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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 5, 1995
REGISTRATION NOS. 33-
33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PECO ENERGY COMPANY PECO ENERGY CAPITAL, L.P.
(EXACT NAME OF REGISTRANT (EXACT NAME OF REGISTRANT AS SPECIFIED IN
AS SPECIFIED IN ITS CHARTER) ITS CERTIFICATE OF LIMITED PARTNERSHIP)
Pennsylvania Delaware
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
4931 6799
(PRIMARY STANDARD INDUSTRIAL CLASSIFICATION CODE NUMBER)
23-0970240 51-0355322
(I.R.S. EMPLOYER IDENTIFICATION NO.)
P.O. Box 8699, 2301 Market Street 1013 Centre Road, Suite 350F
Philadelphia, PA 19101 Wilmington, DE 19805
(215) 841-4000 (302) 998-0592
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF PRINCIPAL EXECUTIVE
OFFICES)
J. B. MITCHELL J. B. MITCHELL
Vice President -- Finance and Treasurer President
P.O. Box 8699, 2301 Market Street P.O. Box 8699, 2301 Market Street
Philadelphia, PA 19101 Philadelphia, PA 19101
(215) 841-4000 (215) 841-4000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
with copies to:
JAMES W. DURHAM, ESQ.
Senior Vice President and General Counsel
P.O. Box 8699, 2301 Market Street, Philadelphia, PA 19101
ROBERT C. GERLACH, ESQ. ROBERT M. JONES, JR., ESQ.
Ballard Spahr Andrews & Ingersoll Drinker Biddle & Reath
1735 Market Street 1345 Chestnut Street
Philadelphia, PA 19103-7599 Philadelphia, PA 19107
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the Registration Statement becomes effective.
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If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE PRICE PER OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) UNIT(2)(3) PRICE(2)(3) FEE(4)
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Trust Receipts representing PECO Energy
Capital, L.P. % Cumulative Monthly
Income Preferred Securities, Series B..... $ % $ $
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PECO Energy Company Guarantee with respect
to PECO Energy Capital, L.P. %
Cumulative Monthly Income Preferred
Securities, Series B...................... $ % $ $
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PECO Energy Company, % Deferrable
Interest Subordinated Debentures, Series
B......................................... $ % $ $
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Total....................................... $135,000,000 100% $135,000,000 $46,552
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(1) There are being registered hereunder a presently indeterminate number of
Trust Receipts, each representing a % Cumulative Monthly Income
Preferred Security, Series B of PECO Energy Capital, L.P., with an
aggregate initial offering price not to exceed $135,000,000 and related
Guarantee and % Deferrable Interest Subordinated Debentures, Series B
of PECO Energy Company for which no separate consideration will be
received.
(2) Estimated solely for the purpose of determining the registration fee.
(3) Exclusive of accrued interest and dividends, if any.
(4) Pursuant to Rule 457(n) and (o), the registration fee is calculated on the
basis of the proposed maximum offering price of the Trust Receipts.
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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.
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CROSS REFERENCE SHEET
PECO ENERGY COMPANY
PECO ENERGY CAPITAL, L.P.
PURSUANT TO ITEM 501(B) OF REGULATION S-K SHOWING
LOCATION IN OFFERING CIRCULAR/PROSPECTUS OF ITEMS OF FORM S-4
FORM S-4 ITEM NO. CAPTION IN OFFERING CIRCULAR/PROSPECTUS
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1. Forepart of Registration Statement and
Outside Front Cover Page of Prospectus... Outside Front Cover Page; Inside Front
Cover Page
2. Inside Front and Outside Back Cover Pages
of Prospectus............................ Inside Front Cover Page; Available
Information; Incorporation of Certain
Documents by Reference; Table of Contents
3. Risk Factors, Ratio of Earnings to Fixed
Charges and Other Information............ Offering Circular/Prospectus Summary;
Certain Investment Considerations; Coverage
Ratios; Selected Consolidated Financial
Data; Comparison of Preferred Trust
Receipts and Depositary Shares; The
Offer -- General; United States Taxation
4. Terms of the Transaction................... Offering Circular/Prospectus Summary
5. Pro Forma Financial Information............ Not Applicable
6. Material Contracts with the Company Being
Acquired................................. Not Applicable
7. Additional Information Required for
Reoffering by Persons and Parties Deemed
to be Underwriters....................... Not Applicable
8. Interests of Named Experts and Counsel..... Legal Matters; Experts
9. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities.............................. Not Applicable
10. Information with Respect to S-3
Registrants.............................. Incorporation of Certain Documents by
Reference
11. Incorporation of Certain Information by
Reference................................ Incorporation of Certain Documents by
Reference
12. Information with Respect to S-2 or S-3
Registrants.............................. Not Applicable
13. Incorporation of Certain Information by
Reference................................ Not Applicable
14. Information with Respect to Registrants
Other than S-3 or S-2 Registrants........ Not Applicable
15. Information with Respect to S-3
Companies................................ Not Applicable
16. Information with Respect to S-2 or S-3
Companies................................ Not Applicable
17. Information with Respect to Companies Other
than S-3 or S-2 Companies................ Not Applicable
18. Information if Proxies, Consents or
Authorizations are to be Solicited....... Not Applicable
19. Information if Proxies, Consents or
Authorizations are not to be Solicited or
in an Exchange Offer..................... Incorporation of Certain Documents by
Reference
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JULY , 1995
OFFERING CIRCULAR/PROSPECTUS
PECO ENERGY COMPANY
OFFER TO EXCHANGE
TRUST RECEIPTS ("TOPRS SM") EACH REPRESENTING A
% CUMULATIVE MONTHLY INCOME PREFERRED SECURITY,
SERIES B OF PECO ENERGY CAPITAL, L.P.
(STATED LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
FOR UP TO 5,400,000 OUTSTANDING DEPOSITARY SHARES
EACH REPRESENTING A ONE-FOURTH INTEREST IN A SHARE OF $7.96
CUMULATIVE PREFERRED STOCK
OF
PECO ENERGY COMPANY
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON , 1995,
UNLESS THE OFFER IS EXTENDED.
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PECO Energy Company, a Pennsylvania corporation ("PECO Energy"), hereby
offers, upon the terms and subject to the conditions set forth in this Offering
Circular/Prospectus and the accompanying Letter of Transmittal (the "Letter of
Transmittal" which, together with this Offering Circular/Prospectus, constitute
the "Offer"), to effect the exchange (the "Exchange") of Trust Receipts, each
representing a % Cumulative Monthly Income Preferred Security, Series B,
representing a limited partner interest issued by PECO Energy Capital, L.P., a
limited partnership formed under the laws of the State of Delaware ("PECO Energy
Capital"), for up to 5,400,000 depositary shares (the "Depositary Shares"), each
representing a one-fourth interest in a share of $7.96 Cumulative Preferred
Stock of PECO Energy. The Trust Receipts are hereinafter referred to as the
"Preferred Trust Receipts" and the underlying % Cumulative Monthly Income
Preferred Securities, Series B of PECO Energy Capital are hereinafter referred
to as the "Series B Preferred Securities."
Exchanges will be made on the basis of one Preferred Trust Receipt for each
Depositary Share validly tendered and accepted for exchange in the Offer.
Depositary Shares not accepted for exchange because of proration or otherwise
will be returned.
IN ORDER TO PARTICIPATE IN THE OFFER, HOLDERS OF DEPOSITARY SHARES MUST
EITHER SUBMIT A LETTER OF TRANSMITTAL OR SUBMIT A NOTICE OF GUARANTEED DELIVERY
AND COMPLY WITH THE OTHER PROCEDURES FOR TENDERING IN ACCORDANCE WITH THE
INSTRUCTIONS CONTAINED HEREIN AND IN THE LETTER OF TRANSMITTAL PRIOR TO 12:00
MIDNIGHT, NEW YORK CITY TIME, ON , 1995 (THE "EXPIRATION DATE").
Application has been made to list the Preferred Trust Receipts on the New
York Stock Exchange (the "NYSE").
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SEE "CERTAIN INVESTMENT CONSIDERATIONS" FOR A DISCUSSION OF CERTAIN FACTORS
RELATING TO THE PREFERRED TRUST RECEIPTS THAT SHOULD BE CONSIDERED BY INVESTORS,
INCLUDING THE PERIOD DURING WHICH AND CIRCUMSTANCES UNDER WHICH DISTRIBUTIONS ON
THE UNDERLYING SERIES B PREFERRED SECURITIES MAY BE DEFERRED AND THE RELATED
FEDERAL INCOME TAX CONSEQUENCES.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR BY ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
OFFERING CIRCULAR/PROSPECTUS, AND ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
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NO RECOMMENDATION TO HOLDERS OF DEPOSITARY SHARES TO TENDER OR TO REFRAIN
FROM TENDERING IN THE OFFER IS MADE BY PECO ENERGY, THE BOARD OF DIRECTORS OF
PECO ENERGY, PECO ENERGY CAPITAL OR THE GENERAL PARTNER OF PECO ENERGY CAPITAL.
HOLDERS OF DEPOSITARY SHARES ARE URGED TO CONSULT THEIR FINANCIAL AND TAX
ADVISERS IN MAKING THEIR DECISIONS ON WHAT ACTION TO TAKE IN LIGHT OF THEIR OWN
PARTICULAR CIRCUMSTANCES.
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PECO Energy will pay to Soliciting Dealers (as defined herein) designated by
the record or beneficial owner, as appropriate, of Depositary Shares a
solicitation fee of $ per Depositary Share validly tendered and accepted
for exchange pursuant to the Offer and to Merrill Lynch & Co., as Dealer
Manager, a fee of $ per Depositary Share tendered pursuant to the Offer,
subject to certain conditions. Soliciting Dealers are not entitled to a
solicitation fee for Depositary Shares beneficially owned by such Soliciting
Dealer. See "The Offer -- Dealer Manager; Soliciting Dealers."
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The Dealer Manager for the Offer is:
MERRILL LYNCH & CO.
THE DATE OF THIS OFFERING CIRCULAR/PROSPECTUS IS , 1995.
"TOPrS" is a service mark of Merrill Lynch & Co., Inc.
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DIAGRAM OF OFFER
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(1) Depositary Shares
(2) Series B Subordinated Debentures*
(3) Series B Preferred Securities
(4) Preferred Trust Receipts**
* The principal amount of the Series B Subordinated Debentures delivered to
PECO Energy Capital pursuant to the Exchange will be equal to the aggregate
stated liquidation preference of the Series B Preferred Securities issued
in connection with the Offer. PECO Energy Capital will also purchase Series
B Subordinated Debentures with a principal amount equal to the proceeds
received by PECO Energy Capital from the issuance of additional general
partner interests to PECO Energy Capital Corp., the general partner.
** Holders of Depositary Shares who participate in the Offer will receive one
Preferred Trust Receipt for each outstanding Depositary Share that is
validly tendered and accepted for exchange.
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DIAGRAM OF OFFER SHOWING END RESULT
FOR HOLDERS OF DEPOSITARY SHARES
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* Holders of Depositary Shares who participate in the Offer will receive one
Preferred Trust Receipt for each outstanding Depositary Share that is validly
tendered and accepted for exchange.
DIAGRAM OF PAYMENT
FLOWS AFTER COMPLETION
OF THE EXCHANGE
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THE OFFER OTHER THAN THOSE CONTAINED IN THIS
OFFERING CIRCULAR/PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS SHOULD NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY PECO
ENERGY, PECO ENERGY CAPITAL OR THE DEALER MANAGER. NEITHER THE DELIVERY OF THIS
OFFERING CIRCULAR/PROSPECTUS NOR ANY EXCHANGE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF PECO ENERGY OR PECO ENERGY CAPITAL SINCE THE RESPECTIVE DATES AS OF
WHICH INFORMATION IS GIVEN HEREIN. THE OFFER IS NOT BEING MADE TO (NOR WILL
TENDERS BE ACCEPTED FROM OR ON BEHALF OF) HOLDERS OF DEPOSITARY SHARES IN ANY
JURISDICTION IN WHICH THE MAKING OF THE OFFER OR THE ACCEPTANCE THEREOF WOULD
NOT BE IN COMPLIANCE WITH THE LAWS OF SUCH JURISDICTION. HOWEVER, PECO ENERGY
AND PECO ENERGY CAPITAL MAY, AT THEIR DISCRETION, TAKE SUCH ACTION AS THEY MAY
DEEM NECESSARY TO MAKE THE OFFER IN ANY SUCH JURISDICTION AND EXTEND THE OFFER
TO HOLDERS OF DEPOSITARY SHARES IN SUCH JURISDICTION. IN ANY JURISDICTION THE
LAWS OF WHICH REQUIRE THE OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, THE
OFFER IS BEING MADE ON BEHALF OF PECO ENERGY BY THE DEALER MANAGER OR ONE OR
MORE REGISTERED BROKERS OR DEALERS WHICH ARE LICENSED UNDER THE LAWS OF SUCH
JURISDICTION.
AVAILABLE INFORMATION
PECO Energy is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy and information statements and other information
with the Securities and Exchange Commission (the "SEC"). Such reports, proxy and
other information filed by PECO Energy may be inspected and copied at the public
reference facilities maintained by the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at certain of its regional offices at Suite 1400,
500 West Madison Street, Chicago, IL 60661-2511 and Suite 1300, 7 World Trade
Center, New York, NY 10048. Copies of such material may also be obtained from
the Public Reference Section of the SEC at 450 Fifth Street, N.W., Washington,
D.C. 20549 at prescribed rates. Securities of PECO Energy are listed on the New
York and Philadelphia Stock Exchanges, where reports, proxy material and other
information concerning PECO Energy may be inspected.
No separate financial statements of PECO Energy Capital have been included
herein. PECO Energy and PECO Energy Capital do not consider that such financial
statements would be material to holders of Preferred Trust Receipts offered
hereby because PECO Energy Capital is a special purpose entity, has no
independent operations and is not engaged in, and does not propose to engage in,
any activity other than as set forth below. See "PECO Energy Capital."
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the SEC pursuant to Section 13 of the
Exchange Act by PECO Energy (File No. 1-1401) are incorporated herein by
reference:
1. PECO Energy's Annual Report on Form 10-K for the year ended
December 31, 1994;
2. PECO Energy's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995; and
3. PECO Energy's Current Reports on Form 8-K dated February 2, 1995,
May 24, 1995 and June 15, 1995.
Each document filed subsequent to the date of this Offering
Circular/Prospectus pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act and prior to the termination of the offering shall be deemed to be
incorporated by reference in this Offering Circular/Prospectus and shall be a
part hereof from the date of filing of such document. Any statement contained
herein or in a document all or a portion of which is incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Offering Circular/Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Offering
Circular/Prospectus.
THIS OFFERING CIRCULAR/PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH
ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. PECO ENERGY UNDERTAKES TO
PROVIDE WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM
AN OFFERING CIRCULAR/PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST OF
SUCH PERSON, A COPY OF ANY OR ALL DOCUMENTS DESCRIBED ABOVE UNDER "INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE," OTHER THAN EXHIBITS TO SUCH DOCUMENTS. SUCH
REQUESTS SHOULD BE DIRECTED TO PECO ENERGY COMPANY, FINANCIAL DIVISION, S21-1,
P.O. BOX 8699, PHILADELPHIA, PA 19101, (215) 841-5741. IN ORDER TO ENSURE TIMELY
DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE NOT LATER THAN FIVE
BUSINESS DAYS PRIOR TO THE EXPIRATION DATE.
TABLE OF CONTENTS
PAGE
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Offering Circular/Prospectus Summary..................................................
Certain Investment Considerations.....................................................
Comparison of Preferred Trust Receipts and Depositary Shares..........................
PECO Energy...........................................................................
PECO Energy Capital...................................................................
Coverage Ratios.......................................................................
Selected Consolidated Financial Data..................................................
The Offer.............................................................................
Listing and Trading of Preferred Trust Receipts and Depositary Shares.................
Transactions and Arrangements Concerning the Offer....................................
Fees and Expenses; Transfer Taxes.....................................................
Price Range of Depositary Shares......................................................
Description of the Preferred Trust Receipts...........................................
Description of the Series B Preferred Securities......................................
Description of the Series B Guarantee.................................................
Description of the Series B Subordinated Debentures and the Indenture.................
Description of the Depositary Shares..................................................
United States Taxation................................................................
Legal Matters.........................................................................
Experts...............................................................................
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OFFERING CIRCULAR/PROSPECTUS SUMMARY
The following summary does not purport to be complete and is qualified in
its entirety by the more detailed information contained elsewhere in, or
incorporated by reference in, this Offering Circular/Prospectus.
PECO ENERGY
PECO Energy Company, incorporated in Pennsylvania in 1929, is an operating
utility which provides electric and gas service to the public in southeastern
Pennsylvania. In 1994, PECO Energy's total revenues were $4 billion, with
approximately 90% derived from its electric business and 10% from its gas
business. PECO Energy's mailing address is P.O. Box 8699, Philadelphia, PA
19101, and its telephone number is (215) 841-4000.
PECO ENERGY CAPITAL
PECO Energy Capital, L.P. is a limited partnership formed in 1994 under the
laws of the State of Delaware solely for the purpose of issuing one or more
series of its limited partner interests (the "Preferred Securities") and lending
the proceeds thereof to PECO Energy and entering into similar arrangements. PECO
Energy Capital's mailing address is 1013 Centre Road, Suite 350F, Wilmington, DE
19805, and its telephone number is (302) 998-0592.
THE OFFER
Subject to the terms and conditions set forth herein and in the Letter of
Transmittal, PECO Energy offers to effect the exchange of Preferred Trust
Receipts, each representing a Series B Preferred Security, for up to 5,400,000
Depositary Shares. The exchange of Preferred Trust Receipts for Depositary
Shares will be effected by (a) the delivery by PECO Energy of its %
Deferrable Interest Subordinated Debentures, Series B (the "Series B
Subordinated Debentures") to First Chicago Trust Company of New York (the
"Exchange Agent"), which will receive the Series B Subordinated Debentures on
behalf of the Holders (as defined herein) of the Depositary Shares in exchange
for Depositary Shares, (b) the delivery by the Exchange Agent (acting pursuant
to the directions of the Holders of the Depositary Shares) of the Series B
Subordinated Debentures to PECO Energy Capital in consideration for the issuance
and deposit by PECO Energy Capital of the Series B Preferred Securities to PECO
Energy Capital Trust I under a Trust Agreement (the "Trust Agreement") with PNC
Bank, Delaware, as Trustee (the "Trustee") and (c) the issuance and delivery by
the Trust of the Preferred Trust Receipts to the Exchange Agent for distribution
to the former Holders of the Depositary Shares.
On July 3, 1995, the last day of trading prior to the first public
announcement of the Offer, the closing sales price of the Depositary Shares on
the NYSE as reported on the Composite Tape was $25 1/8 per share. Holders of
Depositary Shares are urged to obtain a current market quotation for the
Depositary Shares.
PURPOSE OF THE OFFER
- The purpose of the Offer is to reduce the after-tax financing costs of
PECO Energy through the replacement of Depositary Shares with Preferred
Trust Receipts.
POTENTIAL BENEFITS TO EXCHANGING HOLDERS
- The rate of Distributions on the Preferred Trust Receipts will be
basis points greater than the dividend rate on the Depositary Shares.
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- Dividends on the Depositary Shares accumulate but do not compound.
Monthly Distributions on Preferred Trust Receipts will be cumulative and
monthly Distributions in arrears after the monthly payment date therefor
will accumulate additional Distributions thereon at the Distribution
rate. The term "Distributions" as used herein shall include, as
applicable, monthly distributions and distributions on monthly
distributions in arrears. Monthly Distributions on the Series B Preferred
Securities underlying the Preferred Trust Receipts will be made from
interest payments by PECO Energy on the Series B Subordinated Debentures.
PECO Energy can defer such interest payments for up to 60 consecutive
months (the "Extension Period"). During such deferral, PECO Energy may
not pay dividends on any of its capital stock, including the Depositary
Shares. PECO Energy currently believes that it is unlikely that it (a)
will discontinue declaring dividends on its capital stock, including the
Depositary Shares, or (b) defer interest payments on the Series B
Subordinated Debentures.
- Monies for Distributions and liquidation and redemption payments on the
Preferred Trust Receipts will only be available if PECO Energy pays
principal and interest on the Series B Subordinated Debentures. Although
the Series B Subordinated Debentures are subordinated to all Senior
Indebtedness (as defined herein) of PECO Energy ($5.1 billion at March
31, 1995) and the Payment and Guarantee Agreement delivered by PECO
Energy for the benefit of the holders of the Series B Preferred
Securities (the "Series B Guarantee") is subordinated to all creditors of
PECO Energy, in the event of a liquidation of PECO Energy, the Series B
Subordinated Debentures and the Series B Guarantee must be satisfied in
full before the holders of PECO Energy's preferred stock, including the
Depositary Shares, will be entitled to any liquidation payments.
- The Series B Preferred Securities and Preferred Trust Receipts will be
redeemed upon payment at maturity of the Series B Subordinated Debentures
on , 2025. As a result, the Preferred Trust Receipts are
effectively subject to mandatory redemption; in contrast the Depositary
Shares could remain outstanding indefinitely.
POTENTIAL DISADVANTAGES TO EXCHANGING HOLDERS
- Participation in the Offer will be a taxable event for Holders of
Depositary Shares; Holders of Depositary Shares should consult their tax
advisers.
- If PECO Energy elects to defer payments of interest on the Series B
Subordinated Debentures by extending the interest period thereon,
Distributions on the Preferred Trust Receipts would also be deferred but
the holders of the Preferred Trust Receipts would continue to accrue
interest income (as original issue discount) in respect of the Preferred
Trust Receipts which will be taxable to owners of the Preferred Trust
Receipts. As a result, owners of the Preferred Trust Receipts during an
Extension Period of interest on the Series B Subordinated Debentures will
include their pro rata share of the interest in gross income in advance
of the receipt of cash.
- Holders of Preferred Trust Receipts will have no voting rights with
respect to PECO Energy. If preferred dividends of PECO Energy are in
arrears in an aggregate amount equivalent to four full quarterly dividend
payments, the holders of PECO Energy's preferred stock, including Holders
of Depositary Shares, have the right to elect the least number of
directors necessary to constitute a majority of the full board of
directors of PECO Energy.
- While the Depositary Shares are not redeemable prior to October 1, 1997,
the Series B Preferred Securities (and thus the Preferred Trust Receipts)
in certain circumstances will be redeemable prior to that date upon the
occurrence of a Tax Event (as defined herein) or an Investment Company
Act Event (as defined herein).
- While dividends on the Depositary Shares are eligible for the dividends
received deduction for corporate holders, distributions on the Preferred
Trust Receipts are not eligible for the dividends received deduction for
corporate holders.
