(10) - ---------------------------------------------------------------------------------------------------------------------------- Unsecured Debt Securities (1)(2)(3) - ---------------------------------------------------------------------------------------------------------------------------- Common Stock (1)(2)(3) - ---------------------------------------------------------------------------------------------------------------------------- Preferred Stock (1)(2)(3) - ---------------------------------------------------------------------------------------------------------------------------- Warrants (1)(4) - ---------------------------------------------------------------------------------------------------------------------------- Stock Purchase Contracts (1)(5) - ---------------------------------------------------------------------------------------------------------------------------- Units (1) - ---------------------------------------------------------------------------------------------------------------------------- Total $ 2,000,000,000 $ 2,000,000,000 $ 184,000 ============================================================================================================================
(1) Such indeterminate number, principal amount or liquidation amount of unsecured debt securities, common stock, preferred stock, warrants, stock purchase contracts and units as may from time to time be issued at indeterminate prices. The securities registered hereunder shall not have an aggregate offering price which exceeds $2,000,000,000 in United States dollars or the equivalent in any other currency. (2) Also includes such indeterminate number of unsecured debt securities and shares of common stock and preferred stock as may be issued upon conversion or exchange of any unsecured debt securities and preferred stock that provide for conversion or exchange into other securities or upon exercise of warrants for such securities. (3) No separate consideration will be received for the unsecured debt securities, common stock or preferred stock issuable upon conversion of or in exchange for unsecured debt securities or preferred stock. (4) Warrants may be sold separately or with unsecured debt securities, preferred stock or common stock. (5) Includes an indeterminate number of shares of common stock or preferred stock, as applicable, to be issuable upon settlement of stock purchase contracts. (6) In United States dollars or the equivalent thereof in any other currency, currency unit or units, or composite currency or currencies. (7) Such amount represents the principal amount of any unsecured debt securities issued at their principal amount, the issue price rather than the principal amount of any unsecured debt securities issued at an original issue discount, the liquidation preference of any preferred stock, the amount computed pursuant to Rule 457(c) for any common stock, the issue price of any warrants and the exercise price of any securities issuable upon exercise of the warrants. (8) Estimated solely for the purposes of computing the registration fee. (9) Exclusive of accrued interest and distributions, if any. (10) Calculated pursuant to Rule 457(o) of the rules and regulations under the Securities Act. 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 Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. Subject to Completion January 24, 2003 [LOGO OF CONSTELLATION ENERGY GROUP] $ 2,000,000,000 UNSECURED DEBT SECURITIES Constellation Energy Group, Inc. COMMON STOCK 750 E. Pratt Street PREFERRED STOCK Baltimore, Maryland 21202 WARRANTS (410) 783-2800 STOCK PURCHASE CONTRACTS UNITS - -------------------------------------------------------------------------------- P R O S P E C T U S - -------------------------------------------------------------------------------- This prospectus is part of a registration statement that we filed with the SEC utilizing a "shelf" registration process. Under this shelf process, we may, from time to time, sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount of $2,000,000,000. Our common stock is listed on the New York Stock Exchange under the symbol "CEG." This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The supplement may also add, update or change information contained in this prospectus. There are risks involved with purchasing these securities. Please refer to the "RISK FACTORS" discussion beginning on page 3 of this prospectus. We urge you to carefully read this prospectus and the prospectus supplement, which will describe the specific terms of the offering together with additional information described under the heading "WHERE YOU CAN FIND MORE INFORMATION" before you make your investment decision. Neither the Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. (Once the registration statement is effective, the date of the prospectus will be inserted here.) The information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted. TABLE OF CONTENTS
Page ---- FORWARD LOOKING STATEMENTS.....................................................................................1 THE COMPANY....................................................................................................2 RISK FACTORS...................................................................................................3 USE OF PROCEEDS................................................................................................8 RATIO OF EARNINGS TO FIXED CHARGES.............................................................................9 DESCRIPTION OF THE DEBT SECURITIES............................................................................10 DESCRIPTION OF CAPITAL STOCK..................................................................................21 DESCRIPTION OF WARRANTS.......................................................................................24 DESCRIPTION OF STOCK PURCHASE CONTRACTS.......................................................................25 DESCRIPTION OF UNITS..........................................................................................26 PLAN OF DISTRIBUTION..........................................................................................27 VALIDITY OF THE SECURITIES....................................................................................29 EXPERTS.......................................................................................................29 WHERE YOU CAN FIND MORE INFORMATION...........................................................................29
You should rely only on the information contained in or incorporated by reference in this prospectus. We have not authorized anyone to provide you with information that is different. This document may only be used where it is legal to sell these securities. The information in this prospectus is accurate only as of its date. When we refer to "Constellation Energy," "the Company," "we," "us," or "our" in this prospectus, we mean Constellation Energy Group, Inc. FORWARD LOOKING STATEMENTS We make statements in this prospectus and may make statements in any prospectus supplement that are considered forward looking statements within the meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934. Sometimes these statements will contain words such as "believes," "expects," "intends," "plans," and other similar words. These statements are not guarantees of our future performance and are subject to risks, uncertainties and other important factors that could cause our actual performance or achievements to be materially different from those we project. These risks, uncertainties, and factors include, but are not limited to: . the timing and extent of changes in commodity prices for energy including coal, natural gas, oil, electricity and emissions allowances; . the timing and extent of deregulation of, and competition in, the energy markets in North America, and the rules and regulations adopted on a transitional basis in those markets; . the conditions of the capital markets, interest rates, availability of credit, liquidity and general economic conditions, as well as Constellation Energy's and Baltimore Gas and Electric Company's (BGE) ability to maintain their current credit ratings; . the effectiveness of Constellation Energy's and BGE's risk management policies and procedures and the ability of their counterparties to satisfy their financial and performance commitments; . the liquidity and competitiveness of wholesale trading markets for energy commodities; . operational factors affecting the start-up or ongoing commercial operations of our generating facilities (including nuclear facilities) and BGE's transmission and distribution facilities, including catastrophic weather related damages, unscheduled outages or repairs, unanticipated changes in fuel costs or availability, unavailability of gas transportation or electric transmission services, workforce issues, terrorism, liabilities associated with catastrophic events and other events beyond our control; . the inability of BGE to recover all its costs associated with providing electric retail customers service during the electric rate freeze period; . the effect of weather and general economic and business conditions on energy supply, demand and prices; . regulatory or legislative developments that affect deregulation in Maryland, in the Pennsylvania-New Jersey-Maryland Interconnection or other regions in which we operate, transmission or distribution rates and revenues, demand for energy, or increase costs, including costs related to nuclear power plants, safety or environmental compliance; . the actual outcome of uncertainties associated with assumptions and estimates using judgment when applying critical accounting policies and preparing financial statements, including factors that are estimated in applying mark-to-market accounting, such as variable contract quantities and the value of mark-to-market assets and liabilities determined using models; . changes in accounting principles or practices; 1 . the ability to attract and retain customers in our competitive supply business; . losses on the sale or write down of assets due to impairment events or changes in management intent with regard to either holding or selling certain assets; . cost and other effects of legal and administrative proceedings that may not be covered by insurance, including environmental liabilities; and . operation of our generation assets in a deregulated market without the benefit of a fuel rate adjustment clause. THESE FACTORS AND THE OTHER RISK FACTORS DISCUSSED IN THIS PROSPECTUS, INCLUDING UNDER THE HEADING, "RISK FACTORS" ARE NOT NECESSARILY ALL OF THE IMPORTANT FACTORS THAT COULD CAUSE CONSTELLATION ENERGY'S ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE EXPRESSED IN ANY OF ITS FORWARD LOOKING STATEMENTS. OTHER UNKNOWN OR UNPREDICTABLE FACTORS ALSO COULD HAVE MATERIAL ADVERSE EFFECTS ON OUR FUTURE RESULTS. GIVEN THESE UNCERTAINTIES, YOU SHOULD NOT PLACE UNDUE RELIANCE ON THESE FORWARD LOOKING STATEMENTS. PLEASE SEE CONSTELLATION ENERGY'S PERIODIC REPORTS FILED WITH THE SEC FOR MORE INFORMATION ON THESE FACTORS. THE FORWARD LOOKING STATEMENTS INCLUDED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT ARE MADE ONLY AS OF THE DATE OF THIS PROSPECTUS OR SUCH PROSPECTUS SUPPLEMENT. THE COMPANY Constellation Energy Group, Inc., or Constellation Energy, is a North American energy company that conducts its business through various subsidiaries including a merchant energy business and Baltimore Gas and Electric Company, or BGE. Our merchant energy business has electric generation assets located in various regions of the United States and engages in power marketing and risk management and competitive supply activities, providing energy solutions to meet customers' needs throughout North America. This business includes: . fossil, nuclear and hydroelectric generating facilities, interests in power projects in the United States and nuclear consulting services; 2 . power marketing, origination transactions (such as load-serving, tolling contracts, and power purchase agreements), and risk management services; and . supply of electricity, gas and consulting services to large commercial and industrial customers. BGE is a regulated electric and gas public transmission and distribution company with a service territory that includes the City of Baltimore and all or part of ten counties in central Maryland. BGE's electric delivery territory is an area of approximately 2,300 square miles with an estimated population of 2.7 million. BGE's gas service territory is an area of approximately 800 square miles with an estimated population of 2.0 million. Our other nonregulated businesses provide: . energy products and services to commercial customers; . home improvements, the service of heating, air conditioning, plumbing, electrical and indoor air quality systems and residential electric and gas retail marketing; and . cooling services for commercial customers in Baltimore, Maryland. In addition, we have several financial investments, own several real estate assets and own interests in a Latin American distribution project and a fund that holds interests in two Latin American energy projects. RISK FACTORS Constellation Energy's revenues and results of operations are subject to market risks that are beyond its control. Constellation Energy sells electricity from its power generation facilities into the competitive power markets on a contractual basis or into the spot market. No rate of return on capital investments is guaranteed through mandated rates, and revenues and results of operations are likely to depend, in large part, upon prevailing market prices for electricity in regional markets and other competitive markets. These market prices may fluctuate substantially over relatively short periods of time. In addition, the Federal Energy Regulatory Commission, or FERC, which has jurisdiction over wholesale power rates, as well as independent system operators that oversee some of these markets, may impose price limitations, bidding rules and other mechanisms to address some of the volatility in these markets. Fluctuations in market prices and regulatory actions by FERC or independent system operators could reduce revenues from power sales. Currently, Constellation Energy's power generation facilities purchase a portion of their fuel through short-term contracts or on the spot market. Fuel prices may also be volatile, and the price that can be obtained for power sales may not change at the same rate as changes in fuel costs. Also, Constellation Energy's trading, marketing and risk management operations expose it to other risks, including the credit risk of counterparties to agreements and other risks relating to counterparties' failure to perform, and to the risk of commodity price fluctuations. BGE is also exposed to market risk if its electricity suppliers are unable to perform their obligations. Fuel price increases and defaults by suppliers and other counterparties may adversely affect our results of operations. Volatility in market prices for fuel and electricity may result from among other things: . weather conditions, . seasonality, . electricity usage, . illiquid markets, . transmission or transportation constraints or inefficiencies, 3 . availability of competitively priced alternative energy sources, . demand for energy commodities, . natural gas, crude oil and refined products, and coal production levels, . natural disasters, wars, embargoes and other catastrophic events, and . federal and state energy and environmental regulation, legislation and policies. Operation of power generation facilities involves significant risks that could negatively affect Constellation Energy's revenues and results of operations. Constellation Energy is exposed to risks relating to the breakdown or failure of equipment or processes, fuel supply interruptions, shortages of equipment, material and labor, and operating performance below expected levels of output or efficiency. A portion of Constellation Energy's generation facilities were constructed many years ago. Older generating equipment may require significant capital expenditures to keep it operating at peak efficiency. This equipment is also likely to require periodic upgrading and improvement. Any event which results in reduced power generation, may cause a shortfall in power generation. Constellation Energy may then have to purchase power to cover any shortfalls in its generation in the spot market, the cost of which may be substantially higher than the cost of generating that power, which may result in reduced earnings. Constellation Energy may be liable for significant environmental costs. In connection with its electric generation facilities and the activities of BGE, we may be liable for costs of environmental remediation, including costs resulting from the operations of third-party owners as well as the potential costs of complying with new or revised regulatory requirements. The actual cost of compliance and remediation could be significantly higher than the recorded liabilities. We may also be required to assume these types of environmental liabilities, as well as others, in connection with future acquisitions. As a result, we may be liable for significant environmental remediation costs and other liabilities arising from the operation of its facilities, which could reduce our earnings. Constellation Energy is exposed to risks relating to the ownership and operation of nuclear power plants. Constellation Energy owns and operates nuclear electric generation plants. Ownership and operation of these plants expose Constellation Energy to risks in addition to those that result from owning and operating non-nuclear electric generation facilities. Risks associated specifically with the operation and cost of operation of nuclear plants include changing federal and state environmental requirements relating specifically to nuclear facilities, safety, terrorism, accidents at the nuclear plants, nuclear plant decommissioning costs, storage and ultimate disposal of spent nuclear fuel, disposal of hazardous materials and waste, monitoring of discharges into the environment and any required remediation of any site that is identified as contaminated. Any of these risks could result in substantial liabilities or expenses for us and reduce our earnings or harm our liquidity. In addition, the Nuclear Regulatory Commission has the authority to modify, suspend or revoke the operating license for any of our nuclear power facilities if it determines that such action is necessary to ensure the public health and safety. Such action would have a negative impact on our revenues. Constellation Energy often relies on single suppliers and at times on single customers at its facilities, exposing Constellation Energy to significant financial risks if either should fail to perform its obligations. Constellation Energy often relies on a single supplier for the provision of fuel, water and 4 other services required for operation of a facility, and at times, it relies on a single customer or a few customers to purchase all or a significant portion of a facility's output, in some cases under long-term agreements that provide the support for any project debt used to finance the facility. The failure of any one customer or supplier to fulfill its contractual obligations to the facility could negatively imipact such facility's financial results. Consequently, our financial performance depends on the continued performance by customers and suppliers of their obligations under these long-term agreements. Reduced liquidity in the markets in which Constellation Energy operates could impair our ability appropriately manage the risks of our operations. As a result of recent market events (such as government investigations, changes in market design and deteriorating credit quality), several merchant energy businesses have ended or significantly reduced their energy trading activities. As a result, beginning in the second quarter of 2002, several regional energy markets experienced a significant decline in liquidity. Reduced market liquidity, may restrict our ability to manage our risks, and thereby weaken our operating results and financial position. Constellation Energy may not fully hedge its generation assets, competitive supply or market positions against changes in commodity prices, and its hedging procedures may not work as planned. To lower its financial exposure related to commodity price fluctuations, Constellation Energy routinely enters into contracts to hedge a portion of its purchase and sale commitments, weather positions, fuel requirements, inventories of natural gas, coal and other commodities, and competitive supply. As part of this strategy, Constellation Energy routinely utilizes fixed-price forward physical purchase and sales contracts, futures, financial swaps and option contracts traded in the over-the-counter markets or on exchanges. However, Constellation Energy may not cover the entire exposure of its assets or positions to market price volatility and the coverage will vary over time. Fluctuating commodity prices may negatively impact our financial results and financial position to the extent we have unhedged positions. Our risk management policies and procedures may not always work as planned. As a result of these and other factors, Constellation Energy cannot predict with precision the impact that risk management decisions may have on its businesses, operating results or financial position. Constellation Energy is exposed to the risk that counterparties which owe it money or energy as a result of market transactions will not perform their obligations. Should the counterparties to these arrangements fail to perform, Constellation Energy might be forced to acquire alternative hedging arrangements or honor the underlying commitment at then-current market prices. In such event, Constellation Energy might incur additional costs to the extent of amounts, if any, already paid to the counterparties. In connection with its operations, Constellation Energy has, and will continue to, guarantee or indemnify the performance of a portion of the obligations of its subsidiaries. Some of these guarantees and indemnities are for fixed amounts, others have a fixed maximum amount and others do not specify a maximum amount. Constellation Energy might not be able to satisfy all of these guarantees and indemnification obligations if they were to come due at the same time. Constellation Energy operates in the deregulating segments of the electric power industry created by restructuring initiatives at both state and federal levels. If competitive restructuring of the electric power industry is reversed, discontinued or delayed, Constellation Energy's business prospects and financial condition could be materially adversely impaired. 5 The regulatory environment applicable to the electric power industry has recently undergone substantial changes as a result of restructuring initiatives at both the state and federal levels. These initiatives have had a significant impact on the nature of the industry and the manner in which its participants conduct their business. Constellation Energy has targeted the deregulating segments of the electric power and natural gas industries created by these initiatives. These changes are ongoing and Constellation Energy cannot predict the future development of deregulation in these markets or the ultimate effect that this changing regulatory environment will have on its business. Moreover, existing regulations may be revised or reinterpreted, new laws and regulations may be adopted or become applicable to Constellation Energy or its facilities, and future changes in laws and regulations may have a detrimental effect on its business. Certain restructured markets (most notably California) have recently experienced supply problems and price volatility. These supply problems and volatility have been the subject of a significant amount of publicity, much of which has been critical of the restructuring initiatives. In some of these markets, including California, proposals have been made by governmental agencies and/or other interested parties to re-regulate areas of these markets which have previously been deregulated. Other proposals to re-regulate may be made and legislative or other attention to the electric power restructuring process may delay or reverse the deregulation process. If competitive restructuring of the power and natural gas markets is reversed, discontinued or delayed, Constellation Energy's business prospects and financial condition could be negatively impacted. Constellation Energy's results may fluctuate on a seasonal and quarterly basis. Our business is affected by weather conditions and usually is seasonal. Consequently, the overall operating results of Constellation Energy may fluctuate substantially on a seasonal basis, and the pattern of this fluctuation may change depending on the nature and location of any facilities Constellation Energy acquires and the terms of any contract to which it becomes a party. The demand for energy by Constellation Energy's customers is directly affected by weather conditions. Generally, demand for power peaks in winter and summer. Typically, when winters are warmer than expected and summers are cooler than expected, demand for energy is lower, resulting in less electric and gas consumption than forecasted. These and other unexpected conditions may reduce our revenues and results of operations. First and third quarter results of operations will be substantially dependent on weather conditions, and may make period comparisons less relevant. Any substantial fluctuations in operating results for fiscal quarters or on a year to year basis may cause Constellation Energy's stock price to be volatile. A downgrade in our credit ratings could negatively affect our ability to access capital and/or operate our power marketing, origination and risk management business. If any of our credit ratings were to be downgraded, especially below investment grade, our ability to access the capital markets, including the commercial paper markets, could be hindered, and our borrowing costs would increase. Additionally, the business prospects of our power marketing, origination and risk management and competitive supply businesses, which in many cases rely on the creditworthiness of Constellation Energy, would be negatively impacted. Some of the factors that affect credit ratings are cash flows, liquidity and the amount of debt as a component of total capitalization. An example of factors that could cause our debt as a component of total capitalization to increase, which in turn could negatively effect our credit ratings, would be the need to borrow money to pay for unexpected repairs at a generating facility caused by a catastrophic event, or replacement power costs due to an unplanned outage, neither of which were covered by insurance. 6 Constellation Energy, and BGE particularly, are subject to state and federal regulation. Changes in regulations could have a material adverse impact on Constellation Energy's results of operations. Constellation Energy and BGE are subject to federal and state regulation, including environmental regulation. BGE is also subject to extensive regulation from both the State of Maryland and the federal government, particularly the FERC. Regulation that impacts BGE includes rate regulation by the Maryland Public Service Commission and FERC regulation regarding electric transmission assets and rates. In addition, areas of our business that are currently subject to less regulation (for example energy trading) could become subject to more extensive regulation. We cannot predict the future development of regulations or the ultimate effect that a changing regulatory environment will have on Constellation Energy's or BGE's business. Several examples of regulation are: . The Clean Air Act and many state laws require significant reductions in sulfur dioxide and nitrogen oxide emissions that are emitted by our generation plants, particularly our coal plants. In addition, the Environmental Protection Agency is evaluating the health impacts of mercury emissions from our coal-fired plants. Current or future rulemakings in either of these areas could have a material impact on Constellation Energy's operations or revenues. . The electric restructuring Maryland enacted in 1999 could be changed in the future in ways that would be adverse to our business. As part of the restructuring, BGE's electric base rates are frozen until 2004 for certain commercial customers and 2006 for residential customers. BGE may not be able to recover increased operations, maintenance or capital costs it may experience while its rates are frozen. In addition, BGE is currently involved in settlement proceedings with the Maryland Public Service Commission that address BGE's obligations to provide "standard offer service" to commercial and industrial customers after June 30, 2004 and to residential customers after June 30, 2006. Since these proceedings are ongoing, we do not yet know whether the final settlement will have a negative impact on Constellation Energy's operations or revenues. Anti-takeover provisions in Constellation Energy's charter and bylaws and under Maryland law could prevent or delay transactions that Constellation Energy's stockholders may favor. Provisions of Constellation Energy's charter and bylaws may discourage, delay or prevent a merger or acquisition that its stockholders may consider favorable, including transactions in which stockholders might otherwise receive a premium for their equity. For example, these provisions: . authorize the issuance of "blank check" preferred stock without any need for action by stockholders; . provide for a classified board of directors with staggered three-year terms; . allow for directors to be removed only for cause and upon the vote of a majority of the stockholders; and . establish procedures and restrictions for nominations for election to the board of directors or for proposing matters that can be acted on by stockholders at stockholder meetings. While Constellation Energy has not adopted a stockholder rights plan intended to protect stockholders in the event of an unfair or coercive offer to acquire Constellation Energy, Maryland law permits us to adopt such a plan at any time without approval of the stockholders. If adopted, the stockholder rights plan would have anti-takeover effects. The rights plan would cause substantial dilution to a person or group 7 that attempts to acquire Constellation Energy and would discourage, delay or prevent a merger or acquisition that stockholders may consider favorable, including transactions in which stockholders might otherwise receive a premium for their shares. Constellation Energy has opted out of the provisions of Maryland's control share statute, which provides that shares acquired in a controlled share acquisition (shares with more than one-tenth, one-third, and a majority of the power to vote generally in an election of directors) have no voting rights except as approved by the affirmative vote of two-thirds of all disinterested stockholders. However, Our board of directors may opt back into the statute as an anti-takeover measure. USE OF PROCEEDS Except as otherwise provided in a prospectus supplement, the net proceeds from the sale of the securities will be used for general corporate purposes relating to our merchant energy business. If we do not use the net proceeds immediately, we may temporarily invest them in short-term, interest-bearing obligations. 8 RATIO OF EARNINGS TO FIXED CHARGES The Ratio of Earnings to Fixed Charges for each of the periods indicated is as follows: NINE MONTHS ENDED TWELVE MONTHS ENDED SEPTEMBER 30, DECEMBER 31, - --------------------- ------------------------------------------------------- 2002 2001 2000 1999 1998 1997 - ---- ---- ---- ---- ---- ---- 2.60 1.18 2.78 2.87 2.60 2.35 The lower number for 2001 reflects the impact of $533 million of special items incurred in the fourth quarter of 2001. For a more complete discussion of these special items (which include workforce reduction programs, impairments of certain assets and the cost associated with the termination of a business services agreement), please refer to our Annual Report on Form 10-K for the year ended December 31, 2001. For current information on the Ratio of Earnings to Fixed Charges, please see our most recent reports on Form 10-K or Form 10-Q. See "Where You Can Find More Information." 9 DESCRIPTION OF THE DEBT SECURITIES GENERAL This section summarizes terms of the debt securities that we may offer with this prospectus. Most of the specific terms of a series of debt securities will be described in a prospectus supplement attached to this prospectus and may vary from the terms described herein. For a complete description of the terms of a particular offering of debt securities, you should read both this prospectus and the prospectus supplement relating to that particular offering. We will issue the debt securities under an indenture. The indenture is a contract between us and the trustee, The Bank of New York, dated as of March 24, 1999 as supplemented on January 24, 2003. The trustee has two main roles. First, the trustee can enforce the rights of holders of the debt securities against us if we default. There are some limitations on the extent to which the trustee acts on your behalf, described later in this section under "Events of Default." Second, the trustee performs certain administrative duties for the holders of debt securities, such as sending interest payments and notices, and implementing transfers of debt securities. A copy of the indenture has been filed with the SEC and is an exhibit to the registration statement which contains this prospectus. See "Where You Can Find More Information" to find out how to locate our filings with the SEC. The indenture and the debt securities are governed by New York law. The indenture is summarized below. Because it is a summary, it does not contain all of the information that may be important to you. You should read the indenture to get a complete understanding of your rights and our obligations under the provisions described in this section under "Events of Default," "Supplemental Indentures," and "Consolidation, Merger or Sale." This summary is subject to, and qualified in its entirety by, reference to all the provisions of the indenture. We include references in parentheses to certain sections of the indenture. This summary also is subject to, and qualified by, reference to the description of the particular terms of each series of debt securities described in the applicable prospectus supplement. The indenture does not limit the amount of debt securities that may be issued. There are existing series of debt securities outstanding under the indenture and we may issue additional multiple and distinct series of debt securities. For current information on our debt outstanding see our most recent Form 10-K and 10-Q. See Where You Can Find More Information. The debt securities are unsecured and will rank equally with all our unsecured indebtedness unless expressly subordinated. The debt securities will be subordinate to all of our secured indebtedness, if any. The indenture does not limit the amount of indebtedness that our subsidiaries may incur. This subsidiary debt effectively ranks senior to any debt securities we may issue. For current information on our subsidiary debt outstanding, see our most recent Form 10-K and 10-Q. See Where You Can Find More Information. The debt securities will be denominated in U.S. dollars and we will pay principal and interest in U.S. dollars. The applicable prospectus supplement will describe whether the debt securities will be subject to any conversion, amortization, or sinking or similar fund. It is anticipated that the debt securities will be "book-entry," represented by a permanent global debt security registered in the name of The 10 Depository Trust Company, or its nominee. However, we reserve the right to issue debt securities in certificated form registered in the name of the debt security holders. Unless the applicable prospectus supplement states otherwise, we may from time to time, without the consent of the applicable existing note holders, create and issue further notes of each series ranking equally with the other notes of the series having the same terms and conditions as the notes of such series being offered hereby in all respects, except for issue date, issue price and if applicable, the first payment of interest therein. Additional notes issued in this manner will form a single series with the previously outstanding notes of that series. In the discussion that follows, whenever we talk about paying principal on the debt securities, we mean at maturity, redemption or repurchase. Also, in discussing the time for notices and how the different interest rates are calculated, all times are New York City time, unless otherwise noted. The applicable prospectus supplement will describe the terms for the debt securities including: .. title of the securities, .. any limit on the aggregate principal amount of the debt securities of that series, .. maturity date, .. interest rate or rates (or the method to calculate such rate) .. remarketing provisions, .. redemption or repurchase provisions, .. if other than the principal amount, the portion of the principal amount payable upon maturity (known as discounted debt securities) .. whether, and on what terms and at what prices, the debt securities may be converted into or exercised or exchanged for our common stock, preferred stock or any other type of security, and .. any other provisions. (Section 3.01) OWNERSHIP OF THE DEBT SECURITIES DIRECT SECURITYHOLDERS Only registered holders of debt securities will have rights under the indenture. As noted below, we do not have obligations to you if you hold in "street name" or other indirect means, either because you choose to hold debt securities in that manner or because the debt securities are issued in the form of global debt securities as described below. For example, once we make payment to the registered securityholder, we have no further responsibility for the payment even if that securityholder is legally required to pass the payment along to you as a "street name" customer but does not do so. "STREET NAME" AND OTHER INDIRECT HOLDERS Investors who hold debt securities in accounts at banks or brokers will generally not be recognized by us as legal securityholders. This is called holding in "street name." Instead, we recognize only the bank or broker, or the financial institution the bank or broker uses to hold its debt securities. These intermediary banks, brokers and other financial institutions pass along principal, interest and other payments on the debt securities to their customers. If you hold debt securities in "street name," you should check with your own institution to find out: .. how it handles securities payments and notices, .. whether it imposes fees or charges, .. how it would handle voting if ever required, .. whether and how you can instruct it to send you debt securities registered in your own name so you can be a direct securityholder 11 as described below to the extent permitted, and .. how it would pursue rights under the debt securities if there were a default or other event triggering the need for securityholders to act to protect their interests. GLOBAL SECURITIES A global security is a special type of indirectly held security. This means that we will not issue certificates to each beneficial owner. If we choose to issue debt securities in the form of global debt securities, the ultimate beneficial owners can only be indirect holders. We do this by requiring that the global debt security be registered in the name of a financial institution which we select and by requiring that the debt securities included in the global debt security not be transferred to the name of any other direct securityholder unless the special circumstances described below occur. The financial institution that acts as the sole direct securityholder of the global debt securities is called the "depositary." Any person wishing to own a debt security must do so indirectly by virtue of an account with a broker, bank or other financial institution that in turn is a participant with the depositary. The applicable prospectus supplement will indicate whether your series of debt securities will be issued only in the form of global debt securities. An indirect holder's rights relating to a global debt security will be governed by the account rules of the investor's financial institution and the depositary, as well as general laws relating to securities transfers. We do not recognize this type of investor as a securityholder and instead deal only with the depositary. An investor should be aware that if debt securities are issued only in the form of global debt securities: .. the investor cannot get debt securities registered in his or her own name, and .. the investor cannot receive physical certificates for his or her interest in the debt securities. This means these securities may not be pledged as security under the laws of some jurisdictions. DTC has provided us the following information: DTC is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the United States Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered under the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds securities that its participants ("Direct Participants") deposit with DTC. DTC also records the settlement among Direct Participants of securities transactions, such as transfers and pledges, in deposited securities through computerized records for Direct Participant's accounts. This eliminates the need to exchange certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC's book-entry system is also used by other organizations such as securities brokers and dealers, banks and trust companies that work through a Direct Participant. The rules that apply to DTC and its participants are on file with the SEC. DTC is owned by a number of its Direct Participants and by the New York Stock Exchange, Inc., The American Stock Exchange, LLC, and the National Association of Securities Dealers, Inc. When applicable, we will wire principal and interest payments to DTC's nominee. We and the trustee will treat DTC's nominee as the owner of the global securities for all purposes. Accordingly, we, the trustee and any paying agent will have no direct responsibility or liability to pay amounts due on the global 12 securities to owners of beneficial interests in the global securities. It is DTC's current practice, upon receipt of any payment of principal or interest, to credit Direct Participants' accounts on the payment date according to their respective holdings of beneficial interests in the global securities as shown on DTC's records. In addition, it is DTC's current practice to assign any consenting or voting rights to Direct Participants whose accounts are credited with debt securities on a record date, by using an omnibus proxy. Payments by participants to owners of beneficial interests in the global securities, and voting by participants, will be governed by the customary practices between the participants and owners of beneficial interests, as is the case with debt securities held for the account of customers registered in "street name." However, payments will be the responsibility of the participants and not of DTC, the trustee or us. Global securities will be exchangeable for certificated debt securities with the same terms in authorized denominations only if: .. the depositary notifies us that it is unwilling or unable to continue as depositary or if it ceases to be a clearing agency registered under applicable law and a successor depositary is not appointed by us within 90 days; .. an event of default with respect to the debt securities of that series has occurred and has not been cured (see "Events of Default"); or .. we determine not to have the debt securities of a series to be represented by a global debt security and notify the trustee of our decision. (Section 3.04) The applicable prospectus supplement may also list additional situations for requiring a global debt security to be exchanged for a certificated security that would apply only to the particular series of debt securities covered by that prospectus supplement. When a global debt security terminates, the depositary (and not we or the trustee) is responsible for deciding the names of the institutions that will be the initial direct securityholders. (Section 3.04) In the remainder of this description "you" means direct securityholders and not "street name" or other indirect holders. ADDITIONAL MECHANICS FORM, EXCHANGE AND TRANSFER In the absence of any contrary provision described in the prospectus supplement for any specific series of debt securities, the debt securities will be issued: .. in registered form; .. without interest coupons; and .. in denominations that are multiples of $1,000. (Section 3.02) You may have your debt securities exchanged into more debt securities of smaller denominations, with a minimum of $1,000, or combined into fewer debt securities of larger denominations, as long as the total principal amount is not changed. (Section 3.04) This is called an "exchange." You may exchange or transfer debt securities at the office of the trustee or at an agency to be maintained by us for such purpose. The trustee acts as our agent for registering debt securities in the names of securityholders and transferring debt securities. We may change this appointment to another entity or perform it ourselves. The entity performing the role of maintaining the list of registered holders is called the "security registrar." It will also perform transfers. (Section 3.04) The rules for exchange described above apply to exchange of debt securities for other debt securities of the same series and kind. If a debt security is convertible, exercisable or 13 exchangeable into or for a different kind of security, such as one that we have not issued, or for other property, the rule governing that type of conversion, exercise or exchange will be described in the applicable prospectus supplement. You will not be required to pay a service charge to transfer or exchange debt securities, but you may be required to pay for any tax or other governmental charge associated with the exchange or transfer. The transfer or exchange will only be made if we and the security registrar are satisfied with your proof of ownership. (Section 3.04) PAYMENT AND PAYING AGENTS We will pay interest to you if you are a securityholder listed in the trustee's records at the close of business on a particular day in advance of each due date for interest, even if you no longer own the debt security on the interest due date. That particular day, usually about two weeks in advance of the interest due date, is called the "record date" and is stated in the prospectus supplement. (Sections 3.02 and 5.01) Securityholders buying and selling debt securities must work out between them how to compensate for the fact that we will pay all the interest for an interest period to the one who is the registered securityholder on the regular record date. The most common manner is to adjust the sales price of the debt securities to pro rate interest fairly between buyer and seller. We have appointed the trustee as paying agent, and we will pay interest, principal and any other money due on the debt securities at the principal office of the trustee in New York City. That office is currently located at 101 Barclay Street, Floor 8 West, New York, New York 10286; Attention: Corporate Trust Administration. We may also have additional payment offices or change them, or act as our own paying agent. (Section 5.02) Single holders of over $5 million in principal amount of debt securities can request that payment of principal and interest be wired to them by contacting the paying agent at the address set forth above at least three (3) business days prior to the payment date. Otherwise, payments will be made by check. (Section 3.02) "Street name" and other indirect holders should consult their banks or brokers for information on how they will receive payments. REMARKETING We may issue debt securities with remarketing features that allow securityholders the option to sell their debt securities back to us. In turn, we may have the option to retire those debt securities or remarket and sell them to new holders. REDEMPTION We may have the right to redeem or otherwise repurchase debt securities at our option. If the debt securities are redeemable, except as otherwise set forth in the note for such series, we may partially redeem the debt securities only in multiples of $1,000. (Section 4.01) Notice of redemption will be provided at least 30, but no more than 60, days prior to the date of redemption. (Section 4.04) If we do not redeem all debt securities in a series at one time, the trustee will select the debt securities to be redeemed in a manner it determines to be appropriate and fair. (Section 4.03) If a debt security is only partially redeemed, we will issue a new debt security of the same series in an amount equal to the unredeemed portion of the debt security. (Section 4.06) REPURCHASE If the debt securities are subject to a repurchase option, the debt securityholder may have the right to cause us to repurchase the debt securities. For global debt securities, unless otherwise provided in the applicable prospectus 14 supplement, participants, on behalf of the owners of beneficial interests in the global debt securities, may exercise the repurchase option by delivering written notice to our paying agent, The Bank of New York, at least 30, but no more than 60, days prior to the date of repurchase (101 Barclay Street, Floor 8 West, New York, New York 10286, Attention: Corporate Trust Administration). The paying agent must receive notice by 5:00 p.m. on the last day for giving notice. Procedures for the owners of beneficial interests in global debt securities to notify their participants of their desire to have their debt security repurchased will be governed by the customary practices of the participant. The written notice to the paying agent must state the principal amount to be repurchased. It is irrevocable, and a duly authorized officer of the participant (with signatures guaranteed) must sign it. Unless otherwise specified in the applicable prospectus supplement, debt securityholders who hold their securities directly and who desire to exercise their repurchase option must notify the paying agent at least 30, but not more than 45, days prior to the repayment date by providing the paying agent: .. the certificated debt security, with the section entitled "Option to Elect Repayment" on the reverse of the debt security completed; or .. a fax or letter (first class, postage prepaid) from a member of a national securities exchange, the National Association of Securities Dealers, or a bank or trust company in the United States which states the following: . the name of the holder; . the principal amount of the debt security and the amount to be repurchased; . the certificate number or the maturity and a description of the terms of the security; . a statement that you wish to sell all or a portion of your note; and .. A guaranty that the debt security with the section entitled "Option to Elect Repayment" on the reverse of the debt security completed, will be received by the paying agent within 5 business days. The debt security and form must be received by the paying agent by such 5th business day. Your notice of repurchase is irrevocable. If you sell a portion of a debt security, the old debt security will be canceled and a new debt security for the remaining principal amount will be issued to you. INTEREST RATE The following terms will apply to any issue of debt securities unless otherwise indicated in the applicable prospectus supplement. The interest rate on the debt securities will either be fixed or floating as indicated in the applicable prospectus supplement. The interest paid will include interest accrued to, but excluding, the date of maturity, redemption or repurchase. Interest is generally payable to the person in whose name the debt security is registered at the close of business on the record date applicable to each interest payment date. Interest payable at maturity, redemption, or repurchase, however, will be payable to the person to whom principal is payable. The interest payment on any debt security originally issued between a record date and interest payment date or on an interest payment date will be made on the interest payment date after the next record date. Interest payments, other than those payable at maturity, redemption or repurchase will be paid, at our option, by check or wire transfer. EVENTS OF DEFAULT An "Event of Default" with respect to a series of securities means any of the following: 15 .. we fail to pay the principal of (or premium, if any, on) any debt security of that series when due and payable; .. we fail to pay any interest on any debt security of that series for 30 days after such is due; .. we fail to observe or perform any other covenants or agreements set forth in the debt securities of that series, or in the indenture in regard to such debt securities, continuously for 60 days after notice (which must be sent either by the Trustee or holders of at least 33% of the principal amount of the affected series); .. we file for bankruptcy or certain other events of bankruptcy, insolvency or reorganization occur; or .. any other event of default described in the prospectus supplement. An Event of Default for a particular series of debt securities does not necessarily mean that an Event of Default has occurred for any other series of debt securities issued under the indenture. If an Event of Default has occurred and has not been cured, the trustee or the holders of not less than 33% of the principal amount of the debt securities of the affected series may declare the entire principal of the debt securities of such series due and payable immediately. Subject to certain conditions, if we deposit with the trustee enough money to remedy the default and there is no default continuing, this acceleration of payment may be rescinded by the holders of at least a majority in aggregate principal amount of the debt securities of the series. (Section 7.01) The trustee must within 90 days after a default occurs, notify the holders of the debt securities of the series of the default if we have not remedied it (default is defined to include the events specified above without the grace periods or notice). The trustee may withhold notice to the holders of such debt securities of any default (except in the payment of principal or interest) if it in good faith considers such withholding in the interest of the holders. (Section 7.08) We are required to file an annual certificate with the trustee, signed by an officer, stating any default by us under any provisions of the indenture. (Section 5.06) Prior to any declaration of acceleration of maturity, the holders holding a majority of the principal amount of the debt securities of the particular series affected, on behalf of the holders of all debt securities of that series, may waive any past default or Event of Default. We cannot, however, obtain a waiver of a payment default. (Section 7.07) Except in cases of default, where the trustee has some special duties, the trustee is not required to take any action under the indenture at the request of any holders unless such holders offer the trustee reasonable indemnity. (Section 8.02(d)) Subject to the provisions for indemnification and certain other limitations, the holders of a majority in principal amount of the debt securities of any series may direct the time, method and place of conducting any proceedings for any remedy available to the trustee with respect to such debt securities. (Section 7.07) In order to bypass the trustee and take steps to enforce your rights or protect your interests relating to the debt securities, the following must occur: .. you must give the trustee written notice that an Event of Default has occurred and remains uncured; .. the holders of 25% of the principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee take action because of the default, and must offer reasonable indemnity to the trustee against the cost and other liabilities of taking that action; and 16 .. the trustee must have not taken action for 60 days after receipt of the above notice and offer of indemnity. However, you are entitled at any time to bring a lawsuit for the payment of