EXHIBIT (10)-8
UNICOM CORPORATION AND
COMMONWEALTH EDISON COMPANY
FORM 10-K FILE NOS. 1-11375 AND 1-1839
APPENDIX A
GENERAL PROVISIONS REGARDING STOCK OPTION AWARDS
GRANTED UNDER THE UNICOM CORPORATION LONG TERM INCENTIVE PLAN
The purpose of these General Provisions Regarding Stock Option Awards Granted
Under the Unicom Corporation Long Term Incentive Plan, effective July 10, 1997
and as amended from time to time (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 under the provisions of the Unicom Corporation Long Term Incentive Plan
(the "Plan"), unless otherwise provided in the Option Agreement (as hereinafter
defined) evidencing any such option or options.
1. Form of Stock Option Grant. Each such stock option ("Option") shall be in
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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.
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2.1. Exercise of Option.
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(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 is terminated by the Company for
Cause or by the Optionee (other than Retirement or for Good Reason following a
Change in Control), such Optionee's Option shall expire on the effective date of
such termination of employment and shall not thereafter be exercisable.
(d) Except as provided in Section 4, hereof, if an Optionee's
employment by the Company terminates for any reason other than Retirement,
death, or Disability, or as specified in Section 2.1(c), 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
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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 therefore has been paid.
2.3. Termination of Option.
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(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.
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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.
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(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 with-holding 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.
(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 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
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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
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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
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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, 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
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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
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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
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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.
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(a) Notwithstanding any provision hereof, of the Plan or any Option
Agreement to the contrary, if within 24 months following a Change in Control, an
Optionee's employment is terminated (i) by the Company other than for Cause, or
(ii) by the Optionee for Good Reason, outstanding Options which were granted on
or after July 22, 1998 shall immediately become fully exercisable; provided
however, that a termination of employment with the Company or a subsidiary
thereof and immediate reemployment by an entity which purchases or otherwise
acquired Company assets shall not be a termination of employment within the
meaning of this Section 4(a). Outstanding Options which were granted prior to
July 22, 1998 shall become fully exercisable upon a Change in Control without
regard to whether the Optionee has had a termination of employment.
(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
corporation pursuant to a transaction which complies with clauses (i), (ii) and
(iii) of sub-section (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 con-test, 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 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 in-directly) 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) the approval by the shareholders of a plan of complete
liquidation or dissolution of the Company, other than a plan of liquidation or
dissolution which results in the acquisition of all or substantially all of the
assets of Commonwealth Edison by the Company or any affiliate thereof.
5. Miscellaneous Provisions.
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5.1. Meaning of Certain Terms.
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(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:
"Cause" means:
(a) the Optionee's willful commission of acts or omissions which
have, have had, or are likely to have a material adverse effect on the business,
operations, financial condition or reputation of the Company or any of its
affiliates;
(b) the Optionee's conviction (including a plea of guilty or nolo
contendre) of a felony or any crime of fraud, theft, dishonesty or moral
turpitude; or,
(c) the Optionee's material violation of any statutory or common law
duty of loyalty to the Company or any of its affiliates.
"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.
"Good Reason" means the occurrence of any of the following:
(a) the failure to maintain the Optionee in the office or
position, or in a substantially equivalent office or position, held by the
Optionee immediately prior to Change in Control;
(b) a material adverse alteration in the nature or scope of
the Optionee's position, duties, functions, responsibilities or authority;
(c) a material reduction of the Optionee's salary, incentive
compensation or benefits, unless such reduction is part of a policy, program or
arrangement applicable to peer executives of the Company and its subsidiaries of
any successor entity;
(d) a determination by the Optionee, made in good faith,
that, as a result of Change in Control, the Optionee is substantially unable to
perform, or that there has been a material reduction in, any of the Optionee's
duties, functions, responsibility or authority.
(e) the failure of any successor to the Company to assume
any agreement or arrangement made with respect to an Optionee which provides
benefits in the event of a Change in Control, or a material breach of any such
agreement or arrangement by the Company or its successor;
(f) a relocation of more than 50 miles of (i) the Optionee's
workplace, or (ii) the principal offices of the Company (if such offices are the
Optionee's workplace), in each case without consent of the Optionee; or
(g) a requirement of at least 20% more business travel than
was required of the Optionee prior to Change in Control.
"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
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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
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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-3005, Chicago,
Illinois 60690-3005, 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
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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.