-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QJnSt+XWIYWzIZZkyzap9jwITPya83yK8m+R6ML+tUJcdNoRhk5d3afPc1A8+pAq WonISHCKtxWr6lsLxsX/Tg== 0000950159-98-000268.txt : 19981118 0000950159-98-000268.hdr.sgml : 19981118 ACCESSION NUMBER: 0000950159-98-000268 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19981116 EFFECTIVENESS DATE: 19981116 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PECO ENERGY CO CENTRAL INDEX KEY: 0000078100 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931] IRS NUMBER: 230970240 STATE OF INCORPORATION: PA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-67367 FILM NUMBER: 98752941 BUSINESS ADDRESS: STREET 1: 2301 MARKET ST STREET 2: P O BOX 8699 CITY: PHILADELPHIA STATE: PA ZIP: 19101 BUSINESS PHONE: 2158414000 FORMER COMPANY: FORMER CONFORMED NAME: PHILADELPHIA ELECTRIC CO DATE OF NAME CHANGE: 19920703 S-8 1 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
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) - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, without par 2,500,000 shares $40.406 $101,015,000 $28,082.17 value ==================================================================================================================================== (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).
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 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 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 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 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 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 EX-4.2 2 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. 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." 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. (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 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. 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 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. EX-4.3 3 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 $___ . 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. 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. 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: _______________________________ EX-5 4 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 EX-23.2 5 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 EX-24 6 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. EX-24 7 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 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 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. 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 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 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 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 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 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 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 -----END PRIVACY-ENHANCED MESSAGE-----