Exhibit (10)- 9
Unicom Corporation and Commonwealth Edison Company
Form 10-K File Nos.1-11375 and 1-1839
UNICOM CORPORATION
GENERAL PROVISIONS REGARDING 1996 STOCK OPTION AWARDS
GRANTED UNDER THE UNICOM CORPORATION LONG-TERM INCENTIVE PLAN
The purpose of these General Provisions Regarding 1996 Stock Option
Awards Granted Under the Unicom Corporation Long-Term Incentive Plan (the
"General Provisions") is to set forth certain provisions which shall be deemed a
part of, and to govern, options to purchase shares of the Common Stock, without
par value (the "Common Stock"), of Unicom Corporation, an Illinois corporation
(the "Company"), granted by the Company on July 18, 1996 under the provisions of
the Unicom Corporation Long-Term Incentive Plan (the "Plan").
1. Form of Stock Option Grant. Each such stock option ("Option")
shall be in writing (an "Option Agreement") and shall specify (i) the name of
the recipient of the Option (the "Optionee"), (ii) the number of shares of
Common Stock subject to such Option, and (iii) the terms applicable to the
exercise of such Option, including the exercise price, any restrictions
applicable to such exercise and the expiration date (the "Expiration Date") for
such exercise.
2. Time and Manner of Exercise.
2.1. Exercise of Option. (a) Except as otherwise provided herein,
an Option shall become exercisable as described under the caption "When
Exercisable" in the Option Agreement.
(b) If an Optionee's employment by the Company terminates by reason
of Retirement, death or Disability, then on the date of such Retirement, death
or Disability, such Optionee's Option shall, notwithstanding Section 2.1(a)
hereof, become exercisable as to all of the shares of Common Stock remaining
subject to such Option and may (1) in the cases of Retirement or Disability, be
exercised by such Optionee or his or her Legal Representative or Permitted
Transferees, as the case may be, until the Expiration Date or (2) in the case of
death, be exercised by such Optionee's Legal Representative or Permitted
Transferees, as the case may be, until 11:59 p.m. (Chicago time) on the third
anniversary of the date of death; provided, however, that in any case such
exercisability is conditioned upon such Optionee's or his or her Legal
Representative's or Permitted Transferees', as the case may be, continued
"acceptable conduct," as determined by the Committee in its sole discretion. For
purposes of the foregoing, "acceptable conduct"
shall mean, without limitation, refraining from engaging in activities which (i)
are competitive to the business of the Company or its subsidiaries, (ii) promote
or assist competitors of the Company or its subsidiaries, or (iii) reflect
negatively on the Company, its subsidiaries or any of their directors, officers,
employees or agents.
(c) If an Optionee's employment by the Company terminates either
for cause or by voluntary action of such Optionee (other than Retirement), such
Optionee's Option shall expire on the effective date of such termination of
employment and shall not thereafter be exercisable.
(d) If an Optionee's employment by the Company terminates for any
reason other than Retirement, Disability, death or as specified in Section
2.1(c) hereof, such Optionee's Option shall be exercisable only to the extent it
is exercisable on the effective date of such termination of employment and may
thereafter be exercised by such Optionee or his or her Legal Representative
until and including the earlier to occur of (i) the date which is three months
after the effective date of such termination of employment and (ii) the
Expiration Date.
2.2. Method of Exercise. Subject to the limitations set forth in
the Option Agreement and these General Provisions, an Option may be exercised by
the Optionee:
(a) by giving written notice to the Company specifying the number of
whole shares of Common Stock to be purchased and accompanied by payment
therefor in full (or arrangement made for such payment to the Company's
satisfaction) (1) in cash, (2) by delivery of previously owned whole
shares of Common Stock (which such Optionee has held for at least six
months prior to the delivery of such shares or which such Optionee
purchased on the open market and for which such Optionee has good title,
free and clear of all liens and encumbrances) having an aggregate Fair
Market Value, determined as of the date of exercise, equal to the
aggregate purchase price payable pursuant to such Option by reason of such
exercise, (3) in cash by a broker-dealer acceptable to the Company to whom
such Optionee has submitted an irrevocable notice of exercise or (4) a
combination of (1) and (2), and
(b) by executing such documents as the Company may reasonably
request.