- While application has been made for listing the Preferred Trust Receipts
on the NYSE, the Preferred Trust Receipts have not yet been approved for
listing. Even if the Preferred Trust Receipts are
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approved for listing, the Preferred Trust Receipts are a new issue of
securities with no established trading market.
- Holders of the Depositary Shares are entitled to participate in PECO
Energy's Dividend Reinvestment and Stock Purchase Plan. Holders of
Preferred Trust Receipts will not be entitled to participate in such
plan.
POTENTIAL RISK TO NON-EXCHANGING HOLDERS
- The liquidity and trading market for Depositary Shares which are not
exchanged in the Offer could be adversely affected by the reduction in
the number of publicly traded Depositary Shares resulting from the Offer.
For more detailed information concerning the potential disadvantages to
exchanging Holders of Depositary Shares and the potential risk to non-exchanging
Holders of Depositary Shares, see "Certain Investment Considerations" and
"United States Taxation" herein.
TERMS OF THE OFFER
BASIS OF EXCHANGE: One Preferred Trust Receipt for each Depositary
Share validly tendered and accepted.
MAXIMUM NUMBER OF SHARES;
PRORATION: The Offer is for up to 5,400,000 Depositary Shares,
unless reduced by PECO Energy in its sole
discretion. If more than 5,400,000 Depositary
Shares are validly tendered, acceptance of
Depositary Shares of each tendering Holder will
be pro rated.
EXPIRATION DATE: 12:00 Midnight, New York City time on ,
1995 unless extended by PECO Energy in its sole
discretion or as required by law.
EXCHANGE DATE: The date of issuance of the Preferred Trust
Receipts will be five Business Days following the
Expiration Date or up to 12 Business Days
following the Expiration Date if proration of
tendered Depositary Shares is required.
WITHDRAWALS: Any time prior to Expiration Date and, unless
accepted for exchange, at any time after 40
Business Days (defined, for purposes of the
Offer, as any day other than a Saturday, Sunday
or federal holiday) from , 1995.
AMENDMENT; TERMINATION: PECO Energy may amend or terminate the Offer and
not accept any Depositary Shares at any time
prior to the Expiration Date, provided PECO
Energy will not accept Depositary Shares if as of
the Expiration Date for any reason there would be
fewer than 400 record or beneficial holders of
Preferred Trust Receipts as a result of the
Exchange.
PROCEDURES FOR TENDERING: In order to participate in the Offer, Holders of
Depositary Shares must submit a Letter of
Transmittal or Notice of Guaranteed Delivery and
comply with the other procedures for tendering in
accordance with instructions contained herein and
in the Letter of Transmittal prior to the
Expiration Date.
LETTERS OF TRANSMITTAL, DEPOSITARY SHARES AND ANY OTHER REQUIRED DOCUMENTS
SHOULD BE SENT ONLY TO THE EXCHANGE AGENT, NOT TO PECO ENERGY, PECO ENERGY
CAPITAL, THE TRUSTEE, THE DEALER MANAGER OR THE INFORMATION AGENT.
BENEFICIAL OWNERS: Any beneficial owner of Depositary Shares
registered in the name of a broker/dealer,
commercial bank, trust company or other nominee
who
5
11
wishes to tender must instruct such registered
holder to tender on behalf of such beneficial
owner.
GUARANTEED DELIVERY
PROCEDURES: A tender may be effected in accordance with the
guaranteed delivery procedures set forth in "The
Offer -- Procedures for Tendering -- Guaranteed
Delivery."
EXCHANGE AGENT: First Chicago Trust Company of New York.
INFORMATION AGENT: Georgeson & Company Inc.
DEALER MANAGER: Merrill Lynch & Co.
Questions and requests for assistance, requests for additional copies of
this Offering Circular/Prospectus or of the Letter of Transmittal and requests
for Notices of Guaranteed Delivery should be directed to the Information Agent.
The address and telephone number of the Information Agent are set forth in "The
Offer -- Exchange Agent and Information Agent" and on the outside back cover of
this Offering Circular/Prospectus. Questions with respect to the Offer may be
directed to the Merrill Lynch & Co. Capital Markets Desk at (212) 449-4913.
PREFERRED TRUST RECEIPTS
NATURE OF SECURITY: Each Preferred Trust Receipt represents a Series B
Preferred Security
DISTRIBUTIONS: Cumulative Distributions at the annual rate
of % per annum payable monthly in arrears.
Distributions in arrears after the monthly
payment date therefor will accumulate additional
Distributions thereon at the Distribution rate.
Additionally, the Preferred Trust Receipts will
accrue an additional distribution at the rate of
7.96% per annum of the liquidation amount thereof
from August 1, 1995 up to but not including the
Exchange Date, payable on the first Distribution
payment date.
DENOMINATIONS: $25 per Preferred Trust Receipt corresponding to
the stated liquidation preference of Series B
Preferred Securities.
FORM: Certificated or Book-Entry
REDEMPTION: Upon any redemption of Series B Preferred
Securities, which are subject to the following
redemptions:
Optional:
(i) After October 1, 1997
(ii) Upon a Tax Event
Mandatory:
(i) Upon an Investment Company Event
(ii) Upon payment at maturity of the Series B Subordinated
Debentures on , 2025
(iii) Upon redemption of the Series B Subordinated
Debentures, which are subject to optional redemption
upon a Tax Event or after October 1, 1997
LISTING: Application has been made for listing the Preferred
Trust Receipts on the NYSE. In order to satisfy
the NYSE listing requirements, acceptance of
Depositary Shares validly tendered in the Offer
is subject to the condition that as of the
Expiration Date there be at least 400 record or
beneficial holders of Preferred Trust Receipts to
be issued in exchange for such Depositary Shares,
which condition may not be waived.
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12
SERIES B SUBORDINATED
DEBENTURES: The Distribution rate and the Distribution and
other payment dates for the Series B Preferred
Securities represented by the Preferred Trust
Receipts will correspond to the interest rate and
the interest and other payment dates of the
Series B Subordinated Debentures issued to PECO
Energy Capital concurrently with the issuance of
the Series B Preferred Securities. The Series B
Subordinated Debentures will be issued under PECO
Energy's Indenture dated as of July 1, 1994
between PECO Energy and Meridian Trust Company,
as trustee (the "Indenture Trustee") as
supplemented by a First Supplemental Indenture
dated as of , 1995 (as so supplemented,
the "Indenture").
SERIES B GUARANTEE: The Series B Guarantee guarantees payment of
accumulated and unpaid monthly Distributions,
amounts payable upon redemption, and amounts
payable upon liquidation with respect to the
Series B Preferred Securities, in each case, only
to the extent that PECO Energy Capital has funds
on hand legally available therefor and payment
does not violate applicable law. If PECO Energy
fails to make interest payments on its Series B
Subordinated Debentures, PECO Energy Capital will
not have sufficient funds to pay Distributions on
the Series B Preferred Securities. The Series B
Guarantee does not cover payment of Distributions
when PECO Energy Capital does not have sufficient
funds to pay such Distributions. In such event,
the remedy of a holder of Series B Preferred
Securities is to enforce the rights of PECO
Energy Capital under the Series B Subordinated
Debentures.
SUBORDINATION OF PECO
ENERGY OBLIGATIONS: The obligations of PECO Energy under the Series B
Guarantee are subordinate and junior in right of
payment to all general liabilities of PECO Energy
and its obligations under the Series B
Subordinated Debentures are subordinate and
junior in right of payment to all present and
future Senior Indebtedness of PECO Energy, which
aggregated approximately $5.1 billion at March
31, 1995.
CERTAIN UNITED STATES INCOME TAX CONSIDERATIONS
The Exchange will be a taxable event. Gain or loss generally will be
recognized in an amount equal to the difference between the fair market value on
the Exchange Date of the Holder's pro rata share of the Series B Subordinated
Debentures deemed received in the exchange and the exchanging Holder's tax basis
in the Depositary Shares surrendered. For this purpose, the fair market value of
the Series B Subordinated Debentures deemed issued in exchange for Depositary
Shares on the Exchange Date will equal the fair market value of the Preferred
Trust Receipts on that date. See "United States Taxation -- Receipt of
Depositary Shares for Preferred Trust Receipts."
No portion of the amounts received on the Preferred Trust Receipts will be
eligible for the dividends received deduction.
The Preferred Trust Receipts may trade at a price that does not fully
reflect the value of accrued but unpaid interest with respect to the Series B
Subordinated Debentures. Each holder of Preferred Trust Receipts (a
"Securityholder") who disposes of his Preferred Trust Receipts between record
dates for payments of distributions thereon will nevertheless be required to
include his pro rata share of accrued but unpaid interest on the Series B
Subordinated Debentures allocable monthly to the Trust through the date of
disposition in income as ordinary income, and to add such amount to his adjusted
tax basis in his pro rata share of the Series B Preferred Securities deemed
disposed of. Accordingly, such a Securityholder will recognize a capital loss to
the extent the selling price (which may not fully reflect the value of accrued
but unpaid interest) is less than the Securityholder's adjusted tax basis (which
will include accrued but unpaid interest). Subject to certain limited
exceptions, capital losses cannot be applied to offset ordinary income for
United States federal income tax purposes.
7
13
CERTAIN INVESTMENT CONSIDERATIONS
Holders of the Depositary Shares who plan to participate in the Offer
should carefully consider, in addition to the information set forth elsewhere in
this Offering Circular/Prospectus, the following:
TAX CONSEQUENCES OF THE EXCHANGE
The Exchange will be a taxable event. Generally, gain or loss will be
recognized in an amount equal to the difference between the fair market value on
the Expiration Date of the Holder's pro rata share of the Series B Subordinated
Debentures deemed received in the Exchange and the exchanging Holder's tax basis
in the Depositary Shares exchanged. See "United States Taxation -- Receipt of
Depositary Shares for Preferred Trust Receipts." All Holders of the Depositary
Shares are advised to consult their tax advisers regarding the United States
federal, state, local and foreign tax consequences of the exchange of the
Depositary Shares and the issuance of Preferred Trust Receipts.
SUBORDINATE OBLIGATIONS OF SERIES B GUARANTEE AND SERIES B SUBORDINATED
DEBENTURES
PECO Energy's obligations under the Series B Guarantee are subordinate and
junior in right of payment to all general liabilities of PECO Energy and its
obligations under the Series B Subordinated Debentures are subordinate and
junior in right of payment to all Senior Indebtedness of PECO Energy. At March
31, 1995, the Senior Indebtedness of PECO Energy aggregated $5.1 billion. There
are no terms in the Series B Subordinated Debentures or the Series B Guarantee
that limit PECO Energy's ability to incur additional indebtedness, including
indebtedness that ranks senior to the Series B Subordinated Debentures and the
Series B Guarantee. The Series B Guarantee guarantees payment of accumulated and
unpaid monthly distributions, amounts payable on redemption, and amounts payable
on liquidation with respect to the Series B Preferred Securities, in each case,
however, only to the extent that PECO Energy Capital has funds on hand legally
available therefor and payment thereof does not otherwise violate applicable
law. If PECO Energy were to default on its obligation to pay interest or amounts
payable on redemption or maturity of the Series B Subordinated Debentures, PECO
Energy Capital would lack legally available funds for the payment of
Distributions or amounts payable on redemption of the Series B Preferred
Securities or upon liquidation of PECO Energy Capital, and in such event the
holders of the Preferred Trust Receipts representing the Series B Preferred
Securities would not be able to rely upon the Series B Guarantee for payment of
such amounts. Instead, holders of the Preferred Trust Receipts representing the
Series B Preferred Securities would be required to seek enforcement of PECO
Energy Capital's rights against PECO Energy pursuant to the terms of the
Indenture. See "Description of the Series B Guarantee -- Status of the Series B
Guarantee" and "Description of the Series B Subordinated Debentures and the
Indenture -- Subordination."
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX IMPACT OF EXTENSION
PECO Energy has the right under the Indenture to extend interest payment
periods on the Series B Subordinated Debentures for up to 60 consecutive months,
and, as a consequence, monthly Distributions on the Series B Preferred
Securities can be deferred by PECO Energy Capital during any such extended
interest payment period. Distributions in arrears after the monthly payment date
therefor will accumulate additional distributions thereon at the rate per annum
of % thereof. In the event PECO Energy exercises its right to extend the
interest payment periods on the Series B Subordinated Debentures, PECO Energy
may not declare dividends on any shares of its capital stock during such
extension period. PECO Energy currently believes that the extension of an
interest payment period is unlikely. See "Description of the Series B
Subordinated Debentures and the Indenture -- Option to Extend Interest Payment
Period."
Should an extended interest payment period occur, PECO Energy Capital will
continue to accrue income for United States federal income tax purposes which
will be allocated, but not distributed, to the holders of the Preferred Trust
Receipts, as the owners for tax purposes of the Series B Preferred Securities
represented by the Preferred Trust Receipts. As a result, the owner will include
such interest in gross income for United States federal income tax purposes in
advance of the receipt of cash, and will not receive the cash related to
8
14
such income if the owner disposes of the Preferred Trust Receipts prior to the
record date for payment of Distributions. See "United States
Taxation -- Potential Extension of Payment Period."
LISTING AND TRADING OF PREFERRED TRUST RECEIPTS AND DEPOSITARY SHARES
The Preferred Trust Receipts constitute a new issue of securities with no
established trading market. Application has been made for listing the Preferred
Trust Receipts on the NYSE. Listing on the NYSE will be subject to meeting the
requirements of the NYSE. Even if approval for listing is received, there can be
no assurance that an active market for the Preferred Trust Receipts will develop
or be sustained in the future on the NYSE. Although the Dealer Manager has
indicated to PECO Energy and PECO Energy Capital that it intends to make a
market in the Preferred Trust Receipts as permitted by applicable laws and
regulations prior to the commencement of trading on the NYSE, it is not
obligated to do so and may discontinue any such market-making at any time
without notice. Accordingly, no assurance can be given as to the liquidity of,
or trading markets for, the Preferred Trust Receipts. In order to satisfy the
NYSE listing requirements, acceptance of Depositary Shares validly tendered in
the Offer is subject to the condition that as of the Expiration Date there be at
least 400 record or beneficial holders of Preferred Trust Receipts as a result
of the Exchange, which condition may not be waived by PECO Energy.
The liquidity and trading market for Depositary Shares which are not
exchanged in the Offer could be adversely affected by the reduction in the
number of publicly traded Depositary Shares resulting from the Offer. The Offer
is for up to 5,400,000 Depositary Shares (or 96.4% of the 5,600,000 Depositary
Shares outstanding) rather than for all the outstanding Depositary Shares, to
reduce the risk that the Depositary Shares would be subject to delisting
following consummation of the Offer.
Under the rules of the NYSE, preferred securities such as the Depositary
Shares are subject to delisting if (i) the aggregate value of publicly held
shares is less than $2 million and (ii) the number of publicly held shares is
less than 100,000. Since at least 200,000 Depositary Shares will remain
outstanding following consummation of the Offer, the number of outstanding
Depositary Shares will exceed the delisting criteria set forth in clause (ii)
above. In addition, based on the market price of the Depositary Shares on the
NYSE ($25 1/8 on July 3, 1995, the closing sales price of the Depositary Shares
on the NYSE on the last trading day immediately prior to PECO Energy's first
public announcement of the Offer, and $ on , 1995), PECO
Energy believes that the aggregate value of the minimum number (200,000) of
Depositary Shares which will be outstanding following consummation of the Offer
should exceed the delisting criteria set forth in clause (i) above. See "Price
Range of Depositary Shares." If less than 5,400,000 Depositary Shares are
validly tendered, then the number of Depositary Shares remaining outstanding,
and the aggregate value thereof, will be even greater.
POSSIBLE REDEMPTION OF PREFERRED TRUST RECEIPTS PRIOR TO OCTOBER 1, 1997
The Depositary Shares are not subject to redemption prior to October 1,
1997. Except as described below, the Series B Preferred Securities will not be
subject to redemption prior to October 1, 1997. If a Tax Event shall occur and
be continuing, the Series B Preferred Securities will be subject to redemption,
at the option of PECO Energy Capital Corp., a Delaware corporation and a wholly
owned subsidiary of PECO Energy, as the sole general partner (the "General
Partner") of PECO Energy Capital, in whole or in part. If an Investment Company
Act Event shall occur and be continuing, the Series B Preferred Securities will
be subject to mandatory redemption following the occurrence of such event. In
the event the Series B Preferred Securities are redeemed, an equal amount of
Preferred Trust Receipts will be redeemed. See "Description of the Series B
Preferred Securities -- Special Event Redemptions" and "Description of the
Series B Subordinated Debentures and the Indenture -- General."
9
15
COMPARISON OF PREFERRED TRUST RECEIPTS AND DEPOSITARY SHARES
The following is a brief summary of certain terms of the Preferred Trust
Receipts and the Depositary Shares. For a more complete description of the
Preferred Trust Receipts, see "Description of the Preferred Trust Receipts" and
"Description of the Series B Preferred Securities." For a more complete
description of the Series B Subordinated Debentures which will represent the
sole source for the payment of distributions and other payments on the Series B
Preferred Securities represented by the Preferred Trust Receipts, see
"Description of the Series B Subordinated Debentures and the Indenture."
PREFERRED TRUST RECEIPTS DEPOSITARY SHARES
-------------------------------- --------------------------------
Nature of Security....... Represents a Series B Preferred A one-fourth interest in $7.96
Security, which represents a Cumulative Preferred Stock
limited partner interest in PECO issued by PECO Energy.
Energy Capital.
Distribution/Dividend
Rate................... % per annum payable $1.99 ($7.96 per share of $7.96
monthly in arrears on the Cumulative Preferred Stock) per
last day of each month of each annum payable on February 1, May
year, commencing 1, August 1 and November 1 of
, 1995 from and including the each year, out of funds legally
Exchange Date but only if, and available therefor, when, as and
to the extent that, if declared by PECO Energy's
Distributions are made in Board of Directors. Dividends
respect of the Series B are cumulative. Accumulated
Preferred Securities. unpaid dividends do not
Distributions in arrears after accumulate additional dividends
the monthly payment date thereon.
therefor, including during any
Extension Period for the Series
B Subordinated Debentures,
accumulate additional
Distributions thereon at the
rate of % per annum.
Optional Redemption...... See "Maturity/Mandatory Redeemable at the option of PECO
Redemption" below. Energy on and after October 1,
1997, in whole or in part, at a
redemption price equal to 100%
of the stated liquidation
preference of the shares to be
redeemed, plus accrued and
unpaid dividends, if any, to the
redemption date.
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PREFERRED TRUST RECEIPTS DEPOSITARY SHARES
-------------------------------- --------------------------------
Maturity/Mandatory
Redemption............. The Preferred Trust Receipts None
will be redeemed upon: (1) the
redemption of the Series B
Preferred Securities upon the
payment at maturity of the
Series B Subordinated
Debentures, (2) optional
redemption, in whole or in part,
of the Series B Subordinated
Debentures or Series B Preferred
Securities on or after October
1, 1997 or (3) the optional
redemption of the Series B
Preferred Securities upon the
occurrence of a Tax Event or
mandatory redemption of the
Series B Preferred Securities
upon occurrence of an Investment
Company Act Event. Any such
redemption of the Preferred
Trust Receipts will be at a
redemption price equal to 100%
of the stated liquidation
preference of the Series B
Preferred Securities to be
redeemed, plus accrued and
unpaid Distributions, if any, to
the redemption date, including
Distributions accrued as a
result of PECO Energy's election
to defer payments of interest on
the Series B Subordinated
Debentures. The Series B
Subordinated Debentures have a
final maturity of ,
2025. See "Description of the
Preferred Trust Receipts --
Redemption of Preferred Trust
Receipts" and "Description of
the Series B Preferred
Securities -- Mandatory
Redemption" and "-- Special
Event Redemptions."
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PREFERRED TRUST RECEIPTS DEPOSITARY SHARES
-------------------------------- --------------------------------
Subordination............ The Series B Preferred Subordinate to claims of
Securities will rank subordinate creditors of PECO Energy,
to claims of creditors of PECO including the Subordinated
Energy Capital, but senior to Debentures, but senior to the
the general partner interests in common stock of PECO Energy and
PECO Energy Capital and pari pari passu with all other
passu with all other Preferred outstanding series of preferred
Securities of PECO Energy stock of PECO Energy.
Capital. The obligations of PECO
Energy under the Series B
Guarantee are subordinate and
junior in right of payment to
all general liabilities of PECO
Energy and its obligations under
the Series B Subordinated
Debentures are subordinate and
junior in right of payment to
all present and future Senior
Indebtedness of PECO Energy,
which aggregated approximately
$5.1 billion at March 31, 1995,
but senior in payment to all
capital stock of PECO Energy,
including the Depositary Shares.
Listing.................. Application has been made for The Depositary Shares are listed
listing the Preferred Trust on the NYSE.
Receipts on the NYSE. In order
to satisfy the NYSE listing
requirements, acceptance of
Depositary Shares validly
tendered in the Offer is subject
to the condition that as of the
Expiration Date there be at
least 400 record or beneficial
holders of Preferred Trust
Receipts to be issued in
exchange for such Depositary
Shares, which condition may not
be waived.
Federal Income Tax
Consequences of
Distributions/
Dividends.............. Distributions are not eligible Dividends are eligible for the
for the dividends received dividends received deduction for
deduction for corporate holders. corporate holders.
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PREFERRED TRUST RECEIPTS DEPOSITARY SHARES
-------------------------------- --------------------------------
Voting
Rights/Enforcement..... If (i) PECO Energy Capital fails If dividends shall be in arrears
to pay Distributions in full on in an aggregate amount
any series of the Preferred equivalent to four quarterly
Securities for 18 consecutive dividend payments, the holders
monthly distribution periods, of PECO Energy preferred stock,
(ii) an Event of Default (as including the holders of
defined in the Indenture) occurs Depositary Shares, have the
and is continuing, or (iii) PECO right to elect the smallest
Energy is in default on any of number of directors necessary to
its payment obligations under constitute a majority of the
the Payment and Guarantee full board of directors of PECO
Agreements (the "Guarantees") Energy.
relating to the Preferred
Securities issued by PECO Energy
Capital, then the holders of the
Preferred Securities, including
the Trust acting through the
Trustee at the direction of the
holders of the Preferred Trust
Receipts, acting as a single
class, will be entitled by a
vote of the majority of the
aggregate stated liquidation
preference of the outstanding
Preferred Securities to appoint
a special representative (the
"Special Representative") to
enforce PECO Energy Capital's
rights against PECO Energy under
the Deferrable Interest
Subordinated Debentures of PECO
Energy (the "Subordinated
Debentures") and the Indenture
and the obligations undertaken
by PECO Energy under the
Guarantees, including, after
failure to pay distributions for
60 consecutive monthly
distribution periods on the
Preferred Securities, the
payment of distributions on the
Preferred Securities.
