-----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, TpvC6q30xhWvP71UTaqYdmLM8NGWxYGM2Ax1ai539P60J2cJbks5VGXbah+LTNqE xd1UwSgVxYUhh/mrJWzYOQ== 0001004440-01-000076.txt : 20010308 0001004440-01-000076.hdr.sgml : 20010308 ACCESSION NUMBER: 0001004440-01-000076 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20010305 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: SEC FILE NUMBER: 333-56572 FILM NUMBER: 1561638 BUSINESS ADDRESS: STREET 1: 250 W PRATT STREET CITY: BALTIMORE STATE: MD ZIP: 21201 BUSINESS PHONE: 4102345685 MAIL ADDRESS: STREET 1: 250 W PRATT STREET CITY: BALTIMORE STATE: MD ZIP: 21201 FORMER COMPANY: FORMER CONFORMED NAME: CONSTELLATION ENERGY CORP DATE OF NAME CHANGE: 19951220 FORMER COMPANY: FORMER CONFORMED NAME: RH ACQUISITION CORP DATE OF NAME CHANGE: 19951205 S-3 1 0001.txt COMMON STOCK REGISTRATION STATEMENT Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION 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 (State of Incorporation) 52-1964611 (I.R.S. Employer Identification No.) David A. Brune, Vice President 250 W. Pratt Street, Baltimore, Maryland 21201 (410) 783-3601 (Name, 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 Proposed Title of each Amount to maximum offering maximum aggregate Amount of class of be registered price per unit aggregate registration securities to offering fee be registered price - -------------------------------------------------------------------------------- Common Stock 13,000,000 $42.27 * $549,445,000 $137,362 (without par shares value) ================================================================================ * Inserted solely for the purpose of calculating the registration fee; computed on the basis of the average of the reported high and low sales prices on the New York Stock Exchange - Composite Transactions on March 2, 2001, as reported in The Wall Street Journal, pursuant to Rule 457(c). 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 the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. =============================================================================== Subject to completion Dated March 5, 2001. [GRAPHIC OMITTED][GRAPHIC OMITTED] 13,000,000 Shares Common stock Constellation Energy Group, Inc. 250 W. Pratt Street Baltimore, Maryland 21201 (410) 783-3601 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. Constellation Energy may sell shares of common stock from time to time through an agent under a continuous offering program or through underwriters or otherwise. Please refer to "Plan of Distribution" for further information. For any type of sale, we will prepare and distribute a prospectus supplement which will describe the sale, including any commissions paid. Our common stock is listed on the New York, Chicago and Pacific stock exchanges under the symbol "CEG." This investment involves certain risks. Please refer to the "Risk Factors" section on page 4. ---------------- We urge you to carefully read this prospectus and the 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 state securities commission 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 prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where this offer or sale is not permitted. [red herring information to be printed vertically on left side of front page of prospectus. TABLE OF CONTENTS Page Forward-Looking Statements.....................................................1 Constellation Energy...........................................................3 Current Events.................................................................3 Use of Proceeds................................................. ..............4 Risk Factors...................................................................4 Common Stock Dividends and Price Range.........................................5 Description of Common Stock....................................................6 Plan of Distribution...........................................................6 Legal Opinions.................................................................7 Experts........................................................................7 Where You Can Find More Information............................................8 FORWARD-LOOKING STATEMENTS We make statements in this prospectus and the documents we incorporate by reference 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: o....satisfaction of all the conditions precedent to the closing on the purchase of the Nine Mile Point nuclear power plants, including obtaining all regulatory approvals; o obtaining all regulatory approvals necessary to close on the investment by an affiliate of The Goldman Sachs Group, Inc. in Constellation Energy's merchant energy business and complete the separation of Constellation Energy's merchant energy business from its retail services business; o satisfaction of all conditions precedent to the transaction with Goldman Sachs; o general economic, business and regulatory conditions; o the pace and nature of electric deregulation nationwide (including the status of the California markets); o energy supply and demand; o competition; o federal and state regulations; o availability, terms and use of capital; o nuclear and environmental issues; o weather; o implications of the Order issued by the Maryland Public Service Commission (PSC) regarding implementation of customer choice, including an appeal of that order; o commodity price risk; o operating generation assets in a deregulated market without the Benefit of a fuel rate adjustment clause; o loss of revenues due to customers choosing alternative suppliers; o higher volatility of earnings and cash flows; o increased financial requirements of our non-regulated subsidiaries; o inability to recover all costs associated with providing electric retail customers service during the electric Rate freeze period; and o implications from the transfer of BGE's generation assets and related liabilities to nonregulated subsidiaries of Constellation Energy, including the outcome of an appeal of the PSC order regarding the transfer. Given these uncertainties you should not place undue reliance on these forward-looking statements. Please see the documents we incorporate by reference for more information on these factors. These forward-looking statements represent our estimates and assumptions only as of the date of this prospectus. 2 CONSTELLATION ENERGY On April 30, 1999, Constellation Energy Group, Inc. became the holding company for Baltimore Gas and Electric Company ("BGE") and its subsidiaries through a share exchange. Constellation Energy's businesses consist of a merchant energy business focused mostly on power marketing and merchant generation in North America and a regional retail energy services business. Constellation Energy's merchant energy business is made up primarily of the following subsidiaries: o Constellation Power Source, Inc. - wholesale power marketing and trading; o Constellation Power Source Generation, Inc. - owns 13 fossil and hydroelectric power plants formerly owned by BGE; o Constellation Power, Inc. and subsidiaries - development and management of existing power plants throughout the United States; and o Constellation Nuclear, LLC and subsidiaries- nuclear generation and consulting. Constellation Energy's retail energy services business is made up primarily of the following subsidiaries: o BGE - regulated electric and gas delivery service company with a service territory in the City of Baltimore and all or part of ten counties in central Maryland; o BGE Home Products & Services, Inc. and subsidiaries - home products, commercial building systems, and residential and small commercial gas retail marketing; o Constellation Energy Source, Inc. - energy products and services; o Constellation Investments, Inc. - financial investments; and o Constellation Real Estate Group, Inc. - real estate and senior living facilities. CURRENT EVENTS Company Separation On October 23, 2000, Constellation Energy announced several initiatives to advance growth strategies. One of the initiatives is a plan to separate Constellation Energy's merchant energy business from its retail services business. The separation will create two stand-alone, publicly traded energy companies. Our merchant energy business will be engaged in wholesale power marketing and generation under the name "Constellation Energy Group" after the separation. Our regional retail energy services company will be called BGE Corp., and will include BGE and other subsidiaries. Immediately after separation, shareholders will continue to own all of Constellation Energy's current businesses, but they will own them through their ownership in the new "Constellation Energy Group" and BGE Corp. Our second initiative is a change in the common stock dividend policy. Effective April 2001, the annual dividend is expected to be set at $.48 per share. After the separation, BGE Corp. expects to pay initial annual dividends of $.48 per share. The new Constellation Energy Group expects to initially reinvest its earnings and not pay a dividend in order to fund its aggressive growth plans. Our third initiative relates to the agreement that Constellation Energy entered into (the "Agreement") with an affiliate of The Goldman Sachs Group, Inc. ("Goldman Sachs"). Under the terms of the Agreement, Goldman Sachs will acquire up to an additional 17.5% equity interest in Constellation Energy's merchant energy business, which will be consolidated under a single holding company ("Holdco"). Goldman Sachs will also acquire a ten-year warrant for up to an additional 13% of Holdco's common stock (subject to certain adjustments). The warrant is exercisable beginning six months after Holdco's common 3 stock becomes publicly available. The amount of common stock which Goldman Sachs may receive upon exercise will be equal to the excess of the market price of Holdco's common stock at the time of exercise over the exercise price of $60 per share for all the common stock subject to the warrant, divided by the market price. Holdco may at its option pay Goldman Sachs such excess in cash. Goldman Sachs is acquiring its interest and the warrant in exchange for $250 million in cash (subject to adjustment in certain instances) and certain assets related to Constellation Energy's power marketing business. At closing, Goldman Sachs' existing services agreement with Constellation Energy's power marketing business will terminate. The closing of the transaction with Goldman Sachs and the Separation are subject to customary closing conditions, including regulatory approvals and the receipt of a Private Letter Ruling from the Internal Revenue Service regarding certain tax matters. Both are expected to be completed by mid-to-late 2001. USE OF PROCEEDS Based on our current plans and estimates, we will use the net proceeds from the sale of common stock for general corporate purposes, including investments in our merchant energy and retail energy services businesses and repayment of commercial paper borrowings used to finance capital expenditures and operations. We may, however, use the net proceeds for other purposes if we find it necessary, and if we do we will describe our use in a related prospectus supplement. If we do not use the net proceeds immediately, we will temporarily invest them in short term, interest bearing obligations. RISK FACTORS Completion of separation of our merchant energy business from our retail energy services business depends upon the approval of regulatory authorities. Constellation Energy expects to complete the separation of its merchant energy business from its retail energy business in mid-to-late 2001. However, we must obtain the approval of the Nuclear Regulatory Commission and the Federal Energy Regulatory Commission in order to complete the separation. In addition, the Maryland Public Service Commission will also review the proposed separation. Finally , we are seeking a private letter ruling from the IRS that requests confirmation that, among other things, the separation be a non-taxable event to shareholders. If any of these approvals or the ruling are not obtained, or, if they contain conditions that are unacceptable to us, we may not be able to successfully complete the separation. Moreover, if the approvals or rulings are delayed, we may not be able to complete the separation in the time frame anticipated. Because one of our strategies to increase growth is by separating our merchant energy business from our retail services business, a delay in our ability, or failure, to complete the separation may adversely impact our ability to grow as anticipated. Our merchant energy business will require substantial capital in the future to fund its aggressive growth plans. Constellation Energy's merchant energy business anticipates having substantial capital requirements in the next several years in order to fund its aggressive growth plans, both before and after separation. The merchant energy business, after separation, expects to be rated investment grade. However, following separation, the merchant energy business will no longer receive financing and credit support from BGE Corp. and there is no assurance that capital will be readily available from other sources when needed to fund growth or refinance debt, or what the cost will be. Trading price of the stock of the merchant energy business and the retail energy services business is not guaranteed. Although Constellation Energy believes that the separation will allow for more accurate valuation in the market of its two separate businesses, there is no assurance that the stock of the merchant energy business will trade at a 4 price that reflects its targeted higher annual earnings growth compared to that of Constellation Energy currently or that the stock of the retail energy services business will continue to trade at the same level as Constellation Energy stock currently. The combined trading prices of the stock of the merchant energy business and the retail energy service business may be less than, equal to or greater than the trading price of Constellation Energy stock prior to the separation. 