The Company shall have sole discretion to disapprove of an election pursuant to
any of subclauses (2) through (4) of clause (a) of this Section 2.2. Any
fraction of a share of Common Stock which would be required to pay such purchase
price shall be disregarded and the remaining amount due shall be paid in cash by
the Optionee. No certificate representing a share of Common Stock shall be
delivered until the full purchase price therefor has been paid.
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2.3. Termination of Option. (a) In no event may an Option be
exercised after it terminates as set forth in this Section 2.3. An Option shall
terminate, to the extent not exercised pursuant to Section 2.2 or earlier
terminated pursuant to Section 2.1, on the Expiration Date stated in the Option
Agreement.
(b) In the event that rights to purchase all or a portion of the
shares of Common Stock subject to an Option expire or are exercised, cancelled
or forfeited, the Optionee shall, upon the Company's request, promptly return
the related Option Agreement to the Company for full or partial cancellation, as
the case may be. Such cancellation shall be effective regardless of whether the
Optionee returns said Option Agreement. If the Optionee continues to have
rights to purchase shares of Common Stock under said Option Agreement, the
Company shall, within 10 days of the Optionee's delivery of said Option
Agreement to the Company, either (i) mark said Option Agreement to indicate the
extent to which said Option has expired or been exercised, cancelled or
forfeited or (ii) issue to the Optionee a substitute option agreement applicable
to such rights, which agreement shall otherwise be substantially similar to said
Option Agreement in form and substance.
3. Additional Terms and Conditions of Options.
3.1. Nontransferability of Options. Except as may otherwise be
permitted by the Plan or authorized in accordance with the terms of the Plan, an
Option may not be transferred by the Optionee other than by will or the laws of
descent and distribution or pursuant to beneficiary designation procedures
approved by the Company. Except to the extent permitted by the foregoing
sentence, during the Optionee's lifetime such Optionee's Option is exercisable
only by the Optionee or his or her Legal Representative. Except to the extent
permitted by the foregoing, an Option may not be sold, transferred, assigned,
pledged, hypothecated, encumbered or otherwise disposed of (whether by operation
of law or otherwise) or be subject to execution, attachment or similar process.
Upon any attempt so to sell, transfer, assign, pledge, hypothecate, encumber or
otherwise dispose of an Option, such Option and all rights thereunder shall
immediately become null and void.
3.2. Withholding Taxes. (a) As a condition precedent to the
delivery of shares of Common Stock upon exercise of an Option, the Optionee
shall, upon request by the Company, pay to the Company in addition to the
purchase price of the shares, such amount of cash as the Company may be
required, under all applicable federal, state, local or other laws or
regulations, to withhold and pay over as income or other withholding taxes (the
"Required Tax Payments") with respect to such exercise of such Option. If the
Optionee shall fail to advance the Required Tax Payments after request by the
Company, the Company may, in its discretion, deduct any Required Tax Payments
from any amount then or thereafter payable by the Company to the Optionee.
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(b) The Optionee may elect to satisfy his or her obligation to
advance the Required Tax Payments by any of the following means: (1) a cash
payment to the Company pursuant to Section 3.2(a), (2) delivery to the Company
of previously owned whole shares of Common Stock (which the Optionee has held
for at least six months prior to the delivery of such shares or which the
Optionee purchased on the open market and for which the Optionee has good title,
free and clear of all liens and encumbrances) having an aggregate Fair Market
Value, determined as of the date the obligation to withhold or pay taxes first
arises in connection with such Optionee's Option (the "Tax Date"), equal to the
Required Tax Payments, (3) authorizing the Company to withhold whole shares of
Common Stock which would otherwise be delivered to the Optionee upon exercise of
such Option having an aggregate Fair Market Value, determined as of the Tax
Date, equal to the Required Tax Payments, (4) a cash payment by a broker-dealer
acceptable to the Company to whom the Optionee has submitted an irrevocable
notice of exercise or (5) any combination of (1), (2) and (3). The Company
shall have sole discretion to disapprove of an election pursuant to any of
clauses (2) through (5). Shares of Common Stock to be delivered or withheld may
not have an aggregate Fair Market Value in excess of the minimum amount of the
Required Tax Payments. Any fraction of a share of Common Stock which would be
required to satisfy any such obligation shall be disregarded and the remaining
amount due shall be paid in cash by the Optionee. No certificate representing a
share of Common Stock shall be delivered until the Required Tax Payments have
been satisfied in full.
