As filed with the Securities and Exchange Commission on November 16, 1998
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PECO ENERGY COMPANY
(Exact name of registrant as specified in its charter)
Pennsylvania 23-0970240
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
P.O. Box 8699
2301 Market Street
Philadelphia, PA 19101
(Address of principal executive offices) (Zip Code)
PECO ENERGY COMPANY
1998 STOCK OPTION PLAN
(Full title of the plan)
J. Barry Mitchell, Vice President - Finance and Treasurer
PECO Energy Company
P.O. Box 8699
2301 Market Street
Philadelphia, PA 19101
(Name and address of agent for service)
(215) 841-4000
(Telephone number, including area code, of agent for service)
Copy of all communications to:
JAMES W. DURHAM, ESQ. BRIAN J. DOUGHERTY, ESQ.
Senior Vice President Morgan, Lewis & Bockius LLP
and General Counsel 2000 One Logan Square
P.O. Box 8699 Philadelphia, PA 19103
2301 Market Street (215) 963-4833
Philadelphia, PA 19101
(215) 841-4000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price aggregate registration fee
per share (1) offering price (1)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, without par 2,500,000 shares $40.406 $101,015,000 $28,082.17
value
====================================================================================================================================
<FN>
(1) Estimated solely for the purpose of determining the registration fee. The
price shown is based upon $40.406 per share, which is the average of the
high and low prices on the New York Stock Exchange Composite Transactions
for November 12, 1998 for securities of the same class as those to be
offered, in accordance with Rule 457(c).
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by PECO Energy Company (the
"Registrant") with the Securities and Exchange Commission (the "Commission"),
are incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997.
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1998, June 30, 1998 and September 30, 1998.
(c) The Registrant's Current Reports on Form 8-K dated January 9,
1998, January 15, 1998, January 22, 1998, January 23, 1998, January
26, 1998, April 30, 1998, May 14, 1998, May 22, 1998, July 17, 1998
and October 15, 1998.
(d) The Registrant's Registration Statement on Form 8-A relating
to certain classes of securities, as amended by Form 8 filed on
October 24, 1991.
All reports and other documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after
the date of this registration statement and prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
that is also 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 hereof.
Experts
The consolidated financial statements of the Registrant as of December
31, 1997 and for each of the years in the three-year period ended December 31,
1997, included in the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997, have been incorporated by reference in the
Registration Statement in reliance upon the report by PricewaterhouseCoopers
LLP, independent certified public accountants, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing. To
the extent that PricewaterhouseCoopers LLP audits and reports on financial
statements of the Registrant at future dates, and consents to the use of their
report thereon, such financial statements also will be incorporated by reference
in the Registration Statement in reliance upon their report and said authority.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
1
<PAGE>
Item 6. Indemnification of Directors and Officers.
Chapter 17, Subchapter D ("Subchapter D") of the Pennsylvania Business
Corporation Law of 1988, as amended, (the "PBCL") contains provisions permitting
indemnification of officers and directors of a business corporation incorporated
in Pennsylvania. Sections 1741 and 1742 of the PBCL provide that a business
corporation may indemnify any director or officer against liabilities and
expenses such person may incur in connection with a threatened, pending or
completed civil, administrative or investigative proceeding by reason of the
fact he or she is or was a representative of the corporation or was serving at
the request of the corporation as a representative of another enterprise,
provided that the person acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful. In general, the power to
indemnify under these sections does not exist in the case of actions against a
director or officer by or in the right of the corporation if the person
otherwise entitled to indemnification shall have been adjudged to be liable to
the corporation unless it is judicially determined that, despite the
adjudication of liability but in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnification for the expenses the
court deems proper. Section 1743 of the PBCL provides that the corporation is
required to indemnify directors and officers against expenses they may incur in
defending such actions if they are successful on the merits or otherwise in the
defense of such actions.
Section 1746 of the PBCL provides that indemnification under the other
sections of Subchapter D is not exclusive of other rights that a person seeking
indemnification may have under any bylaw, agreement vote of shareholders or
disinterested directors or otherwise, whether or not the corporation would have
the power to indemnify the person under any other provision of law. However,
Section 1746 prohibits indemnification in circumstances where the act or failure
to act giving rise to the claim for indemnification is determined by a court to
have constituted willful misconduct or recklessness.
Section 1747 of the PBCL permits a corporation to purchase and
maintain insurance on behalf of any person who is or was a director or officer
of the corporation, or is or was serving at the request of the corporation as a
representative of another enterprise, against any liability asserted against
such person and incurred by him or her in any such capacity, or arising out of
his or her status as such, whether or not the corporation would have the power
to indemnify the person against such liability under Subchapter D.
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 to be attributable to receipt from PECO Energy of a personal benefit to which
the recipient is not legally entitled.