5 COMMON STOCK DIVIDENDS AND PRICE RANGE For each of the quarters presented below, we paid .42/share. However, our common stock dividend policy will change. Effective April 2001, the annual dividend is expected to be set at $0.48 per share ($0.12 per quarter). After the separation, BGE Corp. expects to pay initial annual dividends of $0.48 per share. The new Constellation Energy Group expects to initially reinvest its earnings and not pay a dividend in order to fund its aggressive growth plans. When our Board of Directors declares dividends they will also set the record dates and payment dates. The record dates are expected to be March 12th, June 11th, September 10th, and December 10th for 2001. We expect to pay dividends to each shareholder on or about the 1st of January, April, July and October. The range of the high and low sale prices of our common stock, reported by The Wall Street Journal, as New York Stock Exchange-Composite Transactions and dividends paid per share were as follows: Price Range -------------------------------- BGE* High Low - --- --------------- ------------- 1999 First Quarter $ 31-1/8 $ 24-11/16 Second Quarter 31-3/8 25-1/8 Constellation Energy 1999 Third Quarter 30-7/8 27-3/16 Fourth Quarter 31-1/2 27-1/2 2000 First Quarter 33-13/16 27-1/16 Second Quarter 35-11/16 31-1/4 Third Quarter 52-1/16 32-1/16 Fourth Quarter 50-1/2 37 -7/8 2001 First Quarter 44-1/2 34-11/16 (through March 2, 2001) The last reported sale price of Constellation Energy's common stock on the New York Stock Exchange on March 2, 2001 was $42.45. *Effective April 30, 1999, Constellation Energy became the holding company for BGE pursuant to a share exchange. 6 DESCRIPTION OF COMMON STOCK Below is a brief summary of your rights as holders of our common stock. You can find a complete description of these rights in our Charter. See Where You Can Find More Information. 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 our preferred stock (if any become outstanding) before paying common stock dividends. The common stock dividend policy will change. Effective April 2001, the annual dividend is expected to be set at $.48 per share. After the separation, BGE Corp. expects to pay initial annual dividends of $.48 per share. The new Constellation Energy Group expects to initially reinvest its earnings and not pay a dividend in order to fund its aggressive growth plans. 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 Our common stock has no par value. If we liquidate or dissolve, you 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 our preferred stock (if any become outstanding). General You 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 fund rights. When issued to you, the common stock will be legally issued, fully paid and nonassessable. PLAN OF DISTRIBUTION We may sell common stock (a) through agents; (b) to or through underwriters or dealers; or (c) directly to one or more purchasers. The stock may be sold at the market offerings or at a negotiated or competitive bid basis. By Agents The common stock may be sold on a continuing basis through agents. The agents will 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. We will receive all the proceeds from the sale of the common stock, after paying the agents a commission. In addition, we will agree to reimburse any agents for certain of their expenses in connection with the sale of the common stock. The agents will sell the shares on the New York Stock Exchange, or on any other exchange on which the shares are listed, at prevailing market prices through (a) ordinary brokers' transactions or (b) in block transactions. In block transactions, the agents may purchase all or a portion of the shares as principal for their own account and resell them. The agents may also sell the shares in a fixed price offering. If this happens, we will sell shares to the agents for their own account at a negotiated price (which is related to the prevailing market price), and the agents may form a group of dealers to participate with them in reselling the shares to you. The agents may also sell the shares by conducting a special offering or exchange distribution in accordance with the rules of the stock exchange on which the shares are listed. The agents will not be obligated to make a market in the common stock. We cannot predict the amount of trading or liquidity of the common stock. 7 By Underwriters If underwriters are used in the sale, the common stock may be acquired by the underwriters for their own account. The underwriters may resell the common stock in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale which may be changed. The obligations of the underwriters to purchase the common stock will be subject to certain conditions. The underwriters will be obligated to purchase all the common stock of the series offered if any of the common stock is 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. We may also grant underwritters an option to buy additional shares to cover overallotments in the sale of the stock they may acquire from us. Direct Sales We may sell common stock directly. In this case, no underwriters or agents would be involved. General Information Dealers, agents, and underwriters that participate in the distribution of the common stock 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 common stock by them may be treated as underwriting discounts and commissions under the 1933 Act. We may have agreements with the agents, dealers, and underwriters to indemnify them from certain civil liabilities, including liabilities under the 1933 Act or to contribute with respect to payments which the agents, dealers or underwriters may be required to make. In connection with any fixed price offering, exchange distribution, or special offering, the selling group, which would include dealers who enter into an underwriting agreement with us, may engage in transactions which stabilize, maintain or otherwise affect the market price of the common stock. Specifically, the selling group may overallot in connection with the offering, creating a short position. In addition, they may bid for, and purchase, the securities in the open market to cover shorts or to stabilize the price of the common stock. Finally, the selling group may reclaim selling concessions allowed for distributing common stock in the offering, if the selling group repurchases previously distributed common stock in the market to cover overallotments or to stabilize the price of the common stock. Any of these activities may stabilize or maintain the market price of the common stock above independent market levels. The selling group is not required to engage in any of these activities, and may stop any of the activities at any time. Dealers, agents and underwriters that participate in the distribution of the common stock may engage in transactions with, or perform services for, us or our subsidiaries in the ordinary course of their business. LEGAL OPINIONS One of our lawyers will issue an opinion regarding certain legal matters in connection with the common stock offered pursuant to this prospectus. Cahill Gordon & Reindel , New York, New York will issue an opinion for any underwriters, dealers or agents. 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. 8 EXPERTS The financial statements 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, 1999 and the audited historical financial statements included on pages 26-33 of Constellation Energy Group, Inc.'s Current Report on Form 8-K dated March 5, 2001 have been so incorporated in reliance on the reports 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 current reports, proxy statements and other information with the SEC. Prior to Constellation Energy becoming BGE's holding company on April 30, 1999, 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 regarding issuers (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; however, the information contained on Constellation Energy's website is not incorporated by reference into this prospectus. This prospectus is part of a registration statement that 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 until we sell all the common stock. o Constellation Energy's Annual Report on Form 10-K for the year ended December 31, 1999. o Constellation Energy's Quarterly Reports on Form 10-Q for the quarters ended March 31, 2000, June 30, 2000, and September 30, 2000. o Constellation Energy's and BGE's Current Reports on Form 8-K dated February 15, 2000, March 17, 2000, July 7, 2000, October 23, 2000, December 12, 2000, December 20, 2000 and March 5, 2001. o Description of the Common Stock under the caption "Proposal No. 1, Approval of the Share Exchange and Formation of the Holding Company-- Capital Stock" in the Proxy Statement and Prospectus contained in Constellation Energy's Registration Statement on Form S-4 (Reg. No. 33-64799). You may request a copy of these filings, at no cost, by writing or telephoning us at: 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 prospectus supplement. We have not authorized anyone else to provide you with different information. We are not making an offer of the common stock in any state where the offer is not permitted. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of those documents. 9 [GRAPHIC OMITTED][GRAPHIC OMITTED] Constellation Energy Group, Inc. 13,000,000 Shares Common Stock - -------------------------------------------------------------------------------- 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............... $137,362 Services of Independent Accountants............................... 45,000* Listing Fees...................................................... 15,000* Legal Fees and Expenses........................................... 25,000* Transfer Agent and Registrar Fees................................. 10,000* Printing and Delivery Expenses.................................... 50,000* Miscellaneous Expenses............................................ 12,638* Total..............................................................$295,000 -------------- * 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 action or 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 II-1 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 or officer, may order indemnification if it determines that in view of all the relevant circumstances, the Director or officer 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 or authorized by this statute may not be deemed 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 Eight 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. II-2 (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: "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 II-3 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 Form of Sales Agency Agreement which is Exhibit 1(a) 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 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 II-4 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 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 II-5 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-6 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 5th day of March, 2001. CONSTELLATION ENERGY GROUP, INC. (Registrant) By: /s/ David A. Brune ------------------------- David A. Brune 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: * C. H. Poindexter Chairman of the March 5, 2001 Board, Chief Executive Officer and Director Principal financial and accounting officer: /s/ David A. Brune Vice President, March 5, 2001 - ------------------- David A. Brune Chief Financial Officer, and Secretary Directors: * Edward A. Crooke * Nancy Lampton * Mayo A. Shattuck, III * Michael D. Sullivan * Roger W. Gale * George L. Russell, Jr. * Jerome W. Geckle * J. Owen Cole * Douglas L. Becker * Charles L. Larson * Freeman A. Harbowski * James T. Brady * Dan A. Colussy * Beverly B. Byron *By: /s/ David A. Brune David A. Brune, Attorney-in-Fact II-7 EXHIBIT INDEX Exhibit Number 1(a) - Form of Sales Agency Agreement, including Form of Volume and Pricing Parameters, Form of Terms Agreement, and Administrative Procedures. 1(b) - Form of Purchase Agreement. 3(a)* - Articles of Amendment and Restatement of the Charter of Constellation Energy Group, Inc. as of April 30, 1999. (Designated as Exhibit No. 99.2 in Form 8-K dated April 30, 1999, File No. 1-1910.) 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) - By-Laws of Constellation Energy Group, Inc. 4* - Form of Common Stock Certificate. (Designated as Exhibit 4(c) in Form S-3 filed March 25, 1999, File Nos. 333-59601 and 33-57658) 5 - Opinion of Company Counsel as to legality. 23(a) - Consent of PricewaterhouseCoopers LLP, Independent Public Accountants. 23(b) - Consent of Company Counsel (included in Exhibit 5). 24 - Power of Attorney. - ------------------ * Incorporated by reference. II-8 EX-1 2 0002.txt AGENCY AGREEMENT Exhibit 1(a) ______________ Shares Constellation Energy Group, Inc. Common Stock Sales Agency Agreement ________, 2001 [Agent Name Address] Ladies and Gentlemen: The undersigned, Constellation Energy Group, Inc., a Maryland corporation (the "Company"), hereby confirms its agreement with ___________________________(the "Agent") as follows: 1. Issuance and Sale of Common Stock. The Company has authorized by appropriate corporate action and proposes to issue and sell in the manner contemplated by this Agreement up to __________ shares (the "Shares") of its Common Stock (the "Common Stock"), having the terms and provisions set forth in the Charter of the Company, as amended and restated as of April 30, 1999, supplemented as of July 19, 1999 and corrected as of September 13, 1999 (a copy of which has heretofore been delivered to the Agent) and summarized in the Prospectus as defined in Section 5(a). Subject to the terms and conditions stated in this Agreement, the Company hereby (a) appoints the Agent as its exclusive sales agent for the purpose of soliciting purchases of the Shares from the Company by others and (b) agrees that whenever it determines to sell Shares directly to the Agent as principal for resale to others, it will enter into a Terms Agreement (as defined in Section 2(b) hereof) with the Agent relating to such sale in accordance with Section 2(b) hereof. 