PECO ENERGY
PECO Energy, incorporated in Pennsylvania in 1929, is an operating utility
which provides electric and gas service to the public in southeastern
Pennsylvania. The total area served by PECO Energy covers 2,107 square miles.
Electric service is supplied in an area of 1,972 square miles with a population
of about 3,638,000, including 1,600,000 in the City of Philadelphia.
Approximately 94% of the electric service area and 63% of retail kilowatthour
sales are in the suburbs around Philadelphia, and 6% of the service area and 37%
of such sales are in the City of Philadelphia. In 1994, approximately 60% of
PECO Energy's electric output was generated from nuclear sources. PECO Energy
estimates for 1995 that 59% of its electric output will come from nuclear
sources. Natural gas service is supplied in a 1,475-square-mile area of
southeastern Pennsylvania adjacent to Philadelphia with a population of
1,900,000. PECO Energy and its subsidiaries hold franchises to the extent
necessary to operate in the areas served.
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PECO ENERGY CAPITAL
PECO Energy Capital is a limited partnership formed in 1994 under the laws
of the State of Delaware. All of its general partner interests are owned by PECO
Energy Capital Corp., as the General Partner. As a limited partnership, all of
the business and affairs of PECO Energy Capital are managed by the General
Partner. PECO Energy Capital was created solely for the purpose of issuing the
Preferred Securities and lending the proceeds thereof to PECO Energy, and
entering into similar financing arrangements. Such loans are evidenced by the
Subordinated Debentures issued by PECO Energy under the Indenture. The
Subordinated Debentures are the only assets of PECO Energy Capital and the only
revenues of PECO Energy Capital are interest on the Subordinated Debentures. The
General Partner pays all of PECO Energy Capital's operating expenses and has
general liability for all of PECO Energy Capital's obligations.
COVERAGE RATIOS
PECO Energy's Ratio of Earnings to Fixed Charges for each of the periods
indicated was as follows:
3 MONTHS
ENDED MARCH
YEARS ENDED DECEMBER 31, 31,
- ---------------------------------------- -------------
1990 1991 1992 1993 1994 1994 1995
- ---- ---- ---- ---- ---- ---- ----
1.31(1) 2.55 2.43 3.15 2.66(2) 3.58 3.36
The Ratio of Earnings to Fixed Charges represents, on a pre-tax basis, the
number of times earnings cover fixed charges. Earnings consist of net income to
which has been added fixed charges and taxes based on income of PECO Energy.
Fixed charges consist of interest on funded indebtedness, other interest,
amortization of net gain on reacquired debt and net discount on debt and the
interest portion of all rentals charged to income.
PECO Energy's Ratio of Earnings to Combined Fixed Charges and Preferred
Stock Dividends for each of the periods indicated was as follows:
3 MONTHS
ENDED MARCH
YEARS ENDED DECEMBER 31, 31,
- ---------------------------------------- -------------
1990 1991 1992 1993 1994 1994 1995
- ---- ---- ---- ---- ---- ---- ----
1.04(1) 2.14 2.06 2.67 2.32(2) 3.05 3.07
- ---------------
(1) Reflects the one-time, after-tax charge against income of $250 million
associated with various disallowances made by the Pennsylvania Public
Utility Commission in the Limerick Unit No. 2 rate order and the one-time,
after-tax charge against income of $150 million associated with PECO
Energy's 1990 early retirement plan.
(2) Reflects a one-time after-tax charge against income of $254 million
associated with early retirement and separation programs.
The Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends represents, on a pre-tax basis, the number of times earnings cover
fixed charges and preferred stock dividends. Earnings consist of net income to
which has been added fixed charges and taxes based on income of PECO Energy.
Combined fixed charges and preferred stock dividends consist of interest on
funded indebtedness, other interest, amortization of net gain on reacquired debt
and net discount on debt, preferred stock dividends (increased to reflect the
pre-tax earnings required to cover such dividend requirements) and the interest
portion of all rentals charged to income.
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SELECTED CONSOLIDATED FINANCIAL DATA
Reference is made to PECO Energy's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 (the "Form 10-K"), which is incorporated by
reference in this Offering Circular/Prospectus and which contains PECO Energy's
audited consolidated financial statements, including the consolidated income
statement for the three fiscal years in the period ended December 31, 1994,
consolidated balance sheets as of December 31, 1993 and 1994, and the related
notes. Selected unaudited financial information as of and for the three months
ended March 31, 1994 and 1995 should be read in conjunction with the audited
consolidated financial statements and related notes contained in the Form 10-K
and the unaudited consolidated financial statements contained in PECO Energy's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1995, which report
is also incorporated by reference in this Offering Circular/Prospectus. Such
unaudited information reflects, in the opinion of management, all adjustments,
consisting of only normal accruals, necessary for a consistent presentation with
the audited financial information. Results of operations for the three months
ended March 31, 1995 are not necessarily indicative of the results to be
expected for the full fiscal year.
THREE MONTHS
ENDED MARCH 31,
YEARS ENDED DECEMBER 31,
--------------------- -----------------------------------------------------------
1995 1994 1994 1993 1992 1991 1990
--------- --------- --------- --------- --------- --------- ---------
(MILLIONS OF DOLLARS)
SUMMARY OF EARNINGS
Operating Revenues........................ $ 1,058.6 $ 1,128.4 $ 4,040.6 $ 3,988.1 $ 3,962.5 $ 4,018.6 $ 3,786.7
Operating Income.......................... 256.7 260.3 829.6 1,035.4 1,033.4 1,081.2 767.7
Income from Continuing Operations......... 152.0 159.4 426.7 590.6 478.9 534.7 105.8
Net Income................................ 152.0 159.4 426.7 590.6 478.9 534.7 214.2
Earnings Applicable to Common Stock....... 145.9 148.6 389.4(2) 541.6 418.2 468.6 123.9(1)
Earnings Per Average Common Share From
Continuing Operations (Dollars)......... 0.66 0.67 1.76 2.45 1.90 2.15 0.07
Earnings Per Average Common Shares
(Dollars)............................... 0.66 0.67 1.76 2.45 1.90 2.15 0.58
Dividends Per Common Share (Dollars)...... 0.405 0.38 1.545 1.43 1.325 1.225 1.45
Common Stock Equity (Per Share)........... 19.67 19.53 19.41 19.25 18.24 17.69 16.71
Average Shares of Common Stock Outstanding
(Millions).............................. 221.7 221.5 221.6 221.1 220.2 218.2 214.4
FINANCIAL CONDITION AT END OF PERIOD
Net Utility Plant, at Original Cost....... 10,815.3 10,735.1 10,828.7 10,763.0 10,691.2 10,598.4 10,591.3
Leased Property, Net...................... 170.7 180.4 174.6 194.7 210.0 223.8 241.3
Total Current Assets...................... 565.8 635.9 454.8 514.8 550.0 783.2 745.0
Total Deferred Debits and Other Assets.... 3,626.8 3,634.0 3,634.7 3,559.8 1,127.0 918.1 938.6
--------- --------- --------- --------- --------- --------- ---------
Total Assets............................ $15,178.6 $15,185.4 $15,092.8 $15,032.3 $12,578.2 $12,523.5 $12,516.2
======== ======== ======== ======== ======== ======== ========
Common Shareholders' Equity............... $ 4,362.3 $ 4,327.8 $ 4,302.5 $ 4,263.4 $ 4,022.2 $ 3,892.3 $ 3,624.5
Preferred and Preference Stock
Without Mandatory Redemption............ 277.5 422.5 277.5 422.5 422.5 422.5 422.5
With Mandatory Redemption............... 92.7 185.4 92.7 186.5 231.1 315.6 330.9
Guaranteed Interest in Preferred
Securities of Partnership............... 221.3 -- 221.3 -- -- -- --
Long-Term Debt............................ 4,602.3 4,775.8 4,785.6 4,884.3 5,203.9 5,415.6 5,830.8
--------- --------- --------- --------- --------- --------- ---------
Total Capitalization...................... 9,556.1 9,711.5 9,679.6 9,756.7 9,879.7 10,046.0 10,208.7
--------- --------- --------- --------- --------- --------- ---------
Total Current Liabilities................. 1,075.1 1,085.9 878.6 954.6 830.6 823.4 783.8
--------- --------- --------- --------- --------- --------- ---------
Total Deferred Credits and Other
Liabilities............................. 4,547.4 4,388.0 4,534.6 4,321.0 1,867.9 1,654.1 1,523.7
--------- --------- --------- --------- --------- --------- ---------
Total Capitalization and Liabilities...... $15,178.6 $15,185.4 $15,092.8 $15,032.3 $12,578.2 $12,523.5 $12,516.2
======== ======== ======== ======== ======== ======== ========
- ---------------
(1) Reflects the one-time, after-tax charge against income of $250 million
associated with various disallowances made by the Pennsylvania Public
Utility Commission in the Limerick Unit No. 2 rate order and the one-time,
after-tax charge against income of $150 million associated with PECO
Energy's 1990 early retirement plan.
(2) Reflects a one-time after-tax charge against income of $254 million
associated with early retirement and separation programs.
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THE OFFER
PURPOSE OF THE OFFER
The purpose of the Offer is to reduce the after-tax financing costs of PECO
Energy through the replacement of Depositary Shares with Preferred Trust
Receipts. Although the Distribution rate on the Preferred Trust Receipts will be
higher than the dividend rate on the Depositary Shares, PECO Energy will deduct
interest payable on the Series B Subordinated Debentures for federal income tax
purposes; dividends payable on the Depositary Shares are not deductible by PECO
Energy for federal income tax purposes.
Except as described herein, PECO Energy has no present plans or intentions
to make acquisitions of or offers for the Depositary Shares. PECO Energy will
continue to monitor the market for the Depositary Shares outstanding after the
expiration of the Offer and reserves the right, in its sole discretion, subject
to applicable law, to acquire and to make offers for Depositary Shares
subsequent to the Expiration Date for cash or in exchange for other securities,
by optional redemption of the Depositary Shares, after October 1, 1997, or
otherwise. The terms of any such acquisitions or offers may differ from the
terms of the Offer. Such acquisitions or offers, if any, may depend upon, among
other things, the market price of the Depositary Shares, and general economic
and market conditions.
GENERAL
PARTICIPATION IN THE OFFER IS VOLUNTARY AND HOLDERS OF DEPOSITARY SHARES
SHOULD CAREFULLY CONSIDER WHETHER TO ACCEPT. NO RECOMMENDATION TO HOLDERS TO
TENDER OR TO REFRAIN FROM TENDERING IN THE OFFER IS MADE BY PECO ENERGY, THE
BOARD OF DIRECTORS OF PECO ENERGY, PECO ENERGY CAPITAL OR THE GENERAL PARTNER.
HOLDERS OF DEPOSITARY SHARES ARE URGED TO CONSULT THEIR FINANCIAL AND TAX
ADVISERS IN MAKING THEIR DECISIONS ON WHAT ACTION TO TAKE IN LIGHT OF THEIR OWN
PARTICULAR CIRCUMSTANCES.
Holders of Depositary Shares will not have any appraisal or dissenters'
rights under the Pennsylvania Business Corporation Law in connection with the
Offer. PECO Energy intends to conduct the Offer in accordance with the
applicable requirements of the Exchange Act and the rules and regulations of the
SEC thereunder. PECO Energy has received all regulatory approvals necessary to
consummate the Exchange.
Unless the context requires otherwise, the term "Holder" with respect to
the Offer means (i) any person in whose name any Depositary Shares are
registered on the books of the Depositary or (ii) any other person who has
obtained a properly completed stock power from the registered Holder, or (iii)
any person whose Depositary Shares are held of record by The Depository Trust
Company ("DTC"), Philadelphia Depository Trust Company or Midwest Securities
Trust Company (collectively, the "Depositories" and each, a "Depository") who
desires to deliver such Depositary Shares by book-entry transfer at such
Depository.
The $7.96 Cumulative Preferred Stock represented by the Depositary Shares
exchanged pursuant to the Offer will be retired. PECO Energy will take all
actions necessary to restore such retired Preferred Stock to the status of
authorized but unissued Preferred Stock which may thereafter be reissued.
TERMS OF THE OFFER
Upon the terms and subject to the conditions set forth herein and in the
Letter of Transmittal, PECO Energy will offer to effect an exchange of Preferred
Trust Receipts for up to 5,400,000 outstanding Depositary Shares. The exchange
of Preferred Trust Receipts for Depositary Shares will be effected by (a) the
delivery by PECO Energy of its Series B Subordinated Debentures to the Exchange
Agent, which will receive the Series B Subordinated Debentures on behalf of the
Holders of the Depositary Shares, in exchange for Depositary Shares, (b) the
delivery by the Exchange Agent (acting pursuant to the directions of the Holders
of Depositary Shares) of the Series B Subordinated Debentures to PECO Energy
Capital in consideration for the issuance and deposit by PECO Energy Capital of
the Series B Preferred Securities to and with the Trust under the Trust
Agreement and (c) the issuance and delivery by the Trust of the Preferred Trust
Receipts to the Exchange Agent for distribution to the former Holders of the
Depositary Shares.
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Holders of Depositary Shares will not have the right to retain the Series B
Subordinated Debentures delivered to the Exchange Agent in exchange for
Depositary Shares validly tendered and accepted. The Offer will be effected on
the basis of one Preferred Trust Receipt for each Depositary Share validly
tendered and accepted for exchange. See "-- Procedures for Tendering." Upon the
terms and subject to the conditions set forth herein and in the Letter of
Transmittal, PECO Energy will accept up to 5,400,000 Depositary Shares validly
tendered and not withdrawn prior to the Expiration Date and, unless the Offer
has been withdrawn or terminated, PECO Energy will cause to be delivered
Preferred Trust Receipts to tendering Holders of Depositary Shares as promptly
as practicable following the Exchange Date. PECO Energy expressly reserves the
right, in its sole discretion, to delay acceptance for exchange of Depositary
Shares tendered under the Offer and the delivery of the Preferred Trust Receipts
with respect to the Depositary Shares accepted for exchange (subject to Rules
13e-4 and 14e-1 under the Exchange Act, which require that PECO Energy
consummate the Offer or return the Depositary Shares deposited by or on behalf
of the Holders thereof promptly after the termination or withdrawal of the
Offer), or to withdraw or terminate the Offer at any time prior to the
Expiration Date for any reason.
In all cases, except to the extent waived by PECO Energy, delivery of
Preferred Trust Receipts issued with respect to the Depositary Shares accepted
for exchange pursuant to the Offer will be made only after timely receipt by the
Exchange Agent of Depositary Shares (or confirmation of book-entry transfer
thereof), a properly completed and duly executed Letter of Transmittal or
Agent's Message (as defined herein), as applicable, and any other documents
required thereby.
As of the date of this Offering Circular/Prospectus, there are 5,600,000
Depositary Shares outstanding. This Offering Circular/Prospectus, together with
the Letter of Transmittal, is being sent to all registered Holders as of
, 1995.
PECO Energy will accept validly tendered Depositary Shares (or defectively
tendered Depositary Shares with respect to which PECO Energy has waived such
defect) by giving oral or written notice thereof to the Exchange Agent. The
Exchange Agent will act as agent for the tendering Holders for the purpose of
receiving Depositary Shares from, and remitting Preferred Trust Receipts to,
tendering Holders who are participating in the Offer and whose shares are
accepted. Upon the terms and subject to the conditions of the Offer, delivery of
Preferred Trust Receipts to tendering Holders will be made as promptly as
practicable following the Expiration Date.
Unless proration is necessary, the Preferred Trust Receipts will be issued
and distributed by the Exchange Agent on the fifth Business Day after the
Expiration Date, or up to 12 Business Days following the Expiration Date if
proration of tendered Depositary Shares is required. If proration of tendered
Depositary Shares is required, because of the difficulty in determining the
number of Depositary Shares validly tendered (including shares tendered by the
guaranteed delivery procedures described in "-- Procedures for Tendering"), PECO
Energy does not expect that it would be able to announce the final proration
factor or to commence the Exchange for any Depositary Shares pursuant to the
Offer until approximately seven Business Days after the Expiration Date.
Preliminary results of the proration will be announced by press release as
promptly as practicable after the Expiration Date. Holders of Depositary Shares
may obtain such preliminary information from the Dealer Manager, the Information
Agent or the Exchange Agent and may also be able to obtain such information from
their brokers.
If any tendered Depositary Shares are not accepted for exchange because of
an invalid tender, proration or withdrawal or termination by PECO Energy of the
Offer, unless otherwise requested by the Holder under "Special Delivery
Instructions" in the Letter of Transmittal, such Depositary Shares will be
returned, without expense, to the tendering Holder thereof (or in the case of
Depositary Shares tendered by book-entry transfer into the Exchange Agent's
account at the Depository where such Depositary Shares are held, such Depositary
Shares will be credited to an account maintained at the Depository designated by
the participant therein who so delivered such Depositary Shares), as promptly as
practicable after the Expiration Date or the withdrawal or termination of the
Offer.
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23
Holders who tender Depositary Shares in the Offer will not be required to
pay brokerage commissions or fees or, subject to the instructions in the Letter
of Transmittal, transfer taxes with respect to the exchange of Depositary Shares
pursuant to the Offer. See "Fees and Expenses; Transfer Taxes."
Holders who tender Depositary Shares held in global form shall receive
Preferred Trust Receipts in global form and holders tendering Depositary Shares
held directly in certificated form shall receive Preferred Trust Receipts in
certificated form in each case unless otherwise provided in the Letter of
Transmittal. See "-- Procedures for Tendering."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS; TERMINATION
The Offer will expire on the Expiration Date. PECO Energy reserves the
right to extend the Offer in its sole discretion at any time and from time to
time by giving oral or written notice to the Exchange Agent and by timely public
announcement communicated or as otherwise required by applicable law or
regulation. During any extension of the Offer, all Depositary Shares previously
tendered pursuant to the Offer and not withdrawn will remain subject to the
Offer.
PECO Energy expressly reserves the right to (i) extend, amend or modify the
terms of the Offer in any manner and (ii) withdraw or terminate the Offer and
not accept for exchange any Depositary Shares at any time prior to the
Expiration Date for any reason. PECO also reserves the right to waive any
condition of the Offer, including the condition that at least 2,800,000
Depositary Shares are tendered in the Offer; provided that in order to satisfy
the NYSE listing requirements, acceptance of Depositary Shares validly tendered
in the Offer is subject to the condition that as of the Exchange Date there be
at least 400 record or beneficial holders of Preferred Trust Receipts to be
issued in exchange for such Depositary Shares, which condition may not be
waived. If PECO Energy makes a material change in the terms of the Offer or if
it waives a material condition of the Offer, PECO Energy will extend the Offer.
The minimum period for which the Offer will be extended following a material
change or waiver, other than a change in the amount of Depositary Shares sought
for exchange, the consideration offered therefor or the fee paid to the
Soliciting Dealers, will depend upon the facts and circumstances, including the
relative materiality of the change or waiver. With respect to a change in the
amount of Depositary Shares sought, the consideration offered therefor or the
fee paid to the Soliciting Dealers, if required, the Offer will remain open for
a minimum of ten Business Days following public announcement of such change. Any
withdrawal or termination of the Offer will be followed as promptly as
practicable by public announcement thereof. If PECO Energy withdraws or
terminates the Offer, it will give immediate notice to the Exchange Agent, and
all Depositary Shares theretofore tendered pursuant to the Offer will be
returned promptly to the tendering Holders thereof. See "-- Withdrawal of
Tenders."
ACCUMULATED DIVIDENDS AND DISTRIBUTIONS
The Preferred Trust Receipts will bear Distributions at an annual rate of
% from and including the Exchange Date. Dividends accumulated on the
Depositary Shares which have been accepted for exchange in the Offer after July
31, 1995 will not be paid. In lieu thereof, holders of Preferred Trust Receipts
will be entitled to an additional distribution at the rate of 7.96% per annum
(equal to the dividend rate on the Depositary Shares) from and including August
1, 1995 up to but not including the Exchange Date, payable at the time of the
first Distribution payment on the Preferred Trust Receipts. See "Description of
Preferred Trust Receipts -- Distributions."
PROCEDURES FOR TENDERING
The tender of Depositary Shares by a Holder thereof pursuant to one of the
procedures set forth below will constitute an agreement between such Holder and
PECO Energy in accordance with the terms and subject to the conditions set forth
herein and in the Letter of Transmittal and PECO Energy's right to terminate or
withdraw the Offer at any time for any reason.
EACH HOLDER OF THE DEPOSITARY SHARES WISHING TO PARTICIPATE IN THE OFFER
MUST (I) PROPERLY COMPLETE AND SIGN THE LETTER OF TRANSMITTAL IN ACCORDANCE WITH
THE INSTRUCTIONS CONTAINED HEREIN AND IN THE LETTER OF TRANSMITTAL (EXCEPT WHEN
AN AGENT'S MESSAGE IS APPROPRIATE AND UTILIZED), TOGETHER WITH ANY REQUIRED
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SIGNATURE GUARANTEES, AND DELIVER THE SAME TO THE EXCHANGE AGENT, AT ONE OF ITS
ADDRESSES SET FORTH IN "-- EXCHANGE AGENT AND INFORMATION AGENT" PRIOR TO THE
EXPIRATION DATE AND EITHER (A) CERTIFICATES FOR THE DEPOSITARY SHARES MUST BE
RECEIVED BY THE EXCHANGE AGENT AT SUCH ADDRESS OR (B) SUCH DEPOSITARY SHARES
MUST BE TRANSFERRED PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER DESCRIBED
BELOW AND A CONFIRMATION OF SUCH BOOK-ENTRY TRANSFER MUST BE RECEIVED BY THE
EXCHANGE AGENT, IN EACH CASE PRIOR TO THE EXPIRATION DATE OR (II) COMPLY WITH
THE GUARANTEED DELIVERY PROCEDURES DESCRIBED BELOW. LETTERS OF TRANSMITTAL,
DEPOSITARY SHARES AND ANY OTHER REQUIRED DOCUMENTS SHOULD BE SENT ONLY TO THE
EXCHANGE AGENT, NOT TO PECO ENERGY, PECO ENERGY CAPITAL, THE TRUSTEE, THE DEALER
MANAGER OR THE INFORMATION AGENT.
Special Procedure for Beneficial Owners. Any beneficial owner whose
Depositary Shares are registered in the name of a broker, dealer, commercial
bank, trust company or other nominee and who wishes to tender should contact
such registered Holder promptly and instruct such registered Holder to tender on
such beneficial owner's behalf. If such beneficial owner wishes to tender on its
own behalf, such owner must, prior to completing and executing the Letter of
Transmittal and delivering its Depositary Shares, either make appropriate
arrangements to register ownership of the Depositary Shares in such owner's name
or obtain a properly completed stock power from the registered Holder. The
transfer of registered ownership may take considerable time and may not be able
to be completed prior to the Expiration Date.