As permitted by the PBCL, 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 PBCL), and such failure constitutes
self-dealing, willful misconduct or recklessness.
PECO Energy maintains, on behalf of its directors and officers,
insurance protection against certain liabilities arising out of the discharge of
their duties.
Item 7. Exemption from Registration Claimed.
Not applicable.
2
<PAGE>
Item 8. Exhibits.
The exhibits filed as part of this Registration Statement are as
follows:
Exhibit
Number Exhibit
4.1 Specimen copy of Common Stock certificate (Incorporated by reference
to Exhibit 2(a)-1, File No. 2-53126)
4.2 PECO Energy Company 1998 Stock Option Plan
4.3 Form of grant instrument for options under the PECO Energy Company
1998 Stock Option Plan
5 Opinion of Morgan, Lewis & Bockius, LLP regarding legality of
securities being registered
23.1 Consent of Morgan, Lewis & Bockius, LLP (included in its opinion filed
as Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the termination of
the offering.
3
<PAGE>
The undersigned Registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter 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
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Philadelphia, Pennsylvania, on the 16th day of November 1998.
PECO ENERGY COMPANY
By: /s/ Corbin A. McNeill, Jr.
------------------------------
Corbin A. McNeill, Jr.
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Capacity Date
/s/ Corbin A. McNeill, Jr.
- --------------------------- Chairman, President and Chief November 16, 1998
Corbin A. McNeill, Jr. Executive Officer (Principal
Executive Officer)
/s/ Michael J. Egan
- --------------------------- Senior Vice President - Finance November 16, 1998
Michael J. Egan and Chief Financial Officer
(Principal Financial and
Accounting Officer)
This registration statement has also been signed by C. A. McNeill,
Jr., as Attorney-in-Fact, on behalf of the following Directors on the date
indicated:
Susan W. Catherwood Richard H. Glanton
Daniel L. Cooper Rosemarie B. Greco
M. Walter D'Alessio John M. Palms
G. Fred DiBona, Jr. Joseph F. Paquette, Jr.
R. Keith Elliott Ronald Rubin
Robert Subin
By: /s/ Corbin A. McNeill, Jr. November 16, 1998
--------------------------
C. A. McNeill, Jr.
(Attorney-in-Fact)
5
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibit Page
4.1 Specimen copy of Common Stock certificate (Incorporated
by reference to Exhibit 2(a)-1, File No. 2-53126) -
4.2 PECO Energy Company 1998 Stock Option Plan 7
4.3 Form of grant instrument for options under the PECO
Energy Company 1998 Stock Option Plan 14
5 Opinion of Morgan, Lewis & Bockius, LLP regarding
legality of securities being registered 18
23.1 Consent of Morgan, Lewis & Bockius, LLP (included in its
opinion filed as Exhibit 5) -
23.2 Consent of PricewaterhouseCoopers LLP 19
24 Powers of Attorney 20
6
Exhibit 4.2
PECO ENERGY COMPANY
1998 STOCK OPTION PLAN
The purpose of the PECO Energy Company 1998 Stock Option Plan (the "Plan")
is to allow for the issuance of stock options to employees of PECO Energy
Company (the "Company") and its subsidiaries to encourage their contribution to
the growth of the Company and its subsidiaries, thereby benefiting the Company's
shareholders, and to align their economic interests with those of the
shareholders.
1. Administration
(a) Committee. The Plan shall be administered and interpreted by the
Compensation Committee (the "Committee") of the Board of Directors of the
Company (the "Board").
(b) Committee Authority. Subject to Section 1(d) below, the Committee shall
have the sole authority to (i) determine the size and terms of the grants to be
made to specified classifications of Eligible Employees, if any, including the
exclusion of certain groups of Eligible Employees, (ii) determine the time when
the grants will be made and the duration of any applicable exercise period,
including the criteria for exercisability and the acceleration of
exercisability, (iii) amend the terms of any previously issued Grant, and (iv)
deal with any other matters arising under the Plan.
(c) Committee Determinations. The Committee shall have full power and
authority to administer and interpret the Plan, to make factual determinations
and to adopt or amend such rules, regulations, agreements and instruments for
implementing the Plan and for the conduct of its business as it deems necessary
or advisable, in its sole discretion. The Committee's interpretations of the
Plan and all determinations made by the Committee pursuant to the powers vested
in it hereunder shall be conclusive and binding on all persons having any
interest in the Plan or in any awards granted hereunder. All powers of the
Committee shall be executed in its sole discretion, in the best interest of the
Company, not as a fiduciary, and in keeping with the objectives of the Plan and
need not be uniform as to similarly situated individuals.