2. Solicitations as Agent; Purchases as Principal. ---------------------------------------------- (a) Solicitations as Agent. On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Agent agrees, as an agent of the Company, to use its reasonable best efforts to solicit offers to purchase the Shares. The Agent and the Company agree that such solicitations and offers for the sale of the Shares shall commence upon receipt of, and shall be made in accordance with, written instructions from the Company to the Agent (which shall be substantially in the form of Exhibit A hereto and which may 1 take the form of an exchange of any standard form of written telecommunication between the Agent and the Company) and shall continue until such time as the Company has instructed the Agent that such solicitations and offers shall be suspended in accordance with Section 8 hereof. The Company reserves the right, in its sole discretion, to instruct the Agent, at any time and from time to time after the Commencement Date (as defined in Section 7 hereof), to so commence or suspend such solicitations and offers for any period of time or permanently in accordance with the provisions of this Agreement. In soliciting purchases of the Shares from the Company by others (including customers of the Agent), the Agent will be acting for the Company and not as principal. The Agent, as the exclusive agent for the offer and sale of the Shares, will use its reasonable best efforts to sell the Shares on behalf of the Company as contemplated hereby; provided, however, that it is understood by the Company that the Agent has no obligation to find purchasers of the Shares and that the Agent in its sole discretion, upon notice thereof to the Company, can suspend from time to time its efforts in offering for sale, and soliciting purchases of, the Shares. In any transaction where the Agent has acted as agent for the Company and has not purchased as principal, the Agent will use its reasonable best efforts to obtain performance by each purchaser of Shares from the Company, but the Agent will not have liability to the Company in the event any such purchase is not consummated for any reason except as may be otherwise provided by any applicable regulations and rules of the Exchanges (as defined in Section 3(a) (i) hereof) on which the transaction was executed and except that the Agent will complete the purchase in accordance with the customs of the Exchanges in the case of transactions in which the Agent has also acted as broker for the purchaser. The Company also understands that under no circumstances shall the Agent be obligated to purchase any Shares for its own account, except (i) pursuant to a Terms Agreement, (ii) as provided in the preceding sentence and (iii) except to the extent that the Agent has acted as a principal in purchasing a portion of a block as contemplated by Section 3 (a)(ii) hereof, or has made a firm commitment with the Company in connection with an offering or distribution of the type contemplated by Section 3(a) (iii) hereof that has been expressly authorized by the Company and agreed to by the Agent. (b) Purchases as Principal. Each sale of Shares to the Agent as principal for resale to others shall be made in accordance with the terms of this Agreement and, except for purchases made in accordance with the customs of the Exchanges in the case of transactions in which the Agent has also acted as broker for a purchaser and in the case of transactions permitted by Section 3(a) (ii) hereof, a separate agreement that will 2 provide for the sale of such Shares to, and the purchase and reoffering thereof by, the Agent. Each such separate agreement (which shall be substantially in the form of Exhibit B hereto and which may take the form of an exchange of any standard form of written telecommunication between the Agent and the Company) is herein referred to as a "Terms Agreement". The Agent's commitment to purchase Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Unless expressly authorized by the Company in the Terms Agreement, or as otherwise provided herein, the Agent will not be authorized to utilize a selling or dealer group in connection with the resale of the Shares purchased. Such Terms Agreement shall also specify the requirements for the opinions of counsel, comfort letter and officer's certificate pursuant to Sections 7(b), 7(c), 7(d) and 7(e), respectively, hereof. 3. Manner of Offer and Sale. (a) Method of Offer and Sale. The Shares may be offered and sold by any of the following methods: (i) Ordinary Brokers' Transactions. The Shares may be offered and sold by the Agent in ordinary regular-way transactions in the auction market on the floor of the New York Stock Exchange, Inc. (the "NYSE") or any other stock exchange on which the Common Stock may be listed or admitted to trading (the NYSE, together with such other stock exchanges, the "Exchanges"). (ii) Block Transactions. The Agent may solicit offers to purchase Shares, and offer Shares for sale, in transactions on the Exchanges in "crosses" of blocks where the Agent acts as broker for the buyers in addition to acting as agent for the Company. It is understood that on occasion the Agent may also act as a principal and purchase for its own account, with the consent of the Company, a portion of the Shares being sold in the cross of a block. The Agent may also offer and sell Shares in block transactions on the Exchanges in which other broker-dealers are acting as broker for all or some of the buyers of the Shares being sold in such transactions. In the discretion of the Agent, the Agent may also sell Shares in block transactions to one or more broker-dealers purchasing such Shares, or a portion of such Shares, as principal for their own account, with the consent of the Company. Any of the transactions contemplated by this Section 3(a) (ii) may be executed in the over-the-counter market, with broker-dealers who are not members of the Exchanges or otherwise, provided that the Agent has obtained any necessary permission from 3 officials of the Exchanges or such transactions are otherwise in compliance with the rules of the Exchanges. (iii) Fixed Price Offerings. With the prior authorization of the Company, and any necessary permission from officials of the Exchanges, the Agent may conduct fixed price offerings off the floor of the Exchanges, in which the Agent has committed to purchase as principal the Shares involved in such offerings and dealers selected by the Agent participate in the resale of such Shares. With the prior authorization of the Company, the Agent may also conduct "special offerings" or "exchange distributions" of Shares on the NYSE in accordance with Rule 391 and Rule 392, respectively, of the NYSE or on any one or more of the other Exchanges in accordance with the appropriate rules of such other Exchanges. It is understood that the terms of "fixed price offerings," "special offerings" and "exchange distributions" contemplated by this Section 3(a) (iii) will in each case be subject to the prior approval of the Company. (b) Market Prices. The Company understands that sales of Shares will be made at market prices prevailing at the time of sale in the case of transactions on the Exchanges and at prices negotiated by the Agent and related to prevailing market prices in the case of over-the-counter transactions; provided, however, that the price per share to be paid to the Company for the Shares shall be in compliance with the terms of this Agreement and the Procedures. (c) Discounts, Commissions, Concessions, Etc. The Company will (i) pay to the Agent, on each Settlement Date (as defined in Section 4) in respect of the sale of any Shares solicited by the Agent, in same day funds, commissions for its services in acting as agent for the Company in the sale of such Shares in an amount per share to be negotiated as provided in the Procedures (as defined in Section 3(e) hereof) for the types of transactions involved (but not, in any event, to exceed $_____ per share) (it being understood that the Company and the Agent may agree upon payment for such commissions in such other manner as they may determine in accordance with the Procedures) and (ii) pay the reasonable fees and expenses of Cahill Gordon & Reindel ("Counsel for the Agent") in connection with the offer and sale of the Shares. Discounts, commissions, concessions, the offering price and other terms of offerings or distributions referred to in Sections 2(b) and 3(a) hereof will be agreed upon by the Company and the Agent prior to any such offering or distribution. The Company understands and agrees that, in any sale of Shares where the Agent is also acting as broker for a buyer of Shares, 4 the Agent may also receive a brokerage commission from the buyer in any amount negotiated by the Agent and such buyer. (d) Authorized Actions. The Company agrees that, concurrently with the offer and sale of Shares on behalf of the Company as contemplated by this Agreement, the Agent may (i) act as broker for the sale of shares of Common Stock by customers other than the Company, (ii) to the extent permitted by the rules and regulations of the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, (the "Exchange Act"), solicit the sale of shares of Common Stock by customers other than the Company through the Agent as broker for the seller, solicit the sale of shares of Common Stock by customers other than the Company to the Agent as principal and solicit offers to purchase shares of Common Stock and (iii) offer and sell as principal for its own account Shares that the Agent has purchased from the Company as contemplated by Sections 2(b) and 3(a) (ii) or shares of Common Stock that the Agent has otherwise acquired in transactions permitted by this Agreement. (e) Procedures. Procedural details relating to the offer and sale of the Shares, and the issue and delivery of the Shares and payment for the Shares, are set forth in the Common Stock Procedures attached hereto as Exhibit C (the "Procedures"). The Agent and the Company each agree to perform the respective duties and obligations to be performed by them as provided in the Procedures as amended from time to time. The Procedures may be amended only by a written agreement of the Company and the Agent. The Agent agrees that the number of Shares to be offered and sold from time to time, and the prices at which Shares are to be offered and sold, will be in compliance with limitations established by the Company with the Agent in accordance with the Procedures. (f) Compliance with Laws and Regulations. The Agent agrees that in carrying out the transactions contemplated by this Agreement, it will observe and comply with (i) all applicable securities laws, regulations, rules and ordinances of any jurisdiction in which the Shares may be offered, sold or delivered and (ii) all applicable regulations and rules of the Exchanges on which such transactions are executed. 4. Delivery of Shares. Delivery of Shares sold in transactions of the types referred to in Section 3(a) hereof will take place through the book-entry processing of the Depository Trust Company ("DTC") deposit withdrawal at custodian ("DWAC") system on the date that is three Business Days (as defined below) after the "trade date" for the sale of such Shares, against delivery to the Company in same day funds of the purchase price for such Shares; provided, however, that the Company and the 5 Agent may agree upon delivery of and payment for Shares sold in particular transactions at such other time and place and in such other manner as they may determine in accordance with the Procedures. The date of delivery to the Agent of Shares sold against delivery to the Company of funds in payment therefor is herein called the "Settlement Date." Delivery of Shares, and payment, for Shares sold pursuant to a Terms Agreement shall be made in accordance with such Terms Agreement. Except as may be otherwise determined by the NYSE, "Business Day" as used in this Agreement means any day on which the NYSE is open for business other than any such day on which banking institutions in New York, New York and Baltimore, Maryland are authorized or obligated by law to close. 5. Representations and Warranties of the Company. The Company represents and warrants to the Agent that: (a) Filing of Registration Statement with Commission. A registration statement on Form S-3 (No. 333-______), as supplemented by a Prospectus Supplement dated __________, has been filed with the Commission under the Securities Act of 1933, (the "Securities Act"), in accordance with Rule 415 of the published rules and regulations of the Commission (the "Regulations") under the Securities Act. Such registration statement has been declared effective by the Commission. References in this Agreement to the "Registration Statement" at a particular time are to such registration statement, as it may have been amended or supplemented at such time, including all exhibits thereto and all documents that at such time are incorporated by reference therein. References in this Agreement to the "Prospectus" at a particular time are to the form of preliminary prospectus filed as a part of the Registration Statement at such time and, thereafter, to the prospectus first filed with the Commission pursuant to Rule 424(b) of the Regulations under the Securities Act, as it may have been amended or supplemented at such time, including all documents that at such time are incorporated by reference therein. (b) Registration Statement; Prospectus and Incorporated Documents. (i) The Registration Statement, at the date of this Agreement and any applicable Terms Agreement and at the Commencement Date, as it may be amended or supplemented at each such time, complies and will comply, as the case may be, in all material respects with the Securities Act and the Regulations thereunder; the Prospectus, at the date of this Agreement and any applicable Terms Agreement, at the date it is first filed pursuant to Rule 424(b) of the Regulations under the Securities Act and 6 at the Commencement Date, as it may be amended or supplemented at each such time, complies and will comply, as the case may be, in all material respects with the Securities Act and the Regulations thereunder; (ii) the Registration Statement at the date of this Agreement and any applicable Terms Agreement and at the Commencement Date, as it may be amended or supplemented at each such time, does not and will not, as the case may be, 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 not misleading; the Prospectus, at the date of this Agreement and any applicable Terms Agreement, at the date it is first filed pursuant to Rule 424(b) of the Regulations under the Securities Act and at the Commencement Date, as it may be amended or supplemented at each such time, does not and will not, as the case may be, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that these representations and warranties do not apply to statements or omissions in such documents, based upon information furnished to the Company in writing by the Agent expressly for use therein; and (iii) the documents incorporated by reference in the Registration Statement or the Prospectus pursuant to Item 12 of Form S-3 of the Securities Act, at the time they were filed with the Commission, complied in all material respects with the requirements of the Exchange Act, and the Regulations thereunder. 