THE METHOD OF DELIVERY OF DEPOSITARY SHARES AND ALL OTHER DOCUMENTS IS AT
THE ELECTION AND RISK OF THE HOLDER. IF SENT BY MAIL, IT IS RECOMMENDED THAT (A)
REGISTERED MAIL, RETURN RECEIPT REQUESTED, BE USED, (B) INSURANCE BE OBTAINED,
AND (C) THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE EXPIRATION DATE TO
PERMIT DELIVERY TO THE EXCHANGE AGENT ON OR BEFORE THE EXPIRATION DATE.
Signature Guarantees. If tendered Depositary Shares are registered in the
name of the signer of the Letter of Transmittal and the Preferred Trust Receipts
to be issued in exchange therefor are to be issued (and any untendered
Depositary Shares are to be reissued) in the name of the registered holder
(which includes any participant in a Depository whose name appears on a security
listing as the owner of Depositary Shares), the signature of such signer need
not be guaranteed. If the tendered Depositary Shares are registered in the name
of someone other than the signer of the Letter of Transmittal, or if Preferred
Trust Receipts issued in exchange therefor are to be issued in the name of any
other person other than the signer of the Letter of Transmittal, such tendered
Depositary Shares must be endorsed or accompanied by written instruments of
transfer in form satisfactory to First Chicago Trust Company of New York,
transfer agent for the Depositary Shares, and duly executed by the registered
Holder, and the signature on the endorsement or instrument of transfer must be
guaranteed by a financial institution (including most banks, savings and loans
associations and brokerage houses) that is a participant in the Security
Transfer Agents Medallion Program or the Stock Exchange Medallion Program (any
of the foregoing hereinafter referred to as an "Eligible Institution"). If the
Depositary Shares not exchanged are to be delivered to an address other than
that of the registered Holder appearing on the register for the Depositary
Shares, the signature in the Letter of Transmittal must be guaranteed by an
Eligible Institution.
Book-Entry Transfer. PECO Energy understands that the Exchange Agent has
an account or will make a request promptly after the date of this Offering
Circular/Prospectus to establish accounts with respect to the Depositary Shares
at DTC and such other Depositories which hold Depositary Shares for the purpose
of facilitating the Offer, and subject to the establishment thereof, any
financial institution that is a participant in DTC's or such other Depository's
system may make book-entry delivery of Depositary Shares by causing DTC or such
other Depository to transfer such Depositary Shares into the Exchange Agent's
account with respect to the Depositary Shares in accordance with DTC's Automated
Tender Offer Program ("ATOP") procedures, in the case of DTC, or the procedures
of such other Depository, in the case of such other Depository, for such
book-entry transfers. However, the exchange for the Depositary Shares so
tendered will only be made after timely confirmation (a "Book-Entry
Confirmation") of such book-entry transfer of Depositary Shares into the
Exchange Agent's account, and timely receipt by the Exchange Agent of an Agent's
Message (as such term is defined in the next sentence), in the case of a
book-entry transfer effected by DTC, or the Letter of
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Transmittal and any other documents required by the Letter of Transmittal, in
the case of DTC or any other Depository.
The term "Agent's Message" means a message, transmitted by DTC and received
by the Exchange Agent and forming a part of a Book-Entry Confirmation, which
states that DTC has received an express acknowledgment from a participant
tendering Depositary Shares that are the subject of such Book-Entry Confirmation
that such participant has received and agrees to be bound by the terms of the
Letter of Transmittal, and that PECO Energy may enforce such agreement against
such participant.
Guaranteed Delivery. If a Holder desires to participate in the Offer and
time will not permit a Letter of Transmittal or Depositary Shares to reach the
Exchange Agent before the Expiration Date or the procedure for book-entry
transfer cannot be completed on a timely basis, a tender may be effected if the
Exchange Agent has received at its office prior to the Expiration Date a Notice
of Guaranteed Delivery from an Eligible Institution setting forth the name and
address of the tendering Holder, the name(s) in which the Depositary Shares are
registered and, if the Depositary Shares are held in certificated form, the
certificate numbers of the Depositary Shares to be tendered, and stating that
the tender is being made thereby and guaranteeing that within three NYSE trading
days after the date of execution of such Notice of Guaranteed Delivery by the
Eligible Institution, the Depositary Shares in proper form for transfer together
with a properly and duly executed Letter of Transmittal (and any other required
documents), or a confirmation of book-entry transfer of such Depositary Shares
into the Exchange Agent's account at a Depository with a Letter of Transmittal
(and any other required documents) or, in the case of DTC, an Agent's Message,
will be delivered by such Eligible Institution. Unless the Depositary Shares
being tendered by the above-described method are deposited with the Exchange
Agent within the time period set forth above (accompanied or preceded by a
properly completed Letter of Transmittal and any other required documents) or a
confirmation of book-entry transfer of such Depositary Shares into the Exchange
Agent's account at a Depository, in accordance with such Depository's procedures
(accompanied or preceded by a properly completed Letter of Transmittal and any
other required documents) or, in the case of DTC, in accordance with DTC's ATOP
procedures (along with a Letter of Transmittal or an Agent's Message), is
received, PECO Energy may, at its option, reject the tender. In addition to the
copy being transmitted herewith, copies of a Notice of Guaranteed Delivery which
may be used by Eligible Institutions for the purposes described in this
paragraph are available from the Exchange Agent and the Information Agent.
Miscellaneous. All questions as to the validity, form, eligibility
(including time of receipt) and acceptance for exchange of any tender of
Depositary Shares will be determined by PECO Energy, whose determination will be
final and binding. PECO Energy reserves the absolute right to reject any or all
tenders not in proper form or the acceptance for exchange of which may, in the
opinion of PECO Energy's counsel, be unlawful. PECO Energy also reserves the
absolute right to waive any defect or irregularity in the tender of any
Depositary Shares, and PECO Energy's interpretation of the terms and conditions
of the Offer (including the instructions in the Letter of Transmittal) will be
final and binding. None of PECO Energy, the Exchange Agent, the Dealer Manager,
the Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification.
Tenders of Depositary Shares involving any irregularities will not be
deemed to have been made until such irregularities have been cured or waived.
Depositary Shares received by the Exchange Agent that are not validly tendered
and as to which the irregularities have not been cured or waived will be
returned by the Exchange Agent to the tendering Holder (or in the case of
Depositary Shares tendered by book-entry transfer into the Exchange Agent's
account at DTC or such other Depository, such Depositary Shares will be credited
to an account maintained at DTC or such other Depository designated by the
participant therein who so delivered such Depositary Shares), unless otherwise
requested by the Holder in the Letter of Transmittal, as promptly as practicable
after the Expiration Date or the withdrawal or termination of the Offer.
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LETTER OF TRANSMITTAL
The Letter of Transmittal contains, among other things, the following terms
and conditions, which are part of the Offer.
The party tendering Depositary Shares for exchange (the "Transferor")
sells, assigns and transfers the Depositary Shares to PECO Energy, and
irrevocably constitutes and appoints the Exchange Agent as the Transferor's
agent and attorney-in-fact to cause the Depositary Shares to be assigned,
transferred and exchanged. The Letter of Transmittal directs the Exchange Agent
to deliver the Series B Subordinated Debentures received upon exchange of the
Depositary Shares to PECO Energy Capital. The Transferor represents and warrants
that it has full power and authority to tender, exchange, assign and transfer
the Depositary Shares and to acquire Preferred Trust Receipts issuable upon the
exchange of such tendered Depositary Shares and that, when such Transferor's
Depositary Shares are accepted for exchange, PECO Energy will acquire good and
unencumbered title to such shares of tendered Depositary Shares, free and clear
of all liens, restrictions, charges and encumbrances and not subject to any
adverse claim. The Transferor also warrants that it will, upon request, execute
and deliver any additional documents deemed by PECO Energy to be necessary or
desirable to complete the exchange, assignment and transfer of tendered
Depositary Shares or transfer ownership of such Depositary Shares. All authority
conferred by the Transferor will survive the death, bankruptcy or incapacity of
the Transferor and every obligation of the Transferor shall be binding upon the
heirs, legal representatives, successors, assigns, executors and administrators
of such Transferor.
WITHDRAWAL OF TENDERS
Tenders of Depositary Shares pursuant to the Offer may be withdrawn at any
time prior to the Expiration Date and, unless accepted for exchange by PECO
Energy, may be withdrawn at any time after 40 Business Days from ,
1995.
To be effective, a written notice of withdrawal delivered by mail, hand
delivery or facsimile transmission must be timely received by the Exchange Agent
at the address set forth below under "-- Exchange Agent and Information Agent."
The method of notification is at the risk and election of the Holder. Any such
notice of withdrawal must specify (i) the Holder named in the Letter of
Transmittal as having tendered Depositary Shares to be withdrawn, (ii) if the
Depositary Shares are held in certificated form, the certificate numbers of the
Depositary Shares to be withdrawn, (iii) that such Holder is withdrawing his
election to have such Depositary Shares exchanged and (iv) the name of the
registered Holder of such Depositary Shares. Any notice of withdrawal must be
signed by the Holder in the same manner as the original signature on the Letter
of Transmittal (including any required signature guarantees) or be accompanied
by evidence satisfactory to PECO Energy that the person withdrawing the tender
has succeeded to the beneficial ownership of the Depositary Shares being
withdrawn. The Exchange Agent will return the properly withdrawn Depositary
Shares promptly following receipt of notice of withdrawal. If Depositary Shares
have been tendered pursuant to the procedure for book-entry transfer, any notice
of withdrawal must specify the name and number of the account at DTC or other
Depository to be credited with the withdrawn Depositary Shares and otherwise
comply with DTC's or such other Depository's procedures. All questions as to the
validity of notice of withdrawal, including time of receipt, will be determined
by PECO Energy, and such determination will be final and binding on all parties.
Withdrawals of tenders of Depositary Shares may not be rescinded and any
Depositary Shares withdrawn will thereafter be deemed not validly tendered for
purposes of the Offer. Properly withdrawn Depositary Shares, however, may be
retendered by following the procedures therefor described elsewhere herein at
any time prior to the Expiration Date. See "-- Procedures for Tendering."
ACCEPTANCE OF DEPOSITARY SHARES AND PRORATION
Upon the terms and subject to the conditions of the Offer, if 5,400,000
Depositary Shares (or, if decreased as described herein, such lesser number as
PECO Energy may elect to exchange pursuant to the Offer) have been validly
tendered and not withdrawn prior to the Expiration Date, PECO Energy will accept
for exchange all such Depositary Shares. Upon the terms and subject to the
conditions of the Offer, if more than 5,400,000 Depositary Shares (or, if
decreased as described herein, such lesser number) have been validly
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27
tendered and not withdrawn prior to the Expiration Date, PECO Energy will accept
for exchange Depositary Shares from each Holder on a pro rata basis, subject to
adjustment to avoid the acceptance for exchange of fractional shares.
If PECO Energy decreases the amount of Depositary Shares sought, changes
the consideration offered therefor or changes the fee offered to the Soliciting
Dealers, and the Offer is scheduled to expire less than ten Business Days from
and including the date that notice of such decrease is first published, sent or
given in the manner specified above in "-- Expiration Date; Extensions;
Amendments; Termination," then the Offer will be extended for ten Business Days
from and including the date of such notice.
All Depositary Shares not accepted pursuant to the Offer, including
Depositary Shares not purchased because of proration, will be returned to the
tendering Holders at PECO Energy's expense as promptly as practicable following
the Expiration Date.
EXCHANGE AGENT AND INFORMATION AGENT
First Chicago Trust Company of New York has been appointed as the Exchange
Agent for the Offer.
THE EXCHANGE AGENT:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Hand or Overnight Courier in New York:
First Chicago Trust Company of New York
14 Wall Street
Tenders and Exchanges
8th Floor -- Suite 4680-PECO
New York, New York 10005
By Mail:
(Registered or certified mail recommended)
First Chicago Trust Company of New York
Tenders and Exchanges
Suite 4660-PECO
P.O. Box 2559
Jersey City, New Jersey 07303-2559
By Facsimile Transmission
(For Eligible Institutions Only):
(201) 222-4720 or 4721
Confirm Receipt of Notice of Guaranteed Delivery by Telephone:
(201) 222-4707
Georgeson & Company Inc. (the "Information Agent") has been retained by
PECO Energy as the Information Agent to assist in connection with the Offer.
Questions and requests for assistance regarding the Offer, requests for
additional copies of this Offering Circular/Prospectus, the Letter of
Transmittal and requests for Notice of Guaranteed Delivery may be directed to
the Information Agent at Wall Street Plaza, New York, New York 10005. Banks and
brokers call collect: (212) 440-9800; all others telephone (800) 223-2064.
PECO Energy will pay the Exchange Agent and the Information Agent
reasonable and customary fees for their services and will reimburse them for all
their reasonable out-of-pocket expenses in connection therewith.
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DEALER MANAGER; SOLICITING DEALERS
Merrill Lynch & Co., as Dealer Manager, has agreed to solicit exchanges of
Depositary Shares for Preferred Trust Receipts. PECO Energy will pay the Dealer
Manager a fee of $ per Depositary Share tendered and not withdrawn (up
to 5,400,000 Depositary Shares) pursuant to the Offer. The maximum fee payable
to the Dealer Manager is approximately $ plus such amount, if any, that
Merrill Lynch & Co. may be entitled to pursuant to the next paragraph. PECO
Energy will also reimburse the Dealer Manager for certain reasonable
out-of-pocket expenses in connection with the Offer and will indemnify the
Dealer Manager against certain liabilities, including liabilities under the
Securities Act of 1933, as amended ("Securities Act"). Merrill Lynch & Co.
engages in transactions with, and from time to time has performed services for,
PECO Energy, including acting as an underwriter for the issuance of the
Depositary Shares.
PECO Energy will pay to a Soliciting Dealer a solicitation fee of
$ per Depositary Share validly tendered and accepted for exchange
pursuant to the Offer. As used in this Offering Circular/Prospectus, "Soliciting
Dealer" includes (i) any broker or dealer in securities, including the Dealer
Manager in its capacity as a broker or dealer, who is a member of any national
securities exchange or of the National Association of Securities Dealers, Inc.
(the "NASD"), (ii) any foreign broker or dealer not eligible for membership in
the NASD who agrees to conform to the NASD's Rules of Fair Practice in
soliciting tenders outside the United States to the same extent as though it
were an NASD member, or (iii) any bank or trust company, any one of whom has
solicited and obtained a tender pursuant to the Offer. No such fee shall be
payable to a Soliciting Dealer in respect of Depositary Shares registered in the
name of such Soliciting Dealer unless such Depositary Shares are held by such
Soliciting Dealer as nominee and such shares are being tendered for the benefit
of one or more beneficial owners identified on the Letter of Transmittal or on
the Notice of Solicited Tenders (included in the materials provided to brokers
and dealers). No such fee shall be payable to a Soliciting Dealer with respect
to the tender of Depositary Shares by a holder unless the Letter of Transmittal
accompanying such tender designates such Soliciting Dealer as such in the box
captioned "Solicited Tenders" or the Notice of Solicited Tenders accompanying
such tender designates such Soliciting Dealer. No such fee shall be payable to
the Soliciting Dealer with respect to the tender of Depositary Shares by the
holder of record, for the benefit of the beneficial owner, unless the beneficial
owner has designated such Soliciting Dealer. No such fee shall be payable to the
Soliciting Dealer unless the Soliciting Dealer returns a Notice of Solicited
Tenders to the Exchange Agent within five business days after the Expiration
Date. No such fee shall be payable to a Soliciting Dealer if such Soliciting
Dealer is required for any reason to transfer the amount of such fee to a
depositing holder. No broker, dealer, bank, trust company or fiduciary shall be
deemed to be the agent of PECO Energy, PECO Energy Capital, the Exchange Agent,
the Information Agent or the Dealer Manager for purposes of the Offer.
Soliciting Dealers are not entitled to a solicitation fee for Depositary Shares
beneficially owned by such Soliciting Dealer. The maximum fee payable to
Soliciting Dealers is $ , exclusive of the amount that Merrill Lynch &
Co. is entitled to pursuant to the preceding paragraph.
Additional solicitation may be made by telephone or in person by officers
and regular employees of PECO Energy and its affiliates. No additional
compensation will be paid to any such officers and employees who engage in
soliciting tenders.
LISTING AND TRADING OF PREFERRED TRUST RECEIPTS AND DEPOSITARY SHARES
The Preferred Trust Receipts constitute a new issue of securities with no
established trading market. Application has been made for listing the Preferred
Trust Receipts on the NYSE. Even if the Preferred Trust Receipts are approved
for listing, there can be no assurance that an active market for the Preferred
Trust Receipts will develop or be sustained in the future on such exchange.
Although the Dealer Manager has indicated to PECO Energy that it intends to make
a market in the Preferred Trust Receipts as permitted by applicable laws and
regulations prior to the commencement of trading on the NYSE, it is not
obligated to do so and may discontinue any such market-making at any time
without notice. Accordingly, no assurance can be given as to the liquidity of,
or trading markets for, the Preferred Trust Receipts. In order to satisfy the
NYSE listing requirements, acceptance of Depositary Shares validly tendered in
the Offer are subject to the condition
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that as of the Exchange Date there be at least 400 record or beneficial holders
of Preferred Trust Receipts to be issued in exchange for such Depositary Shares,
which condition may not be waived.
To the extent that Depositary Shares are tendered and accepted in the
Offer, the terms on which untendered Depositary Shares could subsequently be
sold could be adversely affected. In addition, if the Offer is substantially
subscribed or oversubscribed, there would be a significant risk that round lot
holdings of Depositary Shares outstanding following the Offer would be limited.
See "Certain Investment Considerations -- Listing and Trading of Preferred Trust
Receipts and Depositary Shares."
TRANSACTIONS AND ARRANGEMENTS CONCERNING THE OFFER
Except as described or referred to herein, there are no material contracts,
arrangements, understandings or relationships in connection with the Offer
between PECO Energy or any of its directors or executive officers, PECO Energy
Capital or the General Partner and any person with respect to the Series B
Subordinated Debentures, the Depositary Shares, the Series B Preferred
Securities and the Preferred Trust Receipts.
FEES AND EXPENSES; TRANSFER TAXES
The expenses of soliciting tenders of the Depositary Shares will be borne
by PECO Energy. For compensation to be paid to the Dealer Manager and Soliciting
Dealers, see "The Offer -- Dealer Manager; Soliciting Dealers." The total cash
expenditures to be incurred by PECO Energy in connection with the Offer, other
than fees payable to the Dealer Manager and Soliciting Dealers, but including
the expenses of the Dealer Manager, accounting and legal fees, and the fees and
expenses of the Exchange Agent, the Information Agent, the Trustee, and Meridian
Trust Company, as trustee under the Indenture (the "Indenture Trustee") are
estimated to be approximately $ .
PECO Energy will pay all transfer taxes, if any, applicable to the exchange
of Depositary Shares pursuant to the Offer. If, however, Depositary Shares not
tendered or accepted for exchange, are to be delivered to, or are to be issued
in the name of, any person other than the registered Holder of the Depositary
Shares tendered or if a transfer tax is imposed for any reason other than the
exchange of Depositary Shares pursuant to the Offer, then the amount of any such
transfer taxes (whether imposed on the registered Holder or any other persons)
will be payable by the tendering Holder. If satisfactory evidence of payment of
such taxes or exemption therefrom is not submitted with the Letter of
Transmittal, the amount of such transfer taxes will be billed directly to such
tendering Holder.
PRICE RANGE OF DEPOSITARY SHARES
The Depositary Shares are listed and principally traded on the NYSE. The
following table sets forth, for each period shown, the high and low sales prices
of the Depositary Shares as reported on the NYSE Composite Tape.
HIGH LOW
--- ---
Fiscal Year Ended December 31, 1993
1st Quarter............................................................ 27 1/8 25
2nd Quarter............................................................ 26 1/2 25 1/2
3rd Quarter............................................................ 27 1/8 26
4th Quarter............................................................ 27 25 3/8
Fiscal Year Ended December 31, 1994
1st Quarter............................................................ 26 3/8 24 1/2
2nd Quarter............................................................ 25 1/4 23 7/8
3rd Quarter............................................................ 25 1/8 23 3/8
4th Quarter............................................................ 24 1/4 21 5/8
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HIGH LOW
--- ---
Fiscal Year Ended December 31, 1995
1st Quarter............................................................ 25 22 3/8
2nd Quarter............................................................
3rd Quarter (through ).......................................
On July 3, 1995 the last day of trading prior to the first public
announcement of the Offer, the closing sales price of the Depositary Shares on
the NYSE as reported on the Composite Tape was $25 1/8 per share. Holders of
Depositary Shares are urged to obtain a current market quotation for the
Depositary Shares.
DESCRIPTION OF THE PREFERRED TRUST RECEIPTS
The Preferred Trust Receipts will be issued by the Trust pursuant to the
Trust Agreement. Each Preferred Trust Receipt represents a Series B Preferred
Security. The Preferred Trust Receipts will be issued in denominations of $25
and integral multiples thereof and will be issued directly to the holders
thereof or in book-entry form through DTC or such other Depository at which the
Exchange Agent may have established an account.
The Trust is a grantor trust created under the Delaware Business Trust Act.
The Trustee will hold the Series B Preferred Securities deposited in the Trust
for the benefit of the holders of the Preferred Trust Receipts. The holders of
the Preferred Trust Receipts will have no right to withdraw Preferred Securities
from the Trust.
DISTRIBUTIONS
Whenever the Trust shall receive any cash distribution representing a
monthly distribution on the Series B Preferred Securities (whether or not
distributed by PECO Energy Capital on the regular monthly distribution date
therefor) or payment under the Series B Guarantee in respect thereof, the
Trustee shall distribute such amounts to the holders of the Preferred Trust
Receipts in proportion to the respective number of Series B Preferred Securities
represented by such Preferred Trust Receipts. The paying agent for the Preferred
Trust Receipts will be First Chicago Trust Company of New York.
