Exhibit (10)-37
Unicom Corporation and Commonwealth Edison Company
Form 10-K File Nos. 1-11375 and 1-1839
UNICOM CORPORATION
STOCK AWARD AGREEMENT
Unicom Corporation, an Illinois corporation (the "Company"), hereby grants
_______________, (the "Holder") as of _________________, (the "Grant Date"),
pursuant to the provisions of the Unicom Corporation Long-Term Incentive Plan
(the "Plan"), a stock award (the "Award") of ______________ (___,000) shares of
the Company's Common Stock, without par value ("Common Stock"), upon and subject
to the restrictions, terms and conditions set forth below. Capitalized terms
not defined herein shall have the meanings specified in the Plan.
1. Award Subject to Acceptance of Agreement.
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The Award shall be subject to all the terms of this Agreement and the Plan.
2. Rights as a Stockholder; Dividend Equivalents.
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The Holder shall not be entitled to any privileges of ownership with respect to
the shares of Common Stock subject to the Award unless and until, and only to
the extent, such shares become vested pursuant to Section 3 hereof and the
Holder becomes a stockholder of record with respect to such shares. The Company
shall pay to the Holder a cash payment equal to the amount of any dividends he
would have received had the shares of Common Stock covered by this Award been
issued to him on the date hereof and such payment shall be made when and as
dividends are paid on outstanding shares of Common Stock until such shares
either vest or are forfeited, as provided in Section 3.
3. Restriction Period and Vesting.
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(a) The Award shall vest with respect to ___(fill in #)______ shares of
Common Stock on __(each)______ the ___(specify anniversary
cycle(s))_____ and ____(specify anniversary cycle(s))____
anniversaries hereof, or earlier pursuant to Sections 3(b) and 3(c)
hereof (the "Restriction Period").
(b) If (i) the Holder's employment by the Company or its successors
terminates by reason of Disability or death or (ii) a Change in
Control shall have occurred, the Award shall become fully vested as of
the date of such Disability or death, or the effective date of such
Change in Control, as the case may be.
(c) If (i) the Holder's employment is terminated by the Company or its
successors for any reason other than a reason described in Section
3(d), or (ii) the Holder resigns because the Company or its successors
(A) fails to pay to the Holder his salary when due, (B) reduces
Holder's pay (salary and/or incentives) and benefits, or (C)
materially changes the duties of Holder's position with the Company,
the Award shall become fully vested as of the effective date of such
termination of employment or resignation, as applicable.
(d) If the Holder's employment by the Company terminates on account of
fraud or willful misconduct, or other than as described in Sections
3(b) or 3(c), the portion of the Award that is not vested as of the
effective date of such termination of employment shall be forfeited by
the Holder, and such portion shall be canceled by the Company.
4. Termination of Award.
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Restricted Stock Agreement--_______________
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In the event that the Holder shall forfeit all or a portion of the shares of
Common Stock subject to the Award, this Award shall terminate. The Holder
shall, upon the Company's request, promptly return this Agreement to the Company
for cancellation. Such cancellation shall be effective regardless of whether
the Holder returns this Agreement.
5. Additional Terms and Conditions of Award.
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5.1. Nontransferability of Award.
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During the Restriction Period, this Award 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, other than by will or the laws of descent
and distribution. Upon any attempt to so sell, transfer, assign, pledge,
hypothecate or encumber, or otherwise dispose of this Award or any shares
subject hereto that have not been issued pursuant to Section 5.5 shall
immediately become null and void.
5.2. Withholding Taxes.
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(a) As a condition precedent to the delivery to the Holder of any
shares of Common Stock subject to the Award, the Holder shall, upon
request by the Company, pay to the Company (or shall cause a broker-
dealer on behalf of the Holder to pay to the Company) 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 the Award. If the Holder 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 Holder.
(b) The Holder 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 5.2(a), (2) delivery to the
Company of previously owned whole shares of Common Stock (which the
Holder has held for at least six months prior to the delivery of such
shares or which the Holder purchased on the open market and for which
the Holder has good title, free and clear of all liens and
encumbrances) having a Fair Market Value, determined as of the date
the obligation to withhold or pay taxes first arises in connection
with the Award (the "Tax Date"), equal to the Required Tax Payments,
(3) authorizing the Company to withhold from the shares of Common
Stock otherwise to be delivered to the Holder pursuant to the Award, a
number of whole shares of Common Stock having a 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 through
whom the Holder has sold the shares with respect to which the Required
Tax Payments have arisen or (5) any combination of (1), (2) and (3).