money due on your debt security on or after its due date. (Section 7.04) "Street name" and other indirect holders should consult their banks or brokers for information on how to give notice or direction to, or make a request of, the trustee and to make or cancel a declaration of acceleration. SUPPLEMENTAL INDENTURES There are three types of changes we can make to the indenture and the debt securities. Changes Requiring Each Holder's Approval. The following changes require the approval of each holder of debt securities: .. extend the fixed maturity of any debt security; .. reduce the interest rate (or change the method used to establish the interest rate) or extend the time of payment of interest; .. reduce any premium payable upon redemption; .. reduce the principal amount; .. reduce the amount of principal payable upon acceleration of the maturity of a discounted debt security following default; .. change the currency of payment on a debt security; or .. reduce the percentage of securityholders whose consent is required to modify or amend the indenture (Section 11.02) Changes Not Requiring Holder Approval. These types of changes are limited to those changes specified in the indenture, including those which are of an administrative nature or are changes that would not adversely affect holders of the debt securities. (Section 11.01) Changes Requiring 66-2/3% of all Holders to Approve. A vote in favor by securityholders owning not less than 66-2/3% of the principal amount of the debt securities of the particular series affected is required for any other matter listed in the indenture or in a particular security. (Section 11.02) "Street name" and other indirect holders should consult their banks or brokers for information on how approval may be granted or denied if we seek to change the indenture or the debt securities or request a waiver. CONSOLIDATION, MERGER OR SALE We may not merge or consolidate with any corporation or sell substantially all of our assets as an entirety unless: .. we are the continuing corporation or the successor corporation expressly assumes the payment of principal, and premium, if any, and interest on the debt securities and the performance and observance of all the covenants and conditions of the indenture binding on us (Section 12.01); and .. we, or the successor corporation, are not immediately after the merger, consolidation, or sale in default in the performance of a covenant or condition in the indenture. (Section 12.02) DISCHARGE The indenture provides that we can discharge and satisfy all of our obligations under any series of notes that are payable within one year, or under any series of notes that we deliver to the trustee (and that have not already been cancelled), by depositing with the trustee or any paying agent, enough funds to pay the principal 17 and interest due or to become due on the notes until their maturity date. (Section 13.01) CONVERSION GENERAL We may issue debt securities that may be converted into or exercised or exchanged for our common stock, preferred stock or any of our other securities. Debt securities will not be convertible unless the applicable prospectus supplement expressly so states. We refer to these securities as convertible debt securities. The discussion that follows contemplates that the debt securities we may issue will be convertible into common stock. The applicable prospectus supplement will discuss the terms of any debt securities that may be convertible into any other type of security. Any convertible debt securities will be issued pursuant to a supplemental indenture to the indenture between us and The Bank of New York dated January 24, 2003. For clarity, we have used the designation "FSI" when discussing the provisions of the supplemental indenture below.The applicable prospectus supplement for any series of convertible debt securities will set forth the terms of the convertible debt securities, including the conversion rate at which the holder of any convertible debt security of that series may initially convert that security into common stock. The conversion rate for any series of outstanding convertible debt securities will be expressed as a number of shares per $1,000 principal amount of convertible debt securities, and will be adjusted in certain circumstances as described in "Adjustment of Conversion Rate" below. The right to convert a convertible debt security called for redemption or delivered for repurchase will terminate at the close of business on the business day immediately preceding the redemption date for that security, unless we default in making the payment due upon redemption. (FSI Section 2.1) EXERCISE OF CONVERSION PRIVILEGE Securityholders may convert all or part of any convertible debt security by delivering the convertible debt security at an office or agency maintained for that purpose. Unless the applicable prospectus supplement for a series of convertible debt securities states otherwise, that office will be the corporate trust office of the trustee at 101 Barclay Street, Floor 8 West, New York, New York, 10286; Attention: Corporate Trust Administration, and the trustee will serve as conversion agent. The convertible debt security surrendered for conversion must be accompanied by a duly signed and completed conversion notice, a copy of which may be obtained from the trustee. The conversion date will be the date on which the convertible debt security and the duly signed and completed conversion notice are so delivered. (FSI Section 2.2) As promptly as practicable on or after the conversion date, we will issue and deliver to the trustee a certificate or certificates for the number of full shares of our common stock issuable upon conversion, together with payment in lieu of any fraction of a share. The certificates will then be sent by the trustee to the conversion agent for delivery to the holder of the convertible debt security being converted. The shares of our common stock issuable upon conversion of the convertible debt securities will be fully paid and nonassessable and will rank equally with the other shares of our common stock. (FSI Sections 2.2 and 2.3) "Street name" and other indirect holders should consult their banks or brokers for information on how to exercise their conversion privilege. INTEREST AND OTHER PAYMENTS IN CONNECTION WITH CONVERTIBLE DEBT SECURITIES If a securityholder surrenders a convertible debt security for conversion on a date that is not an interest payment date, that securityholder will not be entitled to receive any interest for the period from the preceding interest payment date to the conversion date, except as described 18 below. However, a securityholder of a convertible debt security on a regular record date, including a convertible debt security surrendered for conversion after the regular record date, will receive the interest payable on such convertible debt security on the next interest payment date. Thus to correct for this overpayment of interest, any convertible debt security surrendered for conversion during the period from the close of business on a regular record date to the opening of business on the next interest payment date must be accompanied by payment of an amount equal to the interest payable on such interest payment date on the principal amount of convertible debt securities being surrendered for conversion. However, a securityholder will not be required to make that payment if he or she is converting a convertible debt security, or a portion of a convertible debt security, that we have called for redemption if such securityholder's conversion right would terminate because of the redemption between the regular record date and the close of business on the next interest payment date. (FSI Section 2.2) No other payment or adjustment for interest, or for any dividends in respect of our common stock, will be made upon conversion. Holders of our common stock issued upon conversion will not be entitled to receive any dividends payable to holders of our common stock as of any record time or date before the close of business on the conversion date. We will not issue fractional shares upon conversion. Instead, we will pay cash in lieu of fractional shares based on the market price of our common stock at the close of business on the conversion date. (FSI Section 2.3) If a securityholder delivers a convertible debt security for conversion, the securityholder will not be required to pay any taxes or duties in respect of the issue or delivery of common stock on conversion. However, the securityholder will be required to pay any tax or duty that may be payable in respect of any transfer involved in the issue or delivery of the common stock in a name other than that of the holder of the convertible debt security. We will not issue or deliver certificates representing shares of common stock unless the person requesting the issuance or delivery has paid to us the amount of any such tax or duty or has established to our satisfaction that such tax or duty has been paid. (FSI Section 2.8) "Street name" and other indirect holders should consult their banks or brokers for information on how they will receive payments. ADJUSTMENT OF CONVERSION RATE The conversion rate will be subject to adjustment for, among other things: .. dividends and other distributions payable in our common stock on shares of our capital stock; .. the issuance to all holders of our common stock of rights, options or warrants entitling them to subscribe for or purchase our common stock at less than the then current market price of such common stock as of the record date for stockholders entitled to receive such rights, options or warrants; .. subdivisions, combinations and reclassifications of our common stock; .. distributions to all holders of our common stock of evidences of our indebtedness, shares of capital stock, cash or assets, including securities, but excluding: . those dividends, rights, options, warrants and distributions referred to above; . dividends and distributions paid exclusively in cash, subject to certain exceptions; and . distributions upon mergers or consolidations discussed below; 19 .. distributions consisting exclusively of cash, excluding cash distributed upon a merger or consolidation discussed below, to all holders of our common stock in an aggregate amount that, combined together with: . other all-cash distributions made within the preceding 365-day period in respect of which no adjustment has been made; and . any cash and the fair market value of other consideration payable in connection with any tender offer by us or any of our subsidiaries for our common stock concluded within the preceding 365-day period in respect of which no adjustment has been made, exceeds 10% of our market capitalization on the record date for the distribution, being the product of the current market price per share of our common stock on the record date for such distribution and the number of shares of common stock then outstanding; and .. the completion of a tender offer made by us or any of our subsidiaries for our common stock which involves an aggregate consideration that, together with: . any cash and the fair market value of other consideration payable in a tender offer by us or any of our subsidiaries for our common stock expiring within the 365-day period preceding the expiration of that tender offer in respect of which no adjustments have been made; and . the aggregate amount of any cash distributions to all holders of our common stock within the 365-day period preceding the expiration of that tender offer in respect of which no adjustments have been made, exceeds 10% of our market capitalization on the expiration of such tender offer. We reserve the right to effect such increases in the conversion rate in addition to those required by the foregoing provisions as we consider to be advisable in order to avoid or diminish any income tax to holders of our common stock resulting from certain dividends, distributions or issuances of rights or warrants. We will not be required to make any adjustment to the conversion rate until the cumulative adjustments amount to 1% or more of the conversion rate. (FSI Section 2.4) To the extent permitted by law, we may increase the conversion rate for any period of at least 20 days if the increase is irrevocable during such period and our board of directors determines that the increase would be in our best interest. The board of directors' determination in this regard will be conclusive. We will give holders of convertible debt securities at least 15 days' notice of such an increase in the conversion rate. (FSI Section 2.4(12)) We will compute all adjustments to the conversion rate and will give notice by mail to holders of the registered convertible debt securities of any adjustments. (FSI Section 2.5) PROVISION IN CASE OF CONSOLIDATION, MERGER OR SALE OF ASSETS If we consolidate or merge with or into another entity or another entity is merged into us, or in case of any sale or transfer of all or substantially all of our assets, each convertible debt security then outstanding will become convertible only into the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of common stock into which the convertible debt securities were convertible immediately prior to the consolidation, merger, sale or transfer. This 20 calculation will be made on the assumption that the holder of common stock failed to exercise any rights of election that the holder may have to select a particular type of consideration. This paragraph will not apply to a merger or sale of all or substantially all of our assets that does not result in any reclassification, conversion, exchange or cancellation of the common stock. (FSI Section 2.11) OUR RELATIONSHIP WITH THE TRUSTEE The trustee under the indenture, and/or one or more of its affiliates, may be lenders under our, or our subsidiaries' and affiliates', credit agreements and may provide other commercial banking, investment banking and other services to us and/or our subsidiaries and affiliates. The trustee will be permitted to engage in other transactions with us and/or our subsidiaries and affiliates. However, if the trustee acquires any conflicting interest, as defined in the Trust Indenture Act, it must eliminate the conflict or resign. The trustee will perform only those duties that are specifically set forth in the indenture, unless an event of default occurs and is continuing. In case, the trustee will exercise the same degree of care and skill as a prudent individual would exercise in the conduct of his or her own affairs. DESCRIPTION OF CAPITAL STOCK The following briefly summarizes the provisions of our charter and bylaws. The following description may not be complete and is subject to, and qualified in its entirety by reference to, the terms and provisions of our charter and bylaws. See "Where You Can Find More Information." AUTHORIZED COMMON STOCK Our authorized capital stock includes 250,000,000 shares of common stock without par value. As of January 14, 2003, 198,349,772 shares have either been issued and are now outstanding or have been reserved for issuance, and 51,650,228 shares are authorized but unissued and unreserved. AUTHORIZED PREFERRED STOCK Our Board of Directors can, without further action by our shareholders, establish from the 25,000,000 undesignated shares of preferred stock , $0.01 per share par value, authorized by our charter one or more series of preferred stock. As of January 14, 2003, none of our preferred stock is issued or reserved for issuance. DESCRIPTION OF COMMON STOCK DIVIDEND RIGHTS We will pay dividends on our common stock when declared by our board of directors. However, we must first pay all dividends and any redemption payments due on any outstanding shares of our preferred stock before paying common stock dividends. VOTING RIGHTS Holders of our common stock are entitled to one vote per share on all matters on which shareholders vote. There are no cumulative voting rights. LIQUIDATION If we liquidate or dissolve, common stockholders will share equally in any assets remaining after full payment of liabilities to our creditors and the liquidation value per share plus accrued dividends due to holders of any outstanding shares of our preferred stock. GENERAL Holders of our common stock do not have any preemptive or special rights to purchase any shares of common stock we may issue at a later date. In addition, as holders of common stock, you have no redemption, conversion or sinking 21 fund rights. When issued to you, the common stock will be legally issued, fully paid and nonassessable. DESCRIPTION OF PREFERRED STOCK We may issue preferred stock in one or more series, as described below. The following briefly summarizes the provisions of our charter that would be important to holders of our preferred stock. The following description may not be complete and is subject to, and qualified in its entirety by reference to, the terms and provisions of our charter. See "Where You Can Find More Information." The description of most of the financial and other specific terms of each series will be in the prospectus supplement in connection with the offering of that series. Those terms may vary from the terms described herein. As you read this section, please remember that the specific terms of each series of preferred stock as described in the applicable prospectus supplement will supplement and, if applicable, may modify or replace the general terms described in this section. If there are differences between the prospectus supplement and this prospectus, the prospectus supplement will control. Thus, the statements we make in this section may not apply to every series of preferred stock. Reference to a series of preferred stock means all of the shares of preferred stock issued as part of the same series under articles supplementary filed as part of our charter. Reference to the applicable prospectus supplement means the prospectus supplement describing the specific terms of that offering of preferred stock you purchase. The terms used in your prospectus supplement will have the meanings described in this prospectus, unless otherwise specified. The prospectus supplement relating to a particular series of preferred stock will contain a description of the specific terms of that series as fixed by our Board, including, as applicable: . the number of shares; . the designation; . the voting powers; . votes per share (which cannot be greater than one vote per share); . liquidation preferences; . relative participating, optional or other rights; . conversion or exchange rights; . redemption rights; . put and sinking fund provisions; . dividend rights; . the terms or conditions of redemption; and . any other applicable terms. In some cases, the issuance of preferred stock could delay a change in control of Constellation Energy and make it harder to remove present management. Under certain circumstances, preferred stock could also restrict dividend payments to holders of our common stock. When we issue and receive payment for the preferred stock, the shares will be fully paid and non-assessable. Unless otherwise specified in the applicable prospectus supplement, the preferred stock will rank on a parity in all respects with any outstanding shares of our preferred stock and will have priority over our common stock as to dividends and distributions of assets. Therefore, the rights of any preferred stock that may subsequently be issued may limit the rights of the holders of our common stock and preferred stock. 22 The transfer agent, registrar, and dividend disbursement agent for a series of preferred stock will be named in a prospectus supplement. The registrar for shares of preferred stock will send notices to shareholders of any meetings at which holders of the preferred stock have the right to elect directors or to vote on any other matter. The applicable prospectus supplement relating to any series of preferred stock that is convertible, exercisable or exchangeable will state the terms on which shares of that series are convertible into or exercisable or exchangeable for shares of common stock, another series of preferred stock or other securities of Constellation Energy, or debt or equity securities of third parties. MARYLAND GENERAL CORPORATION LAW AND THE CHARTER AND BYLAWS Constellation Energy is a Maryland corporation. Provisions of Maryland's General Corporation Law ("Maryland Law"), in addition to provisions of our charter and bylaws, address corporate governance issues, including the rights of shareholders. Some of these provisions could hinder management changes while others could have an anti-takeover effect. This anti-takeover effect may, in some circumstances, reduce the control premium that might otherwise be reflected in the value of our stock. We have summarized the key provisions of Maryland Law and our charter and bylaws below. Because it is a summary, it does not contain all of the information that may be important to you. You should read our charter and bylaws (see Where You Can Find More Information), and the relevant sections of Maryland Law to get a complete understanding of your rights. This summary is subject to, and qualified in its entirety by, reference to all the provisions of our charter, bylaws and Maryland Law. Business Combination Statute. Subject to certain exceptions, Maryland Law prohibits certain business combinations between a corporation and an interested stockholder for five years after the most recent date on which the stockholder becomes an interested stockholder, and thereafter imposes special appraisal rights and special stockholder voting requirements. The statute requires a business combination which is not excepted and which takes place after the five-year moratorium to be approved by the affirmative vote of at least (1) 80% of the votes entitled to be cast by the outstanding shares of voting stock of the corporation, voting together as a group; and (2) two-thirds of the votes entitled to be cast by holders of voting stock other than the interested stockholder who is a party to the combination, voting together as a group. An interested stockholder is defined as a beneficial owner, directly or indirectly, of ten percent or more of the voting power of the outstanding voting stock of the corporation. However, a person is not an interested stockholder if, prior to the most recent time at which such person would otherwise have become an interested stockholder, the board of directors of the corporation approved the transaction which otherwise would have resulted in the person's becoming an interested stockholder (which approval may be made subject to compliance at or after the time of approval, with any terms and conditions determined by the board, e.g., a standstill requirement). Maryland Law allows companies to opt out of this provision. We have not opted out. Control Share Statute. Maryland Law provides, with certain exceptions, that control shares (generally, shares with more than one-tenth, one-third and a majority of the power to vote generally in the election of directors) of a corporation acquired in a control share acquisition have no voting rights except to the extent approved by the stockholders by the affirmative vote of at least two-thirds of all votes entitled to be cast on the matter, excluding interested shares. If the stockholders do not accord voting rights to the control shares, the corporation may redeem the control shares under certain circumstances. Unless the charter or bylaws provide otherwise, if voting rights are 23 approved, and as a result the interested stockholder becomes entitled to exercise a majority or more of the voting power of all shares of the corporation, non-interested stockholders will have dissenters' rights. Maryland Law allows companies to opt out of this provision. We have opted out, but can opt back in at our option. Corporate Governance. Shareholders of Constellation Energy may remove directors only for cause upon the affirmative vote of the holders of at least a majority of the combined voting powers of the classes of capital stock entitled to vote in the election of directors. The number of directors may be fixed only by vote of the board of directors and vacancies on the board may be filled only by the affirmative vote of a majority of the remaining directors in office. Directors have staggered terms of office and each director is elected for a 3-year term. Shareholder proposals and nominations are subject to specified restrictions and procedures contained in our bylaws. The effect of these provisions could be to delay the shareholders' ability to elect a majority of new directors. DESCRIPTION OF WARRANTS GENERAL We may issue warrants to purchase debt securities, preferred stock, common stock or any combination of these securities and these warrants may be issued by us independently or together with any underlying securities and may be attached or separate from the underlying securities. We will issue each series of warrants under a separate warrant agreement to be entered into between us and a warrant agent. We currently expect The Bank of New York to act as warrant agent if we issue any warrants. The warrant agent will act solely as our agent in connection with the warrants of the series for which it is appointed and will not assume any obligation or relationship of agency for or with holders or beneficial owners of warrants of that series. The following outlines some of the general terms and provisions of the warrants. Further terms of the warrants and the applicable warrant agreement will be stated in the applicable prospectus supplement. The following description and any description of the warrants in a prospectus supplement may not be complete and is subject to and qualified in its entirety by reference to the terms and provisions of the warrant agreement, a form of which has been filed as an exhibit to the registration statement which contains this prospectus. The applicable prospectus supplement will describe the terms of any warrants that we may offer, including the following: . the title of the warrants; . the total number of warrants; . the price or prices at which the warrants will be issued; . the currency or currencies investors may use to pay for the warrants; . the designation and terms of the underlying securities purchasable upon exercise of the warrants; . the price at which and the currency or currencies, including composite currencies, in which investors may purchase the underlying securities purchasable upon exercise of the warrants; . the date on which the right to exercise the warrants will commence and the date on which the right will expire; . whether the warrants will be issued in registered form or bearer form; . information with respect to book-entry procedures, if any; 24 . if applicable, the minimum or maximum amount of warrants which may be exercised at any one time; . if applicable, the designation and terms of the underlying securities with which the warrants are issued and the number of warrants issued with each underlying security; . if applicable, the date on and after which the warrants and the related underlying securities will be separately transferable; . if applicable, a discussion of material United States federal income tax considerations; . the identity of the warrant agent; . the procedures and conditions relating to the exercise of the warrants; and . any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. Warrant certificates may be exchanged for new warrant certificates of different denominations, and warrants may be exercised at the warrant agent's corporate trust office or any other office indicated in the applicable prospectus supplement. Prior to the exercise of their warrants, holders of warrants exercisable for debt securities will not have any of the rights of holders of the debt securities purchasable upon such exercise and will not be entitled to payments of principal (or premium, if any) or interest, if any, on the debt securities purchasable upon such exercise. Prior to the exercise of their warrants, holders of warrants exercisable for shares of preferred stock or common stock will not have any rights of holders of the preferred stock or common stock and will not be entitled to dividend payments, if any, or voting rights of the preferred stock or common stock. EXERCISE OF WARRANTS A warrant will entitle the holder to purchase for cash an amount of securities at an exercise price that will be stated in, or that will be determinable as described in, the applicable prospectus supplement. The exercise price for the warrants will be subject to adjustment in accordance with the applicable prospectus supplement. Warrants may be exercised at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void. Warrants may be exercised as set forth in the applicable prospectus supplement. Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the securities purchasable upon such exercise. If less than all of the warrants represented by such warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants. ENFORCEABILITY OF RIGHTS The holders of warrants, without the consent of the warrant agent, may, on their own behalf and for their own benefit, enforce, and may institute and maintain any suit, action or proceeding against us to enforce their rights to exercise and receive the securities purchasable upon exercise of their warrants. DESCRIPTION OF STOCK PURCHASE CONTRACTS We may issue stock purchase contracts, representing contracts obligating holders to purchase from or sell to us, and obligating us to purchase from or sell to the holders, a specified number of shares of our common stock or 25 preferred stock, as applicable, at a future date or dates. The price per share of common stock or preferred stock, as applicable, may be fixed at the time the stock purchase contracts are issued or may be determined by reference to a specific formula contained in the stock purchase contracts. We may issue stock purchase contracts in such amounts and in as many distinct series as we wish. The stock purchase contracts may be issued separately or as part of units consisting of a stock purchase contract and beneficial interests in debt securities, preferred stock or debt obligations of third parties, including U.S. treasury securities, securing the holders' obligations to purchase the common stock under the stock purchase contracts, which we refer to in this prospectus as units. The stock purchase contracts may require us to make periodic payments to the holders of the stock purchase units or vice versa, and these payments may be unsecured or prefunded on some basis. The stock purchase contracts may require holders to secure their obligations under those contracts in a specified manner. The applicable prospectus supplement may contain, where applicable, the following information about the stock purchase contracts issued under it: . whether the stock purchase contracts obligate the holder to purchase or sell, or both purchase and sell, our common stock or preferred stock, as applicable, and the nature and amount of each of those securities, or the method of determining those amounts; . whether the stock purchase contracts are to be prepaid or not; . whether the stock purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of our common stock or preferred stock; . any acceleration, cancellation, termination or other provisions relating to the settlement of the stock purchase contracts; . whether the stock purchase contracts will be issued in fully registered or global form; and . any other terms of the stock purchase contracts. DESCRIPTION OF UNITS We may, from time to time, issue units comprised of one or more of the other securities described in this prospectus in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date. The applicable prospectus supplement may describe: . the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; . any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and . whether the units will be issued in fully registered or global form. The applicable prospectus supplement will describe the terms of any units. The preceding description and any description of units in the applicable prospectus supplement does not purport to be complete and is subject to and is qualified in its entirety by reference to the 26 relevant unit agreement and, if applicable, collateral arrangements and depositary arrangements relating to such units. PLAN OF DISTRIBUTION We may sell the securities offered (a) through agents; (b) by underwriters or dealers; (c) directly to one or more purchasers; or (d) through a combination of any of these methods of sale. In some cases we may also repurchase the securities and reoffer them to the public by one or more of the methods described above. This prospectus may be used in connection with any offering of securities through any of these methods or other methods described in the applicable prospectus supplement. Any underwriter or agent involved in the offer and sale of the securities will be named in the applicable prospectus supplement. BY AGENTS Offered securities may be sold on a one time or a continuing basis by agents designated by us. The agents agree to use their reasonable efforts to solicit purchases for the period of their appointment under the terms of an agency agreement between the agents and us. BY UNDERWRITERS OR DEALERS If underwriters are used in the sale, the underwriters may be designated by us or selected through a bidding process. The securities will be acquired by the underwriters for their own account. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may sell the securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. The obligations of the underwriters to purchase the securities will be subject to certain conditions. The underwriters will be obligated to purchase all the securities of the series offered if any of the securities are purchased. Any initial public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time. Only underwriters named in the applicable prospectus supplement are deemed to be underwriters in connection with the securities offered hereby. If dealers are utilized in the sale of the securities, we will sell the securities to the dealers as principals. The dealers may then resell the securities to the public at varying prices to be determined by such dealers at the time of resale. The names of the dealers and the terms of the transaction will be set forth in the applicable prospectus supplement. DIRECT SALES We may also sell securities directly to the public. In this case, no underwriters or agents would be involved. GENERAL INFORMATION We may authorize agents, underwriters or dealers to solicit offers by certain institutions to purchase securities from us at the public offering price pursuant to delayed delivery contracts providing for payment and delivery on a later date or dates, all as described in the applicable prospectus supplement. Each delayed delivery contract will be for an amount not less than, and the aggregate amount of the securities shall be not less nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the delayed delivery contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions, and other 27 institutions, but will in all cases be subject to our approval. The delayed delivery contracts will not be subject to any conditions except: . the purchase by an institution of the securities covered by its delayed delivery contract shall not, at any time of delivery, be prohibited under the laws of any jurisdiction in the United States to which such jurisdiction is subject; and . if the securities are being sold to underwriters, we shall have sold to those underwriters the total amount of the securities less the amount thereof covered by the delayed delivery contracts. The underwriters will not have any responsibility in respect of the validity or performance of the delayed delivery contracts. Unless otherwise specified in the related prospectus supplement, each series of the securities will be a new issue with no established trading market, other than the common stock. Any common stock sold pursuant to a prospectus supplement or issuable upon conversion of another offered security will be listed on the NYSE, subject to official notice of issuance. We may elect to list any of the other securities on an exchange, but are not obligated to do so. It is possible that one or more underwriters may make a market in a series of the securities, but no underwriter will be obligated to do so and any underwriter may discontinue any market making at any time without notice. We cannot predict the activity of trading in, or liquidity of, our securities. In connection with sales by an agent or in an underwritten offering, the SEC rules permit the underwriters or agents to engage in transactions that stabilize the price of the securities. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters or agents of a greater number of securities than they are required to purchase in an offering. Stabilizing transactions consist of certain bids or purchases made for the purpose of preventing or retarding a decline in the market price of the securities while an offering is in progress. The underwriters also may impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the underwriters have repurchased securities sold by or for the account of that underwriter in stabilizing or short-covering transactions. These activities by the underwriters may stabilize, maintain or otherwise affect the market price of the securities. As a result, the price of the securities may be higher than the price that otherwise might exist in the open market. If these activities are commenced, they may be discontinued by the underwriters at any time. These transactions may be effected on an exchange or automated quotation system, if the securities are listed on that exchange or admitted for trading on that automated quotation system, in the over-the-counter market or otherwise. We may from time to time, without the consent of the existing security holders, create and issue further securities having the same terms and conditions as the securities being offered hereby in all respects, except for issue date, issue price and if applicable, the first payment of interest or dividends therein or other terms as noted in the applicable prospectus supplement. Additional securities issued in this manner will be consolidated with, and will form a single series with the previously outstanding securities. Underwriters, dealers, and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act of 1933, and any discounts or commissions received by them from us and any profit on the resale of the securities by them may be treated as underwriting discounts and commissions under the Securities Act. We may have agreements with the underwriters, dealers and agents to indemnify them against 28 certain civil liabilities, including liabilities under the Securities Act, or to contribute with respect to payments which the underwriters, dealers or agents may be required to make. Underwriters, dealers and agents may engage in transactions with, or perform services for, us or our subsidiaries in the ordinary course of their businesses. VALIDITY OF THE SECURITIES Unless otherwise noted in the applicable prospectus supplement, one of our lawyers will issue an opinion regarding the validity of the securities offered pursuant to this prospectus. Our lawyer may rely as to matters of New York law on the opinion of Sullivan & Cromwell LLP, New York, New York. Unless otherwise noted in the applicable prospectus supplement, Cahill Gordon & Reindel, New York, NY will issue an opinion regarding certain legal matters for any underwriters, dealers or agents. Cahill Gordon & Reindel represents Constellation Energy and BGE from time to time. Cahill Gordon & Reindel will rely on the opinion of our lawyers as to matters of Maryland law and the applicability of the Public Utility Holding Company Act of 1935. EXPERTS The financial statements and financial statement schedule incorporated in this Prospectus by reference to the Annual Report on Form 10-K of Constellation Energy Group, Inc. for the year ended December 31, 2001 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. WHERE YOU CAN FIND MORE INFORMATION Constellation Energy files annual, quarterly and special reports, proxy statements and other information with the SEC. Prior to Constellation Energy becoming BGE's holding company, reports, statements and other information were filed by BGE under the name "Baltimore Gas and Electric Company." You may read and copy any document filed by BGE or Constellation Energy at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C., 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. The SEC maintains an internet site at http://www.sec.gov that contains reports, proxy and information statements, and other information, regarding companies (including Constellation Energy and BGE) that file documents with the SEC electronically. Constellation Energy's SEC filings may also be obtained from our web site at http://www.constellationenergy.com. The addresses for both the SEC's and Constellation Energy's website are inactive textual references only and the contents of those sites (other than the documents incorporated by reference as set forth below) are not a part of this prospectus. This prospectus is part of a registration statement we filed with the SEC. In addition, the SEC allows us to "incorporate by reference" the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 from now until the time the registration 29 becomes effective and thereafter until we sell all the securities. . Annual Report on Form 10-K for the year ended December 31, 2001. . Quarterly Reports on Form 10-Q for the quarters ended March 31, 2002, June 30, 2002 and September 30, 2002. . Current Reports on Form 8-K filed on January 30, 2002, January 31, 2002, March 19, 2002, August 14, 2002 and August 23, 2002. . Description of the Common Stock and Preferred Stock under the caption "Proposal No. 1, Approval of the Share Exchange and Formation of the Holding Company--Constellation Energy Capital Stock" in the Proxy Statement and Prospectus contained in Amendment No. 1 to Constellation Energy's Registration Statement on Form S-4 (Reg. No. 33-64799). Any person, including any beneficial owner, may request a copy of these filings, at no cost, by writing or telephoning us at the following address: Shareholder Services Constellation Energy Group, Inc. 39 W. Lexington Street Baltimore, Maryland 21201 410-783-5920 You should rely only on the information incorporated by reference or provided in this prospectus or any supplement. We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus or any supplement is accurate as of any date other than the date on the front of those documents. 30 - -------------------------------------------------------------------------------- [LOGO OF CONSTELLATION ENERGY GROUP] $2,000,000,000 UNSECURED DEBT SECURITIES COMMON STOCK PREFERRED STOCK WARRANTS STOCK PURCHASE CONTRACT UNITS - -------------------------------------------------------------------------------- PROSPECTUS (Once the registration statement is effective, the date of the Prospectus will be inserted here) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. Securities and Exchange Commission Registration Fee........... $ 184,000 *Services of Independent Accountants.......................... 75,000 *Trustee Fees and Expenses.................................... 25,000 *Legal Fees and Expenses...................................... 200,000 *Debt Securities Rating Fees.................................. 500,000 *Printing and Delivery Expenses............................... 75,000 *Listing Fees................................................. 175,000 *Transfer Agent and Fees...................................... 10,000 *Miscellaneous Expenses....................................... 41,000 ----------- Total $ 1,285,000 - ---------- * Estimated ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The following description of indemnification allowed under Maryland statutory law is a summary rather than a complete description. Reference is made to Section 2-418 of the Corporations and Associations Article of the Maryland Annotated Code, which is incorporated herein by reference, and the following summary is qualified in its entirety by such reference. By a Maryland statute, a Maryland corporation may indemnify any director who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative ("Proceeding") by reason of the fact that he is a present or former director of the corporation and any person who, while a director of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee, or agent of another corporation, partnership, joint venture, trust, other enterprise, or employee benefit plan ("Director"). Such indemnification may be against judgments, penalties, fines, settlements and reasonable expenses actually incurred by him in connection with the Proceeding unless it is proven that (a) the act or omission of the Director was material to the matter giving rise to the Proceeding and (i) was committed in bad faith, or (ii) was the result of active and deliberate dishonesty; or (b) the Director actually received an improper personal benefit in money, property, or services; or (c) in the case of any criminal proceeding, the Director had reasonable cause to believe his act or omission was unlawful. However, the corporation may not indemnify any Director in connection with a Proceeding by or in the right of the corporation if the Director has been adjudged to be liable to the corporation. A Director or officer who has been successful in the defense of any Proceeding described above shall be indemnified against reasonable expenses incurred in connection with the Proceeding. The corporation may not indemnify a Director in respect of any Proceeding charging improper personal benefits to the Director in which the Director was adjudged to be liable on the basis that personal benefit was improperly received. The corporation may not indemnify a director or advance expenses for a proceeding brought by the director against the corporation except if the proceeding is brought to enforce indemnification by the corporation or if the corporation's charter or bylaws, a board resolution or contract provides otherwise. Notwithstanding the above provisions, a court of appropriate jurisdiction, upon application of the Director, may order II-1 indemnification if it determines that in view of all the relevant circumstances, the Director is fairly and reasonably entitled to indemnification; however, indemnification with respect to any Proceeding by or in the right of the corporation or in which liability was adjudged on the basis that personal benefit was improperly received shall be limited to expenses. A corporation may advance reasonable expenses to a Director under certain circumstances, including a written undertaking by or on behalf of such Director to repay the amount if it shall ultimately be determined that the standard of conduct necessary for indemnification by the corporation has not been met. A corporation may indemnify and advance expenses to an officer of the corporation to the same extent that it may indemnify Directors under the statute. The indemnification and advancement of expenses provided by statute is not exclusive of any other rights, by indemnification or otherwise, to which a Director or officer may be entitled under the charter, by-laws, a resolution of shareholders or directors, an agreement or otherwise. A corporation may purchase and maintain insurance on behalf of any person who is or was a Director or officer, whether or not the corporation would have the power to indemnify a Director or officer against liability under the provision of this section of Maryland law. Further, a corporation may provide similar protection, including a trust fund, letter of credit or surety bond, not inconsistent with the statute. Article Eighth of the Company's Charter reads as follows: "(a)(i) The Corporation shall indemnify (A) Its Directors and Officers, whether serving the Corporation or at its request any other entity, to the full extent required or permitted by the general laws of the State of Maryland, now or hereafter in force, including the advance of expenses, under the procedures and to the full extent permitted by law, and (B) other employees and agents, to such extent as shall be authorized by the Board of Directors or the Corporation's by-laws and be permitted by law. (ii) The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. (iii) The Board of Directors may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such by-laws, resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of the Charter of the Corporation or repeal of any of its provisions shall limit or eliminate the right to indemnification provided hereunder with respect to any act or omission occurring prior to such amendment or repeal. (b)To the fullest extent permitted by Maryland statutory or decisional law, as amended or interpreted, no Director or Officer of this Corporation shall be personally liable to the Corporation or its stockholders for money damages. No amendment of the Charter of the Corporation or repeal of any of its provisions shall limit or eliminate the limitation on liability provided to Directors and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal." Article V of the Company's By-Laws reads as follows: II-2 "The Corporation shall indemnify all Directors, Officers and employees to the fullest extent permitted by the general laws of the State of Maryland and shall provide indemnification expenses in advance to the extent permitted thereby. The Corporation will follow the procedures required by applicable law in determining persons eligible for indemnification and in making indemnification payments and advances. The Indemnification and advance of expenses provided by the Charter and these by-laws shall not be deemed exclusive of any other rights to which a person seeking indemnification or advance of expenses may be entitled under any law (common or statutory), or any agreement, vote of stockholders or disinterested Directors or other provision that is consistent with law, both as to action in his or her official capacity and as to action in another capacity while holding office or while employed by or acting as agent for the Corporation, shall continue in respect of all events occurring while a person was a Director or Officer after such person has ceased to be a Director or Officer, and shall inure to the benefit of the estate, heirs, executors and administrators of such person. All rights to indemnification and advance of expenses under the Charter of the Corporation and hereunder shall be deemed to be a contract between the Corporation and each Director or Officer of the Corporation who serves or served in such capacity at any time while this by-law is in effect. Nothing herein shall prevent the amendment of this by-law, provided that no such amendment shall diminish the rights of any person hereunder with respect to events occurring or claims made before its adoption or as to claims made after its adoption in respect of events occurring before its adoption. Any repeal or modification of this by-law shall not in any way diminish any rights to indemnification or advance of expenses of such Director or Officer or the obligations of the Corporation arising hereunder with respect to events occurring, or claims made, while this by-law or any provision hereof is in force." The Directors and officers of the Company are covered by insurance indemnifying them against certain liabilities which might be incurred by them in their capacities as such, including certain liabilities arising under the Securities Act of 1933. The premium for this insurance is paid by the Company. Also, see indemnification provisions in the Forms of Purchase Agreements, included as Exhibits 1(a) and 1(b) to this Registration Statement. ITEM 16. EXHIBITS. Reference is made to the Exhibit Index filed as a part of this Registration Statement. ITEM 17. 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities II-3 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; (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) do not apply if the Registration Statement is on Form S-3, Form S-8, or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission 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 which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes 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 (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) that is incorporated by reference in the 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) The undersigned registrant hereby undertakes (1) to use its best efforts to distribute prior to the opening of bids, to prospective bidders, underwriters, and dealers, a reasonable number of copies of a prospectus which at that time meets the requirements of section 10(a) of the Act, and relating to the securities offered at competitive bidding, as contained in the registration statement, together with any supplements thereto, and (2) to file an amendment to the registration statement reflecting the results of bidding, the terms of the reoffering and related matters to the extent required by the applicable form, not later than the first use, authorized by the issuer after the opening of bids, of a prospectus relating to the securities offered at competitive bidding, unless no further public offering of such securities by the issuer and no reoffering of such securities by the purchasers is proposed to be made. (d) 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 provisions described under Item 15 above, 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 II-4 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. II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Constellation Energy Group, Inc., the Registrant, certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Baltimore, State of Maryland on the 24th day of January, 2003. CONSTELLATION ENERGY GROUP, INC. (Registrant) By: /s/ E. Follin Smith ----------------------------- E. Follin Smith, Senior Vice President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- Principal executive officer and director: *M. A. Shattuck, III Chairman of the Board, January 24, 2003 Chief Executive Officer, President and Director Principal financial and accounting officer: /s/ E. Follin Smith Senior Vice President January 24, 2003 - -------------------- and Chief Financial Officer E. Follin Smith *Douglas L. Becker *James T. Brady Directors January 24, 2003 *Frank P. Bramble *Beverly B. Byron *Edward A. Crooke *James R. Curtiss *Roger W. Gale *Freeman A. Hrabowski, III *Edward J. Kelly, III *Nancy Lampton *Robert J. Lawless *Christian H. Poindexter *Michael D. Sullivan * By: /s/ E. Follin Smith ----------------------------------- E. Follin Smith, Attorney-in-Fact
II-6 EXHIBIT INDEX
EXHIBIT NUMBER - ------- 1(a) - Form of Purchase Agreement, including Standard Purchase Provisions for Unsecured Debt Securities. 1(b)* - Form of Purchase Agreement, including Standard Purchase Provisions for Convertible Debt Securities. 1(c)* - Form of Agency Agreement. 1(d) - Form of Purchase Agreement, including Standard Purchase Provisions for common stock. 1(e)* - Form of Purchase Agreement, including Standard Purchase Provisions for preferred stock. 1(f)* - Form of Purchase Agreement, including Standard Purchase Provisions for stock purchase contracts. 1(g)* - Form of Purchase Agreement, including Standard Purchase Provisions for units. 3(a)** - Articles of Amendment and Restatement of the Charter of Constellation Energy Group, Inc. as of April 30, 1999. (Designated as Appendix B to the Proxy Statement and Prospectus in Part I of Post-Effective Amendment No. 1 to the Registration Statement on Form S-4 of the Registrant, Reg. No. 33-64799). 3(b)** - Articles Supplementary to the Charter of Constellation Energy Group, Inc., as of July 19, 1999. (Designated as Exhibit No. 3(a) in Form 10-Q dated August 13, 1999, File No. 1-12869.) 3(c)** - Certificate of Correction to the Charter of Constellation Energy Group, Inc. as of September 13, 1999. (Designated as Exhibit 3(c) in Form 10-K dated March 20, 2000, File No. 1-12869.) 3(d)** - Articles Supplementary to the Charter of Constellation Energy Group, Inc. as of November 20, 2001. (Designated as Exhibit 3(e) in Form 10-K dated March 29, 2002, File No. 1-12869.) 3(e) - Bylaws of Constellation Energy Group, Inc. as amended effective January 24, 2003. 4(a)** - Indenture dated as of March 24, 1999 between the Company and The Bank of New York. (Designated as Exhibit 4(a) to Form S-3 Registration Statement, Reg. No. 333-75217 filed March 29, 1999).