REDEMPTION OF PREFERRED TRUST RECEIPTS
Whenever PECO Energy Capital shall elect or is required to redeem Series B
Preferred Securities in accordance with the Amended and Restated Limited
Partnership Agreement of PECO Energy Capital, dated as of July 25, 1994, as
amended (the "Partnership Agreement"), PECO Energy Capital shall give the
Trustee at least 35 days' prior notice thereof. The Trustee will mail the notice
of redemption not less than 30 nor more than 60 days prior to the date fixed for
redemption of the Series B Preferred Securities and the Preferred Trust Receipts
to the holders of the Preferred Trust Receipts. On the date of redemption of the
Series B Preferred Securities, provided that PECO Energy Capital (or PECO Energy
pursuant to the Series B Guarantee) shall have deposited with the Trustee the
aggregate amount payable upon redemption of all Series B Preferred Securities to
be redeemed, the Trustee shall redeem Preferred Trust Receipts representing the
same number of Series B Preferred Securities redeemed by PECO Energy Capital at
the same redemption price at which such Series B Preferred Securities are
redeemed. In the event that fewer than all the outstanding Preferred Trust
Receipts are redeemed, the Preferred Trust Receipts to be redeemed shall be
selected by lot or pro rata or other equitable method determined by the Trustee.
Under the Trust Agreement, PECO Energy Capital agreed that if a partial
redemption of the Series B Preferred Securities would result in a delisting of
the Preferred Trust Receipts from any national exchange on which the Preferred
Trust Receipts are then listed, PECO Energy Capital will only redeem the Series
B Preferred Securities in whole.
PAYMENTS ON LIQUIDATION OF PECO ENERGY CAPITAL
Upon receipt by the Trust of any distribution from PECO Energy Capital upon
liquidation of PECO Energy Capital (or payment by PECO Energy under the Series B
Guarantee in respect thereof), after
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satisfaction of creditors of the Trust as required by applicable law, the
Trustee shall distribute to the holders of the Preferred Trust Receipts such
amounts in proportion to the respective number of Series B Preferred Securities
represented by such Preferred Trust Receipts.
PAYMENTS ON PREFERRED TRUST RECEIPTS
Monthly distributions on the Preferred Trust Receipts in certificated form
will be payable by check to the holders of record on the record date therefor
which will be the fifteenth day (whether or not a business day) of the month.
Payments of the redemption price of the Preferred Trust Receipts in certificated
form and distributions in liquidation will be made at the office of First
Chicago Trust Company of New York, as paying agent, upon surrender of such
Preferred Trust Receipts. Payments on Preferred Trust Receipts in global form
will be made through the appropriate Depository.
TRANSFERS AND EXCHANGES
First Chicago Trust Company of New York will act as transfer agent and
registrar for the Preferred Trust Receipts. Subject to the terms and conditions
of the Trust Agreement, the transfer agent shall register the transfers on its
books from time to time of Preferred Trust Receipts upon any surrender thereof
by the holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement,
together with evidence of the payment of any transfer taxes as may be required
by law.
Upon surrender of Preferred Trust Receipts at the office of the transfer
agent, subject to the terms and conditions of the Trust Agreement, the transfer
agent shall execute and deliver new Preferred Trust Receipts representing the
same number of Series B Preferred Securities as the Preferred Trust Receipts
surrendered.
As a condition precedent to the registration of the transfer or exchange of
any Preferred Trust Receipt, the transfer agent, may require (i) payment to it
of a sum sufficient for the payment of any tax or other governmental charge with
respect thereto; (ii) the production of proof satisfactory to it as to the
identity and genuineness of any signature; and (iii) compliance with such
requirements as the Trustee may establish not inconsistent with the provisions
of the Trust Agreement.
No service charge shall be made to a holder of Preferred Trust Receipts for
any registration of transfer or exchange of Preferred Trust Receipts, but the
Trustee or the registrar shall require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Preferred Trust Receipts.
The transfer agent shall not be required (i) to register the transfer of or
exchange any Preferred Trust Receipts for a period beginning at the opening of
business ten days next preceding any selection of Preferred Trust Receipts to be
redeemed and ending at the close of business on the day of the mailing of a
notice of redemption of Preferred Trust Receipts or (ii) to transfer or exchange
for another Preferred Trust Receipt any Preferred Trust Receipt called or being
called for redemption in whole or in part.
VOTING RIGHTS
If the holders of the Preferred Partner Interests (as defined in the
Partnership Agreement), acting as a single class, are entitled to appoint and
authorize a Special Representative pursuant to the Partnership Agreement, the
Trustee shall notify the holders of the Preferred Trust Receipts of such right,
request direction of each holder of a Preferred Trust Receipt as to the
appointment of a Special Representative and vote the Series B Preferred
Securities represented by such Preferred Trust Receipt in accordance with such
direction. If the General Partner fails to convene a general meeting of PECO
Energy Capital as required in the Partnership Agreement, the Trustee shall
notify the holders of the Preferred Trust Receipts and, if so directed by the
holders of the Preferred Trust Receipts representing Preferred Securities
constituting at least 10% of the aggregate stated liquidation preference of the
outstanding Preferred Partner Interests shall convene such meeting. Under the
Trust Agreement, PECO Energy Capital has agreed that without the consent of the
holders of 66 2/3% in liquidation amount of the Preferred Trust Receipts it may
not consolidate, amalgamate,
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merge with or into, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any corporation or other
entity if, as a result, the Preferred Trust Receipts would be delisted,
downgraded or the holders thereof would recognize any gain or loss for federal
income tax purposes.
Upon receipt of notice of any meeting at which the holders of Series B
Preferred Securities are entitled to vote, the Trustee shall, as soon as
practicable thereafter, mail to the holders of Preferred Trust Receipts a
notice, which shall be provided by the General Partner and which shall contain
(i) such information as is contained in such notice of meeting, (ii) a statement
that the holders of Preferred Trust Receipts will be entitled, subject to any
applicable provision of law, to instruct the Trustee as to the exercise of the
voting rights pertaining to the amount of Series B Preferred Securities
represented by their respective Preferred Trust Receipts, and (iii) a brief
statement as to the manner in which such instructions may be given. Upon the
written request of a holder of a Preferred Trust Receipt, the Trustee shall vote
or cause to be voted the number of Series B Preferred Securities represented by
such Preferred Trust Receipts in accordance with the instructions set forth in
such request.
AMENDMENT AND TERMINATION OF TRUST AGREEMENT
PECO Energy Capital or the General Partner may, and the Trustee shall, at
any time and from time to time enter into one or more agreements supplemental to
the Trust Agreement without the consent of the holders of the Preferred Trust
Receipts: (i) to evidence the succession of another partnership, corporation or
other entity to PECO Energy Capital or the General Partner and the assumption by
any such successor of the covenants of PECO Energy Capital or the General
Partner in the Trust Agreement; (ii) to add to the covenants of PECO Energy
Capital or the General Partner for the benefit of the holders of the Preferred
Trust Receipts, or to surrender any right or power herein conferred upon PECO
Energy Capital or the General Partner; (iii) to correct or supplement any
provision in the Trust Agreement which may be defective or inconsistent with any
other provision therein or to make any other provisions with respect to matters
or questions arising under the Trust Agreement, provided, that any such action
shall not adversely affect the interests of the holders of Preferred Trust
Receipts; or (iv) to cure any ambiguity or correct any mistake.
The Trust Agreement shall terminate upon the redemption of the Preferred
Trust Receipts or a final distribution in respect of the Series B Preferred
Securities and such distribution has been delivered to the holders of the
Preferred Trust Receipts. The Trust Agreement may be amended in writing by the
Trustee, PECO Energy Capital and the General Partner so long as such amendment
does not materially adversely affect the rights of the holders of the Preferred
Trust Receipts.
EXPENSES OF THE TRUSTEE
All charges or expenses of the Trust, including the charges and expenses of
the Trustee, will be paid by the General Partner.
RESIGNATION AND REMOVAL OF TRUSTEE
The Trust shall at all times have a Trustee which is a bank having a
combined capital and surplus of $50,000,000. If the Trustee ceases to be
eligible, it will resign.
The Trustee may at any time resign as trustee under the Trust Agreement by
notice of its election to do so delivered to PECO Energy Capital and the General
Partner, such resignation to take effect upon the appointment of a successor
trustee and its acceptance of such appointment as hereinafter provided. The
Trustee may at any time be removed by PECO Energy Capital by notice of such
removal delivered to the Trustee, such removal to take effect upon the
appointment of a successor trustee and its acceptance of such appointment.
In case at any time the Trustee shall resign or be removed, PECO Energy
Capital shall, within 45 days after the delivery of the notice of resignation or
removal, as the case may be, appoint a successor trustee, which shall be a bank
or trust company, or an affiliate of a bank or trust company, having its
principal office in the United States of America and having a combined capital
and surplus of at least $50,000,000.
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DESCRIPTION OF THE SERIES B PREFERRED SECURITIES
The following is a summary of certain terms and provisions of the Series B
Preferred Securities represented by the Preferred Trust Receipts and the
Partnership Agreement. The summary is subject to, and qualified in its entirety
by reference to, the Partnership Agreement and the Delaware Revised Uniform
Limited Partnership Act. The Partnership Agreement is an exhibit to the
Registration Statement of which this Offering Circular/Prospectus forms a part.
GENERAL
Under the Partnership Agreement, PECO Energy Capital is authorized to issue
two classes of partner interests: the Preferred Securities representing limited
partner interests, including the Series B Preferred Securities offered hereby,
and general partner interests. All of the general partner interests of PECO
Energy Capital are owned by the General Partner, which is a wholly owned
subsidiary of PECO Energy. All of the Preferred Securities issued by PECO Energy
Capital will be of equal rank in participation in the profits and assets and
income of PECO Energy Capital. The Partnership Agreement authorizes the General
Partner to establish series of Preferred Securities having such designations,
rights, privileges, restrictions and other terms and provisions as the General
Partner may determine. Distributions on all series of Preferred Securities must
be paid in full before the General Partner may participate in the profits or
assets of PECO Energy Capital.
DISTRIBUTIONS
The Series B Preferred Securities will be entitled to Distributions out of
funds on hand legally available therefor held by PECO Energy Capital at the
annual rate of % of the stated liquidation preference of $25, payable
monthly in arrears on the last day of each calendar month. Distributions on the
Series B Preferred Securities will be cumulative, will accrue from the Exchange
Date and, except as otherwise described below, will be payable monthly in
arrears, on the last day of each month of each year, commencing on
. Distributions in arrears after the monthly payment date therefor will
accumulate additional distributions thereon at the rate of % per annum. In
addition, holders of Series B Preferred Securities will be entitled to receive,
when, as and if declared by the General Partner out of funds on hand and legally
available therefor an additional cash distribution at the rate of 7.96% per
annum of the stated liquidation preference thereof from August 1, 1995 up to but
not including the Exchange Date in lieu of dividends accumulating from August 1,
1995 on their Depositary Shares accepted for exchange, such additional
distribution to be made at the time the first distribution on the Series B
Preferred Securities is made (the "Additional Distribution").
The General Partner may make distributions on the general partner interests
of PECO Energy Capital only after payment in full of all Distributions accrued
on the Series B Preferred Securities and any other outstanding Preferred
Securities of PECO Energy Capital. The Series B Preferred Securities will rank
pari passu with all other series of Preferred Securities which may be issued by
PECO Energy Capital. The Series A Preferred Securities are the only other series
of Preferred Securities which have been issued by PECO Energy Capital to date.
After payment of the Additional Distribution, PECO Energy has the right
under the Indenture to extend the interest payment period from time to time on
the Series B Subordinated Debentures to a period not exceeding 60 consecutive
months; provided that such extended interest period shall not extend beyond the
stated maturity date or redemption date of any Subordinated Debentures,
including the Series B Subordinated Debentures. As a consequence, monthly
Distributions on the Series B Preferred Securities would be deferred (but would
continue to accumulate with Distributions thereon) by PECO Energy Capital during
any such extended interest payment period. In the event that PECO Energy
exercises its right to extend the interest payment period on the Subordinated
Debentures, PECO Energy may not declare or pay dividends on, or redeem, purchase
or acquire, any of its capital stock during the extension period. PECO Energy
Capital and PECO Energy currently believe that the extension of an interest
payment period is unlikely. Prior to the termination of any such extension
period, PECO Energy may further extend the interest payment period, provided
that such extension period together with all such previous and further
extensions thereof may not
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exceed 60 consecutive months. Upon the termination of any extension period and
the payment of all amounts then due on the Subordinated Debentures, PECO Energy
may elect to extend the interest payment period again, subject to the above
requirements. See "Certain Investment Considerations" and "Description of the
Series B Subordinated Debentures and the Indenture -- Option to Extend Interest
Payment Period" and "-- Interest."
Distributions on the Series B Preferred Securities must be paid by PECO
Energy Capital in any calendar year or portion thereof to the extent that PECO
Energy Capital has funds on hand legally available therefor. It is anticipated
that the funds available for distribution by PECO Energy Capital will be limited
to payments received by PECO Energy Capital in respect of the Series B
Subordinated Debentures. See "Description of the Series B Subordinated
Debentures and the Indenture."
The amount of Distributions payable for any period will be computed on the
basis of twelve 30-day months and a 360-day year and, for any period shorter
than a full monthly distribution period, will be computed on the basis of the
actual number of days elapsed in such period. Distributions on the Series B
Preferred Securities will be made to the Holders thereof as they appear on the
books and records of PECO Energy Capital on the relevant record dates, which
will be the 15th day of each month. If any date on which Distributions are
payable on the Series B Preferred Securities is not a business day, then payment
of the Distributions payable on such date will be made on the next succeeding
day that is a business day (and without any interest or other payment in respect
of any such delay) except that, if such business day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding business
day, in each case with the same force and effect as if made on such date. The
term "business day," as used in relation to the Series B Preferred Securities,
shall mean any day other than a day on which banking institutions in the City of
New York or the State of Delaware are authorized or required by law to close.
CERTAIN RESTRICTIONS ON PECO ENERGY CAPITAL
If distributions have not been paid in full on any series of Preferred
Securities of PECO Energy Capital, PECO Energy Capital shall not:
(i) pay any distributions on any other series of Preferred Securities,
unless the amount of any distributions paid on any Preferred Securities is
paid on all Preferred Securities then outstanding on a pro rata basis in
proportion to the full distributions to which each series of Preferred
Securities would be entitled if paid in full;
(ii) pay any distribution on the general partner interests; or
(iii) redeem, purchase or otherwise acquire any Preferred Securities
or the general partner interests;
until, in each case, such time as all accumulated and unpaid distributions on
all series of Preferred Securities shall have been paid in full for all prior
distribution periods.
OPTIONAL REDEMPTION
The Series B Preferred Securities are subject to redemption, at the option
of the General Partner, in whole or in part, from time to time, on or after
October 1, 1997, at $25 per Series B Preferred Security, plus accumulated and
unpaid Distributions(whether or not declared), if any, to the date fixed for
redemption (the "Redemption Price").
MANDATORY REDEMPTION
If at any time PECO Energy redeems the Series B Subordinated Debentures or
pays the Series B Subordinated Debentures at maturity, the Series B Preferred
Securities will be subject to mandatory redemption at the Redemption Price.
The Series B Preferred Securities will not be entitled to any sinking fund.
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SPECIAL EVENT REDEMPTIONS
If a Tax Event (as defined below) shall occur and be continuing, the Series
B Preferred Securities will be subject to redemption, at the option of the
General Partner, in whole or in part at the Redemption Price within 90 days
following the occurrence of such Tax Event. "Tax Event" means that PECO Energy
Capital shall have received an opinion of counsel (which may be regular counsel
to PECO Energy or an affiliate but not an employee thereof) experienced in such
matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or such
interpretation or pronouncement is announced on or after the date of issuance of
the Series B Preferred Securities, there is more than an insubstantial risk that
(i) PECO Energy Capital is subject to United States federal income tax with
respect to interest received on the Series B Subordinated Debentures or PECO
Energy Capital will otherwise not be taxed as a partnership, (ii) interest
payable by PECO Energy on the Series B Subordinated Debentures will not be
deductible for United States federal income tax purposes or (iii) PECO Energy
Capital is subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
If an Investment Company Act Event (as defined below) shall occur and be
continuing, the Series B Preferred Securities will be subject to mandatory
redemption in whole at the Redemption Price within 90 days following the
occurrence of such Investment Company Act Event. "Investment Company Act Event"
means the occurrence of a change in law or regulation or a change in official
interpretation of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law") to the effect that
PECO Energy Capital is or will be considered an "Investment Company" which is
required to be registered under the Investment Company Act of 1940, as amended
(the "1940 Act"), which Change in 1940 Act Law becomes effective on or after the
date of the issuance of the Series B Preferred Securities; provided, that no
Investment Company Act Event shall be deemed to have occurred if PECO Energy
Capital has received an opinion of counsel (which may be regular counsel to PECO
Energy or any affiliate but not an employee thereof) experienced in such
matters, to the effect that PECO Energy Capital and/or PECO Energy has taken
reasonable measures, in its discretion, to avoid such Change in 1940 Act Law so
that notwithstanding such Change in 1940 Act Law, PECO Energy Capital is not
required to be registered as an "Investment Company" within the meaning of the
1940 Act.
REDEMPTION PROCEDURES
PECO Energy Capital may not redeem any Series B Preferred Securities unless
all accumulated and unpaid Distributions have been paid on all Series B
Preferred Securities for all monthly distribution periods terminating on or
prior to the date of redemption.
If notice of redemption shall have been given and payment shall have been
made by the Partnership to the Trust, then, upon the date of such payment all
rights of beneficial owners of the Series B Preferred Securities so called for
redemption will cease. In the event that any date fixed for redemption of Series
B Preferred Securities is not a business day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day which is a
business day (and without any interest or other payment in respect of any such
delay), except that if such business day falls in the next succeeding calendar
year, such payment will be made on the immediately preceding business day (in
each case with the same force and effect as if made on such day).
LIQUIDATION DISTRIBUTION
In the event of any voluntary or involuntary dissolution and winding up of
PECO Energy Capital, the holders of the Preferred Securities will be entitled to
receive out of the assets of PECO Energy Capital after satisfaction of
liabilities to creditors as required by Delaware law and before any distribution
of assets is made to holders of its general partner interests, the sum of their
stated liquidation preference and all accumulated and unpaid Distributions to
the date of payment for such series of Preferred Securities (collectively, the
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"Partnership Liquidation Distribution"). All assets of PECO Energy Capital
remaining after payment of the Partnership Liquidation Distribution will be
distributed to the General Partner. If, upon such liquidation, the Partnership
Liquidation Distribution can be paid only in part because PECO Energy Capital
has insufficient assets available to pay in full the aggregate Partnership
Liquidation Distribution on all Preferred Securities, then the amounts payable
on each series of Preferred Securities shall be paid on a pro rata basis, in
proportion to the full Partnership Liquidation Distribution to which each series
of Preferred Securities would be entitled.
Pursuant to the Partnership Agreement, PECO Energy Capital shall be
dissolved and its affairs shall be wound up upon the occurrence of any of the
following events: (i) upon the expiration of the term of PECO Energy Capital,
which is 99 years, (ii) upon the withdrawal, removal or bankruptcy of the
General Partner or the occurrence of any other event that under applicable law
causes PECO Energy Capital Corp. to cease to be the General Partner, except for
a transfer to a permitted successor of the General Partner as set forth in the
Partnership Agreement, (iii) the entry of a decree of judicial dissolution, or
(iv) the written consent of the General Partner and all of the holders of the
Preferred Securities. Upon such dissolution, PECO Energy is required to redeem
the Subordinated Debentures to fund the Partnership Liquidation Distribution.
The amount per share payable on the Series B Preferred Securities in the
event of any voluntary or involuntary liquidation of PECO Energy Capital is $25
plus accumulated and unpaid Distributions.
MERGER, CONSOLIDATION, ETC. OF PECO ENERGY CAPITAL
PECO Energy Capital may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other entity, except with the
approval of the General Partner and the holders of 66 2/3% in aggregate stated
liquidation preference of the outstanding Preferred Securities or as otherwise
described below. The General Partner may, without the consent of the holders of
the Preferred Securities, cause PECO Energy Capital to consolidate, amalgamate,
merge with or into, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to, a corporation, a limited
liability company or a limited partnership, a trust or other entity organized as
such under the laws of any state of the United States of America or the District
of Columbia, provided that (i) such successor entity either (x) expressly
assumes all of the obligations of PECO Energy Capital under the Preferred
Securities or (y) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank, as regards participation
in the profits and assets of the successor entity, at least as high as the
Preferred Securities rank, as regards participation in the profits and assets of
PECO Energy Capital, (ii) PECO Energy confirms its obligations under the
Guarantee with regard to the Successor Securities, if any, (iii) such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
does not cause any series of Preferred Securities or Successor Securities to be
delisted by any national securities exchange on which such series of Preferred
Securities is then listed, (iv) such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities or Successor Securities to be downgraded by any "nationally
recognized statistical rating organization," as that term is defined by the SEC
for purposes of Rule 436(g)(2) under the Securities Act, (v) such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease does not
adversely affect the powers, preferences and other special rights of holders of
Preferred Securities or Successor Securities in any material respect, (vi) such
successor entity has a purpose substantially identical to that of PECO Energy
Capital, (vii) prior to such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease, PECO Energy has received an opinion of counsel
(which may be regular tax or other counsel to PECO Energy or an affiliate, but
not an employee thereof) experienced in such matters to the effect that (w)
holders of outstanding Preferred Securities will not recognize any gain or loss
for United States federal income tax purposes as a result of the consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease, (x) such
successor entity will be treated as a partnership for United States federal
income tax purposes, (y) following such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease, PECO Energy and such successor
entity will be in compliance with the 1940 Act without registering thereunder as
an investment company, and (z) such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease will not adversely affect the limited
liability of holders of Preferred Securities or Successor Securities.
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VOTING RIGHTS
Except as provided above and under "-- Merger, Consolidation, etc. of PECO
Energy Capital" and "Description of the Series B Guarantee -- Amendments" and as
otherwise required by law and the Partnership Agreement, the holders of the
Preferred Securities will have no voting rights.
If (i) PECO Energy Capital fails to pay Distributions in full on the
Preferred Securities for 18 consecutive monthly distribution periods, (ii) an
Event of Default (as defined in the Indenture) occurs and is continuing, or
(iii) PECO Energy is in default on any of its payment obligations under the
Guarantees, then the holders of the Preferred Securities, acting as a single
class, will be entitled by a vote of the majority of the aggregate stated
liquidation preference of the outstanding Preferred Securities to appoint a
special representative (the "Special Representative") to enforce PECO Energy
Capital's rights against PECO Energy under the Subordinated Debentures and the
Indenture and the obligations undertaken by PECO Energy under the Guarantees,
including, after failure to pay Distributions for 60 consecutive monthly
distribution periods on the Preferred Securities, the payment of Distributions
on the Preferred Securities. The Special Representative shall not be admitted as
a partner of PECO Energy Capital or otherwise be deemed a partner of PECO Energy
Capital and shall have no liability for the debts, obligations or liabilities of
PECO Energy Capital.