6. Covenants of the Company. The Company covenants and agrees that: (a) Filing of Prospectus with Commission; No Stop Order. The Company will cause the Prospectus, and any amendments or supplements thereto, to be filed with, or transmitted for filing to, the Commission in accordance with Rule 424(b) of the Regulations under the Securities Act and will notify the Agent immediately, and confirm such notice in writing, of the issuance by the Commission of any stop order under the Securities Act suspending the effectiveness of the Registration Statement or of the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance by the Commission of any stop order and, if any such stop order shall at any time be issued, to obtain the lifting thereof at the earliest possible moment. (b) Amendments and Supplements. From the time solicitation regarding sale of the Shares is begun until all of the Shares have been sold (i) the Company will advise the Agent promptly of any proposal to amend or supplement the Registration Statement or the Prospectus by means of a post-effective amendment, sticker, or supplement (including a prospectus filed pursuant to Rule 424(b) of the Regulations under the Securities Act that differs from the Prospectus first filed pursuant to such 7 Rule 424(b) but excepting post-effective amendments, supplements, and stickers relating solely to pricing, if any and incorporation of document(s) by reference into the Registration Statement or the Prospectus) and relating to common shares pursuant to the terms of the Agreement; (ii) the Company will afford the Agent a reasonable opportunity to comment on any such proposed post-effective amendment, sticker or supplement; and (iii) the Company will advise the Agent of the filing of any such post-effective amendment, sticker or supplement. (c) Copies of Registration Statement and Prospectus. The Company will promptly deliver to the Agent a fully executed copy of the Registration Statement as originally filed including documents incorporated by reference and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment thereto (in each case including all exhibits filed therewith not previously furnished), including signed copies of each consent and certificate included therein or filed as an exhibit thereto, and will deliver to the Agent as many conformed copies of the foregoing (excluding the exhibits) as the Agent may reasonably request. The Company will deliver to the Agent from time to time during the period when the Prospectus is required to be delivered under the Securities Act, such number of copies of the Prospectus (including any amendments or supplements thereto), as the Agent may reasonably request for the purposes contemplated by the Securities Act and the Regulations thereunder. The provisions of this subsection(c) shall not apply to any post-effective amendment, prospectus or amendment or supplement thereto relating to any sale of Common Shares other than pursuant to the Agreement. (d) Compliance with the Securities Act. During the period when the Prospectus is required to be delivered under the Securities Act, the Company will comply so far as it is able, and at its own expense, with all requirements imposed upon it by the Securities Act and by the Regulations thereunder, so far as necessary to permit the continuance of sales of or dealing in the Shares during such period in accordance with the provisions hereof and the Prospectus. (e) Changes of Material Fact. If the Company determines that any event relating to or affecting the Company shall occur as a result of which it is necessary to amend or supplement the Prospectus (as it may be amended or supplemented at such time) in order to make the Prospectus (as it may be amended or supplemented at such time) not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company will forthwith (i) notify the Agent to suspend solicitations of offers to purchase, and offers for the sale of, the Shares (and, if so notified by the Company, the 8 Agent shall forthwith suspend such solicitations and offers and cease using the Prospectus as supplemented or amended) and (ii) prepare and furnish to the Agent, without expense to the Agent, a reasonable number of copies of an amendment or amendments or a supplement or supplements to the Prospectus (as it may be amended or supplemented at such time) that will amend or supplement the Prospectus (as it may be amended or supplemented at such time) so that as amended or supplemented it will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus (as so amended or supplemented) is delivered to a purchaser, not misleading. For the purpose of this Section 6(e) the Company will furnish such information as the Agent may from time to time reasonably request. (f) Earnings Statement. Not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company in which the Commencement Date occurs, the Company will make generally available to its security holders an earnings statement (which need not be audited) covering such 12-month period which will satisfy the provisions of Section 11(a) of the Act. (g) Blue Sky Qualification. During the period when the Prospectus is required to be delivered under the Act, the Company will use its best efforts to qualify the Shares for offer and sale under the blue sky laws of such jurisdictions as the Agent may reasonably designate, and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or dealer in securities or to file any consents to service of process under the laws of any jurisdiction. (h) Payment of Expenses. Whether or not the transactions contemplated hereunder are consummated or this Agreement or any applicable Terms Agreement is terminated, the Company will pay all expenses incident to the performance of its obligations under this Agreement or such Terms Agreement, including (i) the preparation, printing and filing of this Agreement, such Terms Agreement, the Registration Statement as originally filed and any amendments or supplements thereto, the preliminary prospectuses filed as a part thereof, the Prospectus and any amendments and supplements thereto and any documents incorporated by reference therein and, in each case, the exhibits thereto, in each case in quantities as required by the Agent under this Agreement, (ii) the issue and delivery of the Shares as provided in Section 4 hereof, (iii) the fees and expenses of the accountants, (iv) the expenses in connection with the 9 qualification of the Shares under securities laws in accordance with the provisions of Section 6(g) hereof, including filing fees and the fees and disbursements of Counsel for the Agent in connection therewith and in connection with the preparation of any Blue Sky Survey, (v) the reasonable fees and expenses of Counsel for the Agent, (vi) the commissions and amounts payable in accordance with Section 3(c) hereof and (vii) any advertising and other out-of-pocket expenses of the Agent incurred with the approval of the Company. If this Agreement is terminated in accordance with the provisions of Section 7 or 12 hereof, the Company shall pay for reasonable fees and disbursements of Counsel for the Agent. The Company shall not in any event be liable to the Agent for damages on account of the loss of anticipated profits. 7. Conditions of Agent's Obligations. The obligation of the Agent to solicit offers to purchase the Shares as agent of the Company, the obligation of any purchaser of Shares sold through the Agent as agent and the obligation of the Agent to purchase Shares pursuant to any Terms Agreement shall be subject at 10:00 A.M., New York City time, on _____________, 2001, or at such later time and date as the Agent and the Company may agree upon (the "Commencement Date"), and at all times thereafter, to the accuracy in all material respects of the representations and warranties on the part of the Company herein contained and to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained and to the following additional conditions precedent: (a) Filing of Prospectus with Commission; No Stop Order; Regulatory Approvals. The Prospectus and any amendments or supplements thereto, shall have been filed with, or transmitted for filing to, the Commission in accordance with Rule 424(b) of the Regulations under the Securities Act; no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act by the Commission and no proceedings therefor shall have been instituted or, to the knowledge of the Company or the Agent shall be contemplated by the Commission. (b) Opinion of Counsel of the Company. On the Commencement Date and, if specified in any Terms Agreement, on the Settlement Date therefor, the Agent shall have received the favorable opinion dated as of the Commencement Date or such Settlement Date, as the case may be, of legal counsel for the Company, in form and substance satisfactory to Counsel for the Agent, to the effect that: 10 (i) The Company, Baltimore Gas and Electric Company, ("BGE"), Constellation Enterprises, Inc. ("CEI"), and Constellation Nuclear, LLC have been duly incorporated and are validly existing as corporations or limited liability companies, 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 Constellation Nuclear, LLC; and the Company is duly qualified to do business as a foreign corporation in good standing in all 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 Shares have been duly authorized and will, upon issuance and delivery thereof in compliance with this Agreement and against payment therefor pursuant to this Agreement, be duly authorized and issued, fully paid and non-assessable shares and the issuance of the Shares is not subject to preemptive rights; (iii) the Shares conform as to legal matters with the statements concerning them in the Registration Statement and the Prospectus under the caption "DESCRIPTION OF COMMON STOCK"; (iv) this Agreement or such Terms Agreement, as the case may be, has been duly authorized, executed and delivered by the Company; (v) such counsel knows of no approval of any regulatory authority which is legally required for the valid offering, issuance, sale and delivery of the Shares by the Company under this Agreement (except that such opinion need not pass upon the requirements of state securities acts); (vi) the Registration Statement has become effective under the Securities Act, and, 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 Securities Act. The Registration Statement (as of its effective date) and the Prospectus (as of the date of this Agreement), and any amendments or supplements thereto, as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3 under the 11 Securities Act and the Regulations of the Commission thereunder. 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, 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. 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. Such counsel does not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required, nor 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 is understood that such counsel need express no opinion as to the financial statements or other financial and statistical information contained in the Registration Statement or the Prospectus; and (vii) the issuance, sale and delivery of the Shares as contemplated by this Agreement are not subject to the approval of the Commission under the provisions of the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"). In rendering the above opinions, counsel for the Company may rely, as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this Section 7(b) include any amendments or supplements thereto at the date such opinion is rendered. (c) Opinion of Counsel for the Agent. On the Commencement Date and, if specified in any Terms Agreement, the Settlement Date therefor, the Agent shall have received the favorable opinion dated as of the Commencement Date or such Settlement Date, as the case may be, of Counsel for the Agent with respect to the matters set forth in subheadings (iii), (iv), (v) and, the second sentence of (vi) of paragraph (b) of this Section 7, and with respect to such other matters as the Agent may reasonably require. 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. 12 In addition, such counsel shall state that it has participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent public accountants of the Company and representatives of the Agent at which conferences 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 any 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 clause (iii) of paragraph (b) of this Section 7), 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 any amendments or supplements thereto, as of their respective effective or issue 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 or other financial and statistical data included or incorporated by reference in the Registration Statement or Prospectus). (d) Comfort Letter. On the Commencement Date and, if specified in any Terms Agreement, the Settlement Date therefor, a letter dated as of the Commencement Date or such Settlement Date, as the case may be, from PricewaterhouseCoopers LLP, confirming that they are independent public accountants within the meaning of the Securities Act and the Regulations thereunder with respect to the Company 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, which is incorporated by reference in the Registration Statement comply in form in all material respects with the applicable accounting requirements of the Securities Act and the Regulations thereunder and the Exchange Act and the Regulations thereunder; (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 13 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 Commencement Date, performing the 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 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 Securities Act and the Regulations thereunder and the Exchange Act and the Exchange Act Regulations thereunder 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, the ratio of earnings to fixed charges (measured on the most recent twelve-month period) 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 of 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 Commencement Date, there was any change in the capital stock or long-term debt of the Company, the ratio of earnings to fixed charges (measured on the most recent twelve-month period), [or, at such date, there was any decrease in the net assets of the Company] as compared with amounts shown in the latest balance sheet incorporated by reference in the Registration Statement, [or 14 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 instances of changes or decreases that the Registration Statement discloses have occurred or may occur, or which are described in such letter; (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 and the underlying general accounting records of the Company, except as described in such letter; and (iv) shall cover such other matters as the Agent shall reasonably request. (e) Certificate as to No Material Adverse Change, Etc. On the Commencement Date and on each Settlement Date in respect of a Terms Agreement, there shall not have been, since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as may otherwise be stated therein or contemplated thereby, any material adverse change in the financial position or in the financial results of operations of the Company, and the Agent shall have received a certificate of the Company signed by the Chairman of the Board, and the Chief Executive Officer, the Vice Chairman, a Co-President, or any Vice President of the Company reasonably satisfactory to the Agent, dated as of the Commencement Date or, if specified in such Terms Agreement, the Settlement Date therefor, as the case may be, to the effect that to the best of their knowledge after reasonable investigation, and relying on opinions of counsel to the extent that legal matters are involved, (i) there has been no such material adverse change, (ii) the representations and warranties contained in this Agreement are true and correct in all material respects as of the Commencement Date or such Settlement Date, as the case may be, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under this Agreement or such Terms Agreement, as the case may be, on or prior to the Commencement Date or such Settlement Date, as the case may be, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission. 