(c) Unless the Committee otherwise determines, if an Optionee is
subject to Section 16 of the Exchange Act, the following provisions shall apply
to such Optionee's election to deliver to the Company whole shares of Common
Stock or to authorize the Company to withhold whole shares of Common Stock
purchasable upon exercise of such Optionee's Option in payment of all or a
portion of such Optionee's tax liability in connection with such exercise:
(1) Such Optionee may deliver to the Company previously owned
whole shares of Common Stock in accordance with Section 3.2(b), if such
delivery is in connection with the delivery of shares of Common Stock in
payment of the exercise price of such Optionee's Option.
(2) Such Optionee may authorize the Company to withhold whole
shares of Common Stock purchasable upon exercise of such Optionee's Option
in accordance with Section 3.2(b); provided that the following provisions
shall apply to such election:
(i) such election may apply only to such Option or any or all
other options held by such Optionee, shall be filed with the
Secretary at least six months prior to the exercise date of such
Option and may not take effect
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during the six-month period beginning on the Grant Date (as
specified in the Option Agreement) of such Option (other than in the
event of such Optionee's death) or
(ii) such election (A) shall be subject to approval by the
Committee, (B) may not take effect during the six-month period
beginning on the Grant Date (as specified in the Option Agreement)
of such Option (other than in the event of such Optionee's death),
(C) must be filed with the Secretary during (or must be filed with
the Secretary in advance of, but take effect during) the ten
business day period beginning on the third business day following
the date of release of the Company's quarterly or annual summary
statements of sales and earnings and (D) the exercise of such Option
must occur during such ten business day period.
Unless the Committee otherwise determines, any election pursuant to clause
(i) may be revoked or changed only if such revocation or change is made at
least six months prior to the exercise of the Option. Any election made
pursuant to clause (ii) may be revoked or changed prior to the exercise of
the Option during the ten business day period.
3.3. Adjustment. The number and class of securities subject to an
Option and the purchase price per security shall be subject to adjustment as
provided in Section 4.2 of the Plan. If any such adjustment would result in a
fractional security being subject to such Option, the Company shall pay the
Optionee, in connection with the first exercise of such Option, in whole or in
part, occurring after such adjustment, an amount in cash determined by
multiplying (i) the fraction of such security (rounded to the nearest hundredth)
by (ii) the excess, if any, of (A) the Fair Market Value on the exercise date
over (B) the exercise price per share of such Option. The decision of the
Committee regarding any such adjustment shall be final, binding and conclusive.
3.4. Compliance with Applicable Law. Each Option is subject to the
condition that if the listing, registration or qualification of the shares
subject to such Option upon any securities exchange or under any law, or the
consent or approval of any governmental body, or the taking of any other action
is necessary or desirable as a condition of, or in connection with, the purchase
or delivery of shares hereunder, such Option may not be exercised, in whole or
in part, unless such listing, registration, qualification, consent or approval
shall have been effected or obtained, free of any conditions not acceptable to
the Company. The Company agrees to use reasonable efforts to effect or obtain
any such listing, registration, qualification, consent or approval.
3.5. Delivery of Certificates. Upon the exercise of an Option, in
whole or in part, the Company shall credit to a book-entry or other electronic
account maintained for the Optionee, or deliver or cause to be delivered one or
more certificates representing,
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the number of shares purchased against full payment therefor. The Company shall
pay all original issue or transfer taxes and all fees and expenses incident to
such delivery, except as otherwise provided in Section 3.2.