II-7 4(b) - First Supplemental Indenture dated as of January 24, 2003, to Indenture dated as of March 24, 1999 between the Company and The Bank of New York. 4(c)** - Common Stock certificate (designated as Exhibit 4(c) to Form S-3 Registration Statement, Reg. Nos. 333-59601 and 33-57658 filed March 25, 1999). 4(d)* - Preferred Stock certificate. 4(e) - Form of Warrant Agreement. 4(f) - Form of Unsecured Debt Security (Fixed Rate). 4(g) - Form of Unsecured Debt Security (Floating Rate). 4(h) - Form of Interest Calculation Agency Agreement. 4(i)* - Stock Purchase Contract, including form of security certificate. 4(j)* - Unit Agreement, including form of security certificate. 4(k)* - Pledge Agreement. 4(l)* - Remarketing Agreement. 4(m)* - Convertible Debt Security. 5(a) - Opinion of Company Counsel. 5(b) - Opinion of Sullivan & Cromwell LLP, New York, New York. 12** - Computation of Ratio of Earnings to Fixed Charges (Designated as Exhibit 12(a) in Form 10-Q for the quarter ended September 30, 2002, filed November 14, 2002, File No. 1-12869). 23(a) - Consent of Company Counsel (included in Exhibit 5). 23(b) - Consent of Sullivan & Cromwell, LLP, New York, New York (included in Exhibit 5). 23(c) - Consent of PricewaterhouseCoopers LLP, Independent Accountants. 24 - Power of Attorney. 25 - Statement of Eligibility under the Trust Indenture Act of 1939 (Form T-1) of The Bank of New York, Trustee.
II-8 26* - Invitation for Competitive Bids
- ---------- *To be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of the securities. ** Incorporated by reference. II-9 EX-1.A 3 dex1a.txt FORM OF PURCHASE AGREEMENT - DEBT Exhibit 1(a) CONSTELLATION ENERGY GROUP, INC. UNSECURED DEBT SECURITIES FORM OF PURCHASE AGREEMENT INCLUDING STANDARD PURCHASE PROVISIONS - 2 - CONSTELLATION ENERGY GROUP, INC. Unsecured Debt Securities PURCHASE AGREEMENT [Date] Constellation Energy Group, Inc. 750 E. Pratt Street, 17th Floor Baltimore, Maryland 21202 Dear Sirs: Referring to the Unsecured Debt Securities of Constellation Energy Group, Inc. (the "Company") covered by the registration statement on Form S-3 (No. 333-________), (such registration statement, including (i) the prospectus included therein, dated _________________, as supplemented by a prospectus supplement dated ____________ in the form first filed under Rule 424(b) (such prospectus as so supplemented, including each document incorporated by reference therein is hereinafter called the "Prospectus") and (ii) all documents filed as part thereof or incorporated by reference therein, together with any registration statement increasing the size of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, are hereinafter collectively called the "Registration Statement") on the basis of the representations, warranties and agreements contained in this Agreement, but subject to the terms and conditions herein set forth, the purchaser or purchasers named in Schedule A hereto (the "Purchasers") agree to purchase, severally, and the Company agrees to sell to the Purchasers, severally, the respective principal amounts of the Company's ___________ Series, due ____________having the terms described below (the "Purchased Notes") set forth opposite the name of each Purchaser on Schedule A hereto. The price at which the Purchased Notes shall be purchased from the Company by the Purchasers shall be ______% of the principal amount plus accrued interest, if any, from _____________. The initial public offering price shall be _____% of the principal amount plus accrued interest, if any, from ____________________. The Purchased Notes will be offered by the - 3 - Purchasers as set forth in the Prospectus Supplement relating to such Purchased Notes. The Purchased Notes will have the following terms: Fixed Interest rate (if applicable): ______ % per annum (accruing from ______) Floating Interest Rate (if applicable): Interest Rate Basis: ___________________ Spread: ___________________ Spread Multiplier: ___________________ Index Maturity: ___________________ Initial Interest Rate: ___________________ Maximum Interest Rate: ___________________ Minimum Interest Rate: ___________________ Interest Reset Dates: ___________________ Interest Determination Dates: ___________________ Calculation Agent: ___________________ Interest Payment Dates: ___________________ Stated Maturity: ___________________ Redeemable by the Redemption Prices Company on or after: (% of Principal Amount): _______________ ___________________ _______________ ___________________ _______________ ___________________ - 4 - Subject to Repurchase by the Company at the option of Repurchase Prices the holder on: (% of Principal Amount): _______________ _________________ _______________ _________________ _______________ _________________ The "Closing Date" shall be: _________________ The place to which the Purchased Notes may be checked, packaged and delivered shall be: _________________ Notices to the Purchasers shall be sent to the following address(es) or telecopier number(s): If we are acting as Representative(s) for the several Purchasers named in Schedule A hereto, we represent that we are authorized to act for such several Purchasers in connection with the transactions contemplated in this Agreement, and that, if there are more than one of us, any action under this Agreement taken by any of us will be binding upon all the Purchasers. All of the provisions contained in the document entitled "Constellation Energy Group, Inc. Standard Purchase Provisions", a copy of which has been previously furnished to us, are hereby incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. - 5 - If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between the Company and the several Purchasers in accordance with its terms. Very truly yours, [Firm Name] By --------------------------------- Title: ----------------------------- Acting on behalf of and as Representative(s) of the several Purchasers named in Schedule A hereto.* The foregoing Purchase Agreement is hereby confirmed as of the date first above written CONSTELLATION ENERGY GROUP, INC. By ------------------------------- Title: --------------------------- - --------------------------------- * To be deleted if the Purchase Agreement is not executed by one or more Purchasers acting as Representative(s) of the Purchasers for purposes of this Agreement. - 6 - SCHEDULE A Name of Purchaser Amount - ----------------- ------ -------------- Total $ ============== - 7 - CONSTELLATION ENERGY GROUP, INC. STANDARD PURCHASE PROVISIONS From time to time, Constellation Energy Group, Inc., a Maryland corporation ("Company") may enter into purchase agreements that provide for the sale of designated securities to the purchaser or purchasers named therein. The standard provisions set forth herein may be incorporated by reference in any such purchase agreement ("Purchase Agreement"). The Purchase Agreement, including the provisions incorporated therein by reference, is herein sometimes referred to as "this Agreement." Unless otherwise defined herein, terms defined in the Purchase Agreement are used herein as therein defined. 1. Introductory. The Company proposes to issue and sell from time to time its Unsecured Debt Securities ("Notes") registered under the registration statement referred to in Section 2(a). The Notes will be issued under an Indenture, dated as of March 29, 1999, between the Company and The Bank of New York as Trustee as supplemented by the Supplemental Indentures dated as of January 24, 2003 (the "Indenture"). The Notes will be sold to the Purchasers for resale in accordance with the terms of the offering determined at the time of the sale. The Notes involved in any such offering are hereinafter referred to as the "Purchased Notes," and the firm or firms, as the case may be, which agree to purchase the same are hereinafter referred to as the "Purchasers" of such Purchased Notes. The terms "you" and "your" refer to those Purchasers who sign the Purchase Agreement either on behalf of themselves only or on behalf of themselves and as representatives of the several Purchasers named in Schedule A thereto, as the case may be. 2. Representations and Warranties of the Company. The Company represents and warrants to and agrees with each Purchaser that: (a) A registration statement on Form S-3 (No. 333-________) covering $2 billion maximum aggregate offering price of the securities of the Company (including the Purchased Notes), including a prospectus has been filed with the Securities and Exchange Commission ("Commission") and has become effective. The terms Registration Statement and Prospectus shall have the meanings ascribed to them in the Purchase Agreement. (b) The Registration Statement conforms in all respects to the requirements of the Securities Act of 1933, as amended ("Act"), and the pertinent published rules and regulations of the Commission thereunder ("33 Act Rules and Regulations") and the Trust Indenture Act of 1939, as amended ("Trust Indenture Act"), and does not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that the foregoing does not apply to statements or omissions in such document based upon - 8 - written information furnished to the Company by any Purchaser specifically for use therein. The documents incorporated by reference in the Registration Statement or the Prospectus pursuant to Item 12 of Form S-3 of the Act, at the time they were filed with the Commission, complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended ("Exchange Act"), and the pertinent published rules and regulations thereunder ("Exchange Act Rules and Regulations"). Any additional documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the Exchange Act and the Exchange Act Rules and Regulations and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. 3. Delivery and Payment. The Company will deliver the Purchased Notes to you for the accounts of the Purchasers, at the offices of the Trustee (at the place specified in the Purchase Agreement) against payment of the purchase price by wire transfer to an account specified by the Company or by certified or official bank check or checks in same day or New York or Baltimore Clearing House funds drawn to the order of the Company, at the office of the Company, 750 E. Pratt Street, 17th Floor, Baltimore, Maryland, at the time set forth in this Agreement or at such other time not later than seven full business days thereafter as you and the Company determine, such time being herein referred to as the "Closing Date." The Purchased Notes to be delivered will be in definitive fully registered form registered in such denominations, of $1,000 or multiples thereof, and in such names as you request in writing not later than 3:00 p.m., New York Time, on the third full business day prior to the Closing Date, or, if no such request is received, in the names of the respective Purchasers in the amounts agreed to be purchased by them pursuant to this Agreement. The Company shall make the Purchased Notes available for checking and packaging at the offices of the Trustee (at the place specified in the Purchase Agreement) prior to the Closing Date and, unless prevented from doing so by circumstances beyond its control, not later than 2:00 p.m., New York Time, on the business day next preceding the Closing Date. If you request that any Purchased Notes be issued in a name or names other than that of the Purchaser agreeing to purchase such Purchased Notes hereunder, the Company shall not be obligated to pay any transfer taxes resulting therefrom. The Notes may also be represented by a permanent global Note or Notes, registered in the name of The Depository Trust Company, as depositary (the "Depositary"), or a nominee of the Depositary (each such Note represented by a permanent global Note being referred to herein as a "Book-Entry Note"). Beneficial interests in Book-Entry Notes will only be evidenced by, and transfers thereof will only be effected through, records maintained by the Depositary's participants. - 9 - 4. Offering by the Purchasers. The several Purchasers propose to offer the Purchased Notes for sale to the public as set forth in the Prospectus. 5. Covenants of the Company. The Company covenants and agrees with the several Purchasers that: (a) It will promptly cause the Prospectus to be filed with the Commission as required by Rule 424. (b) For as long as a prospectus relating to the Purchased Notes is required to be delivered under the Act, if any event relating to or affecting the Company or of which the Company shall be advised in writing by the Purchasers shall occur which, in the Company's opinion, should be set forth in a supplement or amendment to the Prospectus in order either to make the Prospectus comply with the requirements of the Act or which would require the making of any change in the Prospectus so that as thereafter delivered to purchasers such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company will promptly amend or supplement the Prospectus by either (i) preparing and filing with the Commission supplement(s) or amendment(s) to the Prospectus, or (ii) making an appropriate filing pursuant to the Exchange Act, which will supplement or amend the Prospectus so that, as supplemented or amended, the Prospectus when the Prospectus is delivered to a purchaser will comply with the Act and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Prior to any such filing, the Company shall give oral notice to the Purchasers. (c) The Company will make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company Rule 158). (d) The Company will furnish to you copies of the following documents, in each case as soon as available after filing and in such quantities as you reasonably request (i) the Registration Statement relating to the Notes as originally filed and all pre-effective amendments thereto (at least one of which will be signed and will include all exhibits except those incorporated by reference to previous - 10 - filings with the Commission); (ii) each prospectus relating to the Purchased Notes; and (iii) during the time when a prospectus relating to the Purchased Notes is required to be delivered under the Act, all post-effective amendments and supplements to the Registration Statement or Prospectus, respectively (except supplements relating to securities that are not Purchased Notes). (e) The Company will take such action as the Purchasers may reasonably request to obtain the qualification of the Purchased Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution, provided, however, that the Company shall not be required to qualify as a foreign corporation or to file any consent to service of process under the laws of any jurisdiction or to comply with any other requirements deemed by the Company to be unduly burdensome. (f) During the period of five years after the Closing Date, the Company will furnish to you, and upon request, to each of the other Purchasers (unless such reports are available electronically on the Securities and Exchange Commission's website or the Company's website): (i) as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year, (ii) as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to shareholders, and (iii) from time to time, such other information concerning the Company as you may reasonably request. (g) The Company will pay all expenses incident to the performance of its obligations under this Agreement, and will reimburse the Purchasers for any expenses (including Blue Sky fees not exceeding $6,000 and disbursements of counsel) incurred by them in connection with qualification of the Purchased Notes for sale and determination of their eligibility for investment under the laws of such jurisdictions as you designate and the printing or reproduction of memoranda relating thereto, for any filing fees charged by investment rating agencies for the rating of the Purchased Notes, for any expenses incurred in connection with listing the Purchased Notes on a national securities exchange and for expenses incurred in distributing prospectuses to the Purchasers, except that if this Agreement is terminated by the Purchasers under Section 6(c) hereof, the Company shall not be obligated to reimburse the Purchasers for any of the foregoing expenses. (h) The Company will not offer or sell any of its other debt securities which are substantially similar to the - 11 - Purchased Notes prior to ten business days after the Closing Date, without the consent of the Purchasers. (i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act. 6. Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Purchased Notes will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent: (a) Subsequent to the signing of this Agreement, you shall have received a letter of PricewaterhouseCoopers LLP, dated the Closing Date, confirming that they are independent public accountants within the meaning of the Act and the 33 Act Rules and Regulations, and stating in effect that: (i) In their opinion, the consolidated financial statements and supporting schedules audited by them which are included in the Company's Form 10-K dated ____("Form 10-K"), which is incorporated by reference in the Registration Statement comply in form in all material respects with the applicable accounting requirements of the Act and the 33 Act Rules and Regulations and the Exchange Act and the Exchange Act Rules and Regulations; (ii) On the basis of procedures specified in such letter (but not an audit in accordance with generally accepted auditing standards), including reading the minutes of meetings of the shareholders, the Board of Directors and the Executive Committee of the Company since the end of the year covered by the Form 10-K as set forth in the minute books through a specified date not more than five days prior to the Closing Date, performing procedures specified in Statement on Auditing Standards No. 71, Interim Financial Information, on the unaudited interim consolidated financial statements of the Company incorporated by reference in the Registration Statement, if any, and reading the latest available unaudited interim consolidated financial statements of the Company, and making inquiries of certain officials of the Company who have responsibility for financial and accounting matters as to whether the latest available financial statements not incorporated by reference in the Registration Statement are prepared on a basis - 12 - substantially consistent with that of the audited consolidated financial statements incorporated in the Registration Statement, nothing has come to their attention that has caused them to believe that (1) any unaudited consolidated financial statements incorporated by reference in the Registration Statement do not comply in form in all material respects with the applicable requirements of the Act and the 33 Act Rules and Regulations and the Exchange Act and the Exchange Act Rules and Regulations or any material modifications should be made to those unaudited consolidated financial statements for them to be in conformity with generally accepted accounting principles; (2) at the date of the latest available balance sheet not incorporated by reference in the Registration Statement there was any change in the capital stock, change in long-term debt or decrease in consolidated net assets or common shareholders' equity as compared with the amounts shown in the latest balance sheet incorporated by reference in the Registration Statement or for the period from the closing date of the latest income statement incorporated by reference in the Registration Statement to the closing date of the latest available income statement read by them there were any decreases, as compared with the corresponding period of the previous year, in operating revenues, operating income, net income, or in earnings per share of common stock except in all instances for changes or decreases that the Registration Statement discloses have occurred or may occur, or which are described in such letter; or (3) at a specified date not more than five days prior to the Closing Date, there was any change in the capital stock or long-term debt of the Company or, at such date, there was any decrease in net assets of the Company as compared with amounts shown in the latest balance sheet incorporated by reference in the Registration Statement, or for the period from the closing date of the latest income statement incorporated by reference in the Registration Statement to a specified date not more than five days prior to the Closing Date, there were any decreases as compared with the corresponding period of the previous year, in operating revenues, operating income, net income or in earnings applicable to common stock, except in all cases for changes or decreases which the Registration Statement discloses have occurred or may occur, or which are described in such letter; and (iii) Certain specified procedures have been applied to certain financial or other statistical information (to the extent such information was obtained from the general accounting records of the Company) set forth or incorporated by reference in the Registration Statement and that such procedures have not revealed any disagreement between the financial and statistical - 13 - information so set forth or incorporated by reference in the Registration Statement and the underlying general accounting records of the Company, except as described in such letter. (b) Prior to the Closing Date, 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 to the knowledge of the Company or you, shall be contemplated by the Commission, and if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have been filed and shall have become effective in accordance with Rule 462(b). (c) Subsequent to the date of this Agreement, (i) there shall not have occurred any change or any development involving a prospective change not contemplated by the Prospectus as of the date of this Agreement in or affecting particularly the business or properties of the Company which, in the judgment of a majority in interest of the Purchasers including you, materially impairs the investment quality of the Purchased Notes, (ii) no rating of any of the Company's debt securities shall have been lowered by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g) and (iii) trading in securities generally on the New York Stock Exchange shall not have been suspended nor limited, other than a temporary suspension in trading to provide for an orderly market, nor shall minimum prices have been established on such Exchange, a banking moratorium shall not have been declared either by New York State or Federal authorities and there shall not have occurred an outbreak or escalation of major hostilities in which the United States is involved or other substantial national or international calamity or crisis (including one caused by a terrorist act), the effect of which on the financial markets of the United States is such as to make it, in your judgment, impracticable to market the Purchased Notes. (d) intentionally left blank (e) You shall have received an opinion, dated the Closing Date, of a counsel for the Company to the effect that: (i) The Company, Baltimore Gas and Electric Company (BGE), Constellation Generation Group, LLC (CGG), and Constellation Enterprises, Inc. (CEI) have been duly incorporated or formed, and are validly existing as corporations or a limited liability company, as the case may be, in good standing under the laws of the State of Maryland, with power and authority (corporate and other) to own their respective properties and conduct their respective businesses as described in the Prospectus; - 14 - and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which the conduct of its business or the ownership of its properties requires such qualification and the failure to do so would have a material and adverse impact on its financial condition; (ii) The Indenture has been duly authorized, executed and delivered by the Company and is a valid instrument, legally binding on the Company and enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, or other laws affecting the enforcement of creditors' rights and by general principles of equity; (iii) The issuance and sale of the Purchased Notes have been duly authorized by all necessary corporate action of the Company. The Purchased Notes (assuming that they have been duly authenticated by the Trustee or a duly designated Authentication Agent under the Indenture, which fact counsel need not verify by an inspection of the Purchased Notes), have been duly issued and constitute legal, valid, and binding obligations of the Company enforceable in accordance with their terms, and are entitled to the benefits provided by the Indenture except as such enforceability or entitlement may be limited by bankruptcy, insolvency, or other laws affecting the enforcement of creditors' rights and by general principles of equity; (iv) The Registration Statement has become effective under the Act and, (a) to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act; (b) the Registration Statement (as of its effective date) and the Prospectus (as of the date of the Purchase Agreement ) and any amendments or supplements thereto, as of their respective dates, appeared to comply as to form in all material respects with the requirements of Form S-3 under the Act and the 33 Act Rules and Regulations and the Trust Indenture Act; (c) such counsel has no reason to believe that either the Registration Statement or the Prospectus, or any such amendment or supplement, as of such respective dates or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statement therein not misleading; (d) the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; (e) and such counsel does not know - 15 - of any legal or governmental proceedings required to be described in the Prospectus which are not described as required, or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described or filed as required; it being understood that such counsel, in addressing the matters covered in this paragraph (iv) need express no opinion as to the financial statements or other financial and statistical information contained in the Registration Statement or the Prospectus or incorporated therein or attached as an exhibit thereto or as to the Statement of Eligibility and Qualification on Form T-l of the Trustee under the Indenture. (v) Counsel knows of no approval of any regulatory authority which is legally required for the valid offering, issuance, sale and delivery of the Purchased Notes by the Company under this Agreement (except that such opinion need not pass upon the requirements of state securities acts); (vi) To the best of such counsel's knowledge and belief, the consummation of the transactions contemplated in this Agreement and the compliance by the Company with all the terms of the Indenture did not and will not result in a breach of any of the terms and provisions of, or constitute a default under, the Company's Charter or By-Laws or any indenture, mortgage or deed of trust or other agreement or instrument to which the Company is a party; (vii) [Each of] this Agreement [and the Interest Calculation Agency Agreement] has been duly authorized, executed and delivered by the Company; (viii) The Indenture is duly qualified under the Trust Indenture Act; (ix) The issuance, sale and delivery of the Purchased Notes as contemplated by this Agreement are not subject to the approval of the Securities and Exchange Commission under the provisions of the Public Utility Holding Company Act of 1935 (the "1935 Act"); and (x) The statements set forth in the Prospectus under the caption "Description of the Debt Securities," and on the cover page of the Prospectus insofar as they purport to constitute a summary of the terms of the Indenture and the Purchased Notes, are accurate and fair summaries of the matters set forth therein. (f) The Purchasers shall have received from Cahill Gordon & Reindel, counsel for the Purchasers, an opinion dated the - 16 - Closing Date, with respect to the matters referred to in paragraph 6(e) subheadings (ii), (iii), (iv)b, (v), (vii), (viii) and (x) and such other matters as the Purchasers shall reasonably request and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters. In rendering such opinion, Cahill Gordon & Reindel may rely, as to the incorporation of the Company, all other matters governed by the laws of the State of Maryland, and the applicability of the 1935 Act, upon the opinion of Counsel for the Company referred to above. In addition, such counsel shall state that such counsel has participated in conferences with officers, counsel and other representatives of the Company, representatives of the independent public accountants for the Company and representatives of the Purchasers at which the contents of the Registration Statement and the Prospectus and related matters were discussed; and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except as to the matters referred to in their opinion rendered pursuant to subheading (x) above), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to the attention of such counsel which lead such counsel to believe that either the Registration Statement (as of its effective date) or the Prospectus (as of the date of this Agreement and as of the Closing Date), and any subsequent amendments or supplements thereto, as of their respective dates, and as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make such statements therein not misleading (it being understood that such counsel need make no comment with respect to the financial statements and other financial and statistical data included in the Registration Statement or Prospectus or incorporated therein or as to the Statement of Eligibility and Qualification on Form T-l of the Trustee under the Indenture). (g) You shall have received a certificate of the Chairman of the Board, President or any Vice President and a principal financial or accounting officer of the Company, dated the Closing Date, in which such officers shall state, to the best of their knowledge after reasonable investigation, and relying on opinions of counsel to the extent that legal matters are involved, that the representations and warranties of the Company in this Agreement are true and correct in all material respects, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the - 17 - Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission, and that, subsequent to the date of the most recent financial statements set forth or incorporated by reference in the Prospectus, there has been no material adverse change in the financial position or in the financial results of operation of the Company except as set forth or contemplated in the Prospectus. (h) The Company will furnish you with such conformed copies of such opinions, certificates, letters and documents as you reasonably request. In case any such condition shall not have been satisfied, this Agreement may be terminated by you upon notice in writing or by telecopy to the Company without liability or obligation on the part of the Company or any Purchaser, except as set forth in Section 10 hereof. 7. Conditions of the Obligations of the Company. The obligations of the Company to sell and deliver the Purchased Notes are subject to the following condition precedent: Prior to the Closing Date, 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, to the knowledge of the Company or you, shall be contemplated by the Commission. If any such condition shall not have been satisfied, then the Company shall be entitled, by notice in writing or by telecopy to you, to terminate this Agreement without any liability on the part of the Company or any Purchaser, except as set forth in Section 10 hereof. 8. Indemnification. (a) The Company will indemnify and hold harmless each Purchaser and each person, if any, who controls any Purchaser within the meaning of the Act or the Exchange Act against any losses, claims, damages or liabilities, joint or several, to which such Purchaser or such controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or the Prospectus (or any amendment or supplement thereto), or any related preliminary prospectus or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; and will reimburse each Purchaser and each such controlling person for any legal or other expenses - 18 - reasonably incurred by such Purchaser or such controlling person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable to such Purchaser or controlling person in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any such documents in reliance upon and in conformity with written information furnished to the Company by such Purchaser or such controlling person specifically for use therein; and provided, further, that the Company shall not be liable to any Purchaser under the indemnity agreement in this subsection (a) with respect to any preliminary prospectus to the extent that any such loss, claim, damage or liability of such Purchaser results from the fact such Purchaser sold the Purchased Notes to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus (excluding documents incorporated by reference) or of the Prospectus as then amended or supplemented (excluding documents incorporated by reference) in any case where such delivery is required by the Act if the Company has previously furnished copies thereof to such Purchaser and the loss, claim, damage or liability of such Purchaser results from an untrue statement or omission of a material fact contained in the preliminary prospectus which was corrected in the Prospectus (or the Prospectus as amended or supplemented). This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) Each Purchaser will indemnify and hold harmless the Company, each of its directors and officers and each person, if any, who controls the Company within the meaning of the Act or the Exchange Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject, under the Act, or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or the Prospectus (or any amendment or supplement thereto), or any related preliminary prospectus or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Purchaser specifically for use therein; and will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling person in connection with investigating or defending any such loss, - 19 - claim, damage, liability or action as such expenses are incurred. This indemnity agreement will be in addition to any liability which such Purchaser may otherwise have. (c) Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under (a) and (b) above, notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section, except to the extent the indemnifying party has been materially prejudiced by such omission. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who may, with the consent of the indemnified party, be counsel to the indemnifying party) and who shall not be counsel to any other indemnified party who may have interests conflicting with those of such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. (d) If recovery is not available under the foregoing indemnification provisions of this Section, for any reason other than as specified therein, the parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses, except to the extent that contribution is not permitted under Section 11(f) of the Act. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the relative benefits received by each party from the offering of the Purchased Notes (taking into account the portion of the proceeds of the offering realized by each), the parties' relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances. The Company and the Purchasers and such controlling persons agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation (even if the Purchasers and such controlling persons were treated as one entity for such purpose). Notwithstanding the provisions of this subsection (d), no Purchaser or controlling person shall - 20 - be required to make contribution hereunder which in the aggregate exceeds the total public offering price of the Purchased Notes, purchased by the Purchaser under this Agreement, less the aggregate amount of any damages which such Purchaser or such controlling person has otherwise been required to pay in respect of the same claim or any substantially similar claim. The Purchasers' obligations to contribute are several in proportion to their respective underwriting obligations and not joint. 9. Default of Purchasers. If any Purchaser or Purchasers default in their obligations to purchase Purchased Notes hereunder and the aggregate principal amount of Purchased Notes which such defaulting Purchaser or Purchasers agreed but failed to purchase is 10% of the principal amount of Purchased Notes or less, the non-defaulting Purchasers may make arrangements satisfactory to the Company for the purchase of such Purchased Notes by other persons, including any of the Purchasers, but if no such arrangements are made by the Closing Date the non-defaulting Purchasers shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Purchased Notes which such defaulting Purchasers agreed but failed to purchase. If any Purchaser or Purchasers so default and the aggregate principal amount of Purchased Notes with respect to which such default or defaults occur is more than the above percentage and arrangements reasonable satisfactory to you and the Company for the purchase of such Purchased Notes by other persons are not made within seventy-two hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Purchaser or the Company, except as provided in Section 10. In the event that any Purchaser or Purchasers default in their obligation to purchase Purchased Notes hereunder, the Company may, by prompt written notice to the non-defaulting Purchasers, postpone the Closing Date for a period of not more than seven full business days in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus or in any other documents, and the Company will promptly file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary. As used in this Agreement, the term "Purchaser" includes any person substituted for a Purchaser under this Section. Nothing herein will relieve a defaulting Purchaser from liability for its default. 10. Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties, and other statements of the Company or its officers and of the several Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Purchaser or the Company or any of its officers or directors or any controlling person, and will survive delivery of and payment for the Purchased Notes. If this Agreement is terminated pursuant to Section 6, 7 or 9 or if for - 21 - any reason the purchase of the Purchased Notes by the Purchasers is not consummated, the Company shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 5(g). In addition, in such event the respective obligations of the Company and the Purchasers pursuant to Section 8 shall remain in effect; provided, however, that each Purchaser will use its best efforts to promptly notify each other Purchaser and each dealer and prospective customer to whom such Purchaser has delivered a Prospectus for the Purchased Notes by telephone or telegraph, confirmed by letter in either case, of such termination or failure to consummate, including in such notice instructions regarding the continued use of the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus. 11. Notices. All communications hereunder will be in writing, and, if sent to the Purchasers will be delivered or telecopied and confirmed to the address furnished in writing for the purpose of such communications hereunder, or, if sent to the Company, will be delivered or telecopied and confirmed to it, attention of Treasurer at 750 E. Pratt Street, 17th Floor, Baltimore, Maryland 21202, telecopier (410) 783-3619. 12. Successors. This Purchase Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 8, and no other person will have any right or obligation hereunder. 13. Construction. This Purchase Agreement shall be governed by and construed in accordance with the laws of the State of Maryland. 14. Counterparts. This Agreement may be executed in one or more counterparts and it is not necessary that the signatures of all parties appear on the same counterpart, but such counterparts together shall constitute but one and the same agreement. EX-1.D 4 dex1d.txt FORM OF PURCHASE AGREEMENT - COMMON STOCK Exhibit 1(d) CONSTELLATION ENERGY GROUP, INC. SHARES COMMON STOCK (without par value) FORM OF PURCHASE AGREEMENT INCLUDING STANDARD PURCHASE PROVISIONS 2 CONSTELLATION ENERGY GROUP, INC. COMMON STOCK FORM OF PURCHASE AGREEMENT [Date] Constellation Energy Group, Inc. 750 E. Pratt Street, Baltimore, Maryland 21202 Dear Sirs: Referring to the captioned shares of Common Stock of Constellation Energy Group, Inc. (the "Company") covered by the registration statement on Form S-3 (No. 333-), (such registration statement, including (i) the prospectus included therein dated, as supplemented by a prospectus supplement dated _______________, 2003 related to the Purchased Stock referred to below in the form first filed under Rule 424(b) (such prospectus as so supplemented, including each document incorporated by reference therein is hereinafter called the "Prospectus") and (ii) all documents filed as part thereof or incorporated by reference therein together with any registration statement increasing the size of the offering (a "Rule 462(b) Registration Statement") filed pursuant to Rule 462(b) under the Securities Act of 1933 as amended are hereinafter called the "Registration Statement", on the basis of the representations, warranties and agreements contained in this Agreement, but subject to the terms and conditions herein set forth, the purchaser or purchasers named in Schedule A hereto (the "Purchasers") agree to purchase, severally, and the Company agrees to sell to the Purchasers, severally, the respective number of shares of such Common Stock (the "Purchased Stock") for the price described below set forth opposite the name of each Purchaser on Schedule A hereto. The price at which the Purchased Stock shall be purchased from the Company by the Purchasers shall be $_____ per share. The Purchased Stock will be offered by the Purchasers at the price as set forth in the Prospectus relating to such Shares. 3 The Closing Date for the sale of the Purchased Stock shall be [date]. 4 The place to which the Purchased Stock may be checked, packaged and delivered shall be: or such other place as the Purchaser(s) shall designate. Notices to the Purchaser(s) shall be sent to the following address(es) or telecopier number(s): If we are acting as Representative(s) for the several Purchasers named in Schedule A hereto, we represent that we are authorized to act for such several Purchasers in connection with the transactions contemplated in this Agreement, and that, if there are more than one of us, any action under this Agreement taken by any of us will be binding upon all the Purchasers. All of the provisions contained in the document entitled "Constellation Energy Group, Inc. Standard Purchase Provisions", dated ____________, a copy of which has been previously furnished to us, are hereby incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. 5 If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between the Company and the several Purchasers in accordance with its terms. Very truly yours, [Name(s) of Purchaser(s)] By ------------------------------ Name: Title: ------------------------------ Acting on behalf of and as Representative(s) of the several Purchasers named in Schedule A hereto.* The foregoing Purchase Agreement is hereby confirmed as of the date first above written CONSTELLATION ENERGY GROUP, INC. By ------------------------------------------------- Title: *To be deleted if the Purchase Agreement is not executed by one or more Purchasers acting as Representative(s) of the Purchasers for purposes of this Agreement. 6 SCHEDULE A Name of Purchaser Number of Shares - ----------------- ---------------- Total ---------------- CONSTELLATION ENERGY GROUP, INC. STANDARD PURCHASE PROVISIONS [date] From time to time, Constellation Energy Group, Inc., a Maryland corporation (the "Company"), may enter into purchase agreements that provide for the sale of designated securities to the purchaser or purchasers named therein. The standard provisions set forth herein may be incorporated by reference in any such purchase agreement ("Purchase Agreement"). The Purchase Agreement, including the provisions incorporated therein by reference, is herein sometimes referred to as "this Agreement." Unless otherwise defined herein, terms defined in the Purchase Agreement are used herein as therein defined. 1. Introductory. The Company proposes to issue and sell from time to time its Common Stock (without par value) ("Stock") registered under the registration statement referred to in Section 2(a). The Stock sold by the Company is hereinafter called the "Purchased Stock." The firm or firms, as the case may be, which agree to purchase the same are hereinafter referred to as the "Purchasers" of such Purchased Stock. The Purchased Stock will be sold to the Purchasers for resale in accordance with the terms of the offering determined at the time of the sale. The terms "you" and "your" refer to those Purchasers who sign the Purchase Agreement either on behalf of themselves only or on behalf of themselves and as representatives of the several Purchasers named in Schedule A thereto, as the case may be. 2. Representations and Warranties of the Company. The Company represents and warrants to and agrees with each Purchaser that: (a) A registration statement on Form S-3 (No. 333-) covering $2 billion maximum aggregate offering price of securities of the Company (including the Purchased Stock), including a prospectus has been filed with the Securities and Exchange Commission ("Commission") and has become effective. The terms Registration Statement and Prospectus shall have the meanings ascribed to them in the Purchase Agreement. (b) The Registration Statement conforms in all respects to the requirements of the Securities Act of 1933, as amended ("Act"), and the pertinent published rules and regulations of the Commission thereunder ("33 Act Rules and Regulations"), and does not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that the foregoing does not apply to statements or omissions in such document based upon written information furnished to the Company by any Purchaser specifically for use therein. The documents incorporated by reference in the Registration Statement or the Prospectus pursuant to Item 12 of Form S-3 of the Act, at the time they were filed with the Commission, complied in all -2- material respects with the requirements of the Securities Exchange Act of 1934, as amended ("Exchange Act"), and the pertinent published rules and regulations thereunder ("Exchange Act Rules and Regulations"). Any additional documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the Exchange Act and the Exchange Act Rules and Regulations and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. 3. Delivery and Payment for the Purchased Stock. The Company will deliver the Purchased Stock to you for the accounts of the Purchasers, at the offices of the Transfer Agent/Registrar (at the place specified in the Purchase Agreement) against payment of the purchase price by wire transfer to an account specified by the Company or by certified or official bank check or checks in same day or New York or Baltimore Clearing House funds drawn to the order of the Company, at the office of the Company, 750 E. Pratt Street, 17th Floor, Baltimore, Maryland, 21202 at the time agreed to pursuant to the second paragraph of the Purchase Agreement or at such other time not later than seven full business days thereafter as you and the Company determine, such time being herein referred to as the "Closing Date." The Purchased Stock so to be delivered will be in registered form registered in such names and amounts as you request in writing not later than 3:00 p.m., New York Time, on the second full business day prior to the Closing Date, or, if no such request is received, in the names of the respective Purchasers in the amounts agreed to be purchased by them pursuant to the Purchase Agreement. The Company shall make the Purchased Stock available for checking and packaging at the offices of the Transfer Agent/Registrar (at the place specified in the Purchase Agreement) prior to the Closing Date and, unless prevented from doing so by circumstances beyond its control, not later than 2:00 p.m., New York Time, on the business day next preceding the Closing Date. If you request that any Purchased Stock be issued in a name or names other than that of the Purchaser agreeing to purchase such Purchased Stock hereunder, the Company shall not be obligated to pay any transfer taxes resulting therefrom. 4. Offering by the Purchasers. The several Purchasers propose to offer the Purchased Stock for sale to the public as set forth in the Prospectus. 