(d) CEO Authority. Notwithstanding the foregoing, the Board in its
discretion may delegate the authority to the Chief Executive Officer of the
Company (the "CEO"), which authority may be exercised by the CEO in addition to
and independent of the authority of the Committee under the Plan, to establish
classifications of Eligible Employees (as defined in Section 4) for purposes of
differentiating with respect to the number and/or terms of Options granted to
the Eligible Employees in each such classification.
<PAGE>
2. Grants.
Awards under the Plan shall consist of grants of nonqualified stock options
("Options" or "Grants"). All Grants shall be subject to the terms and conditions
set forth herein and to such other terms and conditions consistent with this
Plan as the Committee deems appropriate and as are specified in writing by the
Committee to the individual in a grant instrument (the "Grant Instrument") or an
amendment to the Grant Instrument. The Committee shall approve the form and
provisions of each Grant Instrument. Grants under the Plan need not be uniform
as among the Grantees.
3. Shares Subject to the Plan.
(a) Shares. The shares that may be issued under the Plan may be authorized
but unissued shares of common stock of the Company ("Company Stock") or
reacquired shares of Company Stock, including treasury shares and shares
purchased by the Company on the open market for purposes of the Plan.
(b) Adjustments. If there is any change in the number or kind of shares of
Company Stock outstanding (i) by reason of a stock dividend, spin-off,
recapitalization, stock split, or combination or exchange of shares, (ii) by
reason of a merger, reorganization or consolidation in which the Company is the
surviving corporation, (iii) by reason of a reclassification or change in par
value, or (iv) by reason of any other extraordinary or unusual event affecting
the outstanding Company Stock as a class without the Company's receipt of
consideration, or if the value of outstanding shares of Company Stock is
substantially reduced as a result of a spin-off or the Company's payment of an
extraordinary dividend or distribution, the number of shares covered by
outstanding Grants, the kind of shares issued under the Plan, and the price per
share of such Grants may be appropriately adjusted by the Committee to reflect
any increase or decrease in the number of, or change in the kind or value of,
issued shares of Company Stock to preclude, to the extent practicable, the
enlargement or dilution of rights and benefits under such Grants; provided,
however, that any fractional shares resulting from such adjustment shall be
eliminated. Any adjustments determined by the Committee shall be final, binding
and conclusive. If and to the extent that any such change in the number or kind
of shares of Company Stock outstanding is effected solely by application of a
mathematical formula (e.g., a 2-for-1 stock split), the adjustment described in
this Section 3(b) shall be made and shall occur automatically by application of
such formula, without further action by the Committee.
4. Eligibility for Participation
Employees of the Company and its subsidiaries who have received a
performance rating of "satisfactory" or higher as of their most recent
performance evaluation or newly hired employees who have not received a
performance evaluation prior to the date of a Grant, other than those employees
who are eligible to participate in the Company's Management Incentive
Compensation Plan, shall be eligible to receive Options under the Plan and shall
be referred to herein as "Eligible Employees."
<PAGE>
5. Granting of Options
(a) Number of Shares. The Committee shall determine the number of shares of
Company Stock and/or such other terms and conditions applicable to Grants, in
such manner as the Committee determines, which number and terms and conditions
may differ among the classifications of Eligible Employees established by the
CEO in accordance with Section 1(d). Eligible Employees who receive Grants under
this Plan shall be referred to herein as "Grantees."
(b) Type of Option and Price.
(i) The Committee may grant nonqualified stock options that are not
intended to qualify as "incentive stock options" within the meaning of section
422 of the Internal Revenue Code of 1986, as amended (the "Code"), in accordance
with the terms and conditions set forth herein.
(ii) The purchase price (the "Exercise Price") of Company Stock
subject to an Option shall be equal to the Fair Market Value (as defined in
paragraph (iii) below) of a share of Company Stock on the date the Option is
granted.
(iii) The Fair Market Value per share shall be the closing sale price
of a share of Company Stock on the composite tape of New York Stock Exchange, or
if there is not such sale on the relevant date, then on the last previous day on
which a sale was reported.
(c) Option Term. The Committee shall determine the term of each Option. The
term of any Option shall not exceed ten years from the date of grant.
(d) Exercisability of Options. Options shall become exercisable in
accordance with such terms and conditions, consistent with the Plan, as may be
determined by the Committee and specified in the Grant Instrument or an
amendment to the Grant Instrument. The Committee may accelerate the
exercisability of any or all outstanding Options at any time for any reason.
(e) Termination of Employment, Disability or Death.
(i) Except as provided below, an Option may only be exercised while
the Grantee is employed by the Company. In the event that a Grantee ceases to be
so employed for any reason (including a "disability" or death) other than
termination for "cause" or termination for poor work performance, any Option
that is otherwise exercisable by the Grantee shall terminate unless exercised
within three (3) years after the date on which the Grantee ceases to be employed
by the Company (or within such longer period of time as may be specified by the
Committee), but in any event no later than the date of expiration of the Option
term. Any of the Grantee's Options which are not otherwise exercisable as of the
date on which the Grantee ceases to be employed by the Company shall terminate
as of such date.