15 (f) Other Documents. On the Commencement Date, and on each Settlement Date in respect of a Terms Agreement, Counsel for the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained, and all proceedings taken by the Company in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent and Counsel for the Agent. (g) The Exchanges shall have approved for listing upon official notice of issuance, the Shares. In case any of the conditions specified above in this Section 7 shall not have been fulfilled, this Agreement or any applicable Terms Agreement may be terminated by the Agent upon mailing or delivering written notice thereof to the Company. Any such termination shall be without liability of either party to the other party except as otherwise provided in Section 6(h) hereof and except for any liability under Section 10 hereof. 8. Suspension of Offers and Solicitations. At any time and from time to time after the Commencement Date (except any such time that the Agent owns any Shares purchased as principal that are held for resale to others in accordance with the terms of this Agreement), the Company may in its sole discretion orally instruct the Agent to suspend solicitations of offers to purchase, and offers for the sale of, the Shares as provided herein and in the Procedures. If at any such time, or at any time that the Company has otherwise notified the Agent to suspend such solicitations and offers under this Agreement, there shall be any sales of Shares by the Company not yet settled outstanding, the Company will promptly advise the Agent whether such sales may be settled and whether the Prospectus as then in effect may be delivered in connection with the settlement of such sales. If the Company determines that such sales may not be settled or that such Prospectus may not be so delivered, the Agent will use its best efforts to arrange for the cancellation of such sales, but the Company shall have the sole responsibility for, and shall hold the Agent harmless from, any losses, claims, damages or liabilities (and expenses in connection therewith) that may result from the inability to make settlement of such sales. 16 9. Additional Representations and Warranties and Agreements of the Company. The Company represents and warrants and agrees that: (a) Affirmation of Representations and Warranties. Each authorization by the Company to the Agent to solicit offers to purchase the Shares as provided in the Procedures shall be deemed to be an affirmation that the representations and warranties of the Company contained in this Agreement are true and correct at the time of such authorization, and an undertaking that such representations and warranties will be true and correct at the time of delivery of and payment for Shares sold pursuant to such authorization as provided in Section 4 hereof, in each case as though made at and as of each such time (except that such representations and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented to each such time). (b) From the time solicitation regarding the sale of the Shares is begun until all of the Shares have been sold, each time the Company (i) amends or supplements the Registration Statement or the Prospectus (other than in reference solely to prices of Shares) by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of document(s) by reference into the Registration Statement or the Prospectus; (ii) files an annual report on Form 10-K under the Exchange Act; (iii) files its quarterly reports on Form 10-Q under the Exchange Act; and (iv) files a report on Form 8-K under the Exchange Act (the date of filing each of the aforementioned documents is referred to as a "Representation Date"); the Company shall furnish the Agent (but in the case of (iv) above only if requested by the Agent) with a certificate of the Chairman of the Board, the Chief Executive Officer, the Vice Chairman, President or any Vice President and a principal financial or accounting officer of the Company, in form satisfactory to the Agent, to the effect that on the Representation Date, to the best of their knowledge after reasonable investigation and relying upon opinions of counsel to the extent legal matters are involved, (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects; (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Representation Date; (iii) no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission; and (iv) subsequent to the date of the most recent financial statements 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 operations of the Company, except as 17 set forth in or contemplated by the Prospectus or as described in such certificate. (c) From the time solicitation regarding the sale of the Shares is begun until all of the Shares have been sold, at each Representation Date referred to in Section 9(b) (i) or (ii) and, only if requested by the Agent, at each Representation Date referred to in Section 9(b) (iii) or (iv), the Company shall concurrently furnish the Agent with a written opinion or opinions of counsel for the Company, dated the Representation Date or the date of such filing, in form satisfactory to the Agent, to the effect set forth in Section 7(b) hereof, but modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, however, that in lieu of such opinion, counsel may furnish the Agent with a letter to the effect that the Agent may rely on a prior opinion delivered under Section 7(b) or this Section 9(c) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date). (d) From the time solicitation regarding the sale of the Shares is begun until all of the Shares have been sold, at each Representation Date referred to in Section 9(b) (i) or (ii) and, only if requested by the Agent, at each Representation Date referred to in Section 9(b) (iii) or (iv), but in each case only if such documents referred to in Section 9(b) include additional financial information, the Company shall cause PricewaterhouseCoopers LLP concurrently to furnish the Agent with a letter, addressed jointly to the Company and the Agent and dated the Representation Date or the date of such filing, in form and substance satisfactory to the Agent, to the effect set forth in Section 7(d) hereof but modified to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Company; provided, however, that if the Registration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, PricewaterhouseCoopers LLP may limit the scope of such letter to the unaudited financial statements included in such amendment or supplement unless there is contained therein any other accounting, financial or statistical information that, in the reasonable judgment of the Agent, should be covered by such letter, in which event such letter shall also cover such other information and procedures as shall be requested by the Agent. 18 10. Indemnification. (a) Indemnification of the Agent. The Company will indemnify and hold harmless the Agent and each person, if any, who controls the Agent within the meaning of Section 15 of the Securities Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or documents incorporated by reference therein (or any amendment thereto), of the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any related preliminary prospectus, the Prospectus (or any amendment or supplement thereto) or the documents incorporated by reference therein, or the omission or alleged omission therefrom of a material fact necessary in order to make the statement therein, in the light of the circumstances under which they were made, not misleading, unless such untrue statement or omission or such alleged untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company by the Agent expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that any such indemnity with respect to a Prospectus shall not inure to the benefit of the Agent (or of any person controlling the Agent) on account of any losses, liabilities, claims or damages arising from the sale of Shares to any person if any amendments or supplements to such Prospectus shall have been furnished to the Agent on a timely basis to permit the Agent to send or give to such person, with or prior to the written confirmation of such sale, a copy of such amended or supplemented Prospectus, except the documents incorporated by reference therein, and the untrue statement or omission of a material fact contained in such Prospectus and giving rise to such losses, liabilities, claims or damages was corrected in such amended or supplemented Prospectus (including the documents incorporated by reference therein); (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, commenced or threatened or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and 19 (iii) against any and all expense whatsoever, as incurred, in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clause (i) or (ii) above. (b) Indemnification of Company. The Agent agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 10(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Agent expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). (c) General. Each indemnified party shall give prompt notice to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure so to notify an indemnifying party shall not relieve it from any liability except to the extent that it has been prejudiced in any material respect by such failure or from any liability that it may have to such indemnified party otherwise than on account of this indemnity agreement. 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 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 10 for any reason 20 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 Shares (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 Agent 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 Agent and such controlling persons were treated as one entity for such purpose). Notwithstanding the provisions of this subsection (d), no Agent or controlling person shall be required to make contribution hereunder which in the aggregate exceeds the total public offering price of the Shares distributed to the public through it pursuant to this Agreement or upon resale of Shares purchased by it from the Company, less the aggregate amount of any damages which the Agent or such controlling person has otherwise been required to pay in respect to the same claim or substantially similar claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (e) Confirmation of Certain Statements. The Agent confirms that the statements in the last paragraph under the caption "Plan of Distribution" in the Prospectus are correct and were furnished in writing to the Company by the Agent for inclusion in the Prospectus. 11. Survival of Representations and Warranties and Agreements. The indemnity and other agreements of the Company and the Agent contained in Sections 6(h) and 10 hereof and the representations, warranties and other statements of the Company set forth in this Agreement or made by the Company pursuant to this Agreement shall remain in full force and effect, regardless of (a) any termination of this Agreement or any Terms Agreement, (b) any investigation made by or on behalf of the Agent or any of its controlling persons or by or on behalf of the Company or any of its officers, directors or controlling persons and (c) acceptance of delivery of and payment for Shares sold hereunder. 12. Termination. (a) Termination of this Agreement.This Agreement may be terminated at any time by either party hereto upon the giving of written notice of such termination to the other party 21 hereto effective at the close of business on the date such notice is received. (b) Termination of a Terms Agreement. The Agent may, by notice to the Company, terminate a Terms Agreement if, at any time after the date of this Agreement and at or prior to the Settlement Date in respect thereof, (i) there shall have occurred any change or any development involving a prospective change not contemplated by the Prospectus in or affecting particularly the business or properties of the Company which, in the reasonable judgment of the Agent, materially impairs the investment quality of the Shares, or (ii) trading in securities generally on the New York Stock Exchange shall have been suspended or limited, other than a temporary suspension in trading to provide for an orderly market, or minimum prices have been established on such Exchange, a banking moratorium shall have been declared either by New York State or Federal authorities or there shall have occurred an outbreak or material escalation of hostilities or other calamity or crisis, the effect of which on the financial markets of the United States is such as to make it, in the Agent's judgment, impracticable to market the Shares. (c) General. In the event of any termination under Section 12(a) or 12(b) hereof, neither party will have any liability to the other party hereto, except that (i) the Agent shall be entitled to any commission earned in accordance with Section 3(c) hereof, (ii) if at the time of termination (A) the Agent shall own any Shares purchased pursuant to a Terms Agreement with the intention of reselling them or (B) an offer to purchase any of the Shares has been accepted by the Company but the time of delivery to the purchaser or his agent of the Shares relating thereto has not occurred, the covenants set forth in Sections 6 and 9 hereof shall remain in effect until such Shares have been resold or delivered, as the case may be and (iii) the covenants set forth in Sections 6(f) and 6(h) hereof, the indemnity and contribution agreement set forth in Section 10 hereof and the provisions of Sections 11 and 16 hereof shall remain in effect. 13. Notices. Except as otherwise specifically provided herein or in the Procedures, all statements, instructions, requests, notices and advances hereunder and under any applicable Terms Agreement shall be in writing (or by telephone or telefax if subsequently confirmed in writing), and shall be deemed to have been duly given if mailed, delivered or transmitted by any standard form of telecommunication to (a) in the case of the Agent, [Agent Name, address, contact person]_______________________with, in the case of instructions given by the Company pursuant to Section 2(a) or 8 hereof, and 22 (b) in the case of the Company, Constellation Energy Group, Inc., 3250 W. Pratt Street, Baltimore, Maryland, 21201, Attention: T. E. Ruszin, Jr., Treasurer, Telefax No.: 410-783-3619. 