For purposes of determining whether PECO Energy Capital has failed to pay
Distributions in full for 18 consecutive monthly distribution periods,
Distributions shall be deemed to remain in arrears, notwithstanding any payments
in respect thereof, until full cumulative Distributions on all Preferred
Securities have been or contemporaneously are paid with respect to all monthly
distribution periods terminating on or prior to the date of payment of such full
cumulative Distributions. Subject to the requirements of applicable law, not
later than 30 days after such right to appoint the Special Representative, the
General Partner will convene a general meeting for the above purpose. If the
General Partner fails to convene such meeting within such 30-day period, the
holders of 10% of the aggregate stated liquidation preference of the Preferred
Securities will be entitled to convene such meeting. The provisions of the
Partnership Agreement relating to the convening and conduct of the general
meetings of security holders will apply with respect to any such meeting. Any
Special Representative so appointed shall vacate office immediately if PECO
Energy Capital (or PECO Energy pursuant to the Guarantee) shall have paid in
full all accumulated and unpaid Distributions on the Preferred Securities or
such default or breach, as the case may be, shall have been cured.
Notwithstanding the appointment of any such Special Representative, PECO Energy
retains all rights under the Indenture, including the right to extend the
interest payment period on the Subordinated Debentures.
If any proposed amendment to the Partnership Agreement provides for, or the
General Partner otherwise proposes to effect, any action which would materially
adversely affect the powers, preferences or special rights attached to any
series of Preferred Securities, whether by way of amendment to the Partnership
Agreement or otherwise, then the holders of such series of Preferred Securities
will be entitled to vote on such amendment or action of the General Partner (but
not on any other amendment or action) and, in the case of an amendment or action
which would equally adversely affect the rights or preferences of any other
Preferred Securities, such Preferred Securities shall vote together as a class
on such amendment or action of the General Partner (but not on any other
amendment or action), and such amendment or action shall not be effective except
with the approval of the holders of not less than 66 2/3% of the aggregate
stated liquidation preference of such series of Preferred Securities. Except in
certain circumstances described under "-- Liquidation Distribution," PECO Energy
Capital will be dissolved and wound up only with the consent of the holders of
all Preferred Securities then outstanding as well as the General Partner.
The powers, preferences or special rights attached to any Preferred
Securities will be deemed not to be adversely affected by the creation or issue
of, and no vote will be required for the creation or issue of, any additional
series of Preferred Securities or additional general partner interests. Holders
of Preferred Securities have no preemptive rights.
So long as any Subordinated Debentures are held by PECO Energy Capital, the
General Partner, unless so directed by the Special Representative, shall not (i)
direct the time, method and place of conducting any proceeding for any remedy
available to the holder of the Subordinated Debentures or the Indenture Trustee
under the Indenture, or executing any trust or power conferred on the Indenture
Trustee, (ii) waive any past
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default which is available under the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Subordinated
Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture, where such consent shall be
required, without, in each case, obtaining the prior approval of the holders of
at least 66 2/3% in aggregate stated liquidation preference of all series of
Preferred Securities affected thereby, acting as a single class; provided,
however, that where a consent under the Indenture would require the consent of
each holder affected thereby, no such consent shall be given by the General
Partner without the prior consent of each holder of all series of Preferred
Securities affected thereby. The General Partner shall not revoke any action
previously authorized or approved by a vote of any series of Preferred
Securities. The General Partner shall notify all holders of the Preferred
Securities of any notice of default received from the Indenture Trustee with
respect to the Subordinated Debentures.
Any required approval of holders of Preferred Securities may be given at a
separate meeting of such holders convened for such purposes, at a meeting of all
partners of PECO Energy Capital or pursuant to written consent. PECO Energy
Capital will cause a notice of any meeting at which holders of any series of
Preferred Securities are entitled to vote, or of any matter upon which action by
written consent of such holders is to be taken, to be mailed to each holder of
record of such series of Preferred Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
The holders of the Preferred Securities will have no rights to remove or
replace the General Partner.
MISCELLANEOUS
The General Partner is authorized and directed to use its best efforts to
manage the affairs of PECO Energy Capital in such a way that PECO Energy Capital
would not be deemed to be an "investment company" required to be registered
under the 1940 Act or taxed as a corporation for United States federal income
tax purposes and so that the Subordinated Debentures will be treated as
indebtedness of PECO Energy for federal income tax purposes. In this connection,
the General Partner is authorized to take any action not inconsistent with
applicable law, the Certificate of Limited Partnership of PECO Energy Capital or
the Partnership Agreement, and that does not materially adversely affect the
interests of holders of Preferred Securities, that the General Partner
determines in its discretion to be necessary or desirable for such purposes.
PECO Energy Capital may not borrow money or issue debt or mortgage or
pledge any of its assets.
DESCRIPTION OF THE SERIES B GUARANTEE
The following is a summary of certain provisions of the Series B Guarantee
which will be executed and delivered by PECO Energy concurrently with the
issuance of the Series B Preferred Securities. The summary is subject to, and
qualified by reference to the Payment and Guarantee Agreement, which is filed as
an exhibit to the Registration Statement of which this Offering
Circular/Prospectus forms a part.
GENERAL
Under the Series B Guarantee, PECO Energy will agree to pay (i) any
accumulated and unpaid Distributions on the Series B Preferred Securities to the
extent that PECO Energy Capital has funds on hand legally available therefor,
(ii) the redemption price payable with respect to any Series B Preferred
Securities called for redemption by PECO Energy Capital to the extent that PECO
Energy Capital has funds on hand legally available therefor, (iii) upon a
liquidation of PECO Energy Capital, the lesser of (a) the portion of the
Partnership Liquidation Distribution applicable to the Series B Preferred
Securities and (b) the amount of assets of PECO Energy Capital legally available
for distribution to holders of Series B Preferred Securities in liquidation of
PECO Energy Capital (collectively, the "Guarantee Payments"). PECO Energy will
agree to pay the Guarantee Payments, as and when due, (except to the extent paid
by PECO Energy Capital), to the fullest extent permitted by law, regardless of
any defense, right of set-off or counterclaim which PECO Energy
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may have or assert against PECO Energy Capital, the General Partner, the Trust
or the Trustee. PECO Energy's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by PECO Energy to the
holders of Series B Preferred Securities or by causing PECO Energy Capital to
pay such amounts to such holders. In addition, the Indenture provides that PECO
Energy shall cause the General Partner to remain the general partner of PECO
Energy Capital and timely perform all its duties as such (including the duty to
pay Distributions on the Preferred Securities), which include, among other
things, the General Partner's duties under the Partnership Agreement to directly
pay all costs and expenses of PECO Energy Capital (thereby insuring that the
amount of PECO Energy's payments on its Subordinated Debentures will be
sufficient to allow payment in full to the holders of the Preferred Securities)
and the covenant of the General Partner in the Partnership Agreement to at all
times maintain a "fair market value net worth" of at least 10% of the total
contributions (less redemptions) to PECO Energy Capital. While the assets of the
General Partner will not be available for making Distributions on the Preferred
Securities, they will be available for payment of the expenses of PECO Energy
Capital. Accordingly, the Series B Guarantee and the Indenture, together with
the related covenants contained in the Partnership Agreement and PECO Energy's
obligations under the Subordinated Debentures, provide for PECO Energy's full
and unconditional guarantee of the Preferred Securities as set forth above.
STATUS OF THE SERIES B GUARANTEE
The Series B Guarantee will constitute an unsecured obligation of PECO
Energy and will rank subordinate and junior in right of payment to all general
liabilities of PECO Energy.
The Series B Guarantee will constitute a guarantee of payment and not of
collection. The Series B Guarantee will be held by the General Partner for the
benefit of the holders of the Series B Preferred Securities. In the event of the
appointment of a Special Representative, the Special Representative may enforce
the Series B Guarantee. If no Special Representative has been appointed to
enforce the Series B Guarantee, the General Partner has the right to enforce the
Series B Guarantee on behalf of the holders of the Series B Preferred
Securities. The holders of Preferred Trust Receipts representing not less than
10% in aggregate stated liquidation preference of the Series B Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding to enforce any remedy available in respect of the Series B Guarantee,
including the giving of directions to the General Partner or the Special
Representative, as the case may be. If the General Partner or the Special
Representative fails to enforce the Series B Guarantee as above provided, any
holder of Preferred Trust Receipts representing Series B Preferred Securities
may institute a legal proceeding directly against PECO Energy to enforce its
rights under the Series B Guarantee without first instituting a legal proceeding
against PECO Energy Capital or any other person or entity. The Series B
Guarantee will not be discharged except by payment of the Guarantee Payments in
full to the extent not paid by PECO Energy Capital and by complete performance
of all obligations of PECO Energy contained in the Series B Guarantee.
CERTAIN COVENANTS OF PECO ENERGY
Under the Series B Guarantee, PECO Energy will covenant that, so long as
any Series B Preferred Securities remain outstanding, neither PECO Energy nor
any majority-owned subsidiary of PECO Energy shall declare or pay any dividend
on, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock (other than dividends by a wholly owned subsidiary) if
at such time PECO Energy shall be in default with respect to its payment
obligations under the Series B Guarantee or there shall have occurred any event
that, with the giving of notice or the lapse of time or both, would constitute
an Event of Default under the Indenture.
AMENDMENTS
Except with respect to any changes which do not materially adversely affect
the rights of holders of Series B Preferred Securities (in which case no vote
will be required), the Series B Guarantee may be amended only with the prior
approval of the holders of Preferred Trust Receipts representing not less than
66 2/3% of the aggregate stated liquidation preference of the outstanding Series
B Preferred Securities.
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MERGER OF PECO ENERGY
So long as the Series B Preferred Securities remain outstanding, PECO
Energy will maintain its corporate existence; provided that PECO Energy may
consolidate with or merge with or into any other person or sell, convey,
transfer or lease all or substantially all its properties and assets to any
person if the successor person shall be organized and existing under the laws of
the United States or any state thereof or the District of Columbia and shall
expressly assume the obligations of PECO Energy under the Series B Guarantee.
TERMINATION OF THE SERIES B GUARANTEE
The Series B Guarantee will terminate and be of no further force and effect
upon full payment of the redemption price of all Series B Preferred Securities
or upon full payment of the amounts payable with respect to the Series B
Preferred Securities upon liquidation of PECO Energy Capital. The Series B
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any holder of Series B Preferred Securities must restore
payments of any sums paid under the Series B Preferred Securities or the Series
B Guarantee.
DESCRIPTION OF THE SERIES B SUBORDINATED DEBENTURES AND THE INDENTURE
The following is a summary of certain terms and provisions of the Series B
Subordinated Debentures and the Indenture. The summary is subject to, and is
qualified by reference to the Indenture, which is filed as an exhibit to the
Registration Statement of which this Offering Circular/Prospectus forms a part.
GENERAL
The Series B Subordinated Debentures will be unsecured subordinated
obligations of PECO Energy issued under the Indenture. The Series B Subordinated
Debentures will be in a principal amount equal to the aggregate stated
liquidation preference of the Series B Preferred Securities plus the General
Partner's concurrent investment in PECO Energy Capital, will bear interest at a
rate equal to the Distribution rate on the Series B Preferred Securities payable
on the Distribution dates, will have maturity and redemption provisions
corresponding to the redemption provisions of the Series B Preferred Securities
and will be subject to mandatory redemption upon the dissolution and winding up
of PECO Energy Capital. The entire principal amount of the Series B Subordinated
Debentures will become due and payable, together with any accrued and unpaid
interest thereon, on , 2025.
PECO Energy will deliver the Series B Subordinated Debentures to the
Exchange Agent (which will receive the Series B Subordinated Debentures on
behalf of the Holders of the Depositary Shares) in exchange for the Depositary
Shares. The Series B Subordinated Debentures will be delivered by the Exchange
Agent to PECO Energy Capital in consideration for the issuance and deposit by
PECO Energy Capital of the Series B Preferred Securities with the Trustee under
the Trust Agreement. PECO Energy Capital will purchase additional Series B
Subordinated Debentures issued by PECO Energy in an amount equal to the
contribution made by the General Partner to PECO Energy Capital concurrently
with the Exchange.
REDEMPTION
Except as provided below, the Series B Subordinated Debentures may not be
redeemed prior to October 1, 1997. PECO Energy shall have the right to redeem
the Series B Subordinated Debentures, in whole or in part, from time to time, on
or after October 1, 1997, upon not less than 30 nor more than 60 days' notice,
at a redemption price equal to 100% of the aggregate principal amount to be
redeemed, plus any accrued and unpaid interest, to the redemption date,
including interest accrued during an Extension Period. PECO Energy will also
have the right to redeem the Series B Subordinated Debentures at any time upon
the occurrence of a Tax Event if certain conditions are met as described under
"Description of the Series B Preferred Securities -- Special Event Redemption."
The Series B Subordinated Debentures will be subject to mandatory redemption in
the event of an Investment Company Act Event, upon the dissolution of PECO
Energy Capital or upon redemption of the Series B Preferred Securities.
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If PECO Energy gives a notice of redemption in respect of Series B
Subordinated Debentures, then, on or prior to the redemption date, PECO Energy
shall deposit with the paying agent funds sufficient to pay the applicable
redemption price and will give irrevocable instructions and authority to pay
such redemption price. If notice of redemption shall have been given, if
required, then the Series B Subordinated Debentures called for redemption shall
become due and payable on the redemption date and upon the redemption date,
interest will cease to accrue on the Series B Subordinated Debentures called for
redemption and such Series B Subordinated Debentures will no longer be deemed to
be outstanding.
INTEREST
The Series B Subordinated Debentures will bear interest at an annual rate
of % from the Exchange Date. Interest will be payable monthly in arrears on
the last day of each month of each year, commencing on , 1995, to
PECO Energy Capital. In addition, PECO Energy is obligated under the Series B
Subordinated Debentures to pay on the first interest payment date an amount
sufficient to pay the Additional Distribution.
PECO Energy will make additional interest payments on any overdue
installment of interest on the Series B Subordinated Debentures to PECO Energy
Capital at the same rate per annum as the annual rate payable on the Series B
Subordinated Debentures.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Under the Indenture, PECO Energy shall have the right at any time after
payment of the Additional Distribution, so long as an Event of Default under the
Indenture has not occurred and is continuing, to extend the interest payment
period for all Subordinated Debentures for up to 60 consecutive months; provided
that no Extension Period shall extend beyond the stated maturity date or date of
redemption of any series of Subordinated Debentures. At the end of the Extension
Period, PECO Energy shall pay all interest then accrued and unpaid (together
with interest thereon to the extent permitted by applicable law at the rate per
annum borne by such Subordinated Debentures). During any such Extension Period,
neither PECO Energy nor any majority-owned subsidiary of PECO Energy shall
declare or pay any dividend on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than
dividends by wholly owned subsidiaries). Prior to the termination of any such
Extension Period, PECO Energy may shorten or further extend the interest payment
period, provided that such Extension Period, together with all such further
extensions thereof, may not exceed 60 consecutive months. Upon the termination
of any Extension Period and the payment of all amounts then due, PECO Energy may
select a new Extension Period subject to the above requirements. PECO Energy
shall give the Indenture Trustee notice of its selection of such extended or
shortened interest payment period one business day prior to the earlier of (i)
the date PECO Energy has selected to make the interest payment or (ii) the date
PECO Energy Capital is required to give notice to the NYSE or other applicable
self-regulatory organization of the record date or the date such Distributions
are payable, but in any event not less than two business days prior to such
record date. PECO Energy shall cause the Indenture Trustee to give such notice
of PECO Energy's selection of such extended interest payment period to the
holders of the Preferred Securities.
SUBORDINATION
The Indenture provides that all payments by PECO Energy in respect of the
Subordinated Debentures, including the Series B Subordinated Debentures, shall
be subordinated to the prior payment in full of all amounts payable on Senior
Indebtedness. The term "Senior Indebtedness" means (i) the principal of and
premium, if any, in respect of (A) indebtedness of PECO Energy for money
borrowed and (B) indebtedness evidenced by securities, debentures, bonds or
other similar instruments issued by PECO Energy; (ii) all capital lease
obligations of PECO Energy; (iii) all obligations of PECO Energy issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of PECO Energy and all obligations of PECO Energy under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) certain obligations of PECO Energy for the
reimbursement of any obligor on any letter of credit, banker's acceptance,
security purchase facility or similar credit transaction; (v) all
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obligations of the type referred to in clauses (i) through (iv) of other persons
and all dividends of other persons (other than Preferred Securities) for the
payment of which, in either case, PECO Energy is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the type referred
to in clauses (i) through (v) of other persons secured by any lien on any
property or asset of PECO Energy (whether or not such obligation is assumed by
PECO Energy), except for any such indebtedness that is by its terms subordinated
to or pari passu with the Subordinated Debentures or indebtedness between or
among PECO Energy and its affiliates.
Upon any payment or distribution of assets or securities of PECO Energy,
upon any dissolution or winding up or total or partial liquidation or
reorganization of PECO Energy, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings, all amounts payable
on Senior Indebtedness (including any interest accruing on such Senior
Indebtedness subsequent to the commencement of a bankruptcy, insolvency or
similar proceeding) shall first be paid in full before PECO Energy Capital (as
holder of the Subordinated Debentures), the Indenture Trustee on behalf of such
holder or any Special Representative appointed by the holders of the Preferred
Securities shall be entitled to receive from PECO Energy any payment of
principal of or interest on or any other amounts in respect of the Subordinated
Debentures or distribution of any assets or securities.
No direct or indirect payment by or on behalf of PECO Energy of principal
of or interest on the Subordinated Debentures, whether pursuant to the terms of
the Subordinated Debentures or upon acceleration or otherwise, shall be made if,
at the time of such payment, there exists (i) a default in the payment of all or
any portion of any Senior Indebtedness or (ii) any other default pursuant to
which the maturity of Senior Indebtedness has been accelerated and, in either
case, requisite notice has been received by the Indenture Trustee and such
default shall not have been cured or waived by or on behalf of the holders of
such Senior Indebtedness.
If the Indenture Trustee, PECO Energy Capital (as holder of the
Subordinated Debentures) or any Special Representative appointed by the holders
of the Preferred Securities, shall have received any payment on account of the
principal of or interest on the Subordinated Debentures when such payment is
prohibited and before all amounts payable on, under or in connection with Senior
Indebtedness are paid in full, then such payment shall be received and held in
trust for the holders of Senior Indebtedness and shall be paid over or delivered
first to the holders of the Senior Indebtedness remaining unpaid to the extent
necessary to pay such Senior Indebtedness in full.
Nothing in the Indenture shall limit the right of the Indenture Trustee,
PECO Energy Capital (as holder of the Subordinated Debentures) or the Special
Representative to take any action to accelerate the maturity of the Subordinated
Debentures or to pursue any rights or remedies against PECO Energy; provided
that all Senior Indebtedness shall be paid before PECO Energy Capital (as holder
of the Subordinated Debentures) is entitled to receive any payment from PECO
Energy of principal of or interest on the Subordinated Debentures.
Upon the payment in full of all Senior Indebtedness, PECO Energy Capital
(as holder of the Subordinated Debentures) (and any Special Representative
appointed by such holders) shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of assets of PECO
Energy made on such Senior Indebtedness until the Subordinated Debentures shall
be paid in full.
The Indenture does not limit the aggregate amount of Senior Indebtedness
which PECO Energy may issue.
CERTAIN COVENANTS OF PECO ENERGY
PECO Energy will covenant that it and any majority-owned subsidiary will
not declare or pay any dividend on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than
dividends by wholly owned subsidiaries) (i) during an Extension Period, (ii) if
there shall have occurred any event that, with the giving of notice or the lapse
of time or both, would constitute an Event of Default under the Indenture or
(iii) if PECO Energy shall be in default with respect to its payment
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obligations under any Guarantee. PECO Energy will also covenant (i) to maintain
direct or indirect 100% ownership of the General Partner and will cause the
General Partner to maintain 100% ownership of the general partner interests of
PECO Energy Capital, (ii) to cause the General Partner to at all times maintain
a "fair market net worth" of at least 10% of the total capital contributions
(less redemptions) to PECO Energy Capital and to maintain general partner
interests representing 3% of all interests in the capital, income, gain, loss,
deduction and credit of PECO Energy Capital, (iii) to cause the General Partner
to timely perform all of its duties as general partner of PECO Energy Capital
(including the duty to pay Distributions on the Series B Preferred Securities),
and (iv) to use its reasonable efforts to cause PECO Energy Capital to remain a
limited partnership and otherwise continue to be treated as a partnership for
United States federal income tax purposes.
PECO Energy Capital may not waive compliance or waive any default in
compliance by PECO Energy with any covenant or other term in the Indenture
without the approval of the Special Representative or without the direction of
the holders of 66 2/3% of the aggregate stated liquidation preference of the
Preferred Securities.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting PECO Energy and the Indenture
Trustee, with the consent of the Special Representative or PECO Energy Capital
at the direction of the holders of not less than 66 2/3% of the aggregate stated
liquidation preference of the Preferred Securities to modify the Indenture or
any supplemental indenture or the rights of the holders of the Subordinated
Debentures issued under the Indenture; provided that no such modification,
without the consent of each holder of the Subordinated Debentures affected, may,
(i) change the stated maturity date of the principal of, or any installment of
principal of or interest, if any, on, the Subordinated Debentures, (ii) reduce
the principal amount of, or premium or rate of interest, if any, on, the
Subordinated Debentures, (iii) reduce the amount of principal of an original
issue discount Subordinated Debenture payable upon acceleration of the maturity
thereof, (iv) make the Subordinated Debentures payable in money or securities
other than as stated in the Subordinated Debentures, (v) impair the right to
institute suit for the enforcement of any payment on or with respect to the
Subordinated Debentures, (vi) adversely change the redemption provisions of the
Subordinated Debentures, (vii) adversely affect the rights of the holders of the
Subordinated Debentures with respect to subordination or (viii) reduce the
principal amount of the holders of the Subordinated Debentures that must consent
to an amendment of the Indenture.
EVENTS OF DEFAULT
The following are Events of Default under the Indenture: (i) default for 10
days in payment of any interest on any series of the Subordinated Debentures
(other than the payment of interest during an Extension Period); (ii) default in
payment of principal of (or premium, if any, on) any Subordinated Debentures;
(iii) default for 60 days after notice in the performance of any other covenant
or agreement in the Indenture or any series of Subordinated Debentures or (iv)
certain events of bankruptcy, insolvency or reorganization of PECO Energy. In
case an Event of Default under the Indenture shall occur and be continuing
(other than an Event of Default relating to bankruptcy, insolvency or
reorganization of PECO Energy, in which case principal and interest on all of
the Subordinated Debentures shall become immediately due and payable), the
Indenture Trustee, PECO Energy Capital (as holder of the Subordinated
Debentures) or the Special Representative may declare the principal of all the
Subordinated Debentures to be due and payable. Under certain circumstances, a
declaration of acceleration with respect to Subordinated Debentures may be
rescinded and past defaults (except, unless theretofore cured, a default in the
payment of principal of or interest on the Subordinated Debentures) may be
waived only by the Special Representative or by PECO Energy Capital at the
direction of the holders of 66 2/3% in aggregate stated liquidation preference
of Preferred Securities.