(ii) In the event the Grantee ceases to be employed by the Company
because the Grantee's employment is terminated for "cause" or for poor work
performance, any Option held by the Grantee shall terminate at the close of
business on the Grantee's last day of employment.
<PAGE>
(iii) For purposes of this Section 5(e):
(A) The term "Company" shall mean the Company and its subsidiary
corporations.
(B) "Disability" or "disabled" shall mean a Grantee's becoming
disabled within the meaning of section 22(e)(3) of the Code.
(C) The CEO shall determine, in his sole discretion, whether a
Grantee's employment has been terminated for "cause."
(f) Exercise of Options. A Grantee may exercise an Option that has become
exercisable, in whole or in part, by delivering a notice of exercise to the
Company with payment of the Exercise Price. The Grantee shall pay the Exercise
Price for an Option as specified by the Committee (i) in cash, (ii) with the
approval of the Committee, by delivering shares of Company Stock owned by the
Grantee (including Company Stock acquired in connection with the exercise of an
Option, subject to such restrictions as the Committee deems appropriate) and
having a Fair Market Value on the date of exercise equal to the Exercise Price
or (iii) by such other method as the Committee may approve, including payment
through a broker in accordance with procedures permitted by Regulation T of the
Federal Reserve Board. Shares of Company Stock used to exercise an Option shall
have been held by the Grantee for the requisite period of time to avoid adverse
accounting consequences to the Company with respect to the Option. The Grantee
shall pay the Exercise Price and the amount of any withholding tax due (pursuant
to Section 6) at the time of exercise. Shares of the Company Stock shall not be
issued upon exercise of an Option until the Exercise Price is fully paid and any
required withholding is made.
6. Withholding of Taxes
(a) Required Withholding. All Grants under the Plan shall be subject to
applicable federal (including FICA), state and local tax withholding
requirements. The Company may require the Grantee or other person receiving such
shares to pay to the Company the amount of any such taxes that the Company is
required to withhold with respect to such Grants, or the Company may deduct from
other wages paid by the Company the amount of any withholding taxes due with
respect to such Grants.
(b) Election to Withhold Shares. If the Committee so permits, a Grantee may
elect to satisfy applicable withholding requirements by having shares withheld
having a Fair Market Value up to an amount that does not exceed the Grantee's
maximum marginal tax rate for federal (including FICA), state and local tax
liabilities. The election must be in a form and manner prescribed by the
Committee and shall be subject to the prior approval of the Committee.
7. Nontransferability of Grants. Except as provided below, only the Grantee
may exercise rights under a Grant during the Grantee's lifetime. A Grantee may
not transfer those rights except by will or by the laws of descent and
distribution or, if permitted in any specific case by the Committee, pursuant to
a domestic relations order (as defined under the Code or Title I of the Employee
Retirement Income Security Act of 1974, as amended, or the regulations
<PAGE>
thereunder). When a Grantee dies, the personal representative or other person
entitled to succeed to the rights of the Grantee ("Successor Grantee") may
exercise such rights which have not been extinguished by the Grantee's death. A
Successor Grantee must furnish proof satisfactory to the Company of his or her
right to receive the Grant under the Grantee's will or under the applicable laws
of descent and distribution.
8. Requirements for Issuance or Transfer of Shares
No Company Stock shall be issued or transferred in connection with any
Grant hereunder unless and until all legal requirements applicable to the
issuance or transfer of such Company Stock have been complied with to the
satisfaction of the Committee. The Committee shall have the right to condition
any Grant made to any Grantee hereunder on such Grantee's undertaking in writing
to comply with such restrictions on his or her subsequent disposition of such
shares of Company Stock as the Committee shall deem necessary or advisable as a
result of any applicable law, regulation or official interpretation thereof, and
certificates representing such shares may be legended to reflect any such
restrictions. Certificates representing shares of Company Stock issued or
transferred under the Plan will be subject to such stop-transfer orders and
other restrictions as may be required by applicable laws, regulations and
interpretations, including any requirement that a legend be placed thereon.
9. Amendment and Termination of the Plan
(a) Amendment. The Committee may amend or terminate the Plan at any time.0
(b) Termination of Plan. The Plan shall terminate on the day immediately
preceding the tenth anniversary of its effective date, unless the Plan is
terminated earlier by the Committee or is extended by the Committee.