14. Parties. This Agreement and any applicable Terms Agreement shall inure solely to the benefit of the Company and the Agent and, to the extent provided in Sections 10 and 11 hereof, to any officer or director of the Company or to any person who controls the Company or the Agent, and their respective successors. No other person, partnership, association or corporation shall acquire or have any right under or by virtue of this Agreement or any Terms Agreement. The term "successors" shall not include any purchaser of any Shares merely because of such purchase. The respective rights and obligations of the Company and the Agent hereunder may not be assigned, transferred or contracted to another. 15. Arm's Length Dealing. This Agreement and any applicable Terms Agreement have been negotiated at arm's length between the Agent and the Company, which regularly issues and sells securities in the public markets through investment bankers, and the relationship created hereby or thereby is not intended to be one of customer and member as the term "customer" is used in the provisions pertaining to the protection of customers of the articles, bylaws, rules, regulations and policies of the NYSE or the National Association of Securities Dealers, Inc. 16. Governing Law. This Agreement and any Terms Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflict of law. 17. Captions. Captions to Sections of this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or in any way affect the meaning of any provisions of this Agreement. 23 If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument along with all counterparts will become a binding agreement between the Agent and the Company in accordance with its terms. Very truly yours, CONSTELLATION ENERGY GROUP, INC. By ---------------------------- Title: Vice President Confirmed, accepted and agreed, as of the date first above written: [Agent] By ------------------------- Title: 24 EXHIBIT A CONSTELLATION ENERGY GROUP, INC. _____________ Shares Common Stock Continuous Offering Program Volume and Pricing Parameters for Offers and Solicitations [Date] [Agent Name and Address] Ladies and Gentlemen: The Company hereby instructs you to commence solicitations of offers to purchase, and offers for the sale of, up to an additional ___________ shares of the Company's Common Stock, in accordance with the terms of the Sales Agency Agreement, at prices not less than $_____ per share, or such higher prices as we verbally communicate to you. In addition, the sales price must be equal to or greater than the prior day's closing price on the New York Stock Exchange less $0.50. Including the above mentioned ________ shares, __________ shares remain to be issued under the Continuous Offering Program. The Company reserves the right, in its sole discretion, to instruct you, at any time after the date hereof to suspend such solicitations and sales for any period of time or permanently in accordance with the provisions of the Sales Agency Agreement. CONSTELLATION ENERGY GROUP, INC. By: ------------------------------------- Vice President 1 EXHIBIT B CONSTELLATION ENERGY GROUP, INC. [ ] Shares of Common Stock Terms Agreement [Date] [Agent Name and Address] Ladies and Gentlemen: Pursuant to the terms and conditions set forth in the Sales Agency Agreement, dated______________, 2001, between Constellation Energy Group, Inc. (the "Company") and you (the "Agent") and the additional terms set forth below, you are to purchase _______ shares of the Company's Common Stock (the "Shares"). Purchase Price per Share: Public Offering Price per Share: Settlement Date and Time: Form of Settlement: Additional Terms: [If agreed to by you and the Company prior to the execution hereof: the Company will not, between the date hereof and the Settlement Date and Time set forth above, without your prior consent, offer or sell, or enter into any agreement to sell, any of its Common Stock, except pursuant to the Company's Dividend Reinvestment and Stock Purchase Plan and Employee Savings Plan.] [Indicate whether the Company authorizes you to utilize a selling or dealer group in connection with the resale of the Shares as required by Section 2(b) of the Sales Agency Agreement.] [Indicate whether the legal opinion, accountant's letter and/or the officer's certificate described in Sections 7(b), 7(c), 7(d) and 7(e), respectively, of the Sales Agency Agreement will or will not be required.] CONSTELLATION ENERGY GROUP, INC. By______________________________ Title: Confirmed, accepted, and agreed, as of the date first above written: [Agent Name] By_____________________________________ Title: 2 EXHIBIT C CONSTELLATION ENERGY GROUP, INC. Common Stock Procedures Pursuant to the Sales Agency Agreement dated as of ________ 2001 (the "Sales Agency Agreement") between Constellation Energy Group, Inc. (the "Company") and _____________________, as exclusive sales agent (the "Agent"), up to __________ shares of the Company's Common Stock are being offered and sold. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Sales Agency Agreement. The Shares have been registered with the Commission under the Securities Act. Harris Trust and Savings Bank acts as transfer agent and registrar for the Common Stock (together with any successor transfer agent or registrar, the "Transfer Agent"). Administrative procedures and specific terms of the offering are explained below. Administrative responsibilities, accountable document control and record-keeping responsibilities will be performed by the Company's Finance Department. The Company will advise the Agent in writing of those persons handling administrative responsibilities with whom the Agent is to communicate regarding offers to purchase Shares and the details of their delivery. I. Acceptance of Orders; Authorized Persons: The Company will have the sole right to give orders to sell, and accept offers to purchase, Shares. Instructions regarding offers and sales of Shares will be given for the Company by D. A. Brune, T. E. Ruszin, Jr., or by another specifically named authorized representative of the Company. Such instructions will be accepted at the Agent by _____________, or by another specifically named authorized representative of the Agent. Offers and sales of the Shares will be made under volume and price parameters and with such commissions as agreed upon between the Company and the Agent. Offers not complying with such terms will be communicated telephonically by the Agent to the authorized representative of the Company, including specific prices on "block" transactions. The Company may reject any offer to purchase Shares in whole or in part. The Agent may reject any 1 offer to purchase Shares in whole or in part in the reasonable exercise of its discretion. II. Settlement: Settlement will occur on the third Business Day after the Trade Date. Delivery of Shares will take place through the book-entry processing of the Depository Trust Company ("DTC") DWAC system (deposit withdrawal at custodian). Another time, place or method of settlement (e.g., same day for "cash" sales) may be specified if mutually agreed upon in writing by authorized representatives of the Company and the Agent. III.Denominations: Since delivery of Shares will take place through DWAC, a single certificate evidencing the Shares for each day's transactions will be registered in the name of DTC or a nominee of DTC. The Transfer Agent will hold all certificates. With regard to Shares sold by the Company through the Agent, on any day, the Agent will advise the Company by telephone of the following key details of any transactions that take place by the end of such day: IV. Details for Settlement: 1. The number of Shares sold. 2. The prices at which Shares were sold. 3. The commissions payable to the Agent by the Company. 4. Other applicable charges, such as transfer taxes and fees of the Commission. 5. The net proceeds payable to the Company. 6. The Settlement Date or Dates. The Agent will confirm the foregoing key details by facsimile transmission within one Business Day after the Trade Date (See Part V below). After receiving the key details by facsimile transmission from the Agent, the Company will promptly notify the Transfer Agent in writing of the number of Shares sold and instruct the Transfer Agent, on the Settlement Date, to 2 accept the DWAC transaction for the settlement of the Shares sold. On the Settlement Date, the following events will take place: 1. Within the Company's brokerage account at the Agent, a trade will settle representing the Shares sold and the net proceeds payable to the Company. 2. The Agent will initiate a DWAC transaction to credit the Shares sold to its DTC participant account. 3. The Transfer Agent will subsequently accept the DWAC transaction for the appropriate number of such Shares, per written instructions from the Company as noted above. 4. Simultaneously with the Shares being credited to the Agent's DTC participant account, the Agent will release from the Company's brokerage account at the Agent the net proceeds from the sale of the Shares. 5. The Agent will wire transfer the net proceeds as the Company may direct. The Company will notify the NYSE quarterly of the number of outstanding shares and give the NYSE any other notice of the issue of Shares as may be required by the NYSE. V. Confirmation: For each order to purchase Shares solicited by the Agent and accepted by or on behalf of the Company, the Agent will issue a written confirmation by facsimile transmission within one Business Day after the Trade Date to Constellation Energy Group, Inc., 250 W. Pratt Street, Baltimore, Maryland 21201, Attention: T. E. Ruszin, Jr. Treasurer containing the key details listed above. VI. Delivery of The Company will deliver (through DWAC) the Shares sold to the Shares: Agent only against payment therefor as specified in Section 4 of the Sales Agency Agreement and as set forth in "Details for Settlement" under Part IV of these Procedures. See "Delivery of Prospectus" under Part IX of these Procedures as to the requirement to 3 deliver a current Prospectus with sale transactions. VII. Failure to Pay: Failure to make payment when due will be subject to the regulations and rules of the NYSE, as applicable, and the provisions of Section 2(a) of the Sales Agency Agreement. VIII.Suspension of The Company may instruct the Agent to commence or suspend Solicitation, solicitations of offers to purchase, and offers for the sale of, Amendment or Shares at any time in accordance with the Sales Agency Agreement. Supplement: Upon receipt of such instructions to suspend, the Agent will immediately suspend such activities until such time as the Company has advised the Agent that such activities may be resumed. If the Company decides to amend or supplement the Registration Statement or the Prospectus, it will promptly advise the Agent and will furnish the Agent with the proposed amendment or supplement as provided in the Sales Agency Agreement. In the event that at the time the Agent suspends such activities there shall be any sales not yet settled outstanding, the Company will, consistent with its obligations under the Sales Agency Agreement, promptly advise the Agent whether such sales may be settled and whether copies of the Prospectus as in effect at the time of the suspension may be delivered in connection with the settlement of such sales. Subject to the preceding paragraph, the Agent shall have the right in its sole discretion, upon notice thereof to the Company, to commence or suspend at any time offers to sell and solicitations of offers to buy the Shares. IX. Delivery of Prospectus: Prior to any auction market sales of Shares on the NYSE, copies of the Prospectus as most recently amended or supplemented must be filed with such Exchange pursuant to Rule 153 of the Regulations under the Act. A copy of the Prospectus as most recently amended or supplemented must also accompany each written confirmation of a sale of 4 Shares by the Agent to a customer of the Agent, or of a sale of Shares by the Agent as principal, in each case otherwise than in the auction market. As used above, the term Prospectus does not include any documents incorporated by reference therein. X. Payment of Selling The Agent will send a written confirmation by facsimile Commissions, Transfer transmission within one Business Day after the Trade Date to the Taxes and Fees of the Company with respect to each transaction setting forth the selling Commission: commissions, transfer taxes and fees of the Commission payable in connection therewith. Such amounts are obligations of the Company and will be "netted" against proceeds paid to the Company on the applicable Settlement Date. XI. Advertising The Company will determine with the Agent the amount of advertising Costs: that may be appropriate in offering the Common Stock. Advertising expenses will be paid by the Company. 5 EXHIBIT 1 (b) CONSTELLATION ENERGY GROUP, INC. __________________ SHARES COMMON STOCK (without par value) FORM OF PURCHASE AGREEMENT INCLUDING FORM OF STANDARD PURCHASE PROVISIONS FORM OF PURCHASE AGREEMENT [Date] Constellation Energy Group, Inc. 250 W. Pratt Street, 20th Floor Baltimore, Maryland 21201-2437 Dear Sirs: Referring to the captioned shares of Common Stock for 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 __________,2001 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, is 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 "Firm Shares") for the price described below set forth opposite the name of each Purchaser on Schedule A hereto. In addition, the Company has granted the Purchasers the right to purchase, at their election, the following number of Optional Shares, if any, pursuant to Section 1(b) of the Standard Purchase Provisions: ________ optional shares. The price at which the Purchased Stock shall be purchased from the Company by the Purchasers shall be $______ per share. The Purhased Stock will be offered by the Purchaser as set forth in the Prospectus relating to such Shares. The Closing Date for the sale of the Firm Shares shall be ___________, 2001. The place to which the Purchased Stock may be checked, packaged and delivered shall be: 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", 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. 