5. Covenants of the Company. The Company covenants and agrees with the several Purchasers that: (a) It will promptly cause the Prospectus to be filed with the Commission as required by Rule 424. -3- (b) For as long as a prospectus relating to the Purchased Stock is required to be delivered under the Act, if any event relating to or affecting the Company or of which the Company shall be advised in writing by the Purchasers shall occur which, in the Company's opinion, should be set forth in a supplement or amendment to the Prospectus in order either to make the Prospectus comply with the requirements of the Act or which would require the making of any change in the Prospectus so that as thereafter delivered to purchasers such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company will promptly amend or supplement the Prospectus by either (i) preparing and filing with the Commission supplement(s) or amendment(s) to the Prospectus, or (ii) making an appropriate filing pursuant to the Exchange Act, which will supplement or amend the Prospectus so that, as supplemented or amended, the Prospectus when the Prospectus is delivered to a purchaser will comply with the Act and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Prior to any such filing, the Company shall give oral notice to the Purchasers. (c) The Company will make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) an earnings statement of the Company and its subsidiaries (which need not be audited) which will satisfy the provisions of Section 11(a) of the Act (including at the option of the Company Rule 158). (d) The Company will furnish to you copies of the following documents, in each case as soon as available after filing and in such quantities as you reasonably request:(i) the Registration Statement relating to Purchased Stock as originally filed and all pre-effective amendments thereto (at least one of which will be signed and will include all exhibits except those incorporated by reference to previous filings with the Commission); (ii) each prospectus relating to the Purchased Stock; and (iii) during the time when a prospectus relating to the Purchased Stock is required to be delivered under the Act, all post-effective amendments and supplements to the Registration Statement or Prospectus, respectively (except supplements relating to securities that are not Purchased Stock). (e) The Company will take such actions as the Purchasers may reasonably request to obtain the qualification of the Purchased Stock for sale and the determination of their eligibility for investment under the laws of such -4- jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution, provided, however, that the Company shall not be required to qualify as a foreign corporation or to file any consent to service of process under the laws of any jurisdiction or to comply with any other requirements deemed by the Company to be unduly burdensome. (f) During the period of five years after the Closing Date, the Company will furnish to you, and upon request, to each of the other Purchasers (unless such reports are available electronically on the Securities and Exchange Commission's website or the Company's website): (i) as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year, (ii) as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to shareholders, and (iii) from time to time, such other information concerning the Company as you may reasonably request. (g) The Company will pay all expenses incident to the performance of its obligations under this Agreement, and will reimburse the Purchasers for any expenses (including Blue Sky fees not exceeding $6,000 and disbursements of counsel) incurred by them in connection with qualification of the Purchased Stock for sale and determination of their eligibility for investment under the laws of such jurisdictions as you designate and the printing or reproduction of memoranda relating thereto, for any expenses incurred in connection with listing the Purchased Stock on a national securities exchange or for obtaining any required clearance from the National Association of Securities Dealers Inc. and for expenses incurred in distributing prospectuses to the Purchasers, except that if this Agreement is terminated by the Purchasers under Section 6(c) hereof, the Company shall not be obligated to reimburse the Purchasers for any of the foregoing expenses. (h) The Company will not offer or sell any additional shares of its common stock, other than the Purchased Stock, prior to 30 days after the Closing Date (other than pursuant to employee stock or option plans, dividend reinvestment plans and similar plans or any warrants or convertible or exchangeable securities outstanding prior to the date of the Purchase Agreement) without the consent of the Purchasers. (i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act. -5- 6. Conditions of the Obligations of the Purchasers. A. Purchased Stock. The obligations of the several Purchasers to purchase and pay for the Purchased Stock will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent: (a) Subsequent to the signing of the Purchase Agreement, you shall have received a letter of PricewaterhouseCoopers LLP, dated the Closing Date, confirming that they are independent public accountants within the meaning of the Act and the 33 Act Rules and Regulations, and stating in effect that: (i) In their opinion, the consolidated financial statements and supporting schedule audited by them which are included in the Company's Form 10-K dated __________("Form 10-K"), which is incorporated by reference in the Registration Statement comply in form in all material respects with the applicable accounting requirements of the Act and the 33 Act Rules and Regulations and the Exchange Act and the Exchange Act Rules and Regulations; (ii) On the basis of procedures specified in such letter (but not an audit in accordance with generally accepted auditing standards), including reading the minutes of meetings of the shareholders, the Board of Directors and the Executive Committee of the Company since the end of the year covered by the Form 10-K as set forth in the minute books through a specified date not more than five days prior to the Closing Date, performing procedures specified in Statement on Auditing Standards No. 71, Interim Financial Information, on the unaudited interim consolidated financial statements of the Company incorporated by reference in the Registration Statement, if any, and reading the latest available unaudited interim consolidated financial statements of the Company, and making inquiries of certain officials of the Company who have responsibility for financial and accounting matters as to whether the latest available financial statements not incorporated by reference in the Registration Statement are prepared on a basis substantially consistent with that of the audited consolidated financial statements incorporated by reference in the Registration Statement, nothing has come to their attention that has caused them to believe that (1) any unaudited consolidated financial statements incorporated by reference in the Registration Statement -6- do not comply in form in all material respects with the applicable requirements of the Act and the 33 Act Rules and Regulations and the Exchange Act and the Exchange Act Rules and Regulations or any material modifications should be made to those unaudited consolidated financial statements for them to be in conformity with generally accepted accounting principles; (2) at the date of the latest available balance sheet not incorporated by reference in the Registration Statement there was any change in the capital stock, change in long-term debt or decrease in consolidated net assets, or common shareholders' equity as compared with the amounts shown in the latest balance sheet incorporated by reference in the Registration Statement or for the period from the closing date of the latest income statement incorporated by reference in the Registration Statement to the closing date of the latest available income statement read by them there were any decreases, as compared with the corresponding period of the previous year, in operating revenues, operating income, net income or in earnings per share of common stock except in all instances for changes or decreases that the Registration Statement discloses have occurred or may occur, or which are described in such letter; or (3) at a specified date not more than five days prior to the Closing Date, there was any change in the capital stock or long-term debt of the Company, or, at such date, there was any decrease in net assets of the Company as compared with amounts shown in the latest balance sheet incorporated by reference in the Registration Statement, or for the period from the closing date of the latest income statement incorporated by reference in the Registration Statement to a specified date not more than five days prior to the Closing Date, there were any decreases as compared with the corresponding period of the previous year, in operating revenues, operating income, or net income, except in all cases for changes or decreases which the Registration Statement discloses have occurred or may occur, or which are described in such letter; and (iii) Certain specified procedures have been applied to certain financial or other statistical information (to the extent such information was obtained from the general accounting records of the Company) set forth or incorporated by reference in the Registration Statement and that such procedures have not revealed any disagreement between the financial and statistical information so set forth or incorporated by reference in the Registration Statement and the underlying general accounting records of the Company, except as described in such letter. (b) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have -7- been issued and no proceedings for that purpose shall have been instituted, or to the knowledge of the Company or you, shall be contemplated by the Commission, and if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have been filed and shall have become effective in accordance with Rule 462(b). (c) Subsequent to the date of the Purchase Agreement, (i) there shall not have occurred any change or any development involving a prospective change not contemplated by the Prospectus as of the date of the Purchase Agreement in or affecting particularly the business or properties of the Company which, in the judgment of a majority in interest of the Purchasers including you, materially impairs the investment quality of the Purchased Stock, and (ii) trading in securities generally on the New York Stock Exchange shall not have been suspended nor limited, other than a temporary suspension in trading to provide for an orderly market, nor shall minimum prices have been established on such Exchange, a banking moratorium shall not have been declared either by New York State or Federal authorities and there shall not have occurred an outbreak or escalation of major hostilities in which the United States is involved or other substantial national or international calamity or crisis (including one caused by a terrorist act), the effect of which on the financial markets of the United States is such as to make it, in your judgment, impracticable to market the Purchased Stock. (d) You shall have received an opinion, dated the Closing Date, of a counsel for the Company to the effect that: (i) The Company, Baltimore Gas and Electric Company, (BGE), Constellation Generation Group, LLC (CGG), and Constellation Enterprises, Inc. (CEI), have been duly incorporated or formed and are validly existing as corporations or a limited liability company, as the case may be, in good standing under the laws of the State of Maryland, with power and authority (corporate and other) to own their respective properties and conduct their respective businesses as described in the Prospectus; the Company owns all of the outstanding shares of common stock of BGE and CEI and all of the membership interests of CGG; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which the conduct of its business or the ownership of its properties requires such qualification and the failure to do so would have a material and adverse impact on its financial condition; -8- (ii) The statements set forth in the Prospectus under the caption "Description of Capital Stock" insofar as they purport to constitute a summary of the terms of the Purchased Stock are accurate and fair summaries of the matters set forth therein. (iii) Intentionally left blank (iv) (a) The issuance and sale of the Purchased Stock has been duly authorized by all necessary corporate action of the Company, (b) the Purchased Stock when issued and paid for in accordance with this Agreement will be fully paid and nonassessable, and (c) there are no preemptive rights to purchase the Purchased Stock. (v) The Registration Statement has become effective under the Act and, (a) to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act; (b) the Registration Statement (as of its effective date) and the Prospectus (as of the date of the Purchase Agreement) and any amendments or supplements thereto, as of their respective dates, appeared to comply as to form in all material respects with the requirements of Form S-3 under the Act and the 33 Act Rules and Regulations and the Trust Indenture Act; (c) such counsel has no reason to believe that either the Registration Statement or the Prospectus, or any such amendment or supplement, as of such respective dates or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (d) the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; (e) and such counsel does not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required, or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described or filed as required; it being understood that such counsel, in addressing the matters covered in this paragraph (v) need express no opinion as to the financial statements or other financial and statistical information contained in the Registration Statement or the Prospectus or incorporated therein or attached as an exhibit thereto. (vi) Counsel knows of no approval of any regulatory authority which is legally required for the valid -9- offering, issuance, sale and delivery of the Purchased Stock by the Company under this Agreement (except that such opinion need not pass upon the requirements of state securities acts); (vii) To the best of such counsel's knowledge and belief, the consummation of the transactions contemplated in this Agreement did not and will not result in a breach of any of the terms and provisions of, or constitute a default under, the Company's Charter or By-Laws or any indenture, mortgage or deed of trust or other agreement or instrument to which the Company is a party; (viii) This Agreement has been duly authorized, executed and delivered by the Company; (ix) The issuance, sale and delivery of the Purchased Stock as contemplated by this Agreement are not subject to the approval of the Securities and Exchange Commission under the provisions of the Public Utility Holding Company Act of 1935 (the "1935 Act"). (e) The Purchasers shall have received from Cahill Gordon & Reindel, counsel for the Purchasers, an opinion dated the Closing Date, with respect to the matters referred to in paragraph 6(d) subheadings (ii), (iv), (v)(b), (vi), (viii) and (ix) and such other matters as the Purchasers shall reasonably request and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters. In rendering such opinion, Cahill Gordon & Reindel may rely, as to the incorporation of the Company, all other matters governed by the laws of the State of Maryland and the applicability of the 1935 Act, upon the opinion of Counsel for the Company referred to above. In addition, such counsel shall state that such counsel has participated in conferences with officers, counsel and other representatives of the Company, representatives of the independent public accountants for the Company and representatives of the Purchasers at which the contents of the Registration Statement and the Prospectus and related matters were discussed; and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except as to the matters referred to in their opinion rendered pursuant to subheading (ii) above), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to the attention of such counsel which lead such counsel to believe that either the Registration Statement (as of its effective date) or -10- the Prospectus (as of the date of the Purchase Agreement and as of the Closing Date), and any subsequent amendments or supplements thereto, as of their respective dates, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make such statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need make no comment with respect to the financial statements and other financial and statistical data included in the Registration Statement or Prospectus or incorporated therein). (f) You shall have received a certificate of the Chairman of the Board, President or any Vice President and a principal financial or accounting officer of the Company, dated the Closing Date, in which such officers shall state, to the best of their knowledge after reasonable investigation, and relying on opinions of counsel to the extent that legal matters are involved, that the representations and warranties of the Company in this Agreement are true and correct in all material respects, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission, and that, subsequent to the date of the most recent financial statements set forth or incorporated by reference in the Prospectus, there has been no material adverse change in the financial position or in the financial results of operation of the Company except as set forth or contemplated in the Prospectus. (g) The Company will furnish you with such conformed copies of such opinions, certificates, letters and documents as you reasonably request. (h) The New York Stock Exchange, the Chicago Stock Exchange and the Pacific Stock Exchange shall have approved for listing, upon official notice of issuance, the Purchased Stock. In case any such condition shall not have been satisfied, this Agreement may be terminated by you upon notice in writing or by telecopy to the Company without liability or obligation on the part of the Company or any Purchaser, except as set forth in Section 10 hereof. 7. Conditions of the Obligations of the Company. The obligations of the Company to sell and deliver the Purchased Stock are subject to the following condition precedent: Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been -11- instituted or, to the knowledge of the Company or you, shall be contemplated by the Commission. If this condition shall not have been satisfied, then the Company shall be entitled, by notice in writing or by telecopy to you, to terminate this Agreement at any time prior to the Closing Date, without any liability on the part of the Company or any Purchaser, except as set forth in Section 10 hereof. 8. Indemnification. (a) The Company will indemnify and hold harmless each Purchaser and each person, if any, who controls any Purchaser within the meaning of the Act or the Exchange Act against any losses, claims, damages or liabilities, joint or several, to which such Purchaser or such controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or the Prospectus (or any supplement or amendment thereto), or any related preliminary prospectus or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; and will reimburse each Purchaser and each such controlling person for any legal or other expenses reasonably incurred by such Purchaser or such controlling person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable to such Purchaser or controlling person in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any such documents in reliance upon and in conformity with written information furnished to the Company by such Purchaser or such controlling person specifically for use therein; and provided, further, that the Company shall not be liable to any Purchaser under the indemnity agreement in this subsection (a) with respect to any preliminary prospectus to the extent that any such loss, claim, damage or liability of such Purchaser results from the fact such Purchaser sold Purchased Stock to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus (excluding documents incorporated by reference) or of the Prospectus as then amended or supplemented (excluding documents incorporated by reference) in any case where such delivery is required by the Act if the Company has previously furnished copies thereof to such Purchaser and the loss, claim, damage or liability of such Purchaser results from an untrue statement or omission of a -12- material fact contained in the preliminary prospectus which was corrected in the Prospectus (or the Prospectus as amended or supplemented). This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) Each Purchaser will indemnify and hold harmless the Company, each of its directors and officers and each person, if any, who controls the Company within the meaning of the Act or the Exchange Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject, under the Act, or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or the Prospectus (or any supplement or amendment thereto), or any related preliminary prospectus or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Purchaser specifically for use therein; and will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling person in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred. This indemnity agreement will be in addition to any liability which such Purchaser may otherwise have. (c) Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under (a) and (b) above, notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section except to the extent the indemnifying party has been materially prejudiced by such omission. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who may, with the consent of the indemnified party, be counsel to the indemnifying party) and who shall not be counsel to any other indemnified party who may have interests conflicting with those of such indemnified party, and after notice from the indemnifying party to such -13- indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. (d) If recovery is not available under the foregoing indemnification provisions of this Section, for any reason other than as specified therein, the parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses, except to the extent that contribution is not permitted under Section 11(f) of the Act. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the relative benefits received by each party from the offering of the Purchased Stock (taking into account the portion of the proceeds of the offering realized by each), the parties' relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances. The Company and the Purchasers and such controlling persons agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation (even if the Purchasers and such controlling persons were treated as one entity for such purpose). Notwithstanding the provisions of this subsection (d), no Purchaser or controlling person shall be required to make contribution hereunder which in the aggregate exceeds the total public offering price of the Purchased Stock, purchased by the Purchaser under this Agreement, less the aggregate amount of any damages which such Purchaser or such controlling person has otherwise been required to pay in respect of the same claim or any substantially similar claim. The Purchasers' obligations to contribute are several in proportion to their respective underwriting obligations and are not joint. 9. Default of Purchasers. If any Purchaser or Purchasers default in their obligations to purchase Purchased Stock hereunder and the number of shares of Purchased Stock which such defaulting Purchaser or Purchasers agreed but failed to purchase is 10% of the number of shares of Purchased Stock or less, the non-defaulting Purchasers may make arrangements satisfactory to the Company for the purchase of such Purchased Stock by other persons, including any of the Purchasers, but if no such arrangements are made by the Closing Date the non-defaulting Purchasers shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Purchased Stock which such defaulting Purchasers agreed but failed to purchase. If any Purchaser or Purchasers so default and the aggregate number of shares of Purchased Stock with respect to which such default or defaults occur is more than the -14- above percentage and arrangements reasonably satisfactory to you and the Company for the purchase of such Purchased Stock by other persons are not made within seventy-two hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Purchaser or the Company, except as provided in Section 10. In the event that any Purchaser or Purchasers default in their obligation to purchase Purchased Stock hereunder, the Company may, by prompt written notice to the non-defaulting Purchasers, postpone the Closing Date, for a period of not more than seven full business days in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus or in any other documents, and the Company will promptly file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary. As used in this Agreement, the term "Purchaser" includes any person substituted for a Purchaser under this Section. Nothing herein will relieve a defaulting Purchaser from liability for its default. 10. Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties, and other statements of the Company or its officers and of the several Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Purchaser or the Company or any of its officers or directors or any controlling person, and will survive delivery of and payment for the Purchased Stock. If this Agreement is terminated pursuant to Section 6, 7 or 9 or if for any reason the purchase of the Purchased Stock by the Purchasers is not consummated, the Company shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 5(g). In addition, in such event the respective obligations of the Company and the Purchasers pursuant to Section 8 shall remain in effect; provided, however, that each Purchaser will use their best efforts to promptly notify each other Purchaser and each dealer and prospective customer to whom such Purchaser has delivered a Prospectus for the Purchased Stock by telephone or telegraph, confirmed by letter in either case, of such termination or failure to consummate, including in such notice instructions regarding the continued use of the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus. 11. Notices. All communications hereunder will be in writing, and, if sent to the Purchasers will be delivered or telecopied and confirmed to the address furnished in writing for the purpose of such communications hereunder, or, if sent to the Company, will be delivered or telecopied and confirmed to it, attention of Treasurer at 750 E. Pratt Street, 17th Floor, Baltimore, Maryland 21201, telecopier (410) 783-3619; 12. Successors. This Purchase Agreement will inure to the benefit of and be binding upon the parties hereto and their -15- respective successors and the officers and directors and controlling persons referred to in Section 8, and no other person will have any right or obligation hereunder. The term "successors" shall not include any purchaser of any Purchased Stock merely because of such purchase. 13. Construction. This Purchase Agreement shall be governed by and construed in accordance with the laws of the State of Maryland. 14. Counterparts. This Agreement may be executed in one or more counterparts and it is not necessary that the signatures of all parties appear on the same counterpart, but such counterparts together shall constitute but one and the same agreement. EX-3.E 5 dex3e.txt BY-LAWS Exhibit 3(e) BY-LAWS of CONSTELLATION ENERGY GROUP, INC. Amended as of January 24, 2003 ARTICLE I OFFICES AND HEADQUARTERS Section 1. - Name. The name of the corporation is Constellation Energy Group, Inc. (the "Corporation"). Section 2. - Offices. The principal office of the Corporation is 750 East Pratt Street, Baltimore, Maryland 21202. The Corporation may also have other offices at such other places, either within or without the State of Maryland, as the Board of Directors of the Corporation (the "Board") may determine or as the activities of the Corporation may require. ARTICLE II STOCKHOLDERS Section 1. - Place of Meetings. Meetings of stockholders of the Corporation shall be held at such places, either within or without the State of Maryland as may be fixed from time to time by the Board and stated in the notice of meeting or in a duly executed waiver of notice thereof. Section 2. - Annual Meetings. The Annual Meeting of the stockholders for the election of directors and for the transaction of general business shall be held on any date during the period of April 15 through May 15, as determined year to year by the Board. The time and location of the meeting shall be determined by the Board. Failure to hold an Annual Meeting does not invalidate the Corporation's existence or affect any otherwise valid corporate acts. The Chief Executive Officer of the Corporation shall prepare, or cause to be prepared, an annual report containing a full and correct statement of the affairs of the Corporation, including a balance sheet and a financial statement of operations for the preceding fiscal year, which shall be submitted to the stockholders at or prior to the Annual Meeting. Section 3. - Special Meetings. Special meetings of the stockholders may be held in the City of Baltimore or in any county in which the Corporation provides service or owns property upon call by the Chairman of the Board, President or a majority of the Board whenever they deem expedient, or by the Secretary upon the written request of the holders of shares entitled to not less than a majority of all the votes entitled to be cast at such meeting. Such request of the stockholders shall state the purpose or purposes of the meeting and the matters proposed to be acted on and shall be delivered to the Secretary, who shall inform such stockholders of the reasonably estimated cost of preparing and mailing such notice of the meeting, and upon payment to the Corporation of such costs the Secretary shall give notice stating the purpose or purposes of the meeting to all stockholders entitled to vote at such meeting. The business at all special meetings shall be confined to that specifically named in the notice thereof. 1 Section 4. - Notice and Waiver; Organization of Meeting. When stockholders are required or permitted to take any action at a meeting whether special or annual, written or printed notice of every meeting shall be given to each stockholder entitled to vote at the meeting and each other stockholder entitled to notice of the meeting. The notice shall state the place, day, and hour of such meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. The written notice of any meeting shall be given, personally or by mail, not less than 10 or more than 90 days before the date of the meeting. If mailed, such notice shall be deemed given when deposited with the United States Postal Service, postage prepaid, addressed to the stockholder at his or her address as it appears on the records of the Corporation or its registrar. The business at all special meetings shall be confined to that specifically named in the notice thereof. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken unless the adjournment is for more than 120 days, or, if after the adjournment, a new record date is fixed for the adjourned meeting, in which circumstances a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. Notice of any meeting of stockholders may be waived in writing by any stockholders entitled to vote at such meeting. Attendance at a meeting by any stockholder, in person or by proxy, shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. All meetings of the stockholders shall be called to order by the Chairman of the Board, or in his or her absence by the President or a Vice President; or in the case of the absence of such Officers, then by any stockholder. The party calling the meeting to order shall be Chairman of the meeting. The Secretary of the Corporation, if present, shall act as secretary of the meeting, unless some other person shall be elected by the stockholders at the meeting to act as secretary. An accurate record of the meeting shall be kept by the secretary thereof, and placed in the record books of the Corporation. Section 5. - Order of Business. (a) At any Annual Meeting, only such business shall be conducted as shall have been brought before the Annual Meeting (i) by or at the direction of the Board, or (ii) by any stockholder who complies with the procedures set forth in this Section 5. (b) For nominations or other business to be brought properly before an Annual Meeting by a stockholder, the stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal office of the Corporation not less than 75 days prior to the anniversary of the date on which notice of the prior year's Annual Meeting was given to stockholders in accordance with Section 4 of this Article II. Notices sent by facsimile or electronically will not be accepted by the Secretary of the Corporation. To be in proper written form, a stockholder's notice to the Secretary shall set forth in writing as to each matter the stockholder proposes to bring before the Annual Meeting: (i) as to each person whom the stockholder proposes to nominate for election or re-election as a Director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934 (the "Exchange Act") or any applicable successor 2 provisions thereto, including such person's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; and as to the stockholder giving the notice, the name and address, as they appear on the Corporation's books, of the stockholder proposing such nomination and the class and number of shares of stock of the Corporation which are beneficially owned by the stockholder. (ii) as to any other business that the stockholder proposes to bring before the meeting: (A) a brief description of the business desired to be brought before the Annual Meeting and the reasons for conducting such business at the Annual Meeting; (B) the name and address, as they appear on the Corporation's books, of the stockholder proposing such business; (C) the class and number of shares of stock of the Corporation which are beneficially owned by the stockholder; and (D) any material interest of the stockholder in such business. (c) Notwithstanding anything in these by-laws to the contrary, no business shall be conducted at an Annual Meeting except in accordance with the procedures set forth in this Section 5 of Article II. The Chairman of an Annual Meeting shall, if the facts warrant, determine and declare at the Annual Meeting that business was not properly brought before the Annual Meeting in accordance with the provisions of this Section 5 of Article II and, if the Chairman should so determine, he or she shall so declare at the Annual Meeting and any such business not properly brought before the Annual Meeting shall not be transacted. (d) Notwithstanding the foregoing provisions of this Section, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section. Nothing in this Section shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act. Section 6. - Quorum. At any meeting of the stockholders the presence in person or by proxy of stockholders entitled to cast a majority of the votes thereat shall constitute a quorum for the transaction of business. When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any stockholders. The stockholders present, although less than a quorum, may adjourn the meeting to another time or place; provided that notice of such adjourned meeting is given in accordance with the provisions of Section 4 of this Article II. Section 7. - Voting; Proxies. At all meetings of the stockholders each stockholder shall be entitled to one vote for each share of Common Stock standing in his or her name and, when the Preferred Stock is entitled to vote, such number of votes as shall be provided in the Charter of the Corporation for each share of Preferred Stock standing in his or her name, and the votes shall be cast by stockholders in person or by lawful proxy. However, no proxy shall be voted 11 months after the date thereof, unless the proxy provides for a longer period. 3 Section 8. - Control Shares. Notwithstanding any other provision of the Charter of the Corporation or these by-laws, Title 3, Subtitle 7 of the Maryland General Corporation Law (or any successor statute) shall not apply to any acquisition by any person of shares of stock of the Corporation. This section may be repealed, in whole or in part, at any time, whether before or after an acquisition of control shares and, upon such repeal, may, to the extent provided by any successor by-law, apply to any prior or subsequent control share acquisition. Section 9. - Method of Voting. All elections and all other questions shall be decided by a majority of the votes cast, at a meeting at which a quorum is present, except as expressly provided otherwise by the general laws of the State of Maryland or the Charter and except that Directors shall be elected by a plurality of the votes cast. Section 10. - Ownership of its Own Stock. Shares of capital stock of the Corporation held by either (i) the Corporation or (ii) another corporation, if a majority of the shares entitled to vote in the election of Directors of such other corporation is held, directly or indirectly, by the Corporation (a "Controlled Corporation"), shall neither be entitled to vote nor be counted for quorum purposes. Nothing in this Section 10 shall be construed as limiting the right of the Corporation or any Controlled Corporation to vote stock of the Corporation held by it in a fiduciary capacity. Section 11. - Inspectors. The Board of Directors, in advance of any meeting, may, but need not, appoint one or more individual inspectors or one or more entities that designate individuals as inspectors to act at the meeting or any adjournment thereof. If an inspector or inspectors are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the Board of Directors in advance of the meeting or at the meeting by the chairman of the meeting. The inspectors, if any, shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. Each such report shall be in writing and signed by him or her or by a majority of them if there is more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors. The report of the inspector or inspectors on the number of shares represented at the meeting and the results of the voting shall be prima facie evidence thereof. Section 12. - Record Date for Stockholders; Closing of Transfer Books. The Board may fix, in advance, a date as the record for the determination of the stockholders entitled to notice of, or to vote at, any meeting of stockholders, or entitled to receive payment of any dividend, or entitled to the allotment of any rights, or for any other proper purpose. Such date in any case shall not be more than 90 days (and in the case of a meeting of stockholders not less than 10 days) prior to the date on which the particular action requiring such determination of stockholders is to be taken. Only stockholders of record on such date shall be entitled to notice of or to vote at such meeting or to receive such dividends or rights, as the case may be. In lieu of fixing a record date the Board may close the stock transfer books of the Corporation for a period not exceeding 20 nor less than 10 days preceding the date of any meeting of stockholders or not exceeding 20 days preceding any other of the above mentioned events. 4 ARTICLE III BOARD OF DIRECTORS AND COMMITTEES Section 1. - Powers of Directors The business and affairs of the Corporation shall be managed under the direction of the Board which shall have and may exercise all the powers of the Corporation, except such as are expressly conferred upon or reserved by the stockholders by law, by Charter, or by these by-laws. Except as otherwise provided herein, the Board shall appoint the Officers for the conduct of the business of the Corporation, determine their duties and responsibilities. The Board may remove any Officer. Section 2. - Number and Election of Directors. The Corporation shall have at least three Director; provided that the Board of Directors may alter the number of Directors from time to time so long as such number does not exceed 20. Any alteration in the number of Directors will not affect the tenure of office of any Director.. The Directors shall be grouped into three classes, Class I, Class II and Class III. Directors in each class shall serve a term of three years and until their successors are elected and qualified, or until their earlier resignation or removal. A separate class will be elected at each Annual Meeting of the stockholders. Section 3. - Vacancies. If for any reason any or all the Directors cease to be Directors, such event shall not terminate the Corporation or affect these by-laws or the powers of the remaining Directors hereunder (even if fewer than three Directors remain). Except as may be provided by the Board in setting the terms of any class or series of preferred stock, any vacancy on the Board may be filled only by a majority of the remaining Directors, even if the remaining Directors do not constitute a quorum. Any Director elected to fill a vacancy shall serve for the remainder of the full term of the class in which the vacancy occurred and until a successor is elected and qualified. Section 4. - Resignations. Any Director of the Corporation may resign at any time by giving written notice to the Corporation. Such resignation shall take effect at the time specified therein, if any, or if no time is specified therein, then upon receipt of such notice by the Corporation; and, unless otherwise provided therein, the acceptance of such resignation shall not be necessary to make it effective. Section 5. - Meetings of the Board. A regular meeting of the Board shall be held immediately after the Annual Meeting of stockholders or any special meeting of the stockholders at which the Board is elected, and thereafter regular meetings of the Board shall be held on such dates during the year as may be designated from time to time by the Board. All meetings of the Board shall be held at the general offices of the Corporation in the City of Baltimore or elsewhere, as ordered by the Board. Of all such meetings (except the regular meeting held immediately after the election of Directors) the Secretary shall give notice to each Director personally or by telephone, facsimile or electronically directed to, or by written notice deposited in the mails addressed to, his or her residence or business address at least 48 hours before such meeting. Special meetings may be held at any time or place upon the call of the Chairman of the Board, or the President, or in their absence, on order of the Executive Committee, if any, by notices as above. In the event all 5 of the Directors in office waive notice of any meeting in writing at or before the meeting, the meeting may be held without the aforesaid advance notices. The Chairman shall preside at all meetings of the Board, or, in his or her absence, the President or one of the Vice Presidents (if a member of the Board) shall preside. If at any meeting none of the foregoing persons is present, the Directors present shall designate one of their number to preside at such meeting. Section 6. - Telephone Meetings Permitted. Members of the Board, or any committee, may participate in a meeting thereof by means of conference telephone or similar communications equipment in which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. Section 7. - Quorum. A majority of the Directors in office shall constitute a quorum of the Board for the transaction of business. If a quorum be not present at any meeting, a majority of the Directors present may adjourn to any time and place they may see fit. Section 8. - Committees. The Board is authorized to appoint from among its members, an audit committee, a compensation committee, and a nominating and corporate governance committee, and such other committees as it may, from time to time, deem advisable and to delegate to such committee or committees any of the powers of the Board that it may lawfully delegate. Each such committee shall consist of at least one Director, except for the audit committee which shall have, at a minimum, the number of members required by applicable law or stock exchange listing standards. The Directors shall annually elect from among their number members for each committee established. The members of the committees shall hold their offices for one year and until their successors are elected and qualified, or until their earlier resignation or removal. All vacancies in said committees shall be filled by the Board. The purposes and authority of each committee shall be as set forth in applicable law, board resolution or committee charter. Any such charter shall be approved annually by the Board. Section 9. - Fees and Expenses. Each member of the Board, other than salaried Officers and employees, shall be paid an annual retainer fee, payable in such amount as shall be specified from time to time by the Board. Each Committee Chair shall be paid an annual retainer fee, payable in such amount as shall be specified from time to time by the Board. Each member of the Board, other than salaried Officers and employees, shall be paid such fee as shall be specified from time to time by the Board for attending each regular or special meeting of the Board and for attending, as a committee member, each meeting of any committee appointed by the Board. Each member shall be paid reasonable traveling expenses incident to attendance at meetings. ARTICLE IV OFFICERS 6 Section 1. - Officers. The Corporation shall have a Chairman of the Board, a President, one or more Vice Presidents, a Treasurer, and a Secretary who shall be elected by, and hold office at the will of, the Board. The Chairman of the Board shall be chosen from among the Directors. The Board shall designate either the Chairman of the Board or the President to be the Chief Executive Officer of the Corporation. The Board shall also elect such other Officers as they may deem necessary for the conduct of the business and affairs of the Corporation. Any two offices, except those of President and Vice President, may be held by the same person, but no person shall sign checks, drafts and promissory notes, or execute, acknowledge or verify any other instrument in more than one capacity, if such instrument is required by law, the Charter, these by-laws, a resolution of the Board or order of the Chief Executive Officer to be signed, executed, acknowledged or verified by two or more Officers. The President, any Vice President, or such other persons as may be designated by the Board, shall sign all special contracts of the Corporation, countersign checks, drafts and promissory notes, and such other papers as may be directed by the Board. The President, or any Vice President, together with the Treasurer or an Assistant Treasurer (if any), shall have authority to sell, assign or transfer and deliver any bonds, stocks or other securities owned by the Corporation. The Board shall require a fidelity bond to be given by each Officer, or, in its discretion, the Board may substitute a general blanket fidelity bond or insurance contract to cover all Officers and employees. Section 2. - Duties of the Officers. (a) Chairman of the Board The Chairman of the Board shall preside at all meetings of the Board and of stockholders. The Chairman of the Board shall also have such other powers and duties as from time to time may be assigned by the Board. (b) President The President shall have general executive powers, as well as specific powers conferred by these by-laws. The President shall also have such other powers and duties as from time to time may be assigned by the Board. In the absence of the Chairman of the Board, the President shall perform all the duties of the Chairman of the Board. (c) Vice Presidents Each Vice President shall have such powers and duties as may be assigned by the Board or the Chief Executive Officer, as well as the specific powers assigned by these by-laws. A Vice President may be designated by the Board or the Chief Executive Officer to perform, in the absence of the President, all the duties of the President. (d) Treasurer The Treasurer shall have the care and the custody of the funds and valuable papers of the Corporation, and shall receive and disburse all moneys in such a manner as may be prescribed by the Board or the Chief Executive Officer. The Treasurer shall have such other powers and duties as may be assigned by the Board, or the Chief Executive Officer, as well as specific powers assigned by these by-laws. (e) Secretary The Secretary shall attend all meetings of the stockholders and Directors and shall notify the stockholders and Directors of such meetings in the manner provided in these by-laws. The Secretary shall record the proceedings of all such meetings in books kept for that purpose. The Secretary shall have such other powers and duties as may be assigned by the Board or the Chief Executive Officer, as well as the specific powers assigned by these by-laws. 7 (f) Other Officers Such other Officers as are appointed by the Board shall exercise such duties and have such powers as by custom and applicable law generally pertain to their respective offices as well as such duties and powers as the Board or the Chief Executive Officer may assign. Section 3. - Terms of Office; Removals and Vacancies. Any Officer may be removed by the Board in its sole judgment. In case of removal, the salary of such Officer shall cease. Removal shall be without prejudice to the contractual rights, if any, of the person so removed, but election of an Officer shall not of itself create contractual rights. Each Officer shall hold office until his or her successor is elected and qualified or until his or her earlier removal or resignation. Any vacancy occurring in any office of the Corporation shall be filled by the Board and the Officer so elected shall hold office for the unexpired term in respect of which the vacancy occurred and until his or her successor shall be duly elected and qualified. In any event of absence or temporary disability of any Officer of the Corporation, the Board may authorize another person to perform the duties of that office. Section 4. - Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chairman, the President or any Vice President and any such Officer may, in the name of and on behalf of the Corporation, take all such action as any such Officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and powers incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board may, by resolution, from time to time confer like powers upon any other person or persons. ARTICLE V INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 1. - Procedure. The Corporation shall indemnify all Directors, Officers and employees to the fullest extent permitted by the general laws of the State of Maryland and shall provide indemnification expenses in advance to the extent permitted thereby. The Corporation will follow the procedures required by applicable law in determining persons eligible for indemnification and in making indemnification payments and advances. Section 2. - Exclusivity, etc. The indemnification and advance of expenses provided by the Charter and these by-laws shall not be deemed exclusive of any other rights to which a person seeking indemnification or advance of expenses may be entitled under any law (common or statutory), or any agreement, vote of stockholders or disinterested Directors or other provision that is consistent with law, both as to action in his or her official capacity and as to action in another capacity while holding office or while employed or acting as agent for the corporation, shall continue in respect of all events occurring while a person was a Director or Officer after such person has ceased to be a 8 Director or Officer, and shall inure to the benefits of the estate, heirs, executors and administrators of such person. All rights to indemnification and advance of expenses under the Charter of the Corporation and hereunder shall be deemed to be a contract between the Corporation and each Director or Officer of the Corporation who serves or served in such capacity at any time while this by-law is in effect. Nothing herein shall prevent the amendment of this by-law, provided that no such amendment shall diminish the rights of any person hereunder with respect to events occurring or claims made before its adoption or as to claims made after its adoption in respect of events occurring before its adoption. Any repeal or modification of this by-law shall not in any way diminish any rights to indemnification or advance of expenses of such Director or Officer or the obligations of the Corporation arising hereunder with respect to events occurring, or claims made, while this by-law or any provision hereof is in force. Section 3. - Severability; Definitions. The invalidity or unenforceability of any provision of this Article V shall not affect the validity or enforceability of any other provision hereof. The phrase "this by-law" in this Article V means this Article V in its entirety. ARTICLE VI CAPITAL STOCK Section 1. - Evidence of Stock Ownership. Evidence of ownership of stock in the Corporation may be either pursuant to a certificate(s) or a statement in compliance with the general laws of the State of Maryland, each of which shall represent the number of shares of stock owned by a stockholder in the Corporation. Stockholders may request that their stock ownership be represented by a certificate(s). In case any Officer who signed any certificate, in facsimile or otherwise, ceases to be such Officer of the Corporation before the certificate is issued, the certificate may nevertheless be issued by the Corporation with the same effect as if the Officer had not ceased to be such Officer as of the date of its issue. For stock ownership evidenced by a statement, such statement shall be in such form, and executed, as required from time to time by the general laws of the State of Maryland. Section 2. - Transfer of Shares. Stock shall be transferable only on the books of the Corporation by assignment in writing by the registered holder thereof, his or her legally constituted attorney, or his or her legal representative, either upon surrender and cancellation of the certificate(s) therefor, if such stock is represented by a certificate, or upon receipt of such other documentation for stock not represented by a certificate as the Board and the general laws of the State of Maryland may, from time to time, require. Section 3. - Lost, Stolen or Destroyed Certificates. No certificate for shares of stock of the Corporation shall be issued in place of any other certificate alleged to have been lost, stolen, or destroyed, except upon production of such evidence of the loss, theft or destruction and upon indemnification of the Corporation to such extent and in such manner as the Board may prescribe. Section 4. - Transfer Agents and Registrars. 