(c) Termination and Amendment of Outstanding Grants. A termination or
amendment of the Plan that occurs after a Grant is made shall not materially
impair the rights of a Grantee unless the Grantee consents or unless the
Committee acts under Section 15(b). The termination of the Plan shall not impair
the power and authority of the Committee with respect to an outstanding Grant.
Whether or not the Plan has terminated, an outstanding Grant may be terminated
or amended under Section 15(b) or may be amended by agreement of the Company and
the Grantee consistent with the Plan.
(d) Governing Document. The Plan shall be the controlling document. No
other statements, representations, explanatory materials or examples, oral or
written, may amend the Plan in any manner. The Plan shall be binding upon and
enforceable against the Company and its successors and assigns.
10. Funding of the Plan
This Plan shall be unfunded. The Company shall not be required to establish
any special or separate fund or to make any other segregation of assets to
assure the payment of any Grants under this Plan. In no event shall interest be
paid or accrued on any Grant, including unpaid installments of Grants.
<PAGE>
11. Rights of Participants
Nothing in this Plan shall entitle any Eligible Employee or other person to
any claim or right to be granted a Grant under this Plan, and no Grant shall
entitle any Eligible Employee or other person to any future Grant. Neither this
Plan nor any action taken hereunder shall be construed as giving any individual
any rights to be retained by or in the employ of the Company or any other
employment rights.
12. No Fractional Shares
No fractional shares of Company Stock shall be issued or delivered pursuant
to the Plan or any Grant. The Committee shall determine whether cash, other
awards or other property shall be issued or paid in lieu of such fractional
shares or whether such fractional shares or any rights thereto shall be
forfeited or otherwise eliminated.
13. Headings
Section headings are for reference only. In the event of a conflict between
a title and the content of a Section, the content of the Section shall control.
14. Effective Date of the Plan.
The effective date of the Plan is September 28, 1998.
15. Miscellaneous
(a) Grants in Connection with Corporate Transactions and Otherwise. Nothing
contained in this Plan shall be construed to (i) limit the right to make Grants
under this Plan in connection with the acquisition, by purchase, lease, merger,
consolidation or otherwise, of the business or assets of any corporation, firm
or association, including Grants to employees thereof who become Eligible
Employees, or for other proper corporate purposes, or (ii) limit the right of
the Company to grant stock options or make other awards outside of this Plan.
Without limiting the foregoing, a Grant may be made to an employee of another
corporation who becomes an Eligible Employee by reason of a corporate merger,
consolidation, acquisition of stock or property, reorganization or liquidation
involving the Company or any of its subsidiaries in substitution for a stock
option made by such corporation. The terms and conditions of the substitute
grants may vary from the terms and conditions required by the Plan and from
those of the substituted stock options. The Committee shall prescribe the
provisions of the substitute grants.
(b) Compliance with Law. The Plan, the exercise of Options and the
obligations of the Company to issue or transfer shares of Company Stock under
Grants shall be subject to all applicable laws and to approvals by any
governmental or regulatory agency as may be required. The Committee may revoke
any Grant if it is contrary to law or modify a Grant to bring it into compliance
with any valid and mandatory government regulation. The Committee may also adopt
rules regarding the withholding of taxes on payments to Grantees. The Committee
may, in its
<PAGE>
sole discretion, agree to limit its authority under this Section.
(c) Governing Law. The validity, construction, interpretation and effect of
the Plan and Grant Instruments issued under the Plan shall exclusively be
governed by and determined in accordance with the law of the Commonwealth of
Pennsylvania.
Exhibit 4.3
PECO ENERGY COMPANY
1998 STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION GRANT
This STOCK OPTION GRANT, dated as of ______________ 1998 (the "Date of
Grant"), is delivered by PECO Energy Company (the "Company") to _____________
(the "Grantee").
RECITALS
The PECO Energy Company 1998 Stock Option Plan (the "Plan") provides for
the grant of options to purchase shares of common stock of the Company. The
Compensation Committee of the Board of Directors of the Company (the
"Committee") has decided to make a stock option grant as an inducement for the
Grantee to promote the best interests of the Company and its shareholders.
NOW, THEREFORE, the parties to this Agreement, intending to be legally
bound hereby, agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth in this
Agreement and in the Plan, the Company hereby grants to the Grantee a
nonqualified stock option (the "Option") to purchase ______ shares of common
stock of the Company ("Shares") at an exercise price of $____ per Share. The
Option shall become exercisable according to Paragraph 2 below.
2. Exercisability of Option. The Option shall become exercisable on the
following dates, if the Grantee is employed by the Company (as defined in the
Plan) on the applicable date and the performance standard set forth below have
previously been satisfied:
Date Number of Shares
for Which Option is Exercisable
-----------, ---- ----------
-----------, ---- ----------
-----------, ---- ----------
If the performance standard set forth below have not previously been satisfied,
this Option shall nevertheless become exercisable for all Shares on ______,
____. The exercisability of the Option is cumulative.
The performance standard for the Option shall be that the closing sale price of
a share of common stock of the Company on the composite tape of the New York
Stock Exchange shall be equal to or greater than $___ .