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. SCHEDULE A Name of Purchaser Amount Total ------------------------- $ CONSTELLATION ENERGY GROUP, INC. STANDARD PURCHASE PROVISIONS 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. (a) 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). In addition, the Company proposes to grant the Purchasers (defined below) an election to purchase additional shares of Stock to cover over-allotments. The Stock sold by the Company is hereinafter called the "Firm Shares" and the additional Stock to cover over-allotments is hereinafter called the "Optional Shares." The Firm Shares and the Optional Shares are hereinafter referred together as 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. (b) Optional Shares. The Company grants to the Purchasers the right to purchase, at their election, up to the number of Optional Shares set forth in the Purchase Agreement for the sole purpose of covering over-allotments in the sale of the Firm Shares. The purchase price for the Optional Shares shall be the purchase price per share set forth in the Purchase Agreement for Firm Shares. The election to purchase Optional Shares may be exercised only by written notice from you to the Company, given within a period of thirty (30) calendar days after the date of this Agreement. The notice shall specify (i) the aggregate number of Optional Shares to be purchased; and (ii) the date on which such Optional Shares are to be delivered, as agreed to by you and the Company. To the extent that the Purchasers exercise the election to purchase Optional Shares, the Company agrees to sell to each of the Purchasers, and each of the Purchasers agree, severally and not jointly, to purchase from the Company that portion of the number of Optional Shares determined by multiplying such number of Optional Shares by a fraction, the numerator of which is the 2 number of Firm Shares set forth opposite each Purchaser's name on Schedule A of the Purchase Agreement and the denominator of which is the number of the Firm Shares that all of the Purchaser's are committed to purchase hereunder (rounded to eliminate fractional shares). No Optional Shares shall be sold or delivered unless the Firm Shares previously have been, or simultaneously are, sold and delivered. The right to purchase the Optional Shares, or any portion thereof, may be terminated at any time upon written notice by you to the Company. 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 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 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(a). Delivery and Payment for the Firm Shares. The Company will deliver the Firm Shares 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 certified or official bank check 3 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, 250 W. Pratt Street, 20th Floor, Baltimore, Maryland, 21201-2437 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 Firm Shares 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 this Agreement. The Company shall make the Firm Shares 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 preceding the Closing Date. If you request that any Firm Shares 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. 3(b). Delivery and Payment for the Optional Shares. To the extent that the Purchasers exercise their election to purchase Optional Shares, the Company will deliver the Optional Shares 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 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, 250 W. Pratt Street, 20th Floor, Baltimore, Maryland, 21201-2437 at the time agreed to pursuant to Section 1(b) of 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 "Second Closing Date." The Optional Shares so to be delivered will be 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 Second 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 Optional Shares available for checking and packaging at the offices of the Transfer Agent/Registrar (at the place specified in the Purchase Agreement) prior to the Second 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 preceding the Second Closing Date. If you request that any Optional Shares 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 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. (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) Not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company in which the Closing Date occurs, the Company will make generally available to its security holders an earnings statement (which need not be audited) covering such 12-month period which will satisfy the provisions of Section 11(a) of the Act. (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 5 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 use its best efforts to obtain the qualification of the Purchased Stock 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: (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 of memoranda relating thereto, for any expenses incurred in connection with listing the Purchased Stock 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 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 plans, dividend reinvestment plans and similar plans) without the consent of the Purchasers. 6. Conditions of the Obligations of the Purchasers. - -------------------------------------------------------- A. Firm Shares. The obligations of the several Purchasers to purchase and pay for the Firm Shares will be subject to the 6 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 schedule audited by them which are included in the Company's Form 10-K ("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 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 7 reference in the Registration Statement there was any change in the capital stock, change in long-term debt or decrease in consolidated net assets, ratio of earnings to fixed charges (measured as the most recent twelve-month period), 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 of 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, decrease in the ratio of earnings to fixed charges (measured on the most recent twelve-month period) 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 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. 8 (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 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, 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 Enterprises, Inc. (CEI), and Constellation Nuclear LLC have been duly incorporated and are validly existing as corporations or limited liability companies, 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 Constellation Nuclear, LLC; 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) (a) The issuance and sale of the Purchased Stock (1) have been duly authorized by all necessary corporate action of the Company, are fully paid and nonassessable, (2) conform to legal matters with the statements concerning them in the Registration Statement and Prospectus under the caption "Description of Common Stock" and (b) there are no preemptive rights to purchase Purchased Stock. 9 (iii) 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 Closing Date) 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, 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 (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. (iv) Counsel knows of no approval of any regulatory authority which is legally required for the valid 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); (v) 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; 10 (vi) This Agreement has been duly authorized, executed and delivered by the Company; (vii) 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) (a) (2), (iii)(b), (vi), and (vii) 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)(a)(2) 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 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, Co-President or any Vice President and a principal 11 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 its advice 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. (B) Optional Shares. The obligation of the Purchasers to purchase the Optional Shares on the Second Closing Date, shall be subject to the accuracy of the representations and warranties 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 satisfaction of the conditions set forth in paragraphs (b), (c), (d), (e), (f), (g), and (h) of this Section 6 (all dated as of the Second Closing Date rather the Closing Date) In case any such condition shall not have been satisfied, this Agreement may be terminated with respect to the obligations to purchase Optional Shares on the second Closing Date by you upon notice in writing or by telecopy to 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 Firm Shares and Optional Shares, as applicable, are subject to the following condition precedent: 12 Prior to the Closing Date or the Second Closing Date, as applicable, 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 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, or at anytime prior to the Second Closing Date with respect to the Optional Shares, 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 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 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 unless such loss, claim, damage or liability arises out of the offer or sale of the Purchased Stock occurring after such Purchaser or controlling person has notified the Company in writing that such information should no longer be used therein. 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, each of its officers who have signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Act or the 13 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 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; provided, however, that such Purchaser will not be liable to the Company, or any such director, officer or controlling person in any such case to the extent that any such loss, claim, damage or liability arises out of the offer or sale of Purchased Stock occurring after such Purchaser has notified the Company in writing that such information should no longer be used therein. 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. 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 14 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. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. 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 the Firm Shares or Optional Shares hereunder and the aggregate number of shares of Firm Shares or Optional Shares, as the case may be, which such defaulting Purchaser or Purchasers agreed but failed to purchase is 10% of the total number of Firm Shares or Optional Shares, as the case may be, to have been purchased or less, you may make arrangements satisfactory to the Company for the purchase of such Firm Shares or Optional Shares, 15 as the case may be, by other persons, including any of the Purchasers, but if no such arrangements are made by the Closing Date, in connection with the Firm Shares, or the Second Closing Date, in connection with the Optional Shares, the non-defaulting Purchasers shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Firm Shares or Optional Shares, as the case may be, which such defaulting Purchasers agreed but failed to purchase. If any Purchaser or Purchasers so default and the aggregate principal amount of Purchased Stock with respect to which such default or defaults occur is more than the above percentage and arrangements satisfactory to you and the Company for the purchase of such Firm Shares or Optional Shares, as the case may be, by other persons are not made within thirty-six 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, in connection with the Firm Shares, or the Second Closing Date, in connection with the Optional Shares, 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 you will use your best efforts to promptly notify each other Purchaser and each dealer and prospective customer to whom you have 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 16 Company, will be delivered or telecopied and confirmed to it, attention of Treasurer at 250 W. Pratt Street, 20th Floor, Baltimore, Maryland 21201, telecopier (410) 783-3610; 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. 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 3 0003.txt BY-LAWS BY-LAWS of CONSTELLATION ENERGY GROUP, INC. Amended as of February 16, 2001 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 250 West Pratt Street, Baltimore, Maryland 21201. 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 14 through May 13, 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, 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 twenty-five percent 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 thereat 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. No special meeting need be called upon the request of the holders of the shares entitled to cast less than a majority of all votes entitled to be cast at such meeting, to consider any matter which is substantially the same as a matter voted upon at any special meeting of the stockholders held during the preceding twelve months. 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 by facsimile 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 2 successor 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 9 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. - Judge of Election and Tellers. The Directors shall, at a regular or special meeting, appoint a Judge of Election and two Tellers to serve at each meeting of stockholders. If the Directors fail to make such appointments, or if the Judge of Election and/or Tellers, or any of them, fail to appear at the meeting, the Chairman of the meeting shall appoint a Judge of Election and/or a Teller or Tellers to serve at that meeting. It shall be the duty of the Tellers to receive the ballots of all the holders of stock entitled to vote and present at a meeting either in person or by proxy, and to count and tally said ballots by the official record of stockholders of the Corporation, or by a summary prepared therefrom and certified by the Stock Transfer Agent or the Secretary of the Corporation showing the number of shares of Common and, if entitled to vote, Preferred Stock owned of record by each stockholder, who may be designated therein by name, code number, or otherwise, and certify them to the Judge of Election, and the said Judge shall communicate in writing the result of the balloting so certified by the Tellers to the Chairman who shall at once announce the same to the meeting. This certificate, signed by the Tellers and countersigned by the Judge, shall be duly recorded as part of the minutes of the meeting and filed among the records of the Corporation. 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 by 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 and fix their compensation. The Board may remove any Officer. Section 2. - Number and Election of Directors. The number of Directors shall be eighteen (18) or such number as the Board of Directors shall determine by amendment to these by-laws. Each Director shall own at least 300 shares of the Corporation's Common Stock. 