3.6. Rights as a Stockholder. An Optionee shall not be entitled to
any privileges of ownership with respect to shares of Common Stock subject to an
Option unless and until purchased and credited to an account maintained for such
Optionee or delivered to such Optionee upon the exercise of such Option, in
whole or in part, and such Optionee becomes a stockholder of record with respect
to such shares; and such Optionee shall not be considered a stockholder of the
Company with respect to any such shares not so purchased and credited or
delivered.
3.7. Company to Reserve Shares. The Company shall at all times
prior to the expiration or termination of an Option reserve and keep available,
either in its treasury or out of its authorized but unissued shares of Common
Stock, the full number of shares subject to such Option from time to time.
3.8. Agreement Subject to the Plan. Each Option Agreement, and the
Option thereby granted, are subject to the provisions of the Plan, including,
without limitation, Sections 5.1 and 13.2 of the Plan, and shall be interpreted
in accordance therewith.
4. Change in Control. (a) Notwithstanding any provision in the
Plan or any Option Agreement, in the event of a Change in Control, all
outstanding Options shall immediately become exercisable in full.
(b) "Change in Control" shall mean:
(1) the acquisition by any individual, entity or group (a
"Person"), including any "person" within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act, of beneficial ownership within the
meaning of Rule 13d-3 promulgated under the Exchange Act, of 20% or more
of either (i) the then outstanding shares of Common Stock (the
"Outstanding Company Common Stock") or (ii) the combined voting power of
the then outstanding securities of the Company entitled to vote generally
in the election of directors (the "Outstanding Company Voting
Securities"); excluding, however, the following: (A) any acquisition
directly from the Company (excluding any acquisition resulting from the
exercise of an exercise, conversion or exchange privilege unless the
security being so exercised, converted or exchanged was acquired directly
from the Company), (B) any acquisition by the Company, (C) any
acquisition by an employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or
(D) any acquisition by any
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corporation pursuant to a transaction which complies with clauses (i),
(ii) and (iii) of subsection (3) of this Section 4(b); provided further,
that for purposes of clause (B), if any Person (other than the Company or
any employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company) shall become the
beneficial owner of 20% or more of the Outstanding Company Common Stock or
20% or more of the Outstanding Company Voting Securities by reason of an
acquisition by the Company, and such Person shall, after such acquisition
by the Company, become the beneficial owner of any additional shares of
the Outstanding Company Common Stock or any additional Outstanding Company
Voting Securities (other than pursuant to any dividend reinvestment plan
or arrangement maintained by the Company) and such beneficial ownership is
publicly announced, such additional beneficial ownership shall constitute
a Change in Control;
(2) individuals who, as of the date hereof, constitute the Board
of Directors (the "Incumbent Board") cease for any reason to constitute at
least a majority of such Board; provided that any individual who becomes a
director of the Company subsequent to the date hereof whose election, or
nomination for election by the Company's stockholders, was approved by the
vote of at least a majority of the directors then comprising the Incumbent
Board shall be deemed a member of the Incumbent Board; and provided
further, that any individual who was initially elected as a director of
the Company as a result of an actual or threatened election contest, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act, or any other actual or threatened solicitation of proxies or
consents by or on behalf of any Person other than the Board shall not be
deemed a member of the Incumbent Board;
(3) approval by the stockholders of the Company of a
reorganization, merger or consolidation or sale or other disposition of
all or substantially all of the assets of the Company (a "Corporate
Transaction"); excluding, however, a Corporate Transaction pursuant to
which (i) all or substantially all of the individuals or entities who are
the beneficial owners, respectively, of the Outstanding Company Common
Stock and the Outstanding Company Voting Securities immediately prior to
such Corporate Transaction will beneficially own, directly or indirectly,
more than 60% of, respectively, the outstanding shares of common stock,
and the combined voting power of the outstanding securities of such
corporation entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Corporate
Transaction (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially all of
the Company's assets either directly or indirectly) in substantially the
same proportions relative to each other as their ownership, immediately
prior to such Corporate Transaction, of the Outstanding
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Company Common Stock and the Outstanding Company Voting Securities, as the
case may be, (ii) no Person (other than: the Company; any employee
benefit plan (or related trust) sponsored or maintained by the Company or
any corporation controlled by the Company; the corporation resulting from
such Corporate Transaction; and any Person which beneficially owned,
immediately prior to such Corporate Transaction, directly or indirectly,
20% or more of the Outstanding Company Common Stock or the Outstanding
Company Voting Securities, as the case may be) will beneficially own,
directly or indirectly, 20% or more of, respectively, the outstanding
shares of common stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the outstanding securities of
such corporation entitled to vote generally in the election of directors
and (iii) individuals who were members of the Incumbent Board will
constitute at least a majority of the members of the board of directors of
the corporation resulting from such Corporate Transaction; or
(4) approval by the stockholders of the Company of a plan of
complete liquidation or dissolution of the Company.