The Committee shall have sole discretion to disapprove of an election
pursuant to any of clauses (2)-(5). Shares of Common Stock to be
delivered or withheld may have a Fair Market Value in excess of the
minimum amount of the Required Tax Payments, but not in excess of the
amount determined by applying the Holder's maximum marginal tax rate.
Any fraction of a share of Common Stock which would be required to
satisfy such an obligation shall be disregarded and the remaining
amount due shall be paid in cash by the Holder. No certificate
representing a share of Common Stock shall be delivered until the
Required Tax Payments have been satisfied in full.
5.3. Adjustment.
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In the event of any stock split, stock dividend, recapitalization,
reorganization, merger, consolidation, combination, exchange of shares,
liquidation, spin-off or other similar change in
Restricted Stock Agreement--_______________
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capitalization or event, or any distribution to holders of Common Stock
other than a regular cash dividend, the number and class of securities
subject to the Award shall be appropriately adjusted by the Committee. If
any adjustment would result in a fractional security being subject to the
Award, the Company shall pay the Holder, in connection with the vesting, if
any, of such fractional security, an amount in cash determined by
multiplying (i) such fraction (rounded to the nearest hundredth) by (ii)
the Fair Market Value on the vesting date. The decision of the Committee
regarding any such adjustment shall be final, binding and conclusive.
5.4. Compliance with Applicable Law.
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The Award is subject to the condition that if the listing, registration or
qualification of the shares subject to the Award 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 vesting or delivery of shares
hereunder, the shares of Common Stock subject to the Award shall not vest
or be delivered, 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.
5.5. Delivery of Certificates.
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Subject to Section 5.2, as soon as practicable after the vesting of the
Award, in whole or in part, the Company shall deliver or cause to be
delivered one or more certificates issued in the Holder's name representing
the number of vested shares. 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 5.2.
5.6. Award Confers No Rights to Continued Employment.
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In no event shall the granting of the Award or its acceptance by the Holder
give or be deemed to give the Holder any right to continued employment by
the Company or any affiliate of the Company.
5.7. Decisions of Committee.
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The Committee shall have the right to resolve all questions which may arise
in connection with the Award. Any interpretation, determination or other
action made or taken by the Committee regarding the Plan or this Agreement
shall be final, binding and conclusive.
5.8. Company to Reserve Shares.
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The Company shall at all times prior to the cancellation of the Award
reserve and keep available, either in its treasury or out of its authorized
but unissued shares of Common Stock, the full number of unvested shares
subject to the Award from time to time.
5.9. Agreement Subject to the Plan.
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This Agreement is subject to the provisions of the Plan and shall be
interpreted in accordance therewith. The Holder hereby acknowledges receipt
of a copy of the Plan.
Restricted Stock Agreement--_______________
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6. Miscellaneous Provisions.
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6.1. Meaning of Certain Terms.
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As used herein, the following terms shall have the respective meanings set
forth below:
"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
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
Restricted Stock Agreement--_______________
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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 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.
"Disability" shall have the meaning specified in any long-term disability
plan or arrangement maintained by the Company or an affiliate under which
the Holder is covered 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 in question or, if there shall be no reported
transaction for such date, on the next preceding date for which a
transaction was reported.
"vest" shall mean no longer subject to forfeiture.
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 this Agreement to
sections of the Code shall be deemed to refer to any successor section of
the Code or any successor internal revenue law.
6.2. Successors.
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This Agreement 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 the Holder, acquire any rights hereunder in accordance
with this Agreement or the Plan.
6.3. Notices.
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All notices, requests or other communications provided for in this
Agreement shall be made, if to the Company, to Unicom Corporation, 10 South
Dearborn Street -- 37th Floor, Chicago, Illinois 60603, Attention:
Secretary, and if to the Holder, ____________________________________. All
notices, requests or other communications provided for in this Agreement
shall be made in writing (a) by personal delivery to the party entitled
thereto, (b) by facsimile transmission with confirmation of receipt, (c) by
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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 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.
6.4. Governing Law.
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This Agreement, the Award and all determinations made and actions taken
pursuant hereto and thereto, to the extent not otherwise 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
conflicts of laws principles.
6.5. Counterparts.
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This Agreement may be executed in two or more counterparts each of which
shall be deemed an original and both of which together shall constitute one
and the same instrument.
UNICOM CORPORATION
By:
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David A. Scholz
Secretary