9 The Board shall appoint a person or persons, the Corporation or any incorporated trust company or companies or any of them, as transfer agents and registrars and, if stock is represented by a certificate, may require that such certificate bear the signatures or the counter-signatures of such transfer agents and registrars, or either of them. Section 5. - Stock Ledger. The Corporation shall maintain at its principal office, a stock record containing the names and addresses of all stockholders and the numbers of shares of each class held by each stockholder. ARTICLE VII MISCELLANEOUS Section 1. - Seal. The Board shall provide, subject to change, a suitable corporate seal which may be used by causing it, or facsimile thereof, to be impressed or affixed or reproduced on the Corporation's stock certificates, bonds, or any other documents on which the seal may be appropriate. Section 2. - Amendments. These by-laws, or any of them, may be amended or repealed, and new by-laws may be made or adopted only at any meeting of the Board, by vote of a majority of the Directors or at a meeting of the shareholders, duly called, by a vote of two-thirds of the shareholders eligible to vote thereon. Pursuant to Articles Supplementary filed with the State Department of Assessments and Taxation of Maryland, the Corporation has elected, by resolution of the Board, to be subject to Sections 3-803, 3-804(b), 3-804(c) and 3-805 of the Maryland General Corporation Law and the following sections of these by-laws have been amended to conform to such elections, respectively: Article III, Section 2, third, fourth and last sentences; Article III, Section 2, first sentence; Article III, Section 3; and Article II, Section 3, first sentence, and therefore, such provisions may be amended, altered or repealed only by resolution of the Board. Section 3. - Section Headings and Statutory References. The headings of the Articles and Sections of these by-laws have been inserted for convenience of reference only and shall not be deemed to be a part of these by-laws. 10 EX-4.B 6 dex4b.txt SUPPLEMENTAL INDENTURE Exhibit 4(b) - -------------------------------------------------------------------------------- CONSTELLATION ENERGY GROUP, INC. AND THE BANK OF NEW YORK Trustee ---------- FIRST SUPPLEMENTAL INDENTURE Dated as of January 24, 2003 ---------- - -------------------------------------------------------------------------------- TABLE OF CONTENTS
Page ---- ARTICLE ONE DEFINITIONS; GENERAL.....................................................................................1 SECTION 1.1 Certain Additional Terms Defined................................................1 SECTION 1.2 Rules of Construction...........................................................3 SECTION 1.3 Authority.......................................................................3 SECTION 1.4 Notice to Securityholders; Waiver...............................................3 ARTICLE TWO CONVERSION OF SECURITIES.................................................................................4 SECTION 2.1. Conversion Privilege and Conversion Rate........................................4 SECTION 2.2. Exercise of Conversion Privilege................................................5 SECTION 2.3. Fractions of Shares.............................................................6 SECTION 2.4. Adjustment of Conversion Rate...................................................6 SECTION 2.5. Notice of Adjustments of Conversion Rate.......................................12 SECTION 2.6. Notice of Certain Corporate Action.............................................13 SECTION 2.7. Corporation to Reserve Common Stock: Registration; Listing.....................14 SECTION 2.8. Taxes on Conversions...........................................................14 SECTION 2.9. Covenant as to Common Stock....................................................14 SECTION 2.10. Cancellation of Converted Securities...........................................15 SECTION 2.11. Provision in Case of Consolidation, Merger or Sale of Assets...................15 SECTION 2.12. Responsibility of Trustee for Conversion Provisions............................16 ARTICLE THREE MISCELLANEOUS...........................................................................................16 SECTION 3.1. Discharge of Indenture; Effect of Conversion on Application of Trust Money.....16 SECTION 3.2. Effect of Conversion on Trustee's Selection of Convertible Securities to be Redeemed.......................................................................17 SECTION 3.3. Notice of Redemption; Additional Requirements..................................17 SECTION 3.4. Deposit of Redemption Price; Not Applicable to Converted Securities............17 SECTION 3.5. Undertaking for Costs; Not Applicable to Suits to Enforce Right to Convert.....17 SECTION 3.6. Conversion Agent; May Hold Securities..........................................17 SECTION 3.7. Supplemental Indenture Without Consent of Securityholders; Protection of Securityholder Conversion Right in Consolidation, etc..........................18 SECTION 3.8. Ratification of Indenture......................................................18 SECTION 3.9. Governing Law..................................................................18 SECTION 3.10. Not Responsible for Recitals...................................................18 SECTION 3.11. Counterparts...................................................................18
ii FIRST SUPPLEMENTAL INDENTURE, dated as of January 24, 2003 (hereinafter called the "Supplemental Indenture"), between CONSTELLATION ENERGY GROUP, INC. a corporation duly organized and existing under the laws of the State of Maryland (hereinafter sometimes called the "Corporation"), and THE BANK OF NEW YORK, as Trustee, a New York banking corporation duly organized and existing under the laws of the State of New York (hereinafter sometimes called the "Trustee"). WHEREAS, the Corporation and the Trustee have heretofore executed and delivered the Indenture dated as of March 24, 1999 (hereinafter called the "Indenture"), providing for the issuance from time to time of one or more series of Securities as defined therein, WHEREAS, the Corporation wishes to supplement the Indenture to provide for the issuance from time to time of one or more further series of Securities ("Convertible Securities") convertible into Common Stock, no par value of the Corporation ("Common Stock"), as hereinafter defined subject to the terms of the Indenture, as supplemented hereby; and WHEREAS, all things necessary to make this Supplemental Indenture a valid instrument in accordance with its terms, and to make the Convertible Securities, when executed by the Corporation and authenticated and delivered by the Trustee, the valid obligations of the Corporation and all acts and things necessary have been done and performed to make this Supplemental Indenture enforceable in accordance with its terms, and the execution and delivery of this Supplemental Indenture have been duly authorized in all respects; NOW, THEREFORE, for and in consideration of the premises and the purchase and acceptance of the Convertible Securities by the holders thereof, the Corporation covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective holders from time to time hereafter of the Convertible Securities, as follows: ARTICLE ONE DEFINITIONS; GENERAL SECTION 1.1 Certain Additional Terms Defined. In addition to terms defined in the Indenture and terms defined elsewhere in this Supplemental Indenture, the following terms (except as otherwise expressly provided or unless the context otherwise clearly requires) for all purposes of this Supplemental Indenture shall have the respective meanings specified in this Section. "Affiliate" of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control", when used with 1 respect to any specified person, means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Applicable Procedures" means, with respect to any transfer or transaction involving Convertible Securities of any series issued in global form or beneficial interest therein, the rules and procedures of the Depositary for such series, in each case to the extent applicable to such transaction and as in effect from time to time. "Closing Price Per Share" means, with respect to the Common Stock, for any day, (i) the last reported sale price regular way on such day or, if no such sale takes place on such date, the average of the reported closing bid and asked prices regular way of such Common Stock, in each case on the principal national securities exchange on which such Common Stock is listed, if the Common Stock is listed on a national securities exchange, or the National Market System of the National Association of Securities Dealers, Inc. or, if the Common Stock is not quoted or admitted to trading on such quotation system, on the principal quotation system on which the Common Stock is listed or admitted to trading or quoted, or, if not listed or admitted to trading or quoted on any national securities exchange or quotation system, the average of the closing bid and asked prices of the Common Stock in the over-the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similarly generally accepted reporting service, or, if not so available in such manner, as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors of the Corporation for that purpose or, if not so available in such manner, as otherwise determined in good faith by the Board of Directors of the Corporation. "Common Stock" means the Common Stock, no par value, of the Corporation authorized at the date of this instrument as originally executed or as such stock may be constituted from time to time (including upon a change in the par value of such securities). Subject to the provisions of Section 2.11 of this Supplemental Indenture, shares issuable on conversion of Convertible Securities shall include only shares of Common Stock or shares of any class or classes of common stock resulting from any reclassification or reclassifications thereof; provided, however, that if at any time there shall be more than one such resulting class, the shares so issuable on conversion of Convertible Securities shall include shares of all such classes, and the shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications. "Conversion Agent" means any person authorized by the Corporation to convert Convertible Securities in accordance with Article Two hereof. Unless otherwise specified in or pursuant to the Board Resolution establishing any series of Convertible Securities, the Corporation initially appoints the Trustee to act as Conversion Agent. 2 "Conversion Rate" has the meaning specified in Section 2.1 of this Supplemental Indenture. "Corporation Request" means a written request or order signed in the name of the Company by (i) its Chairman of the Board, its President and Chief Executive Officer, a Vice President or the Treasurer and by (ii) its principal financial officer, Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Outstanding," when used with respect to Convertible Securities, shall have the same meaning as provided in Section 1.01 of the Indenture, except that Securities converted into Common Stock pursuant to Article Two of this Supplemental Indenture shall not be considered Outstanding. "Record Date Period" means the period from the close of business of any regular record date next preceding any interest payment date to the opening of business on such interest payment date. "Redemption Date," when used with respect to any Convertible Security to be redeemed, means the date fixed for such redemption by or pursuant to Article Four of the Indenture. "Subsidiary" means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Corporation or by one or more other Subsidiaries, or by the Corporation and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock or other similar interests in the corporation which ordinarily has or have voting power for the election of directors, or persons performing similar functions, whether at all times or only so long as no senior class of stock or other interests has or have such voting power by reason of any contingency. SECTION 1.2 Rules of Construction. Except as otherwise expressly provided for or unless the context otherwise clearly requires, in addition to the terms defined in Section 1.1 hereof, all terms defined in the Indenture have the same meaning herein as ascribed to them therein. SECTION 1.3 Authority. This Supplemental Indenture is made pursuant to and in accordance with Section 11.01 of the Indenture. SECTION 1.4 Notice to Securityholders; Waiver. Except as otherwise expressly provided herein, where this Supplemental Indenture provides for notice to Securityholders of any event, such notice shall be 3 sufficiently given to Securityholders if in writing and mailed, first-class postage prepaid, to each Securityholder of a Security affected by such event, at the address of such Securityholders as it appears in the registry books of the Corporation, not earlier than the earliest date and not later than the latest date prescribed for the giving of such notice. Neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Securityholder shall affect the sufficiency of such notice with respect to other Securityholders. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification to Securityholders as shall be made with the approval of the Trustee, which approval shall not be unreasonably withheld, shall constitute a sufficient notification to such Securityholders for every purpose hereunder. Such notice shall be deemed to have been given when such notice is mailed. Where this Supplemental Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Securityholders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. ARTICLE TWO CONVERSION OF SECURITIES SECTION 2.1. Conversion Privilege and Conversion Rate. Subject to and upon compliance with the provisions of this Article, at the option of the Securityholder thereof, any Convertible Security may be converted into fully paid and nonassessable shares (calculated as to each conversion to the nearest 1/100th of a share) of Common Stock at the Conversion Rate, determined as hereinafter provided, in effect at the time of conversion. Such conversion right shall commence for each series of Convertible Securities at the opening of business on and expire at the close of business on the dates set forth in or pursuant to the Board Resolution establishing the terms of that series, and specified in an Officers' Certificate if not so specified in a Board Resolution, subject, in the case of any Convertible Security issued in global form, to any Applicable Procedures. In case a Convertible Security or portion thereof is called for redemption, such conversion right in respect of the Convertible Security, or portion thereof so called, shall expire at the close of business on the Business Day immediately preceding the Redemption Date for Convertible Securities of that series, unless the Corporation defaults in making the payment due upon redemption (subject as aforesaid to any Applicable Procedures with respect to Convertible Security issued in global form). Convertible Securities of any series may be converted initially at a conversion rate (the "Conversion Rate") set forth in or pursuant to the Board Resolution establishing the terms of that series and specified in an Officers' Certificate if not so 4 specified in a Board Resolution,. The Conversion Rate for each outstanding series will be adjusted in certain instances as provided in Section 2.4. SECTION 2.2. Exercise of Conversion Privilege. In order to exercise the conversion privilege, the Securityholder of any Convertible Security to be converted shall surrender such Convertible Security, duly endorsed in blank, at any office or agency of the Corporation maintained for that purpose pursuant to Section 5.2 of the Indenture, accompanied by a duly signed conversion notice substantially in the form established by or pursuant to the Board Resolution establishing the terms of such series stating that the Securityholder elects to convert such Security or, if less than the entire principal amount thereof is to be converted, the portion thereof to be converted. Each Convertible Security surrendered for conversion (in whole or in part) during the Record Date Period (except in the case of any Convertible Security or portion thereof which has been called for redemption on a Redemption Date occurring within such Record Date Period and, as a result, the right to convert such Convertible Security would otherwise terminate in such period if not exercised) be accompanied by payment in New York Clearing House funds or other funds acceptable to the Corporation of an amount equal to the interest payable on such interest payment date on the initial principal amount of such Convertible Security (or part thereof, as the case may be) being surrendered for conversion. The interest so payable on such interest payment date with respect to any Convertible Security (or portion thereof, if applicable) that is surrendered for conversion during the Record Date Period shall be paid to the Securityholder of such Convertible Security as of such regular record date in an amount equal to the interest that would have been payable on such Convertible Security if such Convertible Security had been converted as of the close of business on such interest payment date. Interest payable on any interest payment date in respect of any Convertible Security surrendered for conversion on or after such interest payment date shall be paid to the Securityholder of such Convertible Security as of the regular record date next preceding such interest payment date, notwithstanding the exercise of the right of conversion. Except as provided in this paragraph, no cash payment or adjustment shall be made upon any conversion on account of any interest accrued from the interest payment date next preceding the conversion date, in respect of any Convertible Security (or part thereof, as the case may be) surrendered for conversion, or on account of any dividends on the securities issued upon conversion. The Corporation's delivery to the Securityholder of the number of shares of Common Stock (and cash in lieu of fractions thereof, as provided in this Supplemental Indenture) into which a Convertible Security is convertible will be deemed to satisfy the Corporation's obligation to pay the principal amount of the Convertible Security. Convertible Securities shall be deemed to have been converted immediately prior to the close of business on the day of surrender of such Convertible Securities for conversion in accordance with the foregoing provisions, and at such time the rights of the Securityholders of such Convertible Securities as Securityholders shall cease, and the person or persons entitled to receive the shares of Common Stock issuable 5 upon conversion shall be treated for all purposes as the record holder or holders of such securities at such time. As promptly as practicable on or after the conversion date, the Corporation shall issue and deliver to the Trustee, for delivery to the Securityholder (unless a different person is indicated on the Conversion Notice), a certificate or certificates for the number of full shares of Common Stock issuable upon conversion, together with payment in lieu of any fraction of a share, as provided in Section 2.3. In the case of any Convertible Security which is converted in part only, upon such conversion the Corporation shall execute and the Trustee shall authenticate and deliver to the Securityholder thereof, at the expense of the Corporation, a new Convertible Security or Securities of authorized denominations in an aggregate principal amount equal to the unconverted portion of the principal amount of such Security. A Security may be converted in part, but only if the principal amount of such Security to be converted is any integral multiple of U.S. $1,000 and the principal amount of such security to remain Outstanding after such conversion is equal to U.S. $1,000 or any integral multiple of $1,000 in excess thereof. SECTION 2.3. Fractions of Shares. No fractional shares of Common Stock shall be issued upon conversion of any Convertible Security or Securities. If more than one Convertible Security shall be surrendered for conversion at one time by the same Securityholder, the number of full shares which shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Convertible Securities (or specified portions thereof) so surrendered. Instead of any fractional share of Common Stock that would otherwise be issuable upon conversion of any Convertible Security or Securities (or specified portions thereof), the Corporation shall calculate and pay a cash adjustment in respect of such fraction (calculated to the nearest 1/100th of a share) in an amount equal to the same fraction of the Closing Price Per Share at the close of business on the day of conversion. SECTION 2.4. Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows: (1) In case the Corporation shall pay or make a dividend or other distribution on shares of any class of capital stock payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by dividing the Conversion Rate in effect immediately prior to such date by a fraction: (i) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and 6 (ii) the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution. Such increase will become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Corporation will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Corporation. (2) Subject to the last sentence of paragraph (7) of this Section 2.4, in case the Corporation shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this Section 2.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants that by their terms will also be issued to any Securityholder upon conversion of a Convertible Security into shares of Common Stock without any action required by the Corporation or any other person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by dividing the Conversion Rate in effect immediately prior to such date by a fraction: (i) the numerator of which will be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and (ii) the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase. Such increase will become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be 7 immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Corporation will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Corporation. (3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (4) Subject to the last sentence of paragraph (7) of this Section 2.4, in case the Corporation shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Securityholder upon conversion of a Convertible Security into shares of Common Stock without any action required by the Corporation or any other person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, other than those referred to in paragraphs (5) and (6) below, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 2.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction: (i) the numerator of which will be the current market price per share (determined as provided in paragraph (8) of this Section 2.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the 8 assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and (ii) the denominator shall be such current market price per share of the Common Stock. Such adjustment will become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date that the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. (5) In case the Corporation shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding cash distributed upon a merger or consolidation to which Section 2.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) or paragraph (6) of this Section 2.4 has been made and (II) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of any non-cash consideration payable in respect of any tender offer by the Corporation or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 2.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this Section 2.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction: (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 2.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and 9 (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 2.4) of the Common Stock on such date fixed for determination. (6) In case a tender offer made by the Corporation or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of any non-cash consideration payable in respect of any other tender offer by the Corporation or any Subsidiary for all or any portion of the Common Stock expiring within the 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) or paragraph (5) of this Section 2.4 has been made and (II) the aggregate amount of any cash distributions to all holders of the Common Stock within 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section 2.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 2.4) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to the close of business on the date of the Expiration Time by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 2.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 2.4) on the date of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as 10 of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares"). (7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 2.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section 2.4), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective," as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section 2.4). Rights, options or warrants issued by the Corporation to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of capital stock of the Corporation, which rights, options or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of shares of capital stock, in each case in clauses (i) through (iii) until the occurrence of a specified event or events ("Trigger Event"), shall for purposes of this Section 2.4 not be deemed issued or distributed until the occurrence of the earliest Trigger Event. (8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this Section 2.4, the current market price per share of Common Stock on any date shall be calculated by the Corporation and be the average of the daily Closing Prices Per Share for the five consecutive Trading Days selected by the Corporation commencing not more than 10 Trading Days before, and ending not later than the earlier of the day in question and the day before the "ex date" with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date," when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution. (9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. 11 (10) The Corporation may make such increases in the Conversion Rate, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section 2.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Corporation shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive. (11) Notwithstanding the foregoing provisions of this Section, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) upon a change in the par value of the Common Stock or (c) because of a tender or exchange offer of the character described in Rule 13e-4(h)(5) under the Securities Exchange Act of 1934, as amended, or any successor rule thereto. (12) To the extent permitted by applicable law, the Corporation from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least 20 days, the increase is irrevocable during such period, and the Board of Directors shall have made a determination that such increase would be in the best interests of the Corporation, which determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Corporation shall give notice of the increase to the Securityholders in the manner provided in Section 1.4 hereof at least 15 days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect. SECTION 2.5. Notice of Adjustments of Conversion Rate. Whenever the Conversion Rate is adjusted as herein provided: (1) the Corporation shall compute the adjusted Conversion Rate in accordance with Section 2.4 hereof and shall prepare a certificate signed by the Chief Financial Officer or Treasurer of the Corporation setting forth the adjusted Conversion Rate and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall promptly be filed with the Trustee and with each Conversion Agent; and (2) upon each such adjustment, a notice stating that the Conversion Rate has been adjusted and setting forth the adjusted Conversion Rate shall be required, and as soon as practicable after it is required, such notice shall be provided by the Corporation to all Securityholders of Convertible Securities in accordance with Section 1.4. Neither the Trustee nor any Conversion Agent shall be under any duty or responsibility with respect to any such certificate or the information and calculations 12 contained therein, except to exhibit the same to any holder of Securities desiring inspection thereof at its office during normal business hours, and shall not be deemed to have knowledge of any adjustment in the Conversion Rate unless and until a Responsible Officer of the Trustee shall have received such a certificate. Until a Responsible Officer of the Trustee receives such a certificate, the Trustee and each Conversion Agent may assume without inquiry that the last Conversion Rate of which the Trustee has knowledge remains in effect. SECTION 2.6. Notice of Certain Corporate Action. In case: (1) the Corporation shall declare a dividend (or any other distribution) on its Common Stock payable (i) otherwise than exclusively in cash or (ii) exclusively in cash in an amount that would require any adjustment pursuant to Section 2.4; or (2) the Corporation shall authorize the granting to all or substantially all of the holders of its Common Stock of rights, options or warrants to subscribe for or purchase any shares of capital stock of any class or of any other rights; or (3) of any reclassification of the Common Stock, or of any consolidation, merger or share exchange to which the Corporation is a party and for which approval of any stockholders of the Corporation is required, or of the conveyance, sale, transfer or lease of all or substantially all of the assets of the Corporation; or (4) of the voluntary or involuntary dissolution, liquidation or winding up of the Corporation; then the Corporation shall cause to be filed at each office or agency maintained for the purpose of conversion of Securities pursuant to Section 5.2 of the Indenture, and shall cause to be provided to all Securityholders in accordance with Section 1.4 hereof, at least 20 days (or 10 days in any case specified in clause (1) or (2) above) prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, rights, options or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, rights, options or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, conveyance, transfer, sale, lease, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, conveyance, transfer, sale, lease, dissolution, liquidation or winding up. Neither the failure to give such notice or the notice referred to in the following paragraph nor any defect therein shall affect the legality or validity of the proceedings described in clauses (1) through (4) of this Section 2.6. If at the time the 13 Trustee shall not be the Conversion Agent, a copy of such notice shall also forthwith be filed by the Corporation with the Trustee. The Corporation shall cause to be filed at the principal office of the Trustee and each office or agency maintained for the purpose of conversion of Convertible Securities pursuant to Section 5.02 of the Indenture, and shall cause to be provided to all Securityholders in accordance with Section 1.4, notice of any tender offer by the Corporation or any Subsidiary for all or any portion of the Common Stock at or about the time that such notice of tender offer is provided to the public generally. SECTION 2.7. Corporation to Reserve Common Stock; Registration; Listing. (1) The Corporation shall at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock, for the purpose of effecting the conversion of Convertible Securities, the full number of shares of Common Stock then issuable upon the conversion of all Outstanding Convertible Securities. (2) The Corporation covenants that so long as the Common Stock shall be listed on the NYSE, the Corporation will, if permitted by the rules of such exchange, list and keep listed all Common Stock issuable upon conversion of the Convertible Securities, and the Corporation will endeavor to list the shares of Common Stock required to be delivered upon conversion of the Convertible Securities prior to such delivery upon any other national securities exchange upon which the outstanding Common Stock is listed at the time of such delivery. SECTION 2.8. Taxes on Conversions. Except as provided in the next sentence, the Corporation will pay all stamp taxes and other duties that may be payable in respect of the issue or delivery of shares of Common Stock on conversion of Convertible Securities pursuant hereto. The Corporation shall not, however, be required to pay any tax or duty that may be payable in respect of (i) income of the Securityholder, or (ii) any transfer involved in the issue and delivery of shares of Common Stock in a name other than that of the Securityholder of the Convertible Security or Securities to be converted, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to the Corporation the amount of any such tax or duty, or has established to the satisfaction of the Corporation that such tax or duty has been paid. SECTION 2.9. Covenant as to Common Stock. The Corporation agrees that all shares of Common Stock that may be delivered upon conversion of Convertible Securities, upon such delivery, will have been duly authorized and validly issued and will be fully paid and nonassessable and, except as provided in Section 2.8 hereof, the Corporation will pay all taxes, liens and charges with respect to the issue thereof. 14 SECTION 2.10. Cancellation of Converted Securities. All Convertible Securities delivered for conversion shall be delivered to the Trustee or its agent to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 3.07 of the Indenture. SECTION 2.11. Provision in Case of Consolidation, Merger or Sale of Assets. In case of any consolidation or merger of the Corporation with or into any other person or any merger of another person with or into the Corporation (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock ) or any conveyance, sale, transfer or lease of all or substantially all of the assets of the Corporation (other than a sale of all or substantially all of the assets of the Corporation that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock), the person formed by such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture providing that the Securityholder of each Convertible Security then Outstanding shall have the right thereafter, during the period such Convertible Security shall be convertible as specified in Section 2.1 hereof, to convert such Convertible Security only into the kind and amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by a holder of the number of shares of Common Stock into which such Convertible Security might have been converted immediately prior to such consolidation, merger, conveyance, sale, transfer or lease, assuming such holder of Common Stock (i) is not (A) a person with which the Corporation consolidated or merged with or into or which merged into or with the Corporation or to which such conveyance, sale, transfer or lease was made, as the case may be (a "Constituent Person"), or (B) an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for each share of Common Stock held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non-electing Share"), then for the purpose of this Section 2.11 the kind and amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the holders of each Non-electing Share shall be deemed to be the kind and amount so receivable per share by a plurality of the Non-electing Shares). Such supplemental indenture shall provide for adjustments that, for events subsequent to the effective date of such supplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article. The above provisions of this Section 2.11 shall similarly apply to successive consolidations, mergers, conveyances, sales, transfers or leases. 15 Notice of the execution of such a supplemental indenture shall be given by the Corporation to the Securityholder of each Convertible Security as provided in Section 1.4 hereof promptly upon such execution. Neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Securityholders upon the conversion of their Convertible Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Officers' Certificate or an Opinion of Counsel with respect thereto, which the Corporation shall cause to be furnished to the Trustee upon request. SECTION 2.12. Responsibility of Trustee for Conversion Provisions. The Trustee, subject to the provisions of Section 8.01 of the Indenture, and any Conversion Agent shall not at any time be under any duty or responsibility to any Securityholder to determine whether any facts exist which may require any adjustment of the Conversion Rate, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed, herein or in any supplemental indenture provided to be employed, in making the same, or whether a supplemental indenture need be entered into. Neither the Trustee, subject to the provisions of Section 8.01 of the Indenture, nor any Conversion Agent shall be accountable with respect to the validity or value (or the kind or amount) of any Common Stock, or of any other securities or property or cash, which may at any time be issued or delivered upon the conversion of any Convertible Security; and it or they do not make any representation with respect thereto. Neither the Trustee, subject to the provisions of Section 8.1 of the Indenture, nor any Conversion Agent shall be responsible for any failure of the Corporation to make or calculate any cash payment or to issue, transfer or deliver any shares of Common Stock or share certificates or other securities or property or cash upon the surrender of any Security for the purpose of conversion; and the Trustee, subject to the provisions of Section 8.01 of the Indenture, and any Conversion Agent shall not be responsible for any failure of the Corporation to comply with any of the covenants of the Corporation contained in this Article. ARTICLE THREE MISCELLANEOUS SECTION 3.1. Discharge of Indenture; Effect of Conversion on Application of Trust Money. All moneys deposited with the Trustee pursuant to Section 13.01 of the Indenture (and held by it or any paying agent) for the payment of Convertible Securities subsequently converted will be returned to the Corporation upon Corporation Request. 16 SECTION 3.2. Effect of Conversion on Trustee's Selection of Convertible Securities to be Redeemed. If any Convertible Security selected for partial redemption by the Trustee pursuant to Section 4.03 of the Indenture is converted in part before termination of the conversion right with respect to the portion of the Convertible Security so selected, the converted portion of such Convertible Security will be deemed (so far as may be) to be the portion selected for redemption. Convertible Securities which have been converted during a selection of Convertible Securities to be redeemed may be treated by the Trustee as Outstanding for the purpose of such Conversion. SECTION 3.3. Notice of Redemption; Additional Requirements. In addition to the requirements provided by Section 4.04 of the Indenture, each notice of redemption with respect to Convertible Securities of each series to be redeemed must state the Conversion Rate, the date on which the right to convert the Convertible Securities to be redeemed will terminate and the places where such Convertible Securities may be surrendered for conversion. SECTION 3.4. Deposit of Redemption Price; Not Applicable to Converted Securities. When the Corporation deposits the redemption price of Securities called for redemption with the Trustee or paying agent on or prior to the redemption date as required by Section 4.05 of the Indenture, the Corporation will not deposit the redemption price of those Convertible Securities called for redemption which have been converted prior to the date of deposit. If any Convertible Security called for redemption is converted, any money deposited with the Trustee or so segregated and held in trust for the redemption of such Convertible Security shall be paid to the Corporation on Corporation Request. SECTION 3.5. Undertaking for Costs; Not Applicable to Suits to Enforce Right to Convert. The provisions of Section 7.09 of the Indenture will not apply to any suit instituted by a Securityholder for the enforcement of the right to convert any Convertible Security in accordance with Article Two of this Supplemental Indenture. SECTION 3.6. Conversion Agent; May Hold Securities. The Conversion Agent, in its individual or any other capacity, may become the owner or pledgee of Convertible Securities and may otherwise deal with the Corporation with the same rights it would have if it were not the Conversion Agent. 17 SECTION 3.7. Supplemental Indenture Without Consent of Securityholders; Protection of Securityholder Conversion Right in Consolidation, etc. The Corporation, when authorized by a resolution of the Board of Directors, and the Trustee may enter into an indenture or indenture supplemental to the Indenture for the purpose of making provisions with respect to the conversion rights of Securityholders pursuant to Section 2.11 of this Supplemental Indenture without the consent of the Securityholders. SECTION 3.8. Ratification of Indenture. The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided. SECTION 3.9. Governing Law. This Supplemental Indenture and each Convertible Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State.\ SECTION 3.10. Not Responsible for Recitals. The recitals contained in this Supplemental Indenture and the Securities, except the Trustee's certificate of authentication, shall be taken as the statements of the Corporation and the Trustee assumes no responsibility for their correctness and makes no representation as to the validity or sufficiency of this Supplemental Indenture, of the Convertible Securities or of the Common Stock issuable upon conversion of the Convertible Securities. SECTION 3.11. Counterparts. This Supplemental Indenture may be executed in two counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. 