<PAGE>
3. Term of Option.
(a) The Option shall have a term of ten years from the Date of Grant and
shall terminate at the expiration of that period (_________, 2008), unless it is
terminated at an earlier date pursuant to the provisions of this Agreement or
the Plan.
(b) The Option shall automatically terminate upon the first of the
following events:
(i) The expiration of the 3-year period after the Grantee ceases to be
employed by the Company and its subsidiaries, if the termination is for any
reason other than cause, as determined in the sole discretion of the Chief
Executive Officer of the Company, or poor work performance.
(ii) The date on which the Grantee ceases to be employed by the
Company and its subsidiaries for cause, as determined in the sole
discretion of the Chief Executive Officer of the Company, or poor work
performance.
Notwithstanding the foregoing, in no event may the Option be exercised after the
date that is ten years from the Date of Grant. Any portion of the Option that is
not exercisable at the time the Grantee ceases to be employed by the Company and
its subsidiaries shall immediately terminate.
4. Exercise Procedures.
(a) Subject to the provisions of Paragraphs 2 and 3 above, the Grantee may
exercise part or all of the exercisable Option by giving the Company written
notice of intent to exercise in the manner provided in this Agreement,
specifying the number of Shares as to which the Option is to be exercised. On
the delivery date, the Grantee shall pay the exercise price (i) in cash or (ii)
by such other method as the Committee may approve, including payment through a
broker in accordance with procedures permitted by Regulation T of the Federal
Reserve Board.
(b) The obligation of the Company to deliver Shares upon exercise of the
Option shall be subject to all applicable laws, rules, and regulations and such
approvals by governmental agencies as may be deemed appropriate by the
Committee, including such actions as Company counsel shall deem necessary or
appropriate to comply with relevant securities laws and regulations. All
obligations of the Company under this Agreement shall be subject to the rights
of the Company as set forth in the Plan to withhold amounts required to be
withheld for any taxes, if applicable. The Grantee may elect to satisfy any
income tax withholding obligation of the Company with respect to the Option by
having Shares withheld up to an amount that does not exceed the minimum
applicable withholding tax rate for federal (including FICA), state and local
tax liabilities.
<PAGE>
5. Restrictions on Exercise. Except as the Committee may otherwise permit
pursuant to the Plan, only the Grantee may exercise the Option during the
Grantee's lifetime and, after the Grantee's death, the Option shall be
exercisable (subject to the limitations specified in the Plan) solely by the
legal representatives of the Grantee, or by the person who acquires the right to
exercise the Option by will or by the laws of descent and distribution, to the
extent that the Option is exercisable pursuant to this Agreement.
6. Grant Subject to Plan Provisions. This grant is made pursuant to the Plan,
the terms of which are incorporated herein by reference, and in all respects
shall be interpreted in accordance with the Plan. The grant and exercise of the
Option are subject to the provisions of the Plan and to interpretations,
regulations and determinations concerning the Plan established from time to time
by the Committee in accordance with the provisions of the Plan, including, but
not limited to, provisions pertaining to (i) rights and obligations with respect
to withholding taxes, (ii) changes in capitalization of the Company and (iii)
other requirements of applicable law. The Committee shall have the authority to
interpret and construe the Option pursuant to the terms of the Plan, and its
decisions shall be conclusive as to any questions arising hereunder. The Company
will provide a copy of the Plan to any Grantee upon his or her request. Requests
should be directed to HR Service Delivery at 888-PECO-HRS.
7. No Employment or Other Rights. The grant of the Option shall not confer upon
the Grantee any right to be retained by or in the employ of the Company and
shall not interfere in any way with the right of the Company to terminate the
Grantee's employment at any time. The right of the Company to terminate at will
the Grantee's employment at any time for any reason is specifically reserved.
8. No Shareholder Rights. Neither the Grantee, nor any person entitled to
exercise the Grantee's rights in the event of the Grantee's death, shall have
any of the rights and privileges of a shareholder with respect to the Shares
subject to the Option, until certificates for Shares have been issued upon the
exercise of the Option.
9. Assignment and Transfers. Except as the Committee may otherwise permit
pursuant to the Plan, the rights and interests of the Grantee under this
Agreement may not be sold, assigned, encumbered or otherwise transferred except,
in the event of the death of the Grantee, by will or by the laws of descent and
distribution. In the event of any attempt by the Grantee to alienate, assign,
pledge, hypothecate, or otherwise dispose of the Option or any right hereunder,
except as provided for in this Agreement, or in the event of the levy or any
attachment, execution or similar process upon the rights or interests hereby
conferred, the Company may terminate the Option by notice to the Grantee, and
the Option and all rights hereunder shall thereupon become null and void. The
rights and protections of the Company hereunder shall extend to any successors
or assigns of the Company and to the Company's subsidiaries and affiliates. This
Agreement may be assigned by the Company without the Grantee's consent.