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 except as otherwise provided in these by-laws. Section 3. - Vacancies. Any vacancy occurring in the Board from any cause other than by reason of an increase in the number of Directors may be filled only by a majority of the remaining Directors although such majority is less than a quorum or by a sole remaining Director. Any vacancy occurring by reason of an increase in the number of Directors may be filled only by a majority of Directors. A Director filling a vacancy within one of the three classes discussed in Section 2 of Article III shall hold office until the three-year term of the class expires, and until his or her successor is elected and qualified, or until his or her earlier resignation or removal. 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, by facsimile 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 by notices as above. In the event three-fourths 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. 5 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. - Executive Committee. The Directors shall annually, at their first meeting succeeding the stockholders' meeting at which they are elected, elect from among their number an Executive Committee of at least three. The Executive Committee may exercise, in the intervals between meetings of the Board, all of the powers of the Board in the management of the business and affairs of the Corporation, except the power to declare dividends, to issue stock other than as hereinafter stated, to recommend to stockholders any action requiring stockholder approval, amend the by-laws, or approve any merger or share exchange which does not require stockholder approval. If the Board has given general authorization for the issuance of stock, the Executive Committee, in accordance with a general formula or method specified by the Board by resolution or by adoption of a stock option or other plan, may fix the terms of stock subject to classification or reclassification and the terms on which any stock may be issued, including all terms and conditions required or permitted to be established or authorized by the Board. The members of the Executive Committee shall hold their offices as such for one year and until their successors are elected and qualified, or until their earlier resignation or removal. All vacancies in said Committee shall be filled by the Board, but in the absence of a member or members of the Executive Committee, the members thereof present at any meeting (whether or not they constitute a quorum) may appoint a member of the Board to act in the place of such absent member. They shall designate one of their number as Chairman of the Committee, and shall keep a separate book of minutes of their proceedings and actions. They shall elect a Secretary to the Committee who shall give notice personally or by mail, telephone, or facsimile to each member of the Committee of all meetings, not later than 12 noon of the day before the meeting, unless a majority of the members of the Executive Committee in office waive notice thereof in writing at or before the meeting in which case the meeting may be held without the aforesaid advance notice. Meetings may be called by the Chairman of the Committee or by the Chief Executive Officer, or, in the event of their absence, by one of the other Officers among the Chairman of the Board, the President or the Vice Presidents (if a member of the Board). A majority of the members of the Executive Committee shall constitute a quorum for the transaction of business. Section 9. - Audit Committee. The Directors shall annually, at their first meeting succeeding the stockholders' meeting at which they are elected, elect from among their number an Audit Committee which shall consist of at least three Directors who shall be independent of Management and free from any relationship that, in the opinion of the Board, would interfere with the exercise of independent judgment as a Committee member, provided that no Director who 6 was formerly an Officer of the Corporation shall be a member of the said Audit Committee. The members of the Audit Committee shall hold their offices as such for one year and until their successors are elected and qualified, or until their earlier resignation or removal. All vacancies in said Committee shall be filled by the Board. They shall designate one of their number as Chairman of the Committee, and shall keep a separate book of minutes of their proceedings and actions. They shall elect a Secretary to the Committee who shall give notice personally or by mail, telephone, or facsimile to each member of the Committee of all meetings, not later than 12 noon of the day before the meeting, unless a majority of the members of the Audit Committee in office waive notice thereof in writing at or before the meeting in which case the meeting may be held without the aforesaid advance notice. A majority of the members of the Audit Committee shall constitute a quorum for the transaction of business. In order to provide for direct communication between representatives of the Board and the Independent Auditors for the Corporation, the Audit Committee, in furtherance of this charge, shall have the following duties and responsibilities: (1) To recommend to the Board the public accounting firm (the "Independent Auditors") to be engaged to conduct the annual financial audit of the Corporation. (2) To discuss with such Independent Auditors the scope of their examination which shall be in accordance with generally accepted auditing standards with appropriate reports thereon to be submitted to the Board. (3) To review with the Independent Auditors and appropriate financial officers and Management of the Corporation, the annual financial statements and the Independent Auditors' report thereon. (4) To invite comments and recommendations from the Independent Auditors regarding the need for and/or results of the reviews of those financial statements and other documents and data reviewed or certified by such Independent Auditors. (5) To invite comments and recommendations from the Independent Auditors regarding the system of internal controls, accounting policies and practices, and any other related matters employed by the Corporation. (6) To meet with the Corporation's internal auditor in order to ensure, as a part of the system of internal controls, that an adequate program of internal auditing is being continuously carried out, to determine that the Corporation's internal audit staff is adequate and to review the findings of such staff's investigations. (7) To report periodically regarding its activities to the Board and to make such recommendations and findings concerning any audit or audit-related matter as the Audit Committee deems appropriate. Section 10. - Committee On Management. The Directors shall annually, at their first meeting succeeding the stockholders' meeting at which they are elected, elect from among their number a Committee on Management consisting of at least three members. The members of the Committee on Management shall hold their offices as such for one year and until their successors are elected and qualified, or until their earlier resignation or removal. All vacancies in said Committee shall be filled by the Board. They shall designate one of their number as Chairman of the Committee, and shall keep a separate book of minutes of their proceedings and actions. They shall elect a Secretary to the Committee who shall give notice personally or by mail, telephone, or facsimile to each member of the Committee of all meetings, not later than 12 noon of the day before the meeting, unless a majority of the 7 members of the Committee on Management in office waive notice thereof in writing at or before the meeting in which case the meeting may be held without the aforesaid advance notice. A majority of the members of the Committee on Management shall constitute a quorum for the transaction of business. The Committee on Management shall recommend to the Board nominees for election as Directors and shall consider the performance of incumbent Directors in determining whether to nominate them to stand for reelection. The Committee shall, among other things, consider any major changes in the organization of the Corporation. It shall recommend to the Board the remuneration arrangements for Officers and Directors of the Corporation. The Committee shall recommend to the full Board nominees for Officers of the Corporation. The Committee on Management shall have such additional powers and perform such duties as shall be prescribed by resolution of the Board. Section 11. - Other Committees. The Board is authorized to appoint from among its members 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 three Directors. Section 12. - Fees and Expenses. Each member of the Board, other than salaried Officers and employees, shall be paid an annual retainer fee, payable in quarterly installments, 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 quarterly installments, 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 the Executive Committee, Audit Committee, Committee on Management and any other committee appointed by the Board. Each member shall be paid reasonable traveling expenses incident to attendance at meetings. ARTICLE IV OFFICERS 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, including Co-Presidents, 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 8 transfer and deliver any bonds, stocks or other securities owned by the Corporation. The Chairman of the Board, President and Vice Presidents shall receive such compensation as shall be fixed by the Board. Compensation for Officers other than the Chairman of the Board, President and Vice Presidents shall be fixed by the Chief Executive Officer. 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 or Co-Presidents 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. If the Board has appointed Co-Presidents, they each shall have all the duties, rights, obligations and authority as set forth in these By-laws for a President. (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. (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. 9 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 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 10 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. 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. 11 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. 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. 12 EX-5 4 0004.txt OPINION March 5, 2001 Constellation Energy Group, Inc. c/o David A. Brune 250 W. Pratt Street Baltimore, MD 21201 Gentlemen: The opinion is provided in connection with the Registration Statement filed by Constellation Energy Group, Inc. ("Constellation Energy") to register 13,000,000 additional shares of common stock ("Common Stock"). I am a Senior Counsel in the Corporate Unit of the legal department of Constellation Energy. Constellation Energy is a Maryland corporation. In connection with this opinion I have considered, among other things: (1) the Charter of Constellation Energy; (2) the By-laws of Constellation Energy; (3) the corporate proceedings for the approval and issuance of the Common Stock; (4) the agency agreement and purchase agreement filed as exhibits to the Registration Statement (collectively, the "Purchase Agreements"); (5) the provisions of the Public Utility Holding Company Act of 1935; and (6) such other documents, transactions, and matters of law as I deemed necessary in order to render this opinion. This opinion is subject to the Registration Statement becoming effective under the Securities Act of 1933. It is my opinion that when there has been compliance with the Securities Act and the applicable state securities laws, the Common Stock to be sold by Constellation Energy, when issued, delivered, and paid for in the manner described in the form of the Purchase Agreements will be legally issued, fully paid and nonassessable. I express no opinion as to the law of any jurisdiction other than the law of the State of Maryland and the law of the United States of America. The opinion expressed herein concerns only the effect of the law (excluding the principles of conflicts of law) of the State of Maryland and the United States of America as currently in effect. This opinion is provided to you solely in connection with the filing of the Registration Statement and may not be relied upon by, or quoted to, any other person or entity, in whole or in part, without my prior written consent. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to me in the Registration Statement (and any amendments thereto) or the prospectus constituting a part of the Registration Statement (and any amendments or supplements thereto). In so doing, I do not admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, or the rules and regulations of the Commission promulgated thereunder. Very truly yours, Donna M. Levy 2 EX-23 5 0005.txt CONSENT 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 19, 2000 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, 1999. We also consent to the incorporation by reference of our report dated January 17, 2001 relating to the financial statements, which appears in the Current Report on Form 8-K dated March 5, 2001. We also consent to the references to us under the heading "Experts" in such Registration Statement. PricewaterhouseCoopers LLP Baltimore, Maryland March 5, 2001 EX-24 6 0006.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 C. H. Poindexter and David A. Brune 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 13,000,000 shares of Common Stock (without par value) of said Company, all as authorized by Resolutions adopted by the Board of Directors of Constellation Energy Group, Inc. at meetings held on January 19, 2001 and February 16, 2001, 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 post-effective amendment to any registration statement to be filed with the Securities and Exchange Commission in respect of said Common Stock, to any and all further amendments to any registration statement in respect to said Common Stock, or to any instruments or ocuments filed as part of or in connection with said registration tatement 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, or caused to be subscribed, these presents this 16th day of February, 2001. Signature Principal Executive Officer and Director /s/ C. H. Poindexter ---------------------------------- C. H. Poindexter Chairman of the Board and Director Principal Financial and Accounting Officer /s/ David A. Brune ---------------------------------- David A. Brune Vice President Exhibit 24 Page 2 of 2 Power of Attorney In connection with the registering of common stock not exceeding 13, 000,000 shares Directors /s/ Douglas L. Becker /s/ James T. Brady /s/ Beverly B. Byron /s/ Mayo A. Shattuck, III /s/ J. Owen Cole /s/ Dan A. Colussy /s/ Edward A. Crooke /s/ Roger W. Gale /s/ Jerome W. Geckle /s/ Freeman A. Hrabowski,III /s/ Nancy Lampton /s/ Charles R. Larson /s/ George L. Russell, Jr. /s/ Michael D. Sullivan 2 -----END PRIVACY-ENHANCED MESSAGE-----