18 IN WITNESS WHEREOF, Constellation Energy Group has caused this Supplemental Indenture to be signed in its corporate name by one of its Vice Presidents and The Bank of New York, Trustee, has caused this Supplemental Indenture to be signed by one of its authorized signatories, as of the day and year first written above. CONSTELLATION ENERGY GROUP, INC. By: /s/ T. E. Ruszin, Jr. --------------------------------- Name: Thomas E. Ruszin, Jr. Title: Vice President, Treasurer and Assistant Secretary THE BANK OF NEW YORK, as Trustee By: /s/ Geovanni Barris ---------------------------- Name: Geovanni Barris Title: Vice President EX-4.E 7 dex4e.txt FORM OF WARRANT AGREEMENT EXHIBIT 4(E) WARRANT AGREEMENT WARRANT AGREEMENT, dated as of [ ], among Constellation Energy Group, Inc. (the "Company") and The Bank of New York, as warrant agent (the "Warrant Agent"). WHEREAS, on [ ] the Company filed with the Securities and Exchange Commission a "shelf" registration statement on Form S-3. Under this registration statement the Company is authorized, inter alia, to issue, from time to time, warrants to purchase senior debt securities, convertible debt securities, preferred stock and common stock or any combination of these securities. On [ ], the Company resolved to issue warrants to purchase [indicate type of securities] (the "Warrants"). The term "[ ]" as used in this Agreement refers to the [ ] [indicate type of securities] that the Company will issue and deliver upon exercise of the Warrants in accordance with the terms and conditions set forth in the warrant certificates evidencing the Warrants (the "Warrant Certificates"), such Warrant Certificates to be substantially in the form of Exhibit A hereto; and WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is so willing to act, in connection with the issuance, exchange, transfer, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to set forth, among other things, the form and provisions of the Warrant Certificates (including the Global Warrant Certificates) and the terms and conditions on which they may be issued, exchanged, transferred, exercised and replaced. NOW, THEREFORE, in consideration of these premises and other good and valuable consideration, the parties agree to their following respective obligations and rights: 1. Issuance of Warrants and Execution and Delivery of Warrant Certificates. (a) All Warrant Certificates shall be in registered form, shall contain such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement and may have such letters, numbers or other marks of identification or designation and such legends or endorsements placed thereon as may, consistently herewith, be determined by a duly authorized representative of the Company (each, an "Authorized Person"), as evidenced conclusively by the execution of such Warrant Certificates and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation. (b) The Warrant Agent shall, upon receipt of the Warrant Certificates duly executed on behalf of the Company, countersign one or more global warrant certificates (the "Global Warrant Certificates") evidencing the Warrants and shall, subject to paragraph (a) above, deliver such Global Warrant Certificates to or upon the written order of the Company. Subsequent to such original issuance of the Warrant Certificates, the Warrant Agent shall countersign Warrant Certificates only if such Warrant Certificates are issued in exchange or substitution for one or more previously countersigned Warrant Certificates, as the case may be, or, in connection with their transfer, as hereinafter provided or as provided in Section 6(a) or Section 18, but subject to the provisions of Section 7. A Global Warrant Certificate shall be, and shall remain, subject to the provisions of this Agreement until such time as all of the Warrants evidenced thereby shall have been duly exercised or shall have expired or been canceled in accordance with the terms thereof. No Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been countersigned by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence that such Warrant Certificate so countersigned has been duly issued hereunder. (c) Each Warrant Certificate shall be signed on behalf of the Company by an Authorized Person. Such signature may be the manual or facsimile signature of such persons and may be imprinted or otherwise reproduced on the Warrant Certificates. In case any Authorized Person who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be an Authorized Person, before the Warrant Certificates shall have been countersigned and delivered by the Warrant Agent, such Warrant Certificates may be countersigned and delivered notwithstanding that a person who signed such Warrant Certificate ceased to be such an Authorized Person, and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Warrant Certificate, shall be Authorized Persons, although at the date of the execution of this Agreement any such person was not such an Authorized Person. The terms "holder", "Warrant holder" or "holder of a Warrant Certificate" as used herein shall mean any person in whose name at the time any Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose. 2. Appointment of the Warrant Agent. The Company hereby appoints The Bank of New York as Warrant Agent of the Company in respect of the Warrants and Warrant Certificates, upon the terms and subject to the conditions set forth herein and in the Warrant Certificates, and The Bank of New York hereby accepts such appointment. The Warrant Agent shall have the powers and authority granted to and conferred upon it herein and in the Warrant Certificates and such further powers and authority, acceptable to it, to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All the terms and provisions with respect to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof. The Company agrees, for the benefit of the holders from time to time of the -2- Warrant Certificates, that there shall at all times be a Warrant Agent hereunder until the Warrants expire. 3. Exercise of Warrants. (a) Each Warrant entitles the registered owner to exercise an option to purchase, at an exercise price of $[ ], U.S. $[ ] of [ ] [indicate type of securities]. (b) The Warrants evidenced by a Warrant Certificate may be exercised in whole or in part not earlier than [9:00 A.M., New York City time,] on [ ] and [not later than 5:00 P.M., New York City time,] on [ ]. If a Warrant is not exercised at or before [5:00 P.M., New York City time,] on [ ], it shall become void, and all rights of the holder under Warrants and under this Agreement shall cease. [No fewer than one Warrant may be exercised per Warrant Exercise Notice (as defined below) and no fractional Warrants may be exercised.] (c) During the period specified in Section 3(b), a Warrant, if the Warrant Certificate evidencing the same shall have been countersigned by the Warrant Agent, may be exercised by the holder thereof by (i) providing written notice of such election ("Warrant Exercise Notice") to exercise the Warrant to the Warrant Agent at [ ], "Attention: Constellation Energy Group, Inc. Warrant Exercise", or to such other address as shall be notified in accordance with the immediately following paragraph, by hand or by facsimile, no later than [noon, New York City time,] on [ ], which Warrant Exercise Notice shall be in the form of an election to purchase [ ] [indicate type of securities] substantially in the form set forth in Exhibit B hereto, properly completed and executed by the holder; provided that such written notice may only be submitted by or through persons that are direct participants in The Depository Trust Company ("DTC"); (ii) delivering, no later than [noon, New York City time,] on the Warrant Exercise Date, such Warrants to the Warrant Agent by book-entry transfer through the facilities of DTC or by delivering, no later than [noon, New York City time,] on [ ], the Warrant Certificates evidencing such Warrants to the Warrant Agent if Warrant Certificates in definitive form have been issued and delivered pursuant to Section 7; and (iii) for each Warrant exercised, paying in full, in lawful money of the United States of America, by bank wire transfer in immediately available funds [add electronic payment details] no later than [11:00 A.M., New York City time] on [ ] (the "Settlement Date"), the exercise price of U.S. $[ ]. Any exercise of a Warrant pursuant to the terms of this paragraph (c) shall be irrevocable and shall constitute a binding agreement between the Warrant holder and the Company, enforceable in accordance with its terms. (d) Not less than 20 days before the start of the period specified in Section 3(b), the Warrant Agent shall notify DTC of (x) the Warrant Agent's account at DTC to which the Warrants must be delivered on the Warrant Exercise Date and (y) the address, phone number and facsimile number where holders of the Warrants can contact the Warrant Agent to which Warrant Exercise Notices are to be submitted. -3- (e) Approximately two weeks before the start of the period specified in Section 3(b), the Warrant Agent shall notify holders (through the clearing system) of (1) the Warrant Agent's account at DTC to which holders must deliver Warrants on the Warrant Exercise Date, (2) the Warrant exercise procedures of DTC and (3) the address, telephone number and facsimile number where holders can contact the Warrant Agent and to which holders must submit Warrant Exercise Notices if they decide to exercise their Warrants. At such time, the Warrant Agent shall also provide the holders with a Warrant Exercise Notice and the pertinent instructions as to how to exercise their Warrants. (f) [Further, at any time until the start of the period specified in Section 3(b), the Warrant Agent shall provide [ ] (the "Dealer Manager"), which has been appointed by the Company as dealer manager to solicit holders of Warrants to exercise the Warrants, such information regarding the registered owners of the Warrants as the Dealer Manager may reasonably request and is reasonably available to the Warrant Agent, including a list of all registered owners of the Warrants known to the Warrant Agent.] (g) The Warrant Agent shall: (i) examine all Warrant Exercise Notices and all other documents delivered to it by or on behalf of holders as contemplated by the Warrant Certificates to ascertain whether, on their face, such Warrant Exercise Notices and any such other documents have been executed and completed in accordance with their terms and the terms of the Warrant Certificates; (ii) determine whether the exercising Warrant holder has delivered the related Warrants to the Warrant Agent's account at DTC. In each case where a Warrant Exercise Notice or other document appears on its face to have been improperly completed or executed or some other irregularity in connection with the exercise of the Warrants exists, the Warrant Agent will endeavor to inform the appropriate parties (including the person submitting such instrument) of the need for fulfillment of all requirements, specifying those requirements which appear to be unfulfilled. Except to the extent provided in the immediately preceding sentence, the Warrant Agent shall be under no duty to give notice to any person of any irregularities in Warrant Exercise Notices, delivery of Warrants or any other document completed or executed in connection therewith nor shall it incur any liability for failure to give such notice; (iii) inform the Company of and cooperate with and assist the Company in resolving any reconciliation problems between Warrant Exercise Notices received and delivery of Warrants to the Warrant Agent's account; -4- (iv) advise the Company (i) no later than [noon, New York City time, on the first New York business day following the expiration of the period specified in Section 3(b),] of receipt of any Warrant Exercise Notices and the number of Warrants exercised in accordance with the terms and conditions of this Agreement, (ii) no later than [noon, New York City time, on the second New York business day, as applicable, following the expiration of the period specified in Section 3(b),] of the instructions with respect to delivery of the [ ] [indicate type of securities] deliverable upon such exercise, subject to timely receipt from DTC of the necessary information, and (iii) of such other information as the Company shall reasonably require; (v) notify, by such time as necessary to ensure a prompt closing, DTC, with a copy to the Company, each account at DTC to be credited with [ ] [indicate type of securities] and the amount thereof to be credited to each such account; and (vi) subject to [ ] [indicate type of securities] being made available to the Warrant Agent by or on behalf of the Company for delivery to accounts within DTC, liaise with DTC and endeavor to effect such delivery to the relevant accounts at DTC in accordance with its requirements. (h) All questions as to the validity, form and sufficiency (including time of receipt) of a Warrant exercise will be determined by the Company in its sole discretion, which determination shall be final and binding. The Company reserves the absolute right to reject any and all Warrant Exercise Notices not in proper form or for which any corresponding agreement by the Company to exchange would, in the opinion of the Company, be unlawful. Moreover, the Company reserves the absolute right to waive any of the conditions to the exercise of Warrants or defects in Warrant Exercise Notices with regard to any particular exercise of Warrants. None of the Company and the Warrant Agent shall be under any duty to give notice to the holders of the Warrants of any irregularities in any exercise of Warrants, nor shall any of them incur any liability for the failure to give such notice. (i) As soon as practicable after the exercise of any Warrant, but in no event later than [9:00 A.M., New York City time,] on the Settlement Date, the Company shall issue, or otherwise deliver, in authorized denominations to or upon the order of the holder of the Warrant Certificates evidencing such Warrants, by same-day credit to such holder's account at DTC or to the account of a participant in DTC, in each case designated by such holder, or by the direct participant in DTC, through which such holder is acting, in its Warrant Exercise Notice, the [ ][indicate type of securities] to which such holder is entitled, in fully registered form, registered in such name or names as may be directed by such holder or such participant. -5- 4. Rights of Holders. (a) No Warrant Certificate or Warrants evidenced thereby shall entitle the holder thereof to any of the rights of a holder of the [ ] [indicate type of securities]. (b) Notwithstanding any of the provisions of this Agreement, any holder of Warrants may, without the consent of the Warrant Agent, the holder of any [ ] [indicate type of securities] or the holder of any other Warrants, on its own behalf and on behalf of any beneficial owner for whom it is acting, enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce, or may take any other action in respect of, its right to exercise the Warrants evidenced by its Warrant Certificate in the manner provided in such Warrant Certificate and herein. 5. Registration. The Warrant Agent shall keep, at its corporate trust office, books in which, subject to such reasonable regulations as it may prescribe, it shall register the Warrant Certificates and exchanges and transfers of outstanding Warrant Certificates upon surrender of the Warrant Certificates properly endorsed or accompanied by appropriate instruments of registration of transfer and written instructions for transfer, all in form satisfactory to the Company and the Warrant Agent. No service charge shall be made for any exchange or registration of transfer of the Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with any such exchange or registration of transfer. 6. Exchange, Transfer, Replacement and Cancellation of Warrant Certificates. (a) Subject to Section 7, upon surrender at the corporate trust office of the Warrant Agent by hand, mail or book-entry delivery, the Warrant Certificates evidencing Warrants may be exchanged for Warrant Certificates of the same tenor and dollar amount evidencing such Warrants or the transfer thereof may be registered in whole or in part provided that such other Warrant Certificates evidence the same aggregate number of Warrants as the Warrant Certificates so surrendered. Whenever a Warrant Certificate is so surrendered for exchange or registration of transfer, an authorized officer of the Warrant Agent shall manually countersign and deliver to the person or persons entitled thereto a Warrant Certificate duly authorized and executed by the Company, as so requested. The Warrant Agent shall not be required to effect any exchange or registration of transfer which will result in the issuance of a Warrant Certificate evidencing a fraction of a Warrant. The Warrant Certificate issued upon any exchange or registration of transfer of a Warrant Certificate shall be the legal, valid and binding obligations of the Company, evidencing the same obligations and entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered for such exchange or registration of transfer. (b) Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the Warrants evidenced thereby shall if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be -6- reissued and, except as expressly permitted by this Agreement, no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof. The Warrant Agent shall deliver to the Company from time to time or otherwise dispose of the canceled Warrant Certificates in its customary manner. (c) Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and of indemnity reasonably satisfactory to it and, in the case of mutilation, upon surrender thereof to the Warrant Agent for cancellation, then, in the absence of notice to the Company or a responsible corporate trust officer of the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the same tenor and evidencing like Warrants. Every substitute Warrant Certificate executed and delivered pursuant to this Section in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, lost, stolen or destroyed Warrant Certificates. (d) Upon the issuance of any new Warrant Certificate under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) in connection therewith. (e) The holder of a Warrant Certificate, by accepting the same, consents and agrees with the Company, the Warrant Agent and with every subsequent holder of such Warrant Certificate that until the transfer of the Warrant Certificate is registered on the books of the Warrant Agent, the Company and the Warrant Agent may treat such registered holder as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrant evidenced thereby, any notice to the contrary notwithstanding. 7. Global Securities. The Warrants shall be issued initially in the form of one or more Global Warrant Certificates that will be deposited with, or on behalf of, DTC. Global Warrant Certificates may be issued only in fully registered form and in either temporary or definitive form. Unless and until it is exchanged in whole or in part for Warrant Certificates in definitive form, a Global Warrant Certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any nominee of DTC to a successor depositary or any nominee of such successor. -7- So long as DTC, or its nominee, is the registered owner of a Global Warrant Certificate, DTC or such nominee, as the case may be, will be considered the sole owner or holder of the Warrants represented by such Global Warrant Certificate for all purposes under this Agreement. Except as specified below with respect to Warrants only, owners of beneficial interests in a Global Warrant Certificate will not be entitled to have any Warrants registered in their names, and will not receive or be entitled to receive physical delivery of any such Warrants in definitive form and will not be considered the owners or holders thereof under the Warrants or this Agreement. Neither the Company nor the Warrant Agent, in its capacity as registrar for such Warrants, will have any responsibility or liability for any aspect of the records relating to beneficial interests in a Global Warrant Certificate or for maintaining, supervising or reviewing any records relating to such beneficial interests. If at any time DTC notifies the Company that it is unwilling or unable to continue as depositary for the Warrants, or if the Company notifies DTC that it will no longer continue to use DTC as depositary for the Warrants, or if at any time DTC ceases to be a clearing agency registered under the United States Securities Exchange Act of 1934, as amended, or otherwise ceases to be eligible to be a depositary, the Company shall appoint a successor depositary with respect to the Warrants (and all references to DTC herein shall be deemed to include such successor depositary). If a successor depositary for the Warrants is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Warrant Agent upon receipt of such executed definitive Warrant Certificates will authenticate and deliver, Warrant Certificates in definitive registered form evidencing an aggregate number of Warrants equal to the aggregate number of Warrants evidenced by the Global Warrant Certificate. The Company may at any time and in its sole discretion determine not to have any of the Warrants evidenced by Global Warrant Certificates. In such event, the Company will execute, and the Warrant Agent, upon receipt of such executed definitive Warrant Certificates, will authenticate and deliver Warrant Certificates in definitive registered form, in an aggregate amount equal to the aggregate number of Warrants evidenced by such Global Warrant Certificates. Upon the exchange of the Global Warrant Certificates for Warrant Certificates in definitive registered form, the Global Warrant Certificates shall be canceled by the Warrant Agent. Warrant Certificates in definitive registered form issued in exchange for the Global Warrant Certificates pursuant to this section shall be registered in such names as DTC, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Warrant Agent or the Company. The Warrant Agent shall deliver such Warrant Certificates in definitive registered form to or as directed by the persons in whose names such definitive registered Warrant Certificates are so registered. -8- All Warrant Certificates in definitive registered form, issued upon the exchange of the Global Warrant Certificates, shall be valid obligations of the Company, evidencing the rights, and entitled to the same benefits under this Agreement, as the Global Warrant Certificates surrendered upon such exchange. 8. Rights of Warrant Agent. The Company shall have the following obligations to the Warrant Agent and the Warrant Agent shall have the following rights: (a) In acting under this Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation towards or relationship of agency or trust for or with the owners or holders of Warrants. (b) The Warrant Agent shall be entitled to compensation, as agreed upon with the Company, for all services rendered by it and expenses incurred in connection therewith, and the Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for any agreed upon expenses incurred by the Warrant Agent in connection with the services rendered by it (as documented in an invoice setting forth such expenses). (c) The Warrant Agent shall be entitled to consult with counsel and the opinion, written or otherwise, of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted to be taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. (d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or anything suffered by it in reliance upon the Warrants, any Warrant Certificate, the [ ] [indicate type of securities] or any notice, direction, consent, certificate, affidavit, statement or other paper or document (whether in its original or facsimile form) reasonably believed by it to be genuine and to have been passed or signed by the proper parties. (e) The Warrant Agent or any of its officers, directors and employees may become the beneficial owner of, or acquire an interest in, Warrants or [ ] [indicate type of securities] with the same rights that it would have if it were not the Warrant Agent hereunder, and to the extent permitted by applicable law, may engage in or be interested in any financial or other transaction with the Company, and may act on behalf of, or as depositary, trustee or agent for, any committee or body of beneficial owners of the Warrants, the [ ] [indicate type of securities], or other obligations of the Company, as freely as if it were not the Warrant Agent hereunder. (f) The recitals contained herein and in the Warrant Certificates (except in the Warrant Agent's certificate of authentication on the Warrant Certificates) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent makes no representation as to the validity -9- or sufficiency of this Agreement or the Warrant Certificates except for the due authorization of the Warrant Agent to execute this Agreement. (g) The Warrant Agent shall be obligated to perform such duties and only such duties as are herein and in the Warrant Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any reimbursable expense or liability, the payment of which within a reasonable time is not in its reasonable opinion, assured to it. (h) Unless otherwise specifically provided herein or in the Warrant Certificates, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by an Authorized Person of the Company. (i) If the Warrant Agent shall receive any notice or demand (other than notice of or demand for exercise of Warrants) addressed to the Company by the holder of the Warrant Certificates pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such notice or demand to the Company. (j) The Warrant Agent may at any time resign as Warrant Agent, by giving written notice to the Company of such intention on its part, mailed to the Company at its address set forth in Section 12, specifying the date on which its desired resignation shall become effective; provided, however, that such date shall never be less than 90 days after the date of receipt of such notice by the Company unless the Company agrees to accept shorter notice. The Warrant Agent may be removed at any time by the filing with it of an instrument in writing signed by an Authorized Person of the Company and specifying such removal and the date when it is intended to become effective. Such resignation or removal shall take effect upon the date of the appointment by the Company, as hereinafter provided, of a successor Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of its incorporation to exercise corporate trust powers) and the acceptance of such appointment by the successor Warrant Agent. If a successor Warrant Agent is not appointed by the Company within 90 days after the resignation of the Warrant Agent, the Warrant Agent shall be entitled to petition at the expense of the Company a court of competent jurisdiction for appointment of a successor Warrant Agent. Upon its resignation or removal, the Warrant Agent shall be entitled to the payment by the Company of its compensation for the services rendered hereunder and to the reimbursement of all reasonable and duly documented out-of-pocket expenses (including reasonable and duly documented counsel fees) incurred in connection with the services rendered hereunder (as described in Section 8(b)). The indemnity described in Section 9 shall survive any resignation or removal of the Warrant Agent or the termination of this Agreement. -10- (k) In case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver of all or any substantial part of its property or affairs or shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay or meet its debts generally as they become due, or if an order of any court shall be entered approving any petition filed by or against the Warrant Agent under the provisions of bankruptcy laws or any similar legislation, or if a receiver, trustee or other similar official of it or of all or any substantial part of its property shall be appointed, or if any public officer shall take charge or control of it or of its property or affairs, for the purpose of rehabilitation, conservation, protection, relief, winding up or liquidation, a successor Warrant Agent shall be appointed by the Company by an instrument in writing, filed with the successor Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by it of such appointment, the Warrant Agent so superseded shall, if not previously disqualified by operation of law, cease to be the Warrant Agent hereunder. (l) Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive all moneys, securities, records or other property on deposit with or held by such predecessor, as Warrant Agent hereunder. (m) Any corporation or bank into which the Warrant Agent may be merged or converted, or any corporation or bank with which the Warrant Agent may be consolidated, or any corporation or bank resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation or bank to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business of the Warrant Agent, or any corporation or bank to which the Warrant Agent shall sell or otherwise transfer all or substantially all its corporate trust business, provided that it shall be qualified as aforesaid, shall be the successor to the Warrant Agent under this Agreement without the execution or filing of any document or any further act on the part of any of the parties hereto. (n) the Warrant Agent: (i) need not act on any notice given under this Agreement by the Company or any other person which is received orally until it has been confirmed in writing; -11- (ii) is authorized to communicate with any person from whom an exercise of Warrants is received but is not obliged to do so, if it reasonably believes to do so would breach laws or regulations relating to the sale of securities in a jurisdiction; and (iii) is authorized to cooperate with and to furnish any organization (and its representatives) designated from time to time by the Company in any manner reasonably requested by it in connection with the exercise of the Warrants and any exercises thereunder; and will not be responsible for procuring, nor liable for the consequences of, any transfers of Warrants in any accounts. (o) The Warrant Agent shall have no responsibility for failing to provide information or to take any action hereunder or by a time specified hereunder if such failure is attributable (directly or indirectly) to any failure on the part of DTC to provide in a form satisfactory to it any confirmations or other information required by it to carry out its functions hereunder and it may rely conclusively without investigation on any such information provided by any such entity. (p) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document. (q) The rights, privileges, protections, immunities and benefits given to the Warrant Agent, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Warrant Agent in each of its capacities hereunder, and to each agent, custodian and other person employed to act hereunder. 9. Indemnity. The Company shall indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense (including the costs and expenses of defending any claim of liability) incurred without negligence, bad faith, or willful misconduct of the Warrant Agent or its employees, directors, officers, or agents in connection with its acting as its duties hereunder. 10. Taxes. The Company will pay all stamp taxes or other duties, if any, which may be imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, with respect to the execution or delivery of this Agreement or the issuance of a Warrant Certificate. The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer involved in the issuance of the [ ] [indicate type of securities]; and if any such transfer is involved, the Company shall not be required to issue or deliver any [ ][indicate type of securities] until such tax or other charge shall have been paid or provided for or it has been established to the Company's satisfaction that no such tax or other charge is due. -12- 11. Amendments. This Agreement may be amended or supplemented by the parties hereto, without the consent of the holder of any Warrant Certificate, for the purpose of curing any ambiguity or of curing, correcting or supplementing any defective provision contained herein, or in any manner which the parties may mutually deem necessary or desirable and which shall not adversely affect the interests of the holders of the Warrant Certificates. The Warrant Agent shall promptly notify in writing each holder of any such amendment and deliver a copy of such amendment to any holder who shall so request in writing, all at the cost of the Company. 12. Notices. Any communication required to be given shall be given to the parties hereto as follows: If to the Company: Constellation Energy Group, Inc. 750 E. Pratt Street Baltimore, MD 21202 Fax: 410-783-3619 Attention: Treasurer If to the Warrant Agent: The Bank of New York Fax: [ ] Attention: [ ] (or such other address as shall be specified in writing by the relevant party to the other parties hereto.) Communications between the Company and the Warrant Agent shall be delivered by hand, facsimile or sent by courier. Any notice to the holders of the Warrants which by any provision of this Warrant Agreement is required or permitted to be given shall be given by first class mail postage prepaid at such holder's address as it appears on the books of the Warrant Agent. Communications between the Company and the Warrant Agent shall be deemed to be effective on receipt, for which purpose any communication shall, if sent by facsimile, be deemed to have been received at the time of dispatch and, if sent by courier, be deemed to have been received after 2 days. Communications to Warrant holders shall be deemed to be effective at the time of dispatch or mailing. 13. Delivery of Prospectus. To the extent required by law, the Company will furnish to the Warrant Agent copies of a prospectus contained in a Registration Statement declared effective under the Securities Act of 1933, as amended (the "Act"), and any necessary prospectus supplement relating to the [ ] [indicate type of securities] deliverable upon exercise of any Warrants (collectively the "Prospectus") in such quantity as requested by the exercising Warrant holder, the Warrant Agent agrees that upon receipt of a Warrant Exercise Notice from any holder, the Warrant Agent will as soon as practicable deliver to such holder, if instructed by the Company that such -13- delivery is required by law or upon request of such holder, prior to the Warrant Exercise Date, a Prospectus, all at the cost of the Company. 14. Obtaining of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective any and all consents and approvals of governmental agencies and authorities and securities acts filings under United States Federal and State laws which may be or become requisite in connection with the issuance, sale, transfer, and delivery of the Warrants, the Warrant Certificates, the exercise of the Warrants, the issuance, sale, transfer and delivery of the [ ] [indicate type of securities] issuable upon exercise of the Warrants or upon the expiration of the period during which the Warrants are exercisable. The Company covenants that it will obtain all necessary governmental authorizations which may be required to issue the [ ] [indicate type of securities] upon exercise of the Warrants and the Company will issue the [ ] [indicate type of securities] pursuant to registration under the Act. 15. Headings. The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. 16. Governing Law. This Agreement, the Warrants and the Warrant Certificates shall be governed by and construed in accordance with the laws of the State of New York. 17. Persons Having Rights under Warrant Agreement. Nothing in this Agreement expressed or implied and nothing that may be inferred from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the Company, the Warrant Agent and the holder of any Warrants any right, remedy or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise or agreement hereof, and all covenants, conditions, stipulations promises and agreements in this Agreement contained shall be for the sole and exclusive benefit of the Company, the Warrant Agent and its successors and holders of the Warrants. 18. Further Issues. The Company may from time to time, without notice to or the consent of the registered holders of Warrants, create and issue further Warrants identical with the Warrants in all respects and so that such further warrants shall be consolidated and form a single series with the Warrants and shall have the same terms as to status, exercise or otherwise as the Warrants. The issuance of such further warrants shall be pursuant to an agreement supplemental hereto. 19. Counterparts. This Agreement may be executed in or by separate counterparts, and by each party separately on a separate counterpart, each such counterpart, when so executed and delivered, to be an original. Such counterparts shall together constitute but one and the same instrument. -14- IN WITNESS WHEREOF, the parties hereto have, by duly authorized directors, officers or attorneys-in-fact, executed this Agreement as of the date first above written. CONSTELLATION ENERGY GROUP, INC. By: -------------------------- Name: Title: THE BANK OF NEW YORK, as Warrant Agent By: -------------------------- Name: Title: -15- Exhibit A [FORM OF WARRANT CERTIFICATE] [IF THE WARRANT CERTIFICATE IS TO BE A GLOBAL WARRANT CERTIFICATE, INSERT-- This Warrant Certificate is a Global Warrant Certificate within the meaning of the Warrant Agreement hereinafter referred to and is registered in the name of The Depository Trust Company ("DTC") or a nominee of DTC. Unless and until it is exchanged in whole or in part for Warrants in definitive registered form, this Warrant Certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor depositary or a nominee of such successor depositary). Unless this Warrant Certificate is presented by an authorized representative of DTC ([ ] [indicate address of the depositary company]) to the Warrant Agent or its agents for registration of transfer, exchange or payment, and any Warrant issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of DTC and any payment hereon is made to Cede & Co. or such other entity as is requested by an authorized representative of DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.] The Warrants evidenced hereby are exercisable only if countersigned by the Warrant Agent as provided herein. VOID IF NOT EXERCISED BY [5:00 P.M., NEW YORK CITY TIME,] ON [ ]. A-1 CONSTELLATION ENERGY GROUP, INC. WARRANT CERTIFICATE CUSIP NO.: [_________] ISIN NO.: [_________] [________] Warrants This certifies that [CEDE & CO.] or its registered assigns (the "Registered Holder") is the registered owner of the above Warrants. Each Warrant entitles the registered owner to exercise, [commencing at 9:00 A.M., New York City] on [ ] [but no later than 5:00 P.M., New York City time,] on [ ], an option to purchase, at an exercise price of U.S. $[ ], [ ] of [ ] [indicate type of securities] (the "[ ]") of Constellation Energy Group, Inc. (the "Company"). The [ ] [indicate type of securities] will be issued and delivered by the Company on [ ]. The holder may exercise the Warrants evidenced hereby in whole or in part during the period herein specified, provided, that [no fewer than one Warrant may be exercised per Warrant Exercise Notice and no fractional Warrants may be exercised,] by (i) providing written notice of such election to exercise such Warrants ("Warrant Exercise Notice") to the Warrant Agent at [ ], "Attention: Constellation Energy Group, Inc. Warrant Exercise", or such other address of the Warrant Agent as the Warrant Holders may be notified of by the Company prior to [ ], by hand or facsimile, no later than [5:00 P.M., New York City time,] on the [ ], which Warrant Exercise Notice shall be in the form of an election to purchase [ ] [indicate type of securities] substantially in the form set forth as Exhibit B to the Warrant Agreement, properly completed and executed by the holder; (ii) delivering, no later than [5:00 P.M., New York City time,] on [ ], such Warrants to the Warrant Agent by book-entry transfer through the facilities of DTC or by delivering, no later than [5:00 P.M., New York City time,] on [ ], the Warrant Certificates evidencing such Warrants to the Warrant Agent if Warrant Certificates in definitive form have been issued and delivered pursuant to Section 7 of the Warrant Agreement and (iii) for each Warrant exercised, paying in full, in lawful money of the United States of America, by bank wire transfer in immediately available funds no later than [11:00 A.M., New York City time] on [ ] (the "Settlement Date"), the exercise price of U.S. $[ ]. This Warrant Certificate is issued pursuant to and in accordance with a Warrant Agreement, dated as of [ ] (the "Warrant Agreement") between the Company and the Warrant Agent and is subject to the terms and provisions contained therein to all of which terms and provisions the holder consents by acceptance hereof. Copies of the Warrant Agreement are on file at the above-mentioned office of the Warrant Agent. Capitalized terms used in this Warrant Certificate and not defined herein will have the respective meanings given such terms in the Warrant Agreement. This Warrant Certificate may be transferred at the corporate trust office of the Warrant Agent by the Registered Holder or its assigns, in person or by an attorney duly authorized in writing, in the manner and subject to the limitations provided in the Warrant Agreement. After countersignature by the Warrant Agent and prior to the expiration of the Warrants, this Warrant Certificate may be exchanged at the corporate trust office of the Warrant Agent for one or more Warrant Certificates, representing the same number of Warrants of the same tenor. A-2 This Warrant Certificate shall not entitle the Registered Holder to any of the rights of a holder of the [ ] [indicate type of securities]. Unless the certificate of authentication hereon has been executed by the Warrant Agent by the manual signature of one of its duly authorized officers, this Warrant Certificate shall not be valid or obligatory for any purpose. Dated: [ ] CONSTELLATION ENERGY GROUP, INC. By: ------------------------------- Name: Title: Authenticated by THE BANK OF NEW YORK as Warrant Agent without recourse, warranty or liability By: ------------------------------- Authorized Signature A-3 Exhibit B [FORM OF WARRANT EXERCISE NOTICE] [TO BE COMPLETED BY DIRECT PARTICIPANT IN DTC] Constellation Energy Group, Inc. Warrants to Purchase [ ] [indicate type of securities] TO BE EXECUTED UPON EXERCISE OF WARRANTS The undersigned hereby irrevocably elects to exercise the number of Warrants set forth below. Each Warrant entitles the registered owner to exercise, [commencing at 9:00 A.M., New York City time] [ ], [but no later than 5:00 P.M., New York City time,] on [ ], an option to purchase, at an exercise price of $[ ], $[ ] newly issued [ ] [indicate type of securities] (the "[ ]") of Constellation Energy Group, Inc. (the Company"). The undersigned represents, warrants and promises that (1) it has delivered or will deliver no later than [5:00 P.M., New York time,] on [ ] the number of Warrants specified below to the Warrant Agent's account at DTC by book-entry transfer; (2) it has the full power and authority to exercise and deliver the Warrants exercised hereby; and (3) [payment details] no later than [11:00 A.M., New York City time] on [ ] (the "Settlement Date"), the exercise price of U.S. $[ ] for each Warrant exercised hereby. The undersigned requests that the principal amount of Warrants exercised hereby be in registered form in the authorized denominations, registered in such names and delivered, all as specified in accordance with the instructions set forth below; provided, that if the [ ] [indicate type of securities] are evidenced by global securities, the [ ] [indicate type of securities] shall be registered in the name of DTC or its nominee. B-1 Dated: [ ] Note: This exercise notice must be delivered to The where you can contact the warrant agent and to which Bank of New York, the Warrant Agent, prior to warrant exercise notices are to be submitted. You may [5:00 P.M., New York City time,] on [ ]. The not submit your warrant exercise notice or deliver Warrant Agent shall notify you (through the your Warrants until [9:00 A.M., New York City time,] clearing system) of (1) the warrant agent's on [ ]. Warrant exercise notices will only be valid account at DTC to which you must deliver your if delivered in accordance with the instructions set warrants on the Exercise Date and (2) the forth in this notification (or as otherwise directed), address, phone number and facsimile number marked to the attention of "Constellation Energy Group, Inc. Warrant Exercise". Name of DTC Direct Participant: Warrant holder delivering Warrants, if other than the direct DTC Participant delivering this warrant exercise ___________________________________________________ notice (Please Print) Address: ______________________________________ ______________________________________ Name:_______________________________________________ (Please Print) Contact Name: _____________________________________ Address:____________________________________________ ___________________________________________ Telephone (including international code):_________ Fax (including international code): ______________ ___________________________________________________ Contact Name:_________________________________ Social Security or Other Taxpayer Identification Number (if applicable):_________________________ Telephone (including international code):___________ ____________________________________________________ Fax (including international code):_________________ ____________________________________________________ Social Security or Other Taxpayer Identification Number (if applicable):____________________________________ Account from which Warrants are being delivered: Account to which the [ ] [indicate type of securities] are to be credited: .. DTC Account No.__________________________________ . DTC Account No.___________________________________