<PAGE>
10. Applicable Law. The validity, construction, interpretation and effect of
this instrument shall be governed by and construed in accordance with the laws
of the Commonwealth of Pennsylvania, without giving effect to the conflicts of
laws provisions thereof.
11. Notice. Any notice to the Company provided for in this instrument shall be
addressed to the Company in care of the Chief Financial Officer at 2301 Market
Street, Philadelphia, Pennsylvania 19101, and any notice to the Grantee shall be
addressed to such Grantee at the current address shown on the payroll of the
Company, or to such other address as the Grantee may designate to the Company in
writing. Any notice shall be delivered by hand, sent by telecopy or enclosed in
a properly sealed envelope addressed as stated above, registered and deposited,
postage prepaid, in a post office regularly maintained by the United States
Postal Service.
IN WITNESS WHEREOF, the Company has caused its duly authorized officers to
execute and attest this Agreement, and the Grantee has executed this Agreement,
effective as of the Date of Grant.
By: _______________________________
EXHIBIT 5
2000 One Logan Square Morgan, Lewis
Philadelphia, PA 19103-6993 &Bockius LLP
COUNSELORS AT LAW
215-963-5000
FAX: 215-963-5299
November 16, 1998
PECO Energy Company
P.O. Box 8699
2301 Market Street
Philadelphia, PA 19101
Ladies and Gentlemen:
We have acted as counsel for PECO Energy Company, a Pennsylvania corporation
(the "Company") in connection with the proposed filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
2,500,000 shares of the Company's common stock, without par value ("Common
Stock"), which may be issued in accordance with the terms of the PECO Energy
Company 1998 Stock Option Plan (the "Plan"). We have examined the Company's
Articles of Incorporation, as amended, By-Laws, as amended, minutes and other
such documents, and have made such inquiries of the Company's officers, as we
have deemed appropriate. In our examination, we have assumed the genuineness of
all signatures, the authenticity of all items submitted to us as originals, and
the conformity with originals of all items submitted to us as copies.
Based upon the foregoing, it is our opinion that the shares of the Company's
Common Stock originally issued by the Company to participants under the Plan
will be, when issued and delivered in accordance with the terms of the Plan,
legally issued, fully paid and non-assessable.
The foregoing opinion is limited to the laws of the Commonwealth of
Pennsylvania.
We hereby consent to the use of this opinion as an Exhibit to the Registration
Statement. In giving such consent, we do not thereby admit that we are acting
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
Morgan, Lewis & Bockius, LLP
Exhibit 23.2
Consent of Independent Accountants
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated February 2, 1998, on our audits of the consolidated
financial statements and financial statement schedule of PECO Energy Company and
Subsidiary Companies. We also consent to the reference to our firm under the
caption "Experts."
PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
November 16, 1998
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, Joseph F. Paquette, Jr. of Gladwyne,
PA, do hereby appoint C. A. MCNEILL, JR. attorney for me and in my name and on
my behalf to sign the Registration Statement, and any amendments thereto, of
PECO ENERGY COMPANY, to be filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, in connection with the
registration of the securities with respect to the PECO Energy Company 1998
Stock Option Plan, and generally to do and perform all things necessary to be
done in the premises as fully and effectually in all respects as I could do if
personally present.
Dated: September 28, 1998
/s/ Joseph F. Paquette, Jr.
---------------------------
Joseph F. Paquette, Jr.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, Susan W. Catherwood of Bryn Mawr,
PA, do hereby appoint C. A. MCNEILL, JR. attorney for me and in my name and on
my behalf to sign the Registration Statement, and any amendments thereto, of
PECO ENERGY COMPANY, to be filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, in connection with the
registration of the securities with respect to the PECO Energy Company 1998
Stock Option Plan, and generally to do and perform all things necessary to be
done in the premises as fully and effectually in all respects as I could do if
personally present.
Dated: September 28, 1998
/s/ Susan W. Catherwood
-----------------------------------
Susan W. Catherwood
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, M. Walter D'Alessio of Philadelphia,
PA, do hereby appoint C. A. MCNEILL, JR. attorney for me and in my name and on
my behalf to sign the Registration Statement, and any amendments thereto, of
PECO ENERGY COMPANY, to be filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, in connection with the
registration of the securities with respect to the PECO Energy Company 1998
Stock Option Plan, and generally to do and perform all things necessary to be
done in the premises as fully and effectually in all respects as I could do if
personally present.