5. Miscellaneous Provisions.
5.1. Meaning of Certain Terms. (a) As used herein, employment by
the Company shall include employment by a corporation which is a "subsidiary
corporation" of the Company, as such term is defined in section 424 of the Code.
References in these General Provisions to sections of the Code shall be deemed
to refer to any successor section of the Code or any successor internal revenue
law.
(b) As used herein, the terms defined elsewhere in these General
Provisions shall have the respective specified meanings and the following terms
shall have the following respective meanings:
"Committee" shall have the meaning specified in the Plan.
"Disability" shall have the meaning specified in any long-term
disability plan or arrangement maintained by the Company or, if no such
plan or arrangement is then in effect, as determined by the Committee.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means the closing transaction price of a share
of Common Stock, as reported on the New York Stock Exchange Composite
Transactions on the date of exercise or, if there shall be no reported
transaction for such date, on the next preceding date for which a
transaction was reported.
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"Legal Representative" shall include an executor, administrator,
legal representative, guardian or similar person.
"Permitted Transferee" shall include any transferee (i) pursuant to
a transfer permitted under Section 13.5 of the Plan and Section 3.1 of
these General Provisions or (ii) designated pursuant to beneficiary
designation procedures approved by the Company.
"Retirement" shall mean retirement from the employment of the
Company (as defined in Section 5.1(a) hereof) on or after attaining the
minimum age specified for early or normal retirement in any then effective
retirement policy of the Company, after a minimum of ten years employment
with the Company.
5.2. Successors. These General Provisions shall be binding upon
and inure to the benefit of any successor or successors of the Company and any
person or persons who shall, upon the death of an Optionee, acquire any rights
under such Optionee's Option Agreement in accordance with such Option Agreement,
these General Provisions or the Plan.
5.3. Notices. All notices, requests or other communications
provided for in an Option Agreement shall be made, if to the Company, to Unicom
Corporation, 10 South Dearborn Street - 37th Floor, P.O. Box A-3007, Chicago,
Illinois 60690-3007, Attention: Secretary, and if to the Optionee under such
Option Agreement, to the address for such Optionee set forth in the records of
the Company. All notices, requests or other communications provided for in an
Option Agreement shall be made in writing either (a) by personal delivery to the
party entitled thereto, (b) by facsimile transmission with confirmation of
receipt, (c) by mailing in the United States mails to the last known address of
the party entitled thereto or (d) by express courier service. The notice,
request or other communication shall be deemed to be received upon personal
delivery, upon confirmation of receipt of facsimile transmission or upon receipt
by the party entitled thereto if sent by United States mail or express courier
service; provided, however, that if a notice, request or other communication is
not received during regular business hours, it shall be deemed to be received on
the next succeeding business day of the Company.
5.4. Governing Law. Each Option Agreement (including these General
Provisions) and all determinations made and actions taken pursuant thereto, to
the extent not governed by the laws of the United States, shall be governed by
the laws of the State of Illinois and construed in accordance therewith without
giving effect to principles of conflicts of laws.
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