Fill in for delivery of [ ] [indicate type of securities], if other than to the person delivering this warrant exercise notice:. Name:______________________________________________ (Please Print) Address:___________________________________________ _________________________________________ Contact Name:______________________________________ Telephone (including international code):__________ ___________________________________________________ Fax (including international code):_________________ ___________________________________________________ Social Security or Other Taxpayer Identification Number (if applicable):__________________________ Number of Warrants Being Exercised[ (at least [two])]: _________________________ (only one exercise per warrant exercise notice) Signature --------------------------------- Name: ------------------------------------- Capacity in which Signing: ---------------- EX-4.F 8 dex4f.txt FORM OF UNSECURED DEBT SECURITY - FIXED RATE Exhibit 4(f) FRONT REGISTERED REGISTERED CUSIP CONSTELLATION ENERGY GROUP, INC. INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND [title] If this Note is registered in the name of The Depository Trust Company (the "Depositary") (55 Water Street, New York, New York) or its nominee, this Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary unless and until this Note is exchanged in whole or in part for Notes in definitive form. Unless this certificate is presented by an authorized representative of the Depositary to the Company or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of the Depositary and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co. has an interest herein. PRINCIPAL AMOUNT: INTEREST RATE: STATED MATURITY: ORIGINAL ISSUE DATE: ISSUE PRICE: Constellation Energy Group, Inc., a Maryland corporation (herein called the "Company", which term includes any successor corporation under the Indenture, as hereinafter defined), for value received, promises to pay to Cede & Co. or its registered assigns, the principal sum of ____________________________ on the Stated Maturity shown above and to pay interest on said principal sum from ____________, at the fixed rate per annum shown above, semi-annually on _________________________(the "Interest Payment Date(s)") of each year beginning __________________ until the Stated Maturity or upon redemption or repurchase of this Note. Each payment of interest payable on each Interest Payment Date -1- and at Stated Maturity or, if applicable, upon redemption or repurchase shall include interest to, but excluding the relevant Interest Payment Date and the date of Stated Maturity or redemption, respectively. Said interest shall be computed on the basis of a 360-day year of twelve 30-day months. In the event this Note is issued between a Record Date (the __________ and ____________ next preceding the ____________________ Interest Payment Dates) and an Interest Payment Date or on an Interest Payment Date, the first day that interest shall be payable will be on the Interest Payment Date following the next succeeding Record Date. In the event of a default in the payment of interest, interest will be payable as provided in that certain Indenture dated as of March 24, 1999 (the "Indenture"), as supplemented by that certain Supplemental Indenture dated as of January 24, 2003 by and between the Company and The Bank of New York, a corporation duly organized and existing under the laws of the State of New York, as Trustee (herein called the "Trustee," which term includes any successor Trustee under the Indenture). The Company has the option to redeem all or any part of the Note at any time prior to the Stated Maturity. The Company shall give notice by mail of any redemption at least 30 days, but not more than 60 days, before a redemption date. [insert make whole provisions if any] The Company shall pay a redemption price [insert information on redemption price] Pursuant to the provisions of the Indenture, the Company will maintain an agency at The Bank of New York in The City of New York, New York (the "Bank"), or at such other agencies as may from time to time be designated, where the Notes may be presented for payment, for registration of transfer and exchange, and where notices or demands to, or upon, the Company may be served. The interest so payable on any _________________ will, subject to certain exceptions provided in the Indenture, be paid to the person in whose name this Note is registered at the close of business on the Record Date for such Interest Payment Date, which shall be the ____________ and _______________ next preceding the ____________ and _____________ Interest Payment Dates; provided, however, that interest payable at Stated Maturity or, if applicable, upon redemption or repurchase, shall be payable to the person to whom principal shall be payable. Payment of the principal of and interest on this Note will be made at the Bank in U.S. dollars; provided, however, that payments of interest (other than any interest payable at Stated Maturity or upon redemption or repurchase) may be made at the option of the Company (i) by checks mailed to the addresses of the persons entitled thereto as such addresses shall appear in the register of the Notes or (ii) by wire transfer to persons who are holders of record at such other addresses that have been filed with the Bank on or prior to the Record Date. Payment of the principal, premium, if any, and interest payable at Stated Maturity, or, if applicable, upon redemption or repurchase, on this Note will be made in immediately available funds at the request of the holder provided that this Note is presented to the Bank in time for the Bank to make such payments in such funds in accordance with its normal procedures. -2- Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth at this place. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee or a duly designated authentication agent by manual signature, this Note shall not be entitled to any benefit under said Indenture, or be valid or obligatory for any purpose. IN WITNESS WHEREOF, Constellation Energy Group, Inc. has caused this instrument to be executed in its corporate name with the manual or facsimile signature of its President or a Vice President and a facsimile of its corporate seal to be imprinted hereon, attested by the manual or facsimile signature of its Secretary or an Assistant Secretary. Dated: CONSTELLATION ENERGY GROUP, INC. By: ------------------------- Senior Vice President ATTEST: ------------------------- [SEAL] Assistant Secretary -3- CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated herein issued under the Indenture described herein. Dated: ---------------- THE BANK OF NEW YORK By: ------------------------ Authorized Signatory -4- (REVERSE) CONSTELLATION ENERGY GROUP, INC. [title] This Note is one of a duly authorized issue of debt securities (the "Securities") of the Company, of a series designated as its ____ Notes due ___________ (herein called the "Notes"), limited (except as otherwise provided in the Indenture) in aggregate principal amount to ____________, issued and to be issued under the Indenture, to which Indenture and all relevant indentures supplemental thereto reference is hereby made for a statement of the respective rights, obligations, duties and immunities thereunder of the Company, the Trustee, the Bank and the Securityholders and the terms upon which the Notes are, and are to be, authenticated and delivered. The Securities, of which the Notes constitute a series, may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest at different rates, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. All capitalized terms not otherwise defined herein shall have the definitions assigned to them in the Indenture. This Note may not be redeemed by the Company prior to Stated Maturity unless otherwise set forth on the face hereof. Notwithstanding Section 4.03 of the Indenture, pursuant to Section 4.01 thereof, and if so indicated on the face of this Note, this Note may be redeemed at the option of the Company on any date on or after the date set forth on the face hereof in whole or in part in increments of $1,000, at a redemption price or prices designated on the face hereof to be redeemed together with interest thereon payable to the date fixed for redemption. This Note may be so redeemed in whole or in part whether or not other Notes of the same series are redeemed. Notice of redemption by the Company will be given by the Company by mail to holders of the Notes to be redeemed, not less than 30 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture. The Bank may carry out the responsibilities to be performed by the Trustee required by Article Four of the Indenture. The Company is not required to repurchase Notes from holders prior to Stated Maturity unless otherwise set forth on the face hereof. If so indicated on the face hereof, this Note may be repurchased by the Company at the option of the holder on the dates and at the prices designated thereon, in whole or in part in increments of $1,000, together with interest payable to the repurchase date. For book-entry notes, unless otherwise specified on the face of this Note, holders must deliver written notice to the Bank at least 30, but no more than 60, days prior to the date of repurchase, but no later than 5:00 p.m. New York City time on -5- the last day for giving notice. The written notice must specify the principal amount to be repurchased and must be signed by a duly authorized officer of the Depositary participant (signature guaranteed). For definitive notes, unless otherwise specified on the face of this Note, holders must complete the "Option to Elect Repayment" on the reverse of this Note and then deliver this Note to the Bank at least 30, but no more than 45, days prior to the date of repurchase, but no later than 5:00 p.m. New York City time on the last day for giving notice. All notices are irrevocable. In the event of redemption or repurchase of this Note in part only, a new Note or Notes of this series, having the same Stated Maturity, optional redemption or repurchase provisions, Interest Rate and other terms and provisions of this Note, in authorized denominations in an aggregate principal amount equal to the unredeemed portion hereof will be issued in the name of the holder hereof upon the surrender hereof. The Notes will not be subject to conversion, amortization or any sinking fund. As provided in the Indenture and subject to certain limitations herein and therein set forth, the transfer of this Note may be registered on the register of the Notes, upon surrender of this Note for registration of transfer at the Bank, or at such other agencies as may be designated pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee or the Bank duly executed by, the holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Notes are issuable only as registered Notes without coupons in denominations of $1,000 or any amount in excess thereof that is an integral multiple of $1,000. As provided in the Indenture, and subject to certain limitations herein and therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of other authorized denominations having the same interest rate, Stated Maturity, optional redemption or repurchase provisions, if any, and Original Issue Date, as requested by the Securityholder surrendering the same. No service charge will be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Company, the Trustee, the Bank, the Security registrar and any agent of the Company, the Trustee, the Bank, or the Security registrar may treat the Securityholder in whose name this Note is registered as the absolute owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note is overdue, and neither the -6- Company, the Trustee, the Bank, the Security registrar nor any such agent shall be affected by notice to the contrary. If an Event of Default (as defined in the Indenture) with respect to the Notes shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the holders of the Securities of any series under the Indenture at any time by the Company with the consent of the holders of not less than 66 2/3% in aggregate principal amount of the Securities at the time Outstanding to be affected (voting as one class). The Indenture also permits the Company and the Trustee to enter into supplemental indentures without the consent of the holders of Securities of any series for certain purposes specified in the Indenture, including the making of such other provisions in regard to matters arising under the Indenture which shall not adversely affect the interest of the holders of such Securities. The Indenture also contains provisions permitting the holders of specified percentages in aggregate principal amount of the Securities of any series at the time Outstanding, on behalf of the holders of all the Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the holder of this Note shall be conclusive and binding upon such holder and upon all future holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture provides that no holder of any Security of any series may enforce any remedy with respect to such series under the Indenture except in the case of refusal or neglect of the Trustee to act after notice of a continuing Event of Default and after written request by the holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series and the offer to the Trustee of reasonable indemnity; provided, however, that such provision shall not prevent the holder hereof from enforcing payment of the principal of or interest on this Note. No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed. No recourse shall be had for the payment of the principal of or the interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or any predecessor or successor corporation, whether by virtue of any constitution, -7- statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. This Note shall be governed by and construed in accordance with the laws of the State of New York. -8- ASSIGNMENT FORM To assign this Note, fill in the form below: Assignee's Social Security or Tax I. D. Number: _______________________________ FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto ________________________________________________________________________________ ________________________________________________________________________________ (Print or Type Assignee's Name, Address and Zip Code) the within Note of the Company and hereby does irrevocably constitute and appoint ________________________________________________________________________________ ________________________________________________________________________________ Attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises. ------------------------- Signature of Assignor (Sign exactly as name appears on the face of the Note) Dated: _______________ -9- EX-4.G 9 dex4g.txt FORM OF UNSECURED DEBT SECURITY - FLOATING RATE Exhibit 4(g) [FRONT] REGISTERED REGISTERED No. FLR ____ [CUSIP] Constellation Energy Group, Inc. INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND FORM OF FLOATING RATE DEBT SECURITIES [If this Note is registered in the name of The Depository Trust Company (the "Depositary") (55 Water Street, New York, New York) or its nominee, this Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary unless and until this Note is exchanged in whole or in part for Notes in definitive form. Unless this certificate is presented by an authorized representative of the Depositary to the Company or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of the Depositary and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co. has an interest herein.] - -------------------------------------------------------------------------------- PRINCIPAL AMOUNT: ______________________ INITIAL INTEREST RATE: ______________________ STATED MATURITY: ______________________ INDEX MATURITY: ______________________ SPREAD: ______________________ ORIGINAL ISSUE DATE: ______________________ SPREAD MULTIPLIER: ______________________ % ISSUE PRICE: ______________________ MAXIMUM INTEREST RATE: ______________________ % MINIMUM INTEREST RATE: ______________________ % CALCULATION AGENT: ______________________ INTEREST PAYMENT DATES: (Monthly, Quarterly, Semi-Annually or Annually) ______________________ INTEREST RESET DATES: (Daily, Weekly, Monthly, Quarterly, Semi-Annually or Annually) ______________________ INTEREST DETERMINATION DATES: ______________________ CALCULATION DATES: ______________________ INTEREST RATE BASIS (Check One): _____ CD Rate _____ Commercial Paper Rate _____ LIBOR ( _____ Reuters _____ Telerate) _____ Treasury Rate _____ Federal Funds Effective Rate _____ Prime Rate _____ CMT Rate ( _____ Telerate 7055) ( _____ Telerate 7052) REDEEMABLE AT THE OPTION OF THE REDEMPTION PRICES COMPANY ON OR AFTER (% OF PRINCIPAL AMOUNT) _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ SUBJECT TO REPURCHASE AT THE OPTION REPURCHASE PRICES OF THE HOLDER ON (% OF PRINCIPAL AMOUNT) _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ [Remarketing provisions, if any, to be included here] - -------------------------------------------------------------------------------- - 2 - Constellation Energy Group, Inc. a Maryland corporation (herein called the "Company" which term includes any successor corporation under the Indenture, as hereinafter defined), for value received, promises to pay to Cede & Co. or its registered assigns, the principal sum of ____________________________________________________________ DOLLARS on the Stated Maturity shown above and to pay interest on said principal sum from the Original Issue Date shown above if interest has not been paid on this Note or from the most recent Interest Payment Date for which interest has been paid or duly provided for until Stated Maturity or, if applicable, upon redemption or repurchase at the rate per annum determined in accordance with the provisions on the reverse hereof, depending on the Interest Rate Basis and the Spread and/or Spread Multiplier, as the case may be, specified above. Interest will be payable on each Interest Payment Date and at Stated Maturity or upon redemption or repurchase. Each payment of interest payable at Stated Maturity or, if applicable, upon redemption or repurchase shall include interest to, but excluding the date of Stated Maturity or redemption or repurchase. In the event this Note is issued between a Record Date (the date 15 calendar days prior to each Interest Payment Date whether or not such day shall be a Business Day) and an Interest Payment Date or on an Interest Payment Date, the first day that interest shall be payable will be on the Interest Payment Date following the next succeeding Record Date. In the event of a default in the payment of interest, interest will be payable as provided in that certain Indenture dated as of March 24, 1999, as supplemented by a Supplemental Indenture dated as of January 24, 2003 (the "Indenture"), by and between the Company and The Bank of New York, a corporation duly organized and existing under the laws of the State of New York, as Trustee (herein called the "Trustee," which term includes any successor Trustee under the Indenture). Pursuant to the provisions of the Indenture, the Company will maintain an agency at The Bank of New York in The City of New York, New York (the "Bank"), or at such other agencies as may from time to time be designated, where the Notes may be presented for payment, for registration of transfer and exchange, and where notices or demands to, or upon, the Company may be served. The interest so payable on the dates specified above will, subject to certain exceptions provided in the Indenture, be paid to the person in whose name this Note is registered at the close of business on the Record Date for such Interest Payment Date, which shall be the date 15 calendar days prior to each Interest Payment Date whether or not such day shall be a Business Day; provided, however, that interest payable at Stated Maturity or, if applicable, upon redemption or repurchase, shall be payable to the person to whom principal shall be payable. Payment of the principal of and interest on this Note will be made at the Bank in U.S. dollars; provided, however, that payments of interest (other than any interest payable at Stated Maturity or upon redemption or repurchase) may be made at the option of the Company (i) by checks mailed to the addresses of the persons entitled thereto as such addresses shall appear in the register of the Notes or (ii) by wire transfer to persons who - 3 - are holders of record at such other addresses that have been filed with the Bank on or prior to the Record Date. Payment of the principal, premium, if any, and interest payable at Stated Maturity, or, if applicable, upon redemption or repurchase, on this Note will be made in immediately available funds at the request of the holder provided that this Note is presented to the Bank in time for the Bank to make such payments in such funds in accordance with its normal procedures. Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth at this place. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee or a duly designated authentication agent by manual signature, this Note shall not be entitled to any benefit under said Indenture, or be valid or obligatory for any purpose. IN WITNESS WHEREOF, Constellation Energy Group, Inc. has caused this instrument to be executed in its corporate name with the manual or facsimile signature of its President or a Vice President and a facsimile of its corporate seal to be imprinted hereon, attested by the manual or facsimile signature of its Secretary or an Assistant Secretary. Dated: CONSTELLATION ENERGY GROUP, INC. By: -------------------- ATTEST: -------------------- [SEAL] CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated herein issued under the Indenture described herein. -------------------- By: -------------------- Authorized Signatory - 4 - (REVERSE) CONSTELLATION ENERGY GROUP, INC. SERIES _____, due _____________ (FLOATING RATE NOTE) This Note is one of a duly authorized issue of debt securities (the "Securities") of the Company, of a series designated as its Series ___, due ___________ (herein called the "Notes"), limited (except as otherwise provided in the Indenture) in aggregate principal amount to $_____________, issued and to be issued under the Indenture, to which Indenture and all relevant indentures supplemental thereto reference is hereby made for a statement of the respective rights, obligations, duties and immunities thereunder of the Company, the Trustee, the Bank and the Securityholder and the terms upon which the Notes are, and are to be, authenticated and delivered. The Securities, of which the Notes constitute a series, may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest at different rates, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. All capitalized terms not otherwise defined herein shall have the definitions assigned to them in the Indenture. Commencing with the applicable Interest Reset Date first following the Original Issue Date specified on the face hereof, the rate at which interest on this Note is payable shall be reset daily, weekly, monthly, quarterly, semi-annually or annually as shown on the face hereof. The interest rate per annum for each interest reset period shall be calculated on the applicable Interest Determination Date specified on the face hereof and shall be the Interest Rate Basis specified on the face hereof, determined in accordance with the provisions of the applicable heading below, adjusted by adding or subtracting a Spread and/or multiplying by a Spread Multiplier, as the case may be, specified on the face hereof; provided, however, that (i) the interest rate in effect from the Original Issue Date to the first Interest Reset Date with respect to this Note will be the Initial Interest Rate specified on the face hereof and (ii) the interest rate in effect for the ten days immediately prior to the Stated Maturity or redemption or repurchase will be that in effect on the tenth day preceding such Stated Maturity or redemption or repurchase. Each such adjusted rate shall be applicable on and after the Interest Reset Date to which it relates, to, but not including, the next succeeding Interest Reset Date or until the Stated Maturity, or the date of redemption or repurchase, as the case may be. If any Interest Reset Date would otherwise be a day that is not a Business Day, such Interest Reset Date shall be postponed to the next succeeding day that is a Business Day (as defined below), except that if the Interest Rate Basis specified on the face hereof is LIBOR, and if such Business Day is in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding Business Day. Subject to provisions of applicable law and except as specified herein, on each Interest Reset Date the rate of interest on this Note shall be the rate determined in accordance with the provisions of the applicable heading below. - 5 - All percentages resulting from any calculation on this Note will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or .09876545) would be rounded to 9.87655% (or .0987655)), and all dollar amounts used in or resulting from such calculation will be rounded to the nearest cent with one-half cent being rounded upward. DETERMINATION OF CD RATE. If the Interest Rate Basis on this Note is the CD Rate, the CD Rate with respect to this Note shall equal the rate on each Interest Determination Date designated on the face hereof for negotiable certificates of deposit having the Index Maturity designated on the face hereof as published in H.15(519) under the heading "CDs (Secondary Market)." In the event that such rate is not published prior to 9:00 A.M., New York City time, on the Calculation Date designated on the face hereof pertaining to such Interest Determination Date, then the CD Rate will be the rate on such Interest Determination Date for negotiable certificates of deposit having the Index Maturity as published in Composite Quotations under the heading "Certificates of Deposit." If such rate was neither published in H.15(519) by 9:00 A.M., New York City time, on such Calculation Date nor in Composite Quotations by 3:00 P.M., New York City time, on such date, the CD Rate for that CD Interest Determination Date shall be calculated by the Calculation Agent and shall be the arithmetic mean of the secondary market offered rates, as of 10:00 A.M., New York City time, on that Interest Determination Date, of three leading nonbank dealers of negotiable U.S. dollar certificates of deposit in The City of New York selected by the Calculation Agent for negotiable certificates of deposit of major United States money market banks with a remaining maturity closest to the Index Maturity in a denomination of $5,000,000; provided, however, that if fewer than three dealers selected as aforesaid by the Calculation Agent are quoting as mentioned in this sentence, the rate of interest in effect for the applicable period will be the same as the CD Rate as adjusted for the Spread and/or Spread Multiplier, as the case may be, for the immediately preceding interest reset period. The CD Rate determined with respect to any Interest Determination Date will become effective on and as of the applicable Interest Reset Date specified on the face hereof; provided, however, that (i) the interest rate in effect for the period from the Original Issue Date to first Interest Reset Date will be the Initial Interest Rate specified on the face hereof, and (ii) the interest rate in effect for the ten days immediately preceding the Stated Maturity or redemption will be that in effect on the tenth day preceding such Stated Maturity or redemption. DETERMINATION OF COMMERCIAL PAPER RATE. If the Interest Rate Basis on this Note is the Commercial Paper Rate, the Commercial Paper Rate with respect to this Note shall equal the Money Market Yield (calculated as described below) of the rate on each Interest Determination Date designated on the face hereof for commercial paper having the Index Maturity designated on the face hereof as published in H.15(519) under the heading "Commercial Paper." In the event that such rate is not - 6 - published prior to 9:00 A.M., New York City time, on the Calculation Date designated on the face hereof pertaining to such Interest Determination Date, then the Commercial Paper Rate will be the Money Market Yield of the rate on such Interest Determination Date for commercial paper having the Index Maturity as published in Composite Quotations under the heading "Commercial Paper." If such rate was neither published in H.15(519) by 9:00 A.M., New York City time, on such Calculation Date nor in Composite Quotations by 3:00 P.M., New York City time, on such date, the Commercial Paper Rate for that Interest Determination Date will be calculated by the Calculation Agent and will be the Money Market Yield of the arithmetic mean of the offered rates, as of 11:00 A.M., New York City time, on that Interest Determination Date, of three leading dealers of commercial paper in The City of New York selected by the Calculation Agent for commercial paper having the Index Maturity designated on the face hereof placed for an industrial issuer whose bond rating is "AA," or the equivalent, from a nationally recognized rating agency; provided, however, that if fewer than three dealers selected as aforesaid by the Calculation Agent are quoting as mentioned in this sentence, the rate of interest in effect for the applicable period will be the same as the Commercial Paper Rate as adjusted for the Spread and/or Spread Multiplier, as the case may be, for the immediately preceding interest reset period. "Money Market Yield" shall be a yield (expressed as a percentage rounded upwards, if necessary, to the next higher one-hundred thousandth of a percentage point) calculated in accordance with the following formula: Money Market Yield = D x 360 -------------- x 100 360 - (D x M) where "D" refers to the per annum rate for commercial paper quoted on a bank discount basis and expressed as a decimal; and "M" refers to the actual number of days in the period for which interest is being calculated. The Commercial Paper Rate determined with respect to any Interest Determination Date will become effective on and as of the applicable Interest Reset Date specified on the face hereof; provided, however, that (i) the interest rate in effect for the period from the Original Issue Date to the first Interest Reset Date will be the Initial Interest Rate specified on the face hereof; and (ii) the interest rate in effect for the ten days immediately preceding the Stated Maturity or redemption will be that in effect on the tenth day preceding such Stated Maturity or redemption. DETERMINATION OF LIBOR. If the Interest Rate Basis on this Note is LIBOR, LIBOR with respect to this Note will be determined by the Calculation Agent in accordance with the following provisions: (a) With respect to any Interest Determination Date, LIBOR will be determined by either (i) the arithmetic mean of the offered rates for deposits in U.S. dollars having the Index - 7 - Maturity designated on the face hereof, commencing on the second Business Day immediately following such Interest Determination Date, which appear on the Reuters Screen LIBO Page as of 11:00 A.M., London time, on that Interest Determination Date, if at least two such offered rates appear on the Reuters Screen LIBO Page, or (ii) the rate for deposits in U.S. dollars having the Index Maturity designated on the face hereof, commencing on the second Business Day immediately following such Interest Determination Date, that appears on the Telerate Page 3750 as of 11:00 a.m., London time, on such Interest Determination Date. If neither Reuters Screen LIBO Page nor Telerate Page 3750 is specified on the face hereof, LIBOR will be determined as if Telerate Page 3750 had been specified. (b) With respect to an Interest Determination Date on which fewer than two offered rates appear on the Reuters Screen LIBO Page or no rate appears on Telerate Page 3750 for the applicable Index Maturity as described in (a) above, LIBOR will be determined on the basis of the rates at approximately 11:00 A.M., London time, on such Interest Determination Date at which deposits in U.S. dollars having the Index Maturity designated on the face hereof are offered to prime banks in the London interbank market by four major banks in the London interbank market selected by the Calculation Agent commencing on the second Business Day immediately following such Interest Determination Date and in a principal amount not less than $1,000,000 that in the Calculation Agent's judgment is representative for a single transaction in such market at such time (a "Representative Amount"). The Calculation Agent will request the principal London office of each of such banks to provide a quotation of its rate. If at least two such quotations are provided, LIBOR for such Interest Determination Date will be the arithmetic mean of such quotations. If fewer than two quotations are provided, LIBOR for such Interest Determination Date will be the arithmetic mean of the rates quoted at approximately 11:00 A.M., New York City time, on such Interest Determination Date by three major banks in The City of New York, selected by the Calculation Agent, for loans in U.S. dollars to leading European banks having the specified Index Maturity commencing on the second Business Day immediately following such Interest Determination Date and in a Representative Amount; provided, however, that if fewer than three banks selected as aforesaid by the Calculation Agent are quoting as mentioned in this sentence, the rate of interest in effect for the applicable period will be the same as LIBOR as adjusted for the Spread and/or Spread Multiplier, as the case may be, for the immediately preceding interest reset period. LIBOR determined with respect to any Interest Determination Date will become effective on and as of the applicable Interest Reset Date specified on the face hereof; provided, however, that (i) the interest rate in effect for the period from the Original Issue Date to the first Interest Reset Date will be the Initial Interest Rate specified on the face hereof and (ii) the interest rate in effect for the ten days immediately preceding the Stated Maturity or redemption will be that in effect on the tenth day preceding such Stated Maturity or redemption. DETERMINATION OF FEDERAL FUNDS EFFECTIVE RATE. If the Interest Rate Basis on this Note is the Federal Funds Effective Rate, the Federal Funds Effective Rate with respect to this Note shall equal with respect to each Interest Determination - 8 - Date designated on the face hereof the rate on such date for Federal Funds as published in H.15(519) under the heading "Federal Funds (Effective)" or, if not so published prior to 11:00 A.M., New York City time, on the Calculation Date designated on the face hereof pertaining to such Interest Determination Date, then the Federal Funds Effective Rate will be the rate on such Interest Determination Date as published in Composite Quotations under the heading "Federal Funds/Effective Rate." If such rate was neither published in H.15(519) by 11:00 A.M., New York City time, on such Calculation Date nor in Composite Quotations by 3:00 P.M., New York City time, on such date, the Federal Funds Effective Rate for such Interest Determination Date will be calculated by the Calculation Agent and will be the arithmetic mean of the rates, as of 11:00 A.M., New York City time, on that Interest Determination Date, for the last transaction in overnight Federal Funds arranged by three leading brokers of Federal Funds transactions in The City of New York selected by the Calculation Agent; provided, however, that if fewer than three brokers selected as aforesaid by the Calculation Agent are quoting as mentioned in this sentence, the rate of interest in effect for the applicable period will be the same as the Federal Funds Effective Rate as adjusted for the Spread and/or Spread Multiplier, as the case may be, for the immediately preceding interest reset period. The Federal Funds Effective Rate determined with respect to any Interest Determination Date will become effective on and as of the applicable Interest Reset Date specified on the face hereof; provided, however, that (i) the interest rate in effect for the period from the Original Issue Date to the first Interest Reset Date will be the Initial Interest Rate specified on the face hereof; and (ii) the interest rate in effect for the ten days immediately preceding the Stated Maturity or redemption will be that in effect on the tenth day preceding such Stated Maturity or redemption. DETERMINATION OF PRIME RATE. If the Interest Rate Basis on this Note is the Prime Rate, the Prime Rate with respect to the Note shall equal with respect to each Interest Determination Date designated on the face hereof the rate set forth on such date in H.15(519) under the heading "Bank Prime Loan." In the event that such rate is not published prior to 9:00 A.M., New York City time, on the Calculation Date designated on the face hereof pertaining to such Interest Determination Date, then the Prime Rate will be the arithmetic mean (rounded upwards, if necessary, to the next higher one-hundred thousandth of a percentage point) of the rates of interest publicly announced by each bank that appear on the Reuters Screen USPRIMEONE Page as such bank's prime rate or base lending rate as in effect for that Interest Determination Date. If fewer than four such rates but more than one such rate appear on the Reuters Screen USPRIMEONE Page for the Interest Determination Date, the Prime Rate will be the arithmetic mean of the prime rates (quoted on the basis of the actual number of days in the year divided by a 360-day year) as of the close of business on such Interest Determination Date by four major money center banks in The City of New York selected by the Calculation Agent. If fewer than two quotations are provided, the Prime Rate shall be determined on the basis of the rates furnished in The City of New York by the appropriate number of substitute banks or trust companies organized and doing business under the laws of the United States, or any State thereof, having total equity - 9 - capital of at least $500 million and being subject to supervision or examination by a Federal or State authority, selected by the Calculation Agent to provide such rate or rates; provided, however, that if the banks selected as aforesaid by the Calculation Agent are not quoting as mentioned in this sentence, the rate of interest in effect for the applicable period will be the same as the Prime Rate as adjusted for the Spread and/or Spread Multiplier, as the case may be, for the immediately preceding interest reset period. The Prime Rate determined with respect to any Interest Determination Date will become effective on and as of the applicable Interest Reset Date specified on the face hereof; provided, however, that (i) the interest rate in effect for the period from the Original Issue Date to the first Interest Reset Date will be the Initial Interest Rate specified on the face hereof; and (ii) the interest rate in effect for the ten days immediately preceding the Stated Maturity or redemption will be that in effect on the tenth day preceding such Stated Maturity or redemption. DETERMINATION OF TREASURY RATE. If the Interest Rate Basis on this Note is the Treasury Rate, the Treasury Rate with respect to this Note shall equal with respect to each Interest Determination Date designated on the face hereof the rate for the most recent auction of direct obligations of the United States ("Treasury bills") having the Index Maturity designated on the face hereof as published in H.15(519) under the heading, "U.S. Government Securities/Treasury Bills/Auction Average (Investment)" or, if not so published by 9:00 A.M., New York City time, on the Calculation Date designated on the face hereof pertaining to such Interest Determination Date, the auction average rate (expressed as a bond equivalent, on the basis of a year of 365 or 366 days, as applicable, and applied on a daily basis) for such auction as otherwise announced by the United States Department of the Treasury. In the event that the results of the auction of Treasury bills having the Index Maturity designated on the face hereof are neither published in H.15(519) by 9:00 A.M., New York City time, on such Calculation Date, nor otherwise published or reported as provided above by 3:00 P.M., New York City time on such date, or if no such auction is held in a particular week, then the Treasury Rate shall be calculated by the Calculation Agent and shall be a yield to maturity (expressed as a bond equivalent, on the basis of a year of 365 or 366 days, as applicable, and applied on a daily basis) of the arithmetic mean of the secondary market bid rates as of approximately 3:30 P.M., New York City time, on such Interest Determination Date, of three leading primary United States government securities dealers in The City of New York selected by the Calculation Agent, for the issue of Treasury bills with a remaining maturity closest to the specified Index Maturity; provided, however, that if fewer than three dealers selected as aforesaid by the Calculation Agent are quoting as mentioned in this sentence, the rate of interest in effect for the applicable period will be the same as the Treasury Rate as adjusted for the Spread and/or Spread Multiplier, as the case may be, for the immediately preceding interest reset period. The Treasury Rate determined with respect to any Interest Determination Date will become effective on and as of the applicable Interest Reset Date specified on the face hereof; - 10 - provided, however, that (i) the interest rate in effect for the period from the Original Issue Date to the first Interest Reset Date will be the Initial Interest Rate specified on the face hereof; and (ii) the interest rate in effect for the ten days immediately preceding the Stated Maturity or redemption will be that in effect on the tenth day preceding such Stated Maturity or redemption. DETERMINATION OF CMT RATE If the Interest Rate Basis on this Note is the CMT Rate, the CMT Rate with respect to this Note shall equal with respect to each Interest Determination Date designated on the face hereof the rate displayed on the Designated CMT Telerate Page under the caption "...Treasury Constant Maturities.. Federal Reserve Board Release H.15... Mondays Approximately 3:45 P.M.," under the column for the Index Maturity designated on the face hereof (i) if the Designated CMT Telerate Page is 7055, the rate for the applicable Interest Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the week, or the month, as applicable, ended immediately preceding the week in which the Interest Determination Date occurs. If no page is specified on the face hereof, the Designated CMT Telerate Page shall be 7052, for the most recent week. If such rate is no longer displayed on the relevant page, or if not displayed by 3:00 P.M., New York City time, on the related Calculation Date, then the CMT Rate for such Interest Determination Date will be such Treasury Constant Maturity rate for the Index Maturity designated on the face hereof as published in the relevant H.15 (519). If such rate is no longer published, or if not published by 3:00 P.M., New York City time, on the related Calculation Date, then the CMT Rate for such Interest Determination Date will be such Treasury Constant Maturity rate for the Index Maturity on the face hereof (or other United States Treasury rate for such Index Maturity for that Interest Determination Date with respect to such Interest Reset Date) as may then be published by either the Federal Reserve Board or the United States Department of the Treasury that the Calculation Agent determines to be comparable to the rate formerly displayed on the Designated CMT Telerate Page and published in the relevant H.15(519). If such information is not provided by 3:00 P.M., New York City time, on the related Calculation Date, then the CMT Rate for that Interest Determination Date will be calculated by the Calculation Agent and will be a yield to maturity, based on the arithmetic mean of the secondary market closing offer side prices as of approximately 3:30 P.M. (New York City time) on that Interest Determination Date reported, according to their written records, by three leading primary United States government securities dealers (each, a "Reference Dealer") in The City of New York selected by the Calculation Agent (from five such Reference Dealers selected by the Calculation Agent and eliminating the highest quotation (or, in the event of equality, one of the highest) and the lowest quotation (or, in the event of equality, one of the lowest)), for the most recently issued direct noncallable fixed rate obligations of the United States ("Treasury Note") with an original maturity of approximately the Index Maturity designated on the face hereof and a remaining term to maturity of not less than such Index Maturity minus one year. If two Treasury Notes with an original maturity as described in the preceding sentence have remaining terms to maturity equally close to the Index Maturity designated on the face hereof, the quotes for the Treasury Note with the shorter remaining term to maturity will be used. If the Calculation Agent cannot obtain - 11 - three such Treasury Note quotations, the CMT Rate for that Interest Determination Date will be calculated by the Calculation Agent and will be a yield to maturity based on the arithmetic mean of the secondary market offer side prices as of approximately 3:30 P.M. (New York City time) on that Interest Determination Date of three Reference Dealers in The City of New York (from five such Reference Dealers selected by the Calculation Agent and eliminating the highest quotation (or, in the event of equality, one of the highest) and the lowest quotation (or, in the event of equality, one of the lowest)), for Treasury Notes with an original maturity of the number of years that is the next highest to the Index Maturity designated on the face hereof and a remaining term to maturity closest to such Index Maturity and in an amount of at least $100 million. If three or four (and not five) of such Reference Dealers are quoting as described above, then the CMT Rate will be based on the arithmetic mean of the offer prices obtained and neither the highest nor the lowest of such quotes will be eliminated; provided, however, that if fewer than three Reference Dealers selected by the Calculation Agent are quoting as described herein, the rate of interest in effect for the applicable period will be the same as the CMT Rate as adjusted for the Spread and/or Spread Multiplier, as the case may be, for the immediately preceding Interest Reset Period. The CMT Rate determined with respect to any Interest Determination Date will become effective on and as of the applicable Interest Reset Date specified on the face hereof; provided, however, that (i) the interest rate in effect for the period from the Original Issue Date to the first Interest Reset Date will be the Initial Interest Rate specified on the face hereof; and (ii) the interest rate, in effect for the ten days immediately preceding the Stated Maturity or redemption will be that in effect on the tenth day preceding such Stated Maturity or redemption. Notwithstanding the foregoing, the interest rate hereon shall not be greater than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if any, shown on the face hereof. The Calculation Agent shall calculate the interest rate on this Note in accordance with the foregoing on each Interest Determination Date. The Interest Rate on this Note will in no event be higher than the maximum rate permitted by Maryland law as the same may be modified by the United States law of general applicability. The Calculation Agent will, upon the request of the Holder of this Note provide to such Holder the interest rate hereon then in effect and, if different, the interest rate which will become effective as of the next applicable Interest Reset Date. If any Interest Payment Date specified on the face hereof would otherwise be a day that is not a Business Day, the Interest Payment Date shall be postponed to the next day that is a Business Day, except that if (i) the rate of interest on this Note shall be determined in accordance with the provisions of the heading "Determination of LIBOR" above, and (ii) such Business Day is in the next succeeding calendar month, such Interest Payment Date shall be the immediately preceding Business Day. "Business Day" means any day other than a Saturday or Sunday that (a) is not a day on which banking institutions in the State of - 12 - Maryland, or in New York, New York, are authorized or obligated by law or executive order to be closed, and (b) with respect to LIBOR Notes only, is a day on which dealings in deposits in U.S. dollars are transacted in the London interbank market. Interest payments for this Note will include interest accrued to but excluding the Interest Payment Dates; provided, however, that if the Interest Reset Dates with respect to this Note are daily or weekly, interest payable on any Interest Payment Date, other than interest payable on any date on which principal hereof is payable, will include interest accrued to and including the Record Date next preceding such Interest Payment Date. Accrued interest hereon from the Original Issue Date or from the last date to which interest hereon has been paid, as the case may be, shall be an amount calculated by multiplying the face amount hereof by an accrued interest factor. Such accrued interest factor shall be computed by adding the interest factor calculated for each day from the Original Issue Date or from the last date to which interest shall have been paid, as the case may be, to the date for which accrued interest is being calculated. The interest factor (expressed as a decimal rounded upwards, if necessary, to the next higher one hundred-thousandth of a percentage point) for each such day shall be computed by dividing the interest rate (expressed as a decimal, rounded upwards, if necessary, to the next higher one hundred-thousandth of a percentage point) applicable to each such day by 360, in the case of the Commercial Paper Rate, CD Rate, LIBOR, Federal Funds Effective Rate or Prime Rate, or by the actual number of days in the year in the case of the Treasury Rate or the CMT Rate. This Note may not be redeemed by the Company prior to Stated Maturity unless otherwise set forth on the face hereof. Notwithstanding Section 4.03 of the Indenture, pursuant to Section 4.01 thereof, and if so indicated on the face of this Note, this Note may be redeemed at the option of the Company, on any date on or after the date set forth on the face hereof in whole or in part in increments of $1,000, at a redemption price or prices designated on the face hereof to be redeemed together with interest thereon payable to the date fixed for redemption. This Note may be so redeemed in whole or in part whether or not other Notes of the same series are redeemed. Notice of redemption or repurchase will be given by the Company by mail to holders of the Notes to be redeemed, not less than 30 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture. The Bank may carry out the responsibilities to be performed by the Trustee required by Article Four of the Indenture. The Company is not required to repurchase Notes from holders prior to Stated Maturity unless otherwise set forth on the face hereof. If so indicated on the face hereof, this Note may be repurchased by the Company at the option of the holder on the dates and at the prices designated thereon, in whole or in part in increments of $1,000, together with interest payable to the repurchase date. For book-entry notes, unless otherwise specified on the face of this Note, holders must deliver written notice to the Bank at least 30, but no more than 60, days prior to the date - 13 - of repurchase, but no later than 5:00 p.m. New York City time on the last day for giving notice. The written notice must specify the principal amount to be repurchased and must be signed by a duly authorized officer of the Depositary participant (signature guaranteed). For definitive notes, unless otherwise specified on the face of this Note, holders must complete the "Option to Elect Repayment" on the reverse of this Note and then deliver this Note to the Bank at least 30, but no more than 45, days prior to the date of repurchase, but no later than 5:00 p.m. New York City time on the last day for giving notice. All notices are irrevocable. In the event of redemption or repurchase of this Note in part only, a new Note or Notes of this series, having the same Stated Maturity, optional redemption or repurchase