PECO Energy is required to furnish to the Indenture Trustee annually a
statement as to the performance by PECO Energy of its obligations under the
Indenture and as to any default in such performance.
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ENFORCEMENT OF CERTAIN RIGHTS OF HOLDERS OF PREFERRED SECURITIES
The holders of the Preferred Securities will have the rights referred to
under "Description of the Series B Preferred Securities -- Voting Rights,"
including the right to appoint a Special Representative authorized to exercise
the rights of PECO Energy Capital, as the holder of the Series B Subordinated
Debentures, to declare the principal and interest on the Series B Subordinated
Debentures due and payable and to enforce the obligations of PECO Energy under
the Series B Subordinated Debentures and the Indenture directly against PECO
Energy, without first proceeding against PECO Energy Capital or any other person
or entity.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The Indenture provides that PECO Energy may not consolidate with or merge
with or into, or sell, convey, transfer or lease all or substantially all its
assets (either in one transaction or a series of transactions) to, any person,
unless, among other things, (i) the successor person shall be organized and
existing under the laws of the United States or any state thereof or the
District of Columbia, and shall expressly assume by a supplemental indenture all
of the obligations of PECO Energy under the Subordinated Debentures and the
Indenture and (ii) immediately prior to and after giving effect to such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing.
DEFEASANCE AND DISCHARGE
Under the terms of the Indenture, PECO Energy will be deemed to have paid
and discharged the entire indebtedness of the Series B Subordinated Debentures
if PECO Energy irrevocably deposits with the Indenture Trustee or other paying
agent, in trust, (i) cash and/or (ii) United States Government Obligations (as
defined in the Indenture), which through the payment of interest thereon and
principal thereof in accordance with their terms will provide cash in an amount
sufficient to pay all the principal of, premium, if any, and interest on, the
Subordinated Debentures then outstanding on the dates such payments are due in
accordance with the terms of the Series B Subordinated Debentures.
INFORMATION CONCERNING THE INDENTURE TRUSTEE
Subject to the provisions of the Indenture relating to its duties, the
Indenture Trustee will be under no obligation to exercise any of its rights or
powers under the Indenture, unless the Indenture Trustee receives security and
indemnity reasonably satisfactory to it. Subject to such provision for
indemnification, the holders of a majority in principal amount of the
Subordinated Debentures then outstanding thereunder or the Special
Representative will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee
thereunder, or exercising any trust or power conferred on the Indenture Trustee.
The Indenture contains limitations on the right of the Indenture Trustee,
as a creditor of PECO Energy, to obtain payment of claims in certain cases, or
to realize on certain property received in respect of any such claim as security
or otherwise. In addition, the Indenture Trustee may be deemed to have a
conflicting interest and may be required to resign as Indenture Trustee if at
the time of default under the Indenture it is a creditor of PECO Energy.
An affiliate of Meridian Trust Company, the Trustee under the Indenture,
has from time to time engaged in transactions with, or performed services for,
PECO Energy and its affiliates in the ordinary course of business.
Mr. Joseph F. Paquette, Jr. is Chairman of the Board and a Director of PECO
Energy and a Director of Meridian Bancorp, Inc., the parent corporation of the
Indenture Trustee.
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DESCRIPTION OF THE DEPOSITARY SHARES
The summary of the terms of the Depositary Shares set forth below does not
purport to be complete and is subject to, and qualified in its entirety by
reference to the provisions of PECO Energy's Amended and Restated Articles of
Incorporation and the Deposit Agreement (the "Deposit Agreement") among PECO
Energy, First Chicago Trust Company of New York, as depositary (the
"Depositary") and Holders from time to time of the Depositary Shares, and copies
of which may be obtained from PECO Energy upon request.
Each Depositary Share represents a one-fourth interest in a share of $7.96
Cumulative Preferred Stock (the "$7.96 Preferred Stock"). The shares of $7.96
Preferred Stock underlying the Depositary Shares are deposited with the
Depositary under the Deposit Agreement. The Depositary Shares are evidenced by
Depositary Receipts ("Depositary Receipts") issued by the Depositary under the
Deposit Agreement. Subject to the terms of the Deposit Agreement, each owner of
a Depositary Share is entitled, through the Depositary, in proportion to the
one-fourth interest in a share of $7.96 Preferred Stock underlying such
Depositary Share, to all rights and preferences of the $7.96 Preferred Stock
(including dividend, voting, redemption and liquidation rights). Since each
share of $7.96 Preferred Stock entitles the holder thereof to one vote on
matters on which the holders of the $7.96 Preferred Stock are entitled to vote,
each Depositary Share, in effect, entitles the Holder thereof to one-fourth of a
vote thereon, rather than one full vote. The Depositary acts as registrar and
transfer agent with respect to the Depositary Shares.
GENERAL
All shares of preferred stock of PECO Energy, including the $7.96 Preferred
Stock, are of equal rank. The shares of the preferred stock of different series
may vary as to (i) annual dividend rate or rates, (ii) redemption price or
prices, if any, and any special terms and conditions applicable to redemption,
(iii) amount or amounts payable upon any voluntary or involuntary liquidation or
winding up of PECO Energy, (iv) terms and amounts of any sinking fund provided
for the purchase or redemption of shares, and (v) conversion, participating or
other special rights, and qualifications, limitations or restrictions thereof,
if any.
The authorized capital stock of PECO Energy consists of 15 million shares
of preferred stock without par value, issuable in series, 100 million shares of
preference stock, issuable in series, and 500 million shares of common stock
without par value.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary distributes all cash dividends or other cash distributions
received in respect of the $7.96 Preferred Stock, less any amount required to be
withheld, to the record holders of Depositary Receipts representing the related
Depositary Shares in proportion to the number of Depositary Shares owned by such
holders on the relevant record date, which is the same date as the record date
fixed by PECO Energy for the $7.96 Preferred Stock. In the event that the
calculation of any such cash dividend or other cash distribution to be paid to
any record holder on the aggregate number of Depositary Receipts held by such
holder results in an amount which is a fraction of a cent, the amount the
Depositary distributes to such record holder is rounded to the next highest
whole cent.
In the event of a distribution other than in cash, the Depositary is
required to distribute property received by it to the record holders of
Depositary Receipts entitled thereto, in proportion, as nearly as may be
practicable, to the number of Depositary Shares owned by such holders on the
relevant record date, unless PECO Energy determines that it is not feasible to
make such distribution, in which case PECO Energy may adopt any other method for
such distribution as it deems equitable and practicable, including the sale of
such property and distribution of the net proceeds from such sale to such
holders.
The $7.96 Preferred Stock, pari passu with the issued and outstanding
preferred stock of PECO Energy, is entitled to dividends when and as declared by
the Board of Directors of PECO Energy at the rate of $7.96 (equivalent to $1.99
per annum per Depositary Share), payable quarterly on February 1, May 1, August
1 and November 1. After payment in full of all dividends accrued on the
preferred stock, dividends on the common
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stock of PECO Energy or any other stock junior to the preferred stock may be
declared and paid as the Board of Directors of PECO Energy determine.
Unless dividends on all outstanding shares of preferred stock of all series
shall have been paid for all past monthly dividend periods, no dividends shall
be paid or declared and no other distribution shall be made on the preference
stock or the common stock, and no preference stock or common stock shall be
purchased or otherwise acquired for value by PECO Energy.
REDEMPTION PROVISIONS
The Depositary Shares will be redeemed from the proceeds received by the
Depositary resulting from the redemption, in whole or in part, of the $7.96
Preferred Stock held by the Depositary. Whenever PECO Energy redeems any $7.96
Preferred Stock held by the Depositary, the Depositary will redeem as of the
same redemption date the number of Depositary Shares representing the $7.96
Preferred Stock so redeemed. The Depositary will mail the notice of redemption
no less than 30 nor more than 60 days prior to the date fixed for redemption of
the $7.96 Preferred Stock and Depositary Shares to the record Holders of the
Depositary Receipts. If less than all of the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by lot or pro
rata or by any other method determined by PECO Energy in its sole discretion to
be equitable.
The $7.96 Preferred Stock is not subject to redemption prior to October 1,
1997. Thereafter, the $7.96 Preferred Stock may be redeemed as a whole at any
time or in part from time to time by PECO Energy upon not less than 30 days'
notice at a price of $100 per share of $7.96 Preferred Stock (equivalent to $25
per Depositary Share) plus accrued and unpaid dividends.
The $7.96 Preferred Stock is not entitled to any sinking fund.
Notice of redemption having been given as described above, from and after
the date fixed for redemption, unless PECO Energy shall have failed to redeem
the number of shares of $7.96 Preferred Stock called for redemption, the
Depositary Shares so called for redemption will no longer be deemed to be
outstanding, and all rights of the Holders of the Depositary Shares will cease,
except for the right to receive the monies payable upon such redemption and any
money or other property to which the Holders of such Depositary Shares were
entitled upon such redemption and surrender to the Depositary of the Depositary
Receipts evidencing such Depositary Shares.
LIQUIDATION VALUE
The amount per share payable on the $7.96 Preferred Stock in the event of
any voluntary or involuntary liquidation of PECO Energy is $100 (equivalent to
$25 per Depositary Share) plus accrued and unpaid dividends. All shares of PECO
Energy preferred stock of all series are of equal rank.
VOTING RIGHTS OF $7.96 PREFERRED STOCK
Except as hereinafter set forth or when some mandatory provision of law
shall be controlling, the holders of preferred stock of PECO Energy, including
the Holders of the Depositary Shares, have no voting rights.
Holders of preferred stock of PECO Energy are entitled to vote on certain
matters relating to (i) authorizing of stock (other than a series of preferred
stock) ranking prior to or on a parity with the preferred stock or any security
convertible into shares of stock of such kind; (ii) change of the express terms
of the preferred stock or of any series thereof in a manner prejudicial to the
holders thereof; (iii) issuance of additional shares of preferred stock unless,
for any twelve consecutive calendar months within the fifteen calendar months
immediately preceding the calendar month within which such additional shares are
issued, net earnings applicable to the payment of dividends on the preferred
stock and net income before payment of interest charges on indebtedness and
after provision for depreciation and taxes shall have been, respectively, at
least two times the dividend requirements upon the entire amount of preferred
stock to be outstanding immediately after the proposed issue of such additional
shares, and at least one and one-half times the aggregate of such dividend
requirements and interest charges for such period on the entire amount of
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indebtedness then to be outstanding; (iv) issuance of additional shares of
preferred stock, unless the capital of PECO Energy represented by its preference
stock and common stock together with its surplus is in the aggregate at least
equal to the involuntary liquidating value of the preferred stock to be
outstanding immediately after the proposed issue of such additional shares of
preferred stock; (v) increase in the total authorized amount of preferred stock
of all series; and (vi) merger or consolidation with or into any corporation, or
division, unless ordered, exempted, approved, or permitted by the SEC or other
federal regulatory authority. Except as otherwise provided in the express terms
of any series of preferred stock, the number of authorized shares of preferred
stock of any series may be increased without vote or consent of the holders of
the outstanding shares of the series so affected, subject to the aggregate limit
on the authorized number of shares of preferred stock. With respect to (i),
(ii), (iii), and (iv) above, the consent or affirmative vote of the holders of
shares of the preferred stock entitled to cast at least two-thirds of the votes
which all holders of preferred stock of all series then outstanding are entitled
to cast (or of the affected series in the case of a change prejudicial to less
than all series) is required; and with respect to (v) and (vi), the consent or
affirmative vote of the holders of shares of the preferred stock entitled to
cast at least a majority of the votes which all holders of preferred stock of
all series then issued and outstanding are entitled to cast is required.
Coverage under the more restrictive earnings test of PECO Energy's Amended and
Restated Articles of Incorporation relating to dividend requirements and
interest charges on all indebtedness and preferred stock for the twelve months
ended March 31, 1995 was 2.02.
The Board of Directors of PECO Energy is classified into three classes. In
each election of Directors, holders of common stock elect an entire class for
three-year terms. If and when dividends payable on all shares of the preferred
stock are in default in an amount equal to four full quarterly dividends, and
until all dividends then in default are paid or declared and set apart for
payment, the holders of all shares of preferred stock, voting separately as a
class, are entitled to elect the smallest number of Directors necessary to
constitute a majority of the full Board of Directors, and the holders of the
common stock (and except as otherwise provided by the terms of the preference
stock), voting separately as a class, are entitled to elect the remaining
Directors. Holders of preferred stock are not entitled to cumulative voting
rights in election of Directors.
The preferred stock of all series constitutes one class in any vote of
shareholders except as stated above, or when some mandatory provision of law is
controlling.
VOTING PROCEDURES FOR DEPOSITARY SHARES
Promptly upon receipt of notice of any meeting at which the holders of the
$7.96 Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Receipts as of the record date for such meeting. Each such record
holder of Depositary Receipts will be entitled to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of the $7.96
Preferred Stock represented by such record holder's Depositary Shares. The
Depositary will endeavor, insofar as practicable, to vote the amount of the
$7.96 Preferred Stock represented by such Depositary Shares in accordance with
such instructions, and PECO Energy will agree to take all action which may be
deemed necessary by the Depositary in order to enable the Depositary to do so.
The Depositary will abstain from voting any of the $7.96 Preferred Stock to the
extent that it does not receive specific instructions from the Holders of
Depositary Receipts.
Each share of $7.96 Preferred Stock will be entitled to one vote or a
fraction thereof for each $100 or fraction thereof of involuntary liquidation
value of such share on matters on which the $7.96 Preferred Stock is entitled to
vote.
WITHDRAWAL OF $7.96 PREFERRED STOCK
Upon surrender of Depositary Receipts at the principal office of the
Depositary, upon payment of the Depositary's customary charges therefor, and
subject to the terms of the Deposit Agreement, the owner of the Depositary
Shares evidenced thereby is entitled to delivery of the number of whole shares
of the $7.96 Preferred Stock and all money and other property, if any,
represented by such Depositary Shares. Owners of Depositary Shares will be
entitled to receive whole shares of the $7.96 Preferred Stock on the basis of
one
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share of $7.96 Preferred Stock for four Depositary Shares. Fractional interests
in the Depositary Shares will not be issued. If the Depositary Receipts
delivered by the holder evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole shares of the $7.96
Preferred Stock to be withdrawn, the Depositary will deliver to such holder, at
the same time, a new Depositary Receipt evidencing such excess number of
Depositary Shares. Subject to the terms of the Deposit Agreement, holders of the
$7.96 Preferred Stock thus withdrawn will thereafter be entitled to deposit such
shares under the Deposit Agreement and to receive Depositary Receipts evidencing
Depositary Shares therefor.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
PECO Energy maintains a Dividend Reinvestment and Stock Purchase Plan (as
described in a separate prospectus) which permits holders of PECO Energy's
common and preferred shares to reinvest cash dividends automatically and make
direct investments of up to $50,000 per calendar year in shares of common stock.
Holders of Preferred Trust Receipts will not be entitled to participate in PECO
Energy's Dividend Reinvestment and Stock Purchase Plan.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time and from time to time be
amended by agreement between PECO Energy and the Depositary. Any amendment that
shall impose any fees, taxes or charges shall not become effective as to
outstanding Depositary Receipts until the expiration of three months after
notice of such amendment has been given to the Holders of the outstanding
Depositary Receipts. Any amendment which is prejudicial to any substantial
existing rights of the Holders of Depositary Shares will not be effective unless
such amendment has been approved by the Holders of at least a majority of the
Depositary Shares then outstanding. No such amendment may impair the right,
subject to the terms of the Deposit Agreement, of any owner of any Depositary
Shares to surrender the Depositary Receipt evidencing such Depositary Shares
with instructions to the Depositary to deliver to the holder the $7.96 Preferred
Stock and all money and other property, if any represented thereby, except in
order to comply with mandatory provisions of applicable law. The Deposit
Agreement may be terminated by PECO Energy or the Depositary only if all
outstanding Depositary Shares relating thereto have been redeemed or there has
been a final distribution in respect of the $7.96 Preferred Stock in connection
with any liquidation, dissolution or winding up of PECO Energy and such
distribution has been distributed to the holders of the related Depositary
Receipts. Notwithstanding the foregoing, PECO Energy has the right to terminate
the Deposit Agreement upon 30 days' prior written notice to the Holders of the
Depositary Receipts and the Depositary if (i) the deposit arrangement evidenced
by the Deposit Agreement is in violation of applicable law or becomes separately
taxable for federal income tax purposes or (ii) PECO Energy affects a
four-for-one split of the $7.96 Preferred Stock.
CHARGES OF DEPOSITARY
Under the Deposit Agreement, Holders of Depositary Shares are required to
pay all transfer and other taxes and governmental charges arising from the
existence of the depositary arrangements. PECO Energy will pay charges of the
Depositary in connection with any redemption of the $7.96 Preferred Stock.
Holders of Depositary Shares pay transfer and other taxes and governmental
charges and certain other charges as are provided in the Deposit Agreement to be
for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to PECO Energy notice
of its election to do so, and PECO Energy may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor depositary and its acceptance of such appointment. Such successor
depositary must be appointed within 45 days after delivery of the notice for
resignation or removal and must be a bank or trust company having its principal
office in the United States of America and having a combined capital and surplus
of at least $50,000,000.
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MISCELLANEOUS
The Depositary forwards all reports and communications from PECO Energy
which are delivered to the Depositary and which PECO Energy is required to
furnish to the holders of the $7.96 Preferred Stock. In addition, the Depositary
makes available for inspection by Holders of Depositary Receipts at the
principal office of the Depositary, and at such other places as it may from time
to time deem advisable, any reports and communications received from PECO Energy
which are received by the Depositary as the holder of $7.96 Preferred Stock.
The obligations of PECO Energy and the Depositary under the Deposit
Agreement are limited to performance in good faith of their duties thereunder
and neither the Depositary nor PECO Energy assumes any other obligation or will
be subject to any other liability under the Deposit Agreement to holders of
Depositary Receipts. Neither the Depositary nor PECO Energy will be liable if it
is prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The Depositary and PECO
Energy will not be obligated to prosecute or defend any legal proceeding in
respect of any Depositary Shares or $7.96 Preferred Stock unless satisfactory
indemnity is furnished. PECO Energy and the Depositary may rely on written
advice of counsel or accountants, on information provided by Holders of
Depositary Shares or other persons believed in good faith to be competent to
give such information and on documents believed to be genuine and to have been
signed or presented by the proper party or parties.
UNITED STATES TAXATION
In the opinion of Ballard Spahr Andrews & Ingersoll, counsel to PECO
Energy, the following are the material United States federal income tax
consequences (and certain Pennsylvania tax considerations) of the receipt of
Preferred Trust Receipts in exchange for the Depositary Shares pursuant to the
Offer and of the ownership and disposition of Preferred Trust Receipts. Unless
otherwise stated, this summary deals only with Preferred Trust Receipts held as
capital assets by holders who acquire the Preferred Trust Receipts pursuant to
the Offer ("Initial Holders"). It does not deal with special classes of holders,
such as dealers in securities or currencies, life insurance companies, persons
holding Preferred Trust Receipts as a hedge against or which are hedged against
currency risks or as a part of a straddle, or persons whose functional currency
is not the United States dollar. This summary is based on the Internal Revenue
Code of 1986, as amended, Treasury Regulations thereunder and administrative and
judicial interpretations thereof, as of the date hereof, all of which are
subject to change (possibly on a retroactive basis).
ALL HOLDERS OF DEPOSITARY SHARES ARE ADVISED TO CONSULT THEIR TAX ADVISERS
AS TO THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE RECEIPT OF
PREFERRED TRUST RECEIPTS FOR DEPOSITARY SHARES AND OF THE OWNERSHIP AND
DISPOSITION OF PREFERRED TRUST RECEIPTS IN LIGHT OF THEIR PARTICULAR
CIRCUMSTANCES, AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR OTHER LAWS.
RECEIPT OF PREFERRED TRUST RECEIPTS FOR DEPOSITARY SHARES
The receipt in the Exchange of Preferred Trust Receipts for Depositary
Shares pursuant to the Offer will be treated for United States federal income
tax purposes as consisting of three transactions: (a) a taxable exchange of
Depositary Shares for the underlying Series B Subordinated Debentures followed
by (b) a tax-free contribution of the underlying Series B Subordinated
Debentures to PECO Energy Capital in exchange for Series B Preferred Securities
followed, in turn, by (c) a tax-free deposit of Series B Preferred Securities
with the Trust in consideration for the issuance of the Preferred Trust Receipts
to the Holders of the Depositary Shares.
The receipt of Preferred Trust Receipts for Depositary Shares pursuant to
the Offer will be a taxable transaction. In the case of an Initial Holder who
actually or constructively owns solely Depositary Shares, or not more than one
percent of such stock and not more than one percent of any other class of PECO
Energy stock, gain or loss will be recognized in an amount equal to the
difference between (a) the fair market value
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on the Exchange Date of the underlying Series B Subordinated Debentures received
in the Exchange and (b) the Initial Holder's tax basis in the Depositary Shares
exchanged therefor, and will be long-term capital gain or loss if the Depositary
Shares have been held for more than one year as of such date. For this purpose,
the fair market value of the Series B Subordinated Debentures deemed issued in
exchange for Depositary Shares on the Exchange Date will equal the fair market
value of the Preferred Trust Receipts on that date.
No further gain or loss will be recognized by an Initial Holder on account
of the contribution of the underlying Series B Subordinated Debentures to PECO
Energy Capital or the deposit of the Series B Preferred Securities with the
Trust in consideration for the issuance of the Preferred Trust Receipts.
An Initial Holder's aggregate tax basis in his pro rata share of the Series
B Preferred Securities (represented by his Preferred Trust Receipts) will be
equal to his tax basis for the Depositary Shares surrendered in the Exchange
increased by the amount of any gain or reduced by the amount of any loss
recognized in the Exchange.
Holders of Depositary Shares who actually or constructively own more than
one percent of any class of PECO Energy stock are advised to consult their tax
advisers as to the income tax consequences of exchanging Depositary Shares.
CLASSIFICATION OF PECO ENERGY CAPITAL AND THE TRUST
In connection with the issuance of Preferred Trust Receipts, Ballard Spahr
Andrews & Ingersoll will render its tax opinion to the effect that, under then
current law and assuming full compliance with the terms of the Partnership
Agreement and the Trust Agreement, (a) PECO Energy Capital will be classified
for United States federal income tax purposes as a partnership and not as an
association taxable as a corporation and (b) the Trust will be classified as a
grantor trust and not as an association taxable as a corporation.