Dated: September 28, 1998
/s/ M. Walter D'Alessio
-----------------------------------
M. Walter D'Alessio
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, G. Fred DiBona, Jr. of Bryn Mawr,
PA, do hereby appoint C. A. MCNEILL, JR. attorney for me and in my name and on
my behalf to sign the Registration Statement, and any amendments thereto, of
PECO ENERGY COMPANY, to be filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, in connection with the
registration of the securities with respect to the PECO Energy Company 1998
Stock Option Plan, and generally to do and perform all things necessary to be
done in the premises as fully and effectually in all respects as I could do if
personally present.
Dated: October 8, 1998
/s/ G. Fred DiBona, Jr.
-----------------------------------
G. Fred DiBona, Jr.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, R. Keith Elliott of Mendenhall, PA,
do hereby appoint C. A. MCNEILL, JR. attorney for me and in my name and on my
behalf to sign the Registration Statement, and any amendments thereto, of PECO
ENERGY COMPANY, to be filed with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, in connection with the registration of
the securities with respect to the PECO Energy Company 1998 Stock Option Plan,
and generally to do and perform all things necessary to be done in the premises
as fully and effectually in all respects as I could do if personally present.
Dated: September 28, 1998
/s/ R. Keith Elliott
-----------------------------------
R. Keith Elliott
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, Daniel L. Cooper of Wyomissing, PA,
do hereby appoint C. A. MCNEILL, JR. attorney for me and in my name and on my
behalf to sign the Registration Statement, and any amendments thereto, of PECO
ENERGY COMPANY, to be filed with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, in connection with the registration of
the securities with respect to the PECO Energy Company 1998 Stock Option Plan,
and generally to do and perform all things necessary to be done in the premises
as fully and effectually in all respects as I could do if personally present.
Dated: September 28, 1998
/s/ Daniel L. Cooper
-----------------------------------
Daniel L. Cooper
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, Richard H. Glanton of Philadelphia,
PA, do hereby appoint C. A. MCNEILL, JR. attorney for me and in my name and on
my behalf to sign the Registration Statement, and any amendments thereto, of
PECO ENERGY COMPANY, to be filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, in connection with the
registration of the securities with respect to the PECO Energy Company 1998
Stock Option Plan, and generally to do and perform all things necessary to be
done in the premises as fully and effectually in all respects as I could do if
personally present.
Dated: September 28, 1998
/s/ Richard H. Glanton
-----------------------------------
Richard H. Glanton
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, Rosemarie B. Greco of Philadelphia,
PA, do hereby appoint C. A. MCNEILL, JR. attorney for me and in my name and on
my behalf to sign the Registration Statement, and any amendments thereto, of
PECO ENERGY COMPANY, to be filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, in connection with the
registration of the securities with respect to the PECO Energy Company 1998
Stock Option Plan, and generally to do and perform all things necessary to be
done in the premises as fully and effectually in all respects as I could do if
personally present.
Dated: September 28, 1998
/s/ Rosemarie B. Greco
-----------------------------------
Rosemarie B. Greco
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, Dr. John M. Palms of Columbia, SC,
do hereby appoint C. A. MCNEILL, JR. attorney for me and in my name and on my
behalf to sign the Registration Statement, and any amendments thereto, of PECO
ENERGY COMPANY, to be filed with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, in connection with the registration of
the securities with respect to the PECO Energy Company 1998 Stock Option Plan,
and generally to do and perform all things necessary to be done in the premises
as fully and effectually in all respects as I could do if personally present.
Dated: September 28, 1998
/s/ John M. Palms
-----------------------------------
John M. Palms
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, Ronald Rubin of Narberth, PA, do
hereby appoint C. A. MCNEILL, JR. attorney for me and in my name and on my
behalf to sign the Registration Statement, and any amendments thereto, of PECO
ENERGY COMPANY, to be filed with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, in connection with the registration of
the securities with respect to the PECO Energy Company 1998 Stock Option Plan,
and generally to do and perform all things necessary to be done in the premises
as fully and effectually in all respects as I could do if personally present.
Dated: September 28, 1998
/s/ Ronald Rubin
-----------------------------------
Ronald Rubin
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, Robert Subin of Blue Bell, PA, do
hereby appoint C. A. MCNEILL, JR. attorney for me and in my name and on my
behalf to sign the Registration Statement, and any amendments thereto, of PECO
ENERGY COMPANY, to be filed with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, in connection with the registration of
the securities with respect to the PECO Energy Company 1998 Stock Option Plan,
and generally to do and perform all things necessary to be done in the premises
as fully and effectually in all respects as I could do if personally present.
Dated: September 28, 1998
/s/ Robert Subin
-----------------------------------
Robert Subin