provisions, Interest Rate and other terms and provisions of this Note, in authorized denominations in an aggregate principal amount equal to the unredeemed portion hereof will be issued in the name of the holder hereof upon the surrender hereof. [Remarketing provisions, if any, to be included here] The Notes will not be subject to conversion, amortization or any sinking fund. As provided in the Indenture and subject to certain limitations herein and therein set forth, the transfer of this Note may be registered on the register of the Notes, upon surrender of this Note for registration of transfer at the Bank, or at such other agencies as may be designated pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee or the Bank duly executed by, the holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Notes are issuable only as registered Notes without coupons in denominations of $1,000 or any amount in excess thereof that is an integral multiple of $1,000. As provided in the Indenture, and subject to certain limitations herein and therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of other authorized denominations having the same Interest Rate, Stated Maturity, optional redemption or repurchase provisions, if any, and Original Issue Date, as requested by the Securityholder surrendering the same. No service charge will be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Company, the Trustee, the Bank, the Security registrar and any agent of the Company, the Trustee, the Bank, or the Security registrar may treat the Securityholder in whose name this Note is registered as the absolute owner hereof for the - 14 - purpose of receiving payment as herein provided and for all other purposes, whether or not this Note is overdue, and neither the Company, the Trustee, the Bank, the Security registrar nor any such agent shall be affected by notice to the contrary. If an Event of Default (as defined in the Indenture) with respect to the Notes shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the holders of the Securities of any series under the Indenture at any time by the Company with the consent of the holders of not less than 66 2/3% in aggregate principal amount of the Securities at the time outstanding to be affected (voting as one class). The Indenture also permits the Company and the Trustee to enter into supplemental indentures without the consent of the holders of Securities of any series for certain purposes specified in the Indenture, including the making of such other provisions in regard to matters arising under the Indenture which shall not adversely affect the interest of the holders of such Securities. The Indenture also contains provisions permitting the holders of specified percentages in aggregate principal amount of the Securities of any series at the time outstanding, on behalf of the holders of all the Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the holder of this Note shall be conclusive and binding upon such holder and upon all future holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture provides that no holder of any Security of any series may enforce any remedy with respect to such series under the Indenture except in the case of refusal or neglect of the Trustee to act after notice of a continuing Event of Default and after written request by the holders of not less than 25% in aggregate principal amount of the outstanding Securities of such series and the offer to the Trustee of reasonable indemnity; provided, however, that such provision shall not prevent the holder hereof from enforcing payment of the principal of or interest on this Note. No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed. No recourse shall be had for the payment of the principal of or the interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, stockholder, officer or director, as such, - 15 - past, present or future, of the Company or any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. This Note shall be governed by and construed in accordance with the laws of the State of New York. - 16 - ASSIGNMENT FORM To assign this Note, fill in the form below: Assignee's Social Security or Tax I. D. Number: ________________ FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto ________________________________________________________________________________ ______________________________________________________________________________ (Print or Type Assignee's Name, Address and Zip Code) the within Note of the Company and hereby does irrevocably constitute and appoint ________________________________________________________________________________ ________________________________________________________________________________ Attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises. ------------------------ Signature of Assignor (Sign exactly as name appears on the face of the Note) Dated: _______________ - 17 - [HOLDER'S OPTION TO ELECT REPURCHASE] [IN THE CASE OF CERTIFICATED NOTES ONLY] The undersigned hereby irrevocably requests and instructs the Company to repurchase the within or attached Note (or portion thereof specified below) pursuant to its terms at a price equal to ___ % of the principal amount thereof, together with accrued interest, if any, to the repurchase date, to the undersigned, at _____________________________________________________________ ______________________________________________________________________________ _______________(Print or type name, address and phone number of the undersigned) For the within or attached Note to be repurchased on the repurchase date, the Bank must receive at least 30, but not more than 45, days prior to the date of repurchase, but no later than 5:00 p.m. New York City time on the last day for giving notice, (i) this Note with the "Option to Elect Repayment" form duly completed or (ii) a telegram, telex, facsimile transmission or letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc. or a commercial bank or a trust company in the United States of America setting forth the name, address and telephone number of the holder of such Note, the principal amount of such Note, the amount of the Note to be repurchased, a statement that the option to elect repayment is being made thereby and a guarantee that the Note to be repaid with the form entitled "Option to Elect Repayment" on the reverse of such Note duly completed will be received by the Bank not later than five Business Days after the date of such telegram, telex, facsimile transmission or letter, and such Note and form are received by the Bank by such fifth Business Day. If less than the entire principal amount of the within or attached Note is to be repurchased, specify the portion to be repurchased: $ ______________ and specify the denomination or denominations of the Note or Notes to be issued to the holder for the portion of the Note not being repurchased (in the absence of specific instruction, one such Note will be issued): $ _____________. NOTICE: The signature to this Option to Elect Repayment must correspond with the names as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever. ------------------------ Signature of Holder (Sign exactly as name appears on the face of the Note) Dated: _______________ - 18 - EX-4.H 10 dex4h.txt FORM OF INTEREST CALCULATION AGENCY AGREEMENT Exhibit 4(h) INTEREST CALCULATION AGENCY AGREEMENT THIS AGREEMENT dated as of _______________ between Constellation Energy Group, Inc. (hereinafter called the "Issuer"), having its principal office at 750 E. Pratt Street, Baltimore, Maryland 21202, and The Bank of New York, a New York banking corporation (hereinafter sometimes called the "Calculation Agent or Paying Agent" which terms shall, unless the context shall otherwise require, include its successors and assigns), having its principal corporate trust office at 101 Barclay Street, Floor 21 West, New York, New York 10286 Attn: Corporate Trust Administration. Recitals of the Issuer The Issuer proposes to issue _______________________________ (the "Notes") under an indenture dated as of March 24, 1999 (the "Indenture"), between the Issuer and The Bank of New York (the "Trustee"), as Trustee as supplemented by a Supplemental Indenture dated as of January 24, 2003. Capitalized terms used in this Agreement and not otherwise defined herein are used as defined in the Indenture. The Notes will bear interest at a floating rate determined by reference to an interest rate formula and the Issuer desires to engage the Calculation Agent to perform certain services in connection therewith. NOW IT IS HEREBY AGREED THAT: 1. The Issuer hereby appoints The Bank of New York as Calculation Agent for the Notes, upon the terms and subject to the conditions herein mentioned, and The Bank of New York hereby accepts such appointment. The Calculation Agent shall act as an agent of the Issuer for the purpose of determining the interest rate or rates of the Notes. 2. The Issuer agrees to deliver to the Calculation Agent, prior to the issuance of the Notes, copies of the proposed forms of such Notes, including copies of all terms and conditions relating to the determination of the interest rate thereunder. The Issuer shall not issue the Notes prior to the receipt of confirmation from the Calculation Agent of its acceptance of the proposed form of such Note. The Calculation Agent hereby acknowledges its acceptance of the proposed form of Note previously delivered to it. 3. The Calculation Agent shall calculate the applicable interest rates for Notes in accordance with the terms of such Notes, the Indenture and the provisions of this Agreement. 2 4. Promptly following the determination of each change to the interest rate applicable to the Notes, the Calculation Agent will cause to be forwarded to the Issuer, the Trustee and the principal Paying Agent information regarding the interest rate then in effect for the Notes. 5. The Issuer will pay such compensation as shall be agreed upon with the Calculation Agent and the expenses, including reasonable counsel fees and expenses, incurred by the Calculation Agent in connection with its duties hereunder, upon receipt of such invoices as the Issuer shall reasonably require. 6. Notwithstanding any satisfaction or discharge of the Notes or the Indenture, the Issuer will indemnify the Calculation Agent against any losses, liabilities, costs, claims, actions or demands which it may incur or sustain or which may be made against it in connection with its appointment or the exercise of its powers and duties hereunder as well as the reasonable costs, including the expenses and fees of counsel in defending any claim, action or demand, except such as may result from the negligence or willful misconduct of the Calculation Agent or any of its employees. The Calculation Agent shall incur no liability and shall be indemnified and held harmless by the Issuer for, or in respect of, any actions taken or suffered to be taken in good faith by the Calculation Agent in reliance upon written instructions from the Issuer. In case any action is brought against the Calculation Agent with respect to which the 3 Calculation Agent intends to seek indemnification from the Issuer pursuant to this paragraph 6, the Calculation Agent will notify the Issuer in writing of the commencement thereof, and the Issuer will be entitled to participate therein and to assume the defense thereof, with counsel satisfactory to the Calculation Agent; provided, however, that if the defendants in any such action include both the Issuer and the Calculation Agent and the Calculation Agent shall have reasonably concluded, after consultation with legal counsel of its choosing, that there may be legal defenses available to it which are different from or additional to those available to the Issuer, the Calculation Agent shall have the right to select separate counsel to assert such legal defenses and otherwise to participate in the defense of such action on behalf of the Calculation Agent, and in such event the Issuer will indemnify the Calculation Agent against the reasonable compensation and expenses and disbursements of such separate counsel. 7. The Calculation Agent may consult with counsel of its own selection (and notify the Issuer of such consultation) and the advice of such counsel or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. 4 8. The Calculation Agent accepts its obligations herein set forth upon the terms and conditions hereof, including the following, to all of which the Issuer agrees: (i) in acting under this Agreement and in connection with the Notes, the Calculation Agent, acting as agent for the Issuer, does not assume any obligation towards, or any relationship of agency or trust for or with, any of the Holders of the Notes; (ii) unless herein otherwise specifically provided, any order, certificate, notice, request or communication from the Issuer made or given under any provision of this Agreement shall be sufficient if signed by any person whom the Calculation Agent reasonably believes to be a duly authorized officer or attorney-in-fact of the Issuer; (iii) the Calculation Agent shall be obligated to perform only such duties as are set forth specifically herein and any duties necessarily incidental thereto; (iv) the Calculation Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or anything suffered in good faith by it in reliance upon anything contained in the Notes, the Indenture or any information supplied to it by the Issuer pursuant to this Agreement, including the information to be supplied pursuant to paragraph 3 above; 5 (v) the Calculation Agent, whether acting for itself or in any other capacity, may become the owner or pledgee of Notes with the same rights as it would have had if it were not acting hereunder as Calculation Agent; and (vi) the Calculation Agent shall incur no liability hereunder except for loss sustained by reason of its negligence or willful misconduct or bad faith. 9. (a) The Calculation Agent shall not be responsible to the Issuer or any third party for any failure of banks or other financial institutions (the "Reference Banks") that are quoting rates to fulfill their duties or meet their obligations as Reference Banks or as a result of the Calculation Agent having acted (except in the event of negligence or willful misconduct) on any quotation or other information given by any Reference Bank which subsequently may be found to be incorrect. (b) Except as provided below, the Calculation Agent may at any time resign as Calculation Agent by giving written notice to the Issuer and the Trustee of such intention on its part, specifying the date on which its desired resignation shall become effective, provided that such notice shall be given not less than 60 days prior to the said effective date unless the Issuer and the Trustee otherwise agree in writing. Except as provided below, the Calculation Agent may be removed by the filing with it and the Trustee of an instrument in writing signed by the Issuer specifying such removal and the date when it shall 6 become effective (such effective date being at least 15 days after said filing). Any such resignation or removal shall take effect upon: (i) the appointment by the Issuer as hereinafter provided of a successor Calculation Agent; and (ii) the acceptance of such appointment by such successor Calculation Agent; provided, however, that in the event the Calculation Agent has given not less than 60 days' prior notice of its desired resignation, and during such 60 days there has not been acceptance by a successor Calculation Agent of its appointment as successor Calculation Agent, the Calculation Agent so resigning may petition any court of competent jurisdiction for the appointment of a successor Calculation Agent. The Issuer covenants that it shall appoint a successor Calculation Agent as soon as practicable after receipt of any notice of resignation hereunder. Upon its resignation or removal becoming effective, the retiring Calculation Agent shall be entitled to the payment of its compensation and the reimbursement of all reasonable expenses (including reasonable counsel fees and expenses) incurred by such retiring Calculation Agent pursuant to paragraph 5 hereof. (c) If at any time the Calculation Agent shall resign or be removed, or shall become incapable of acting or shall be adjudged bankrupt or insolvent, or liquidated or dissolved, or an order is made or an effective resolution is passed to wind up the Calculation Agent, or if the Calculation 7 Agent shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors, or shall consent to the appointment of a receiver, administrator or other similar official of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, or if a receiver, administrator or other similar official of the Calculation Agent or of all or any substantial part of its property shall be appointed, or if any order of any court shall be entered approving any petition filed by or against the Calculation Agent under the provisions of any applicable bankruptcy or insolvency law, or if any public officer shall take charge or control of the Calculation Agent or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then a successor Calculation Agent shall be appointed by the Issuer by an instrument in writing filed with the successor Calculation Agent and the Trustee. Upon the appointment as aforesaid of a successor Calculation Agent and acceptance by the latter of such appointment the former Calculation Agent shall cease to be Calculation Agent hereunder. (d) Any successor Calculation Agent appointed hereunder shall execute and deliver to its predecessor, the Issuer and the Trustee, an instrument accepting such appointment hereunder, and thereupon such successor Calculation Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, immunities, duties and obligations of such predecessor with like effect as if originally named as the Calculation Agent hereunder, and such predecessor, 8 upon payment of its reasonable compensation, charges and disbursements then unpaid, shall thereupon become obliged to transfer and deliver, and such successor Calculation Agent shall be entitled to receive, copies of any relevant records maintained by such predecessor Calculation Agent. (e) Any corporation into which the Calculation Agent may be merged or converted or any corporation with which the Calculation Agent may be consolidated or any corporation resulting from any merger, conversion or consolidation to which the Calculation Agent shall be a party shall, to the extent permitted by applicable law, be the successor Calculation Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. Notice of any such merger, conversion or consolidation shall forthwith be given to the Issuer and the Trustee. (f) The provisions of paragraph 6 hereof shall survive any resignation or removal hereunder. 10. Any notice required to be given hereunder shall be delivered in person, by overnight mail or sent by facsimile or communicated by telephone (subject, in the case of communication by telephone, to confirmation dispatched within two business days by letter or facsimile), in the case of the Issuer, to it at the address set forth in the heading of this Agreement, Attention: Treasurer; in the case of the Trustee or the Calculation Agent, to it at the address set forth in the heading of this Agreement; or, in any case, to any other address of which the party 9 receiving notice shall have notified the party giving such notice in writing. 11. This Agreement may be amended only by a writing duly executed and delivered by each of the parties signing below. 12. The provisions of this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. 13. This Agreement may be executed in counterparts and the executed counterparts shall together constitute a single instrument. IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the day and year first above written. CONSTELLATION ENERGY GROUP, INC. By: ------------------------------------- Title: Treasurer THE BANK OF NEW YORK By: ------------------------------------- Title: ---------------------------------- 10 EX-5.A 11 dex5a.txt OPINION OF COMPANY COUNSEL Exhibits 5(a) and 23(a) January 24, 2003 Constellation Energy Group, Inc., 750 E. Pratt Street, Baltimore, Maryland 21202. Dear Sirs: In connection with the registration under the Securities Act of 1933 (the "Act") of $2,000,000,000 aggregate amount of: unsecured debt securities; convertible debt securities; preferred stock; common stock, without par value; warrants; stock purchase contracts and units (the unsecured debt securities, convertible debt securities, the warrants, the stock purchase contracts and the units, collectively, referred to herein as the "Securities") of Constellation Energy Group, Inc., a Maryland corporation (the "Corporation"), I, as Senior Counsel to the Corporation, have examined such corporate records, certificates and other documents and such questions of law, as I have considered necessary or appropriate for the purposes of this opinion. Upon the basis of such examination, I advise you that, in my opinion: (1) Debt Securities. The indenture relating to the unsecured debt securities and convertible debt securities, dated as of March 24, 1999 (the "Indenture"), between the Corporation and The Bank of New York, as trustee (the "Trustee"), and the first supplemental Constellation Energy Group, Inc. -2- indenture between the Corporation and the Trustee, dated as of January 24, 2003 (the "First Supplemental Indenture"), to the Indenture relating to the unsecured debt securities and convertible debt securities have been duly authorized, executed and delivered by the Corporation and constitute valid and legally binding obligations of the Corporation, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. When (1) the Registration Statement has become effective under the Act, (2) the terms of both (i) the unsecured debt securities and convertible debt securities to be issued under the Indenture and the First Supplemental Indenture and (ii) their issuance and sale have been duly established by all necessary corporate action in conformity with the Indenture and First Supplemental Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Corporation and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Corporation, (3) the unsecured debt securities and the convertible debt securities have been duly authorized, executed and authenticated in accordance with the Indenture and First Supplemental Indenture, and (4) the debt securities and convertible debt securities have been issued and sold as contemplated in the Registration Statement, then the unsecured debt securities and convertible debt securities will constitute valid and legally binding obligations of the Corporation, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The unsecured debt securities and convertible debt securities covered by the opinion in this paragraph include any unsecured debt securities and convertible debt securities that may be issued upon exercise or otherwise pursuant to the terms of any other Securities. Constellation Energy Group, Inc. -3- (2) Preferred Stock. When (1) the Registration Statement has become effective under the Act, (2) the terms of the preferred stock and of its issuance and sale have been duly established by all necessary corporate action in conformity with the Corporation's charter so as not to violate any applicable law or result in default under or breach of any agreement or instrument binding upon the Corporation and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Corporation, (3) appropriate articles supplementary with respect to the preferred stock to be issued and sold has been duly filed with the State Department of Assessments and Taxation of Maryland and (4) the preferred stock has been duly authorized, issued and sold as contemplated by the Registration Statement, the preferred stock will be validly issued, fully paid and non-assessable. The preferred stock covered in the opinion in this paragraph includes any preferred stock that may be issued upon exercise or otherwise pursuant to the terms of any other securities. (3) Common Stock. When (1) the Registration Statement has become effective under the Act, (2) the terms of the sale of the common stock have been duly established by all necessary corporate action in conformity with the Corporation's charter so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Corporation and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Corporation, and (3) the common stock has been duly authorized, issued and sold as contemplated by the Registration Statement, the common stock will be validly issued, fully paid and non-assessable. The common stock covered in the opinion in this paragraph includes any common stock that may be issued upon exercise or otherwise pursuant to the terms of any other securities. (4) Warrants. When (1) the Registration Statement has become effective under the Act, (2) the terms of the warrant agreement under which the warrants are to be issued have been duly established, (3) the warrant agreement has been duly authorized, executed and delivered, Constellation Energy Group, Inc. -4- (4) the terms of such warrants and of their issuance and sale have been duly established by all necessary corporate action in conformity with the warrant agreement so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Corporation and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Corporation, and (5) such warrants have been duly authorized, executed and authenticated in accordance with the warrant agreement and issued and sold as contemplated in the Registration Statement, then such warrants will constitute valid and legally binding obligations of the Corporation, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The warrants covered by the opinion in this paragraph include any warrants that may be issued pursuant to the terms of any other Securities. (5) Stock Purchase Contracts. When (1) the Registration Statement has become effective under the Act, (2) the terms of the stock purchase contract agreement under which the stock purchase contracts are to be issued have been duly established, (3) the stock purchase contract agreement has been duly authorized, executed and delivered, (4) the terms of the stock purchase contracts and of their issuance and sale have been duly established by all necessary corporate action in conformity with the stock purchase contract agreement so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Corporation and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Corporation, and (5) the stock purchase contracts have been duly authorized, executed and authenticated in accordance with the stock purchase contract agreement and issued and sold as contemplated in the Registration Statement, then the stock purchase contracts will constitute valid and legally binding obligations of the Corporation, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium Constellation Energy Group, Inc. -5- and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The stock purchase contracts covered by the opinion in this paragraph include any stock purchase contracts that may be issued pursuant to the terms of any other Securities. (6) Units. When (1) the Registration Statement has become effective under the Act, (2) the terms of the unit agreement under which the units are to be issued have been duly established, (3) the unit agreement has been duly authorized, executed and delivered, (4) the terms of the units and of their issuance and sale have been duly established by all necessary corporate action in conformity with the unit agreement so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Corporation and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Corporation, and (5) the units have been duly authorized, executed and authenticated in accordance with the unit agreement and issued and sold as contemplated in the Registration Statement, then the units will constitute valid and legally binding obligations of the Corporation, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The units covered by the opinion in this paragraph include any units that may be issued upon exercise or otherwise pursuant to the terms of any other Securities. I note that, as of the date of this opinion, a judgment for money in an action based on a Security denominated in a foreign currency or currency unit in a Federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars. The date used to determine the rate of conversion of the foreign currency or currency unit in which a particular Security is denominated into United States dollars will depend upon various factors, including which court renders judgment. In the case of a Security Constellation Energy Group, Inc. -6- denominated in a foreign currency, a state court in the State of New York rendering a judgment on such Security would be required under Section 27 of the New York Judiciary Law to render such judgment in the foreign currency in which the Security is denominated, and such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of the judgment. The foregoing opinion is limited to the Federal laws of the United States and the laws of the States of New York and Maryland, and I am expressing no opinion as to the effect of the laws of any other jurisdiction. With respect to all matters of New York law, I have relied solely upon the opinion, dated the date hereof, of Sullivan & Cromwell LLP, and my opinion is subject to the same assumptions, qualifications and limitations with respect to such matters as are contained in such opinion of Sullivan & Cromwell LLP. Also, I have relied as to certain matters on information obtained from public officials, officers of the Corporation and other sources believed by me to be responsible and I have assumed that the Indenture and First Supplemental Indenture have been duly authorized, executed and delivered by the Trustee and that all signatures on the Indenture and First Supplemental Indenture are genuine, assumptions which I have not independently verified. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to me under the heading "Validity of Securities" in the Prospectus. In giving such consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Act. Very truly yours, /s/Donna M. Levy EX-5.B 12 dex5b.txt OPINION OF SULLIVAN & CROMWELL LLP Exhibit 5(b) and 23(b) January 24, 2003 Constellation Energy Group, Inc., 750 E. Pratt Street, Baltimore, Maryland 21202. Dear Sirs: In connection with the registration under the Securities Act of 1933 (the "Act") of $2,000,000,000 aggregate amount of: senior debt securities; convertible debt securities; preferred stock; common stock, without par value; warrants; stock purchase contracts and units (the senior debt securities, convertible debt securities, the warrants, the stock purchase contracts and the units, collectively, referred to herein as the "Securities") of Constellation Energy Group, Inc., a Maryland corporation (the "Corporation"), we, as your special counsel, have examined such corporate records, certificates and other documents and such questions of law, as we have considered Constellation Energy Group, Inc. -2- necessary or appropriate for the purposes of this opinion. Upon the basis of such examination, we advise you that, in our opinion: (1) Debt Securities. The indenture relating to the senior debt securities and convertible debt securities, dated as of March 24, 1999 (the "Indenture"), between the Corporation and The Bank of New York, as trustee (the "Trustee"), and the first supplemental indenture between the Corporation and the Trustee, dated as of January 24, 2003 (the "First Supplemental Indenture"), to the Indenture relating to the senior debt securities and convertible debt securities have been duly authorized, executed and delivered by the Corporation and constitute valid and legally binding obligations of the Corporation, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. When the Registration Statement has become effective under the Act, the terms of the senior Constellation Energy Group, Inc. -3- debt securities and convertible dent securities to be issued under the Indenture and the First Supplemental Indenture and of their issuance and sale have been duly established by all necessary corporate action in conformity with the Indenture and First Supplemental Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Corporation and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Corporation and the senior debt securities and the convertible debt securities have been duly authorized, executed and authenticated in accordance with the Indenture and First Supplemental Indenture and issued and sold as contemplated in the Registration Statement, the senior debt securities and convertible debt securities will constitute valid and legally binding obligations of the Corporation, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The senior debt Constellation Energy Group, Inc. -4- securities and convertible debt securities covered by the opinion in this paragraph include any senior debt securities and convertible debt securities that may be issued upon exercise or otherwise pursuant to the terms of any other Securities. (2) Warrants. When the Registration Statement has become effective under the Act, the terms of the warrant agreement under which the warrants are to be issued have been duly established and the warrant agreement has been duly authorized, executed and delivered, the terms of such warrants and of their issuance and sale have been duly established by all necessary corporate action in conformity with the warrant agreement so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Corporation and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Corporation and such warrants have been duly authorized, executed and authenticated in accordance with the warrant agreement and issued and sold as contemplated in the Registration Statement, such Constellation Energy Group, Inc. -5- warrants will constitute valid and legally binding obligations of the Corporation, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The warrants covered by the opinion in this paragraph include any warrants that may be issued pursuant to the terms of any other Securities. (3) Stock Purchase Contracts. When the Registration Statement has become effective under the Act, the terms of the stock purchase contract agreement under which the stock purchase contracts are to be issued have been duly established and the stock purchase contract agreement has been duly authorized, executed and delivered, the terms of the stock purchase contracts and of their issuance and sale have been duly established by all necessary corporate action in conformity with the stock purchase contract agreement so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Corporation and so as to comply with any requirement or restriction Constellation Energy Group, Inc. -6- imposed by any court or governmental body having jurisdiction over the Corporation and the stock purchase contracts have been duly authorized, executed and authenticated in accordance with the stock purchase contract agreement and issued and sold as contemplated in the Registration Statement, the stock purchase contracts will constitute valid and legally binding obligations of the Corporation, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The stock purchase contracts covered by the opinion in this paragraph include any stock purchase contracts that may be issued pursuant to the terms of any other Securities. (4) Units. When the Registration Statement has become effective under the Act, the terms of the unit agreement under which the units are to be issued have been duly established and the unit agreement has been duly authorized, executed and delivered, the terms of the units and of their issuance and sale have been duly established by all necessary corporate action in conformity with the Constellation Energy Group, Inc. -7- unit agreement so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Corporation and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Corporation and the units have been duly authorized, executed and authenticated in accordance with the unit agreement and issued and sold as contemplated in the Registration Statement, the units will constitute valid and legally binding obligations of the Corporation, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The units covered by the opinion in this paragraph include any units that may be issued upon exercise or otherwise pursuant to the terms of any other Securities. We note that, as of the date of this opinion, a judgment for money in an action based on a Security denominated in a foreign currency or currency unit in a Federal or state court in the United States ordinarily Constellation Energy Group, Inc. -8- would be enforced in the United States only in United States dollars. The date used to determine the rate of conversion of the foreign currency or currency unit in which a particular Security is denominated into United States dollars will depend upon various factors, including which court renders judgment. In the case of a Security denominated in a foreign currency, a state court in the State of New York rendering a judgment on such Security would be required under Section 27 of the New York Judiciary Law to render such judgment in the foreign currency in which the Security is denominated, and such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of the judgment. In accordance with our understanding with you as to the scope of our services in connection with the transactions to which this opinion relates, we have limited our examination to those matters as to which we have expressed the foregoing opinions, and we are expressing no opinion in respect of any other matter. Constellation Energy Group, Inc. -9- The foregoing opinion is limited to the Federal laws of the United States and the laws of the States of New York and Maryland, and we are expressing no opinion as to the effect of the laws of any other jurisdiction. With respect to all matters of Maryland law, we have relied upon the opinion, dated the date hereof, of Donna M. Levy, Senior Counsel of the Corporation, and our opinion is subject to the same assumptions, qualifications and limitations with respect to such matters as are contained in such opinion of Ms. Levy. Also, we have relied as to certain matters on information obtained from public officials, officers of the Corporation and other sources believed by us to be responsible and we have assumed that the Indenture and First Supplemental Indenture have been duly authorized, executed and delivered by the Trustee and that all signatures on the Indenture and First Supplemental Indenture are genuine, assumptions which we have not independently verified. We hereby consent to the filing of this opinion Constellation Energy Group, Inc. -10- as an exhibit to the Registration Statement and to the references to us under the heading "Validity of Securities" in the Prospectus. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act. Very truly yours, /s/ Sullivan & Cromwell EX-23.C 13 dex23c.txt CONSENT OF SULLIVAN & CROMWELL, LLP Exhibit 23(c) CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated January 21, 2002 relating to the financial statements and financial statement schedule, which appears in Constellation Energy Group's Annual Report on Form 10-K for the year ended December 31, 2001. We also consent to the references to us under the headings "Experts" in such Registration Statement. Baltimore, Maryland January 24, 2003 /s/ PricewaterhouseCoopers LLP EX-24 14 dex24.txt POWER OF ATTORNEY Exhibit 24 Page 1 of 2 CONSTELLATION ENERGY GROUP, INC. POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors and officers of Constellation Energy Group, Inc. hereby constitute and appoint M. A. Shattuck, III and E. Follin Smith and each of them their true and lawful attorneys and agents to do any and all acts and things and to execute, in their name any and all instruments which said attorneys and agents, or any of them, may deem necessary or advisable to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof in connection with the registration under said Act of not exceeding $2,000,000,000 aggregate amount of Unsecured Debt Securities, Preferred Stock, Common Stock, Warrants, Stock Purchase Contracts and Units (collectively, the "Securities") of said Company, all as authorized by Resolutions adopted by the Board of Directors of Constellation Energy Group, Inc. at a meeting held on January 24, 2003, including specifically, but without limiting the generality of the foregoing, power and authority to sign the names of the undersigned directors and officers in the capacities indicated below, to any registration statement to be filed with the Securities and Exchange Commission in respect of said Securities (the "Registration Statement"); to any registration statement or statements in addition to the Registration Statement that may be filed pursuant to Rule 462(b) promulgated under the Securities Act of 1933; and to any and all amendments to any such registration statements or to any instruments or documents filed as part of or in connection with said registration statements or amendments to such documents; and each of the undersigned hereby ratifies and confirms all that said attorneys and agents, or any of them, shall do or cause to be done by virtue hereof. IN WITNESS WHEREOF, each of the undersigned has subscribed, these presents this 24th day of January, 2003. Signature Principal Executive Officer and Director /s/ Mayo A. Shattuck, III ------------------------------------- Mayo A. Shattuck, III Chairman, Chief Executive Officer, President and Director Principal Financial and Accounting Officer /s/ E. Follin Smith ------------------------------------- E. Follin Smith Senior Vice President and Chief Financial Officer Exhibit 24 Page 2 of 2 Power of Attorney In connection with The registering of $2 Billion of Securities Directors /s/ DOUGLAS L. BECKER /s/ FREEMAN A. HRABOWSKI, III - ------------------------------------ -------------------------------------- /s/ JAMES T. BRADY /s/ EDWARD J. KELLY, III - ------------------------------------ -------------------------------------- /s/ FRANK P. BRAMBLE /s/ NANCY LAMPTON - ------------------------------------ -------------------------------------- /s/ BEVERLY B. BYRON /s/ ROBERT J. LAWLESS - ------------------------------------ -------------------------------------- /s/ EDWARD A. CROOKE /s/ CHRISTIAN H. POINDEXTER - ------------------------------------ -------------------------------------- /s/ JAMES R. CURTISS, ESQ /s/ MICHAEL D. SULLIVAN - ------------------------------------ -------------------------------------- /s/ ROGER W. GALE - ------------------------------------ Dated: January 24, 2003 EX-25 15 dex25.txt STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE Exhibit 25 ================================================================================ FORM T-1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |__| --------------------------- THE BANK OF NEW YORK (Exact name of trustee as specified in its charter) New York 13-5160382 (State of incorporation (I.R.S. employer if not a U.S. national bank) identification no.) One Wall Street, New York, N.Y. 10286 (Address of principal executive offices) (Zip code) --------------------------- CONSTELLATION ENERGY GROUP, INC. (Exact name of obligor as specified in its charter) Maryland 52-1964611 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 250 W. Pratt Street 21201 Baltimore, Maryland (Zip code) (Address of principal executive offices) --------------------------- Unsecured Debt Securities (Title of the indenture securities) ================================================================================ 1. General information. Furnish the following information as to the Trustee: (a) Name and address of each examining or supervising authority to which it is subject. - -------------------------------------------------------------------------------- Name Address - -------------------------------------------------------------------------------- Superintendent of Banks of the State of 2 Rector Street, New York, N.Y. New York 10006, and Albany, N.Y. 12203 Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045 Federal Deposit Insurance Corporation Washington, D.C. 20429 New York Clearing House Association New York, New York 10005 (b) Whether it is authorized to exercise corporate trust powers. Yes. 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. 16. List of Exhibits. Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d). 1. A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637.) 4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33-31019.) 6. The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.) -2- 7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. -3- SIGNATURE Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 16th day of January, 2003. THE BANK OF NEW YORK By: /S/ ROBERT A. MASSIMILLO ------------------------------ Name: ROBERT A. MASSIMILLO Title: VICE PRESIDENT -4- EXHIBIT 7 - -------------------------------------------------------------------------------- Consolidated Report of Condition of THE BANK OF NEW YORK of One Wall Street, New York, N.Y. 10286 And Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business September 30, 2002, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act. Dollar Amounts ASSETS In Thousands Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin ............................................. $ 3,735,469 Interest-bearing balances ............................. 3,791,026 Securities: Held-to-maturity securities ........................... 1,140,688 Available-for-sale securities ......................... 15,232,384 Federal funds sold in domestic offices ................... 1,286,657 Securities purchased under agreements to resell .................................................. 1,035,718 Loans and lease financing receivables: Loans and leases held for sale ........................ 869,285 Loans and leases, net of unearned income...............34,695,130 LESS: Allowance for loan and lease losses............645,382 Loans and leases, net of unearned income and allowance ................................. 34,049,748 Trading Assets ........................................... 9,044,881 Premises and fixed assets (including capitalized leases) ..................................... 823,722 Other real estate owned .................................. 778 Investments in unconsolidated subsidiaries and associated companies ................................ 226,274 Customers' liability to this bank on acceptances outstanding ................................. 249,803 Intangible assets Goodwill .............................................. 1,852,232 Other intangible assets ............................... 54,714 Other assets ............................................. 4,961,572 ------------ Total assets .......................................... $ 78,354,951 ============ LIABILITIES Deposits: In domestic offices ................................ $ 32,962,289 Noninterest-bearing.......................12,792,415 Interest-bearing..........................20,169,874 In foreign offices, Edge and Agreement subsidiaries, and IBFs ............................ 24,148,516 Noninterest-bearing..........................445,725 Interest-bearing..........................23,702,791 Federal funds purchased in domestic offices .............................................. 959,287 Securities sold under agreements to repurchase ........................................... 491,806 Trading liabilities ................................... 2,916,377 Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) ............................ 1,691,634 Bank's liability on acceptances executed and outstanding .......................................... 251,701 Subordinated notes and debentures ..................... 2,090,000 Other liabilities ..................................... 5,815,688 ------------ Total liabilities ..................................... $ 71,327,298 ============ Minority interest in consolidated subsidiaries ......................................... 500,019 EQUITY CAPITAL Perpetual preferred stock and related surplus .............................................. 0 Common stock .......................................... 1,135,284 Surplus ............................................... 1,056,724 Retained earnings ..................................... 4,218,003 Accumulated other comprehensive income ................ (117,623) Other equity capital components ....................... 0 - ------------------------------------------------------------------------------- Total equity capital .................................. 6,527,634 ------------ Total liabilities minority interest and equity capital .............................................. $ 78,354,951 ============ -2- I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief. Thomas J. Mastro, Senior Vice President and Comptroller We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct. Thomas A. Renyi Gerald L. Hassell Directors Alan R. Griffith - -------------------------------------------------------------------------------- -3- -----END PRIVACY-ENHANCED MESSAGE-----