As a consequence, each Securityholder will be considered the owner of a pro
rata portion of the Series B Preferred Securities held by the Trust. As a
further consequence, each Securityholder will be required to include in gross
income his pro rata share of the income accrued on the Series B Subordinated
Debentures held by PECO Energy Capital and allocated to the Trust. Such income
should not exceed distributions received by the Securityholders on the Preferred
Trust Receipts except in limited circumstances described under "-- Potential
Extension of Payment Period." No portion of such income will be eligible for the
dividends received deduction.
ACCRUAL OF ORIGINAL ISSUE DISCOUNT AND PREMIUM
The underlying Series B Subordinated Debentures will be considered to have
been issued with "original issue discount." PECO Energy Capital will be required
to include original issue discount on the Series B Subordinated Debentures in
income as it accrues, in accordance with a constant yield method based on a
compounding of interest, before the receipt of cash distributions on the
Preferred Trust Receipts. Each Securityholder, including a taxpayer who
otherwise uses the cash method of accounting, will be required to include his
pro rata share of such original issue discount allocated to the Trust.
Generally, all of a Securityholder's taxable interest income with respect to the
Series B Subordinated Debentures will be accounted for by PECO Energy Capital as
"original issue discount" and actual distributions of stated interest will not
be separately reported as taxable income. So long as the interest payment period
is not extended, cash distributions received by an initial Securityholder for
any monthly interest period (assuming no disposition prior to the record date
for such distribution) will equal or exceed the sum of the daily accruals of
income for such interest period, unless the issue price of the underlying Series
B Subordinated Debentures (as defined below) is less than $25.
The total amount of "original issue discount" on the underlying Series B
Subordinated Debentures will equal the difference between the "issue price" of
the Series B Subordinated Debentures and their "stated redemption price at
maturity." Because PECO Energy has the right to extend the interest payment
period of the Series B Subordinated Debentures, all of the stated interest
payments on the Series B Subordinated Debentures will be includible in
determining their "stated redemption price at maturity." The "issue price" of
each $25 principal amount of the Series B Subordinated Debentures will be equal
to the fair market value of the Depositary Shares on the Exchange Date, which
may be more or less than $25, with the result that the
45
51
total amount of original issue discount on the underlying Series B Subordinated
Debentures may be more or less than the amount of stated interest payable with
respect thereto.
POTENTIAL EXTENSION OF PAYMENT PERIOD
Securityholders will continue to accrue original issue discount with
respect to their pro rata share of the underlying Series B Subordinated
Debentures during an extended interest payment period, and any Securityholders
who dispose of Preferred Trust Receipts prior to the record date for the payment
of Distributions following such extended interest payment period will not
receive from the Trust any cash related thereto.
Under the terms of the Indenture, PECO Energy will be permitted to extend
the interest payment period on the Series B Subordinated Debentures up to 60
consecutive months. In the event that PECO Energy exercises this right, PECO
Energy may not declare dividends on any of its capital stock during such
extended interest period. PECO Energy currently believes that the extension of
an interest payment period is unlikely. In the event that the interest payment
period is extended, PECO Energy Capital will continue to accrue income,
generally equal to the amount of the interest payment due at the end of the
extended payment period, over the length of the extended interest payment
period.
Accrued income will be allocated, but not distributed, to Securityholders
of record on the 15th day of each calendar month. As a result, owners of
Preferred Trust Receipts during an extended interest payment period will be
required to include interest in gross income in advance of the receipt of cash,
and any such Securityholders who dispose of Preferred Trust Receipts prior to
the record date for the payment of Distributions following such extended
interest payment period will include interest in gross income but will not
receive any cash related thereto from the Trust. The tax basis of a Series B
Preferred Security will be increased by the amount of any interest that is
included in income without a receipt of cash, and will be decreased again when
and if such cash is subsequently received from PECO Energy and distributed by
PECO Energy Capital and the Trust. The subsequent receipt or distribution of
such cash will not be included in gross income.
TREATMENT OF THE PAYMENT OF THE ADDITIONAL DISTRIBUTION
The Additional Distribution payable on the first monthly Distribution date
for the Preferred Trust Receipts should be treated as a dividend for United
States federal income tax purposes.
DISPOSITION OF THE PREFERRED TRUST RECEIPTS
Gain or loss will be recognized on a sale, including a redemption for cash,
of Preferred Trust Receipts in an amount equal to the difference between the
amount realized and the Securityholder's tax basis in his pro rata share of
Series B Preferred Securities represented by such Preferred Trust Receipts. Gain
or loss recognized by a Securityholder on the sale or exchange of Preferred
Trust Receipts held for more than one year generally will be taxable as
long-term capital gain or loss.
PENNSYLVANIA TAX CONSIDERATIONS
In the opinion of Ballard Spahr Andrews & Ingersoll, the Preferred Trust
Receipts are exempt from existing personal property taxes in Pennsylvania.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
holder or beneficial owner who or which is (a) a nonresident alien individual or
(b) a foreign corporation, partnership, estate or trust, in either case not
subject to United States federal income tax on a net income basis in respect of
a Series B Preferred Security.
Under present United States federal income tax law, subject to the
discussion below with respect to backup withholding:
(i) Payments by the Trust or any of its paying agents to any United
States Alien Holder will not be subject to United States withholding tax
provided that (a) the beneficial owner of the Preferred Trust Receipt does
not actually or constructively own 10% or more of the total combined voting
power of all
46
52
classes of stock of PECO Energy, (b) the beneficial owner of the Preferred
Trust Receipt is not a controlled foreign corporation that is related to
PECO Energy through stock ownership, and (c) either (A) the beneficial
owner of the Preferred Trust Receipt certifies to the Trust or its agent,
under penalties of perjury, that it is a United States Alien Holder and
provides its name and address or (B) the holder of the Preferred Trust
Receipt is a securities clearing organization, bank or other financial
institution that holds customers' securities in the ordinary course of its
trade or business (a "financial institution"), and such holder certifies to
the Trust or its agent under penalties of perjury that such statement has
been received from the beneficial owner by it or by a financial institution
between it and the beneficial owner and furnishes the payor with a copy
thereof; and
(ii) a United States Alien Holder of a Preferred Trust Receipt will
not be subject to United States federal income or withholding tax on any
gain realized on the Exchange or on the sale or exchange of a Preferred
Trust Receipt unless such person is present in the United States for 183
days or more in the taxable year of sale and such person has a "tax home"
in the United States or certain other requirements are met.
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, information reporting requirements will apply to payments to
noncorporate United States holders of the proceeds of the sale of the Preferred
Trust Receipts within the United States and "backup withholding" at a rate of
31% will apply to such payments if the seller fails to provide a correct
taxpayer identification number.
Payments of the proceeds from the sale by a United States Alien Holder of
Preferred Securities made to or through a foreign office of a broker will not be
subject to information reporting or backup withholding, except that, if the
broker is a United States person, a controlled foreign corporation for United
States federal tax purposes or a foreign person 50% or more of whose gross
income is effectively connected with a United States trade or business for a
specified three-year period, information reporting may apply to such payment.
Payments of the proceeds from the sale of Preferred Securities to or through the
United States office of a broker is subject to information reporting and backup
withholding unless the holder or beneficial owner certifies as to its non-United
States status or otherwise establishes an exemption from information reporting
and backup withholding.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Series B
Preferred Securities and the Preferred Trust Receipts will be passed upon for
PECO Energy Capital and the Trust by Richards, Layton & Finger, P.A.,
Wilmington, Delaware, special Delaware counsel to PECO Energy Capital. The
validity of the Series B Guarantee and the Series B Subordinated Debentures will
be passed upon on behalf of PECO Energy by Ballard Spahr Andrews & Ingersoll,
Philadelphia, Pennsylvania. Certain legal matters will be passed upon on behalf
of the Dealer Manager by Drinker Biddle & Reath, Philadelphia, Pennsylvania,
counsel to the Dealer Manager. Ballard Spahr Andrews & Ingersoll and Drinker
Biddle & Reath, will rely on Richards, Layton & Finger, P.A. as to certain
matters of Delaware law.
EXPERTS
The consolidated financial statements and schedules of PECO Energy
incorporated by reference in this Offering Circular/Prospectus have been audited
by Coopers & Lybrand L.L.P., independent accountants, for the periods indicated
in their report thereon which is included in the Annual Report on Form 10-K for
the year ended December 31, 1994. The consolidated financial statements and
schedules audited by Coopers & Lybrand L.L.P. have been incorporated herein by
reference in reliance on their report given on their authority as experts in
accounting and auditing.
47
53
Facsimile copies of the Letter of Transmittal will be accepted. Letters of
Transmittal, certificates representing Depositary Shares and any other required
documents should be sent by each Holder of Depositary Shares or his broker,
dealer, commercial bank, trust company or other nominee to the Exchange Agent at
one of the addresses as set forth below:
THE EXCHANGE AGENT IS:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Hand or Overnight Courier in New York:
First Chicago Trust Company of New York
14 Wall Street
Tenders and Exchanges
8th Floor -- Suite 4680 -- PECO
New York, New York 10005
By Mail:
(registered or certified mail recommended)
First Chicago Trust Company of New York
Tenders and Exchanges
Suite 4660 -- PECO
P.O. Box 2559
Jersey City, New Jersey 07303-2559
By Facsimile Transmission
(For Eligible Institutions Only):
(201) 222-4720 or 4721
Confirm Receipt of Notice of Guaranteed Delivery by Telephone:
(201) 222-4707
The Information Agent is:
Georgeson & Company Inc.
Wall Street Plaza
New York, New York 10005
Banks and Brokers Call Collect: (212) 440-9800
ALL OTHERS CALL TOLL-FREE: (800) 223-2064
Any questions or requests for assistance or additional copies of this
Offering Circular/Prospectus, the Letter of Transmittal or for copies of the
Notice of Guaranteed Delivery may be directed to the Information Agent at its
telephone number and location set forth above. You may also contact your broker,
dealer, commercial bank or trust company or other nominee for assistance
concerning the Offer.
The Dealer Manager for the Offer is:
MERRILL LYNCH & CO.
54
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
PECO Energy's Bylaws provide that PECO Energy is obligated to indemnify
directors and officers and other persons designated by the Board of Directors
against any liability including any damage, judgment, amount paid in settlement,
fine, penalty, cost or expense (including, without limitation, attorneys' fees
and disbursements) incurred in connection with any proceeding. The Bylaws
provide that no indemnification shall be made where the act or failure to act
giving rise to the claim for indemnification is determined by arbitration or
otherwise to have constituted willful misconduct or recklessness or attributable
to receipt from PECO Energy of a personal benefit to which the recipient is not
legally entitled.
Section 518 of the Pennsylvania Business Corporation Law of 1988 provides
that indemnification pursuant to a bylaw may be granted for any action taken or
any failure to take any action, absent a court determination of willful
misconduct or recklessness, and may be made whether or not the corporation would
have the power to indemnify the person under any other provision of law.
Pursuant to the Pennsylvania Business Corporation Law of 1988, PECO
Energy's Bylaws provide that directors generally will not be liable for monetary
damages in any action whether brought by shareholders directly or in the right
of PECO Energy or by third parties unless they fail in the good faith
performance of their duties as fiduciaries (the standard of care established by
the Pennsylvania Business Corporation Law of 1988), and such failure constitutes
self-dealing, willful misconduct or recklessness.
Pursuant to the Partnership Agreement, to the fullest extent permitted by
applicable law, PECO Energy Capital shall indemnify and hold harmless the
General Partner or any Special Representative, any affiliate of the General
Partner or any Special Representative or any officers, directors, shareholders,
partners, employees, representatives or agents of the General Partner or any
Special Representative, or any employee or agent of PECO Energy Capital or its
affiliates (each, an "Indemnified Person") from and against any loss, damage or
claim incurred by such Indemnified Person by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of PECO
Energy Capital and in a manner reasonably believed to be within the scope of
authority conferred on such Indemnified Person by the Partnership Agreement,
except that no Indemnified Person shall be indemnified for any loss, claim or
damage incurred by reason of the Indemnified Persons's gross negligence, willful
misconduct or fraud; provided, however, that any such indemnity shall be
provided out of and to the extent of PECO Energy Capital's assets only, and no
General Partner or limited partner (collectively, "Partners"), any affiliate of
a Partner or any officers, directors, shareholders, partners, employees,
representatives or agents of a Partner or its respective affiliates, or any
employee or agent of PECO Energy Capital or its affiliates or any Special
Representative shall have any personal liability on account thereof. To the
fullest extent permitted by applicable law, expenses (including legal fees)
incurred by an Indemnified Person in defending any claim, demand, action, suit
or proceeding shall, from time to time, be advanced by PECO Energy Capital prior
to the final disposition of such claim, demand, action, suit or proceeding
pursuant to an undertaking by or on behalf of the Indemnified Person to repay
such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified.
PECO Energy has purchased directors' and officers' liability insurance.
II-1
55
ITEM 21. EXHIBITS
EXHIBIT
NUMBERS
- -------
1-1 Form of Dealer Manager Agreement*.
3-1 Amended and Restated Articles of Incorporation of PECO Energy (incorporated by
reference to Exhibit 3-1 of PECO Energy's 1993 Annual Report on Form 10-K, File No.
1-1401).
3-2 Bylaws of PECO Energy, adopted February 26, 1990 and amended January 24, 1994
(incorporated by reference to Exhibit 3-2 of PECO Energy's 1993 Annual Report on
Form 10-K, File No. 1-1401).
3-3 Certificate of Limited Partnership of PECO Energy Capital, L.P. (incorporated by
reference to Registration Statement Nos. 33-53785 and 33-53785-01).
4-1 Amended and Restated Limited Partnership Agreement of PECO Energy Capital
(incorporated by reference to Exhibit 10-7 of PECO Energy's 1994 Annual Report on
Form 10-K,
File No. 1-1401).
4-2 Amendment to Amended and Restated Limited Partnership Agreement of PECO Energy
Capital.
4-3 Form of Action of General Partner creating Series B Preferred Securities.
4-4 Form of Series B Preferred Security Certificate (included in Exhibit 4-1 above).
4-5 Subordinated Debenture Indenture (incorporated by reference to Exhibit 4-5 of PECO
Energy's 1994 Annual Report on Form 10-K, File No. 1-1401).
4-6 Form of Series B Subordinated Debenture (included in Exhibit 4-7 below).
4-7 Form of First Supplemental Indenture.
4-8 Form of Certificate of Trust.
4-9 Form of Trust Agreement.
4-10 Form of Certificate Representing the Preferred Trust Receipts (included in Exhibit
4-9 above).
4-11 Form of Payment and Guarantee Agreement.
5-1 Opinion of Ballard Spahr Andrews & Ingersoll relating to the legality of the Series
B Subordinated Debentures and Series B Guarantees, including consent.*
5-2 Opinion of Richards, Layton & Finger, P.A., relating to the legality of the
Preferred Trust Receipts, including consent.*
8 Opinion of Ballard Spahr Andrews & Ingersoll as to tax matters.*
12-1 Computations of PECO Energy's Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Combined Fixed Charges and Preferred Stock Dividend Requirements for
the years ended December 31, 1990-1994 and for the three months ended March 31,
1994 and March 31, 1995 (incorporated by reference to Exhibits 12-1 and 12-2,
respectively, of PECO Energy's 1994 Annual Report on Form 10-K, File No. 1-1401 and
PECO Energy's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1994
and March 31, 1995).
13 PECO Energy's Annual Report on Form 10-K for the fiscal year ended December 31,
1994 and Quarterly Report on Form 10-Q for the quarter ended March 31, 1995
(incorporated by reference, File No. 1-1401).
21 List of Subsidiaries of PECO Energy.
23-1 Consent of Independent Accountants.
23-2 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 5-1).
- ---------------
* To be filed by amendment.
II-2
56
EXHIBIT
NUMBERS
- -------
23-3 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5-2).
24 Powers of Attorney.
25 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
Meridian Trust Company, as Trustee under the First Supplemental Indenture.
99-1 Proposed Form of Letter of Transmittal.
99-2 Proposed Form of Notice of Guaranteed Delivery.
99-3 Proposed Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.
99-4 Proposed Form of Letter to Clients.*
99-5 Form of Exchange Agent Agreement.
99-6 Form of Information Agent Agreement.
99-7 Form of Newspaper Announcement.
99-8 Press Release.
99-9 Proposed Form of Letter to Holders of $7.96 Cumulative Preferred Stock.
- ---------------
* To be filed by amendment.
ITEM 22. UNDERTAKINGS
(1) The undersigned registrants hereby undertake:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(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.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each 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.
(c) 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.
(2) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrants' 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.
II-3
57
(3) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrants pursuant to the foregoing provisions, or otherwise, the
Registrants have 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 Registrants of expenses
incurred or paid by a director, officer or controlling person of the Registrants
in the successful defense of any action, suit, or proceeding) is asserted by
such director, officer of controlling person in connection with the securities
being registered, the Registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(4) The undersigned registrants hereby undertake to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this Form S-4, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
(5) The undersigned registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-4
58
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
PECO Energy Capital, L.P., has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized in the City
of Philadelphia, Pennsylvania, on the 5th of July, 1995.
PECO Energy Capital, L.P.
By: PECO Energy Capital Corp.,
its general partner
By: /s/ J.B. MITCHELL
------------------------------------
J.B. Mitchell
President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
- --------------------------------------------- ---------------------------------- -------------
/s/ J.B. President and Director (Principal July 5, 1995
MITCHELL Executive Officer and Principal
- --------------------------------------------- Financial and Accounting Officer)
J.B. Mitchell
/s/ K.G. Director July 5, 1995
LAWRENCE
- ---------------------------------------------
K.G. Lawrence
/s/ N.E. Director July 5, 1995
DESCANO
- ---------------------------------------------
N.E. Descano
II-5
59
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
PECO Energy Company, has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of
Philadelphia, Commonwealth of Pennsylvania, on the 5th of July, 1995.
PECO Energy Company
By: /s/ J.F. PAQUETTE, JR.
------------------------------------
J.F. Paquette, Jr.
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
- --------------------------------------------- ---------------------------------- -------------
/s/ J.F. PAQUETTE, Chairman of the Board and Director July 5, 1995
JR.
- ---------------------------------------------
J.F. Paquette, Jr.
/s/ C.A. MCNEILL, President and Director July 5, 1995
JR. (Principal Executive Officer)
- ---------------------------------------------
C.A. McNeill, Jr.
/s/ K.G. Senior Vice President -- Finance July 5, 1995
LAWRENCE and Chief Financial Officer
- --------------------------------------------- (Principal Financial and
K.G. Lawrence Accounting Officer)
This registration statement has also been signed by C.A. McNeill, Jr.,
Attorney-in-Fact, on behalf of the following Directors on the date indicated:
Susan W. Catherwood Joseph C. Ladd
M. Walter D'Alessio Edithe J. Levit
Richard G. Gilmore Kinnaird R. McKee
Richard H. Glanton Joseph J. McLaughlin
James A. Hagen John M. Palms
Nelson G. Harris Ronald Rubin
Robert Subin
By: /s/ C.A. MCNEILL, JR.
----------------------------------
C.A. McNeill, Jr.,
Attorney-in-Fact
II-6
60
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------ ------------------------------------------------------------------------------------
1-1 Form of Dealer Manager Agreement*.
3-1 Amended and Restated Articles of Incorporation of PECO Energy (incorporated by
reference to Exhibit 3-1 of PECO Energy's 1993 Annual Report on Form 10-K, File No.
1-1401).
3-2 Bylaws of PECO Energy, adopted February 26, 1990 and amended January 24, 1994
(incorporated by reference to Exhibit 3-2 of PECO Energy's 1993 Annual Report on
Form 10-K, File No. 1-1401).
3-3 Certificate of Limited Partnership of PECO Energy Capital, L.P. (incorporated by
reference to Registration Statement Nos. 33-53785 and 33-53785-01).
4-1 Amended and Restated Limited Partnership Agreement of PECO Energy Capital
(incorporated by reference to Exhibit 10-7 of PECO Energy's 1994 Annual Report on
Form 10-K,
File No. 1-1401).
4-2 Amendment to Amended and Restated Limited Partnership Agreement of PECO Energy
Capital.
4-3 Form of Action of General Partner creating Series B Preferred Securities.
4-4 Form of Series B Preferred Security Certificate (included in Exhibit 4-1 above).
4-5 Subordinated Debenture Indenture (incorporated by reference to Exhibit 4-5 of PECO
Energy's 1994 Annual Report on Form 10-K, File No. 1-1401).
4-6 Form of Series B Subordinated Debenture (included in Exhibit 4-7 below).
4-7 Form of First Supplemental Indenture.
4-8 Form of Certificate of Trust.
4-9 Form of Trust Agreement.
4-10 Form of Certificate Representing the Preferred Trust Receipts (included in Exhibit
4-9 above).
4-11 Form of Payment and Guarantee Agreement.
5-1 Opinion of Ballard Spahr Andrews & Ingersoll relating to the legality of the Series
B Subordinated Debentures and Series B Guarantees, including consent.*
5-2 Opinion of Richards, Layton & Finger, P.A., relating to the legality of the
Preferred Trust Receipts, including consent.*
8 Opinion of Ballard Spahr Andrews & Ingersoll as to tax matters.*
12-1 Computations of PECO Energy's Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Combined Fixed Charges and Preferred Stock Dividend Requirements for the
years ended December 31, 1990-1994 and for the three months ended March 31, 1994 and
March 31, 1995 (incorporated by reference to Exhibits 12-1 and 12-2, respectively,
of PECO Energy's 1994 Annual Report on Form 10-K, File No. 1-1401 and PECO Energy's
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1994 and March 31,
1995).
13 PECO Energy's Annual Report on Form 10-K for the fiscal year ended December 31, 1994
and Quarterly Report on Form 10-Q for the quarter ended March 31, 1995 (incorporated
by reference, File No. 1-1401).
21 List of Subsidiaries of PECO Energy.
23-1 Consent of Independent Accountants.
23-2 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 5-1).
- ---------------
* To be filed by amendment.
61
EXHIBIT
NUMBER DESCRIPTION
- ------ ------------------------------------------------------------------------------------
23-3 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5-2).
24 Powers of Attorney.
25 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
Meridian Trust Company, as Trustee under the First Supplemental Indenture.
99-1 Proposed Form of Letter of Transmittal.
99-2 Proposed Form of Notice of Guaranteed Delivery.
99-3 Proposed Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.
99-4 Proposed Form of Letter to Clients.*
99-5 Form of Exchange Agent Agreement.
99-6 Form of Information Agent Agreement.
99-7 Form of Newspaper Announcement.
99-8 Press Release.
99-9 Proposed Form of Letter to Holders of $7.96 Cumulative Preferred Stock.
- ---------------
* To be filed by amendment.