Exhibit (10)-19
Unicom Corporation and
Commonwealth Edison Company
Form 10-K File Nos. 1-11375 and 1-1839
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This FIRST AMENDMENT (the "First Amendment") dated as of December 1, 1998 to
the Employment Agreement dated as of March 10, 1998 by and among the parties
hereto (the "Employment Agreement") is made by and among Unicom Corporation, an
Illinois corporation ("Unicom"), Commonwealth Edison Company, an Illinois
corporation ("ComEd"), and Xxxx X. Xxxx ("Executive").
WHEREAS, the Compensation Committee of the Board of Directors of each of
Unicom and ComEd and Executive have determined that it is desirable to amend
that portion of the Employment Agreement relating to Executive's Annual
Incentive; and
WHEREAS, such Compensation Committees approved such amendment at their
meetings on July 22, 1998;
NOW THEREFORE, in consideration of their mutual undertakings set forth in this
First Amendment, the parties hereto agree as follows:
I
Unless otherwise specifically defined herein, each term used herein which is
defined in the Employment Agreement shall have the meaning specified in the
Employment Agreement. Each reference to "this Agreement" and each similar
reference in the Employment Agreement shall, from and after the date hereof,
refer to the Employment Agreement as amended hereby.
II
Section 4.3 is amended by substituting a reference to "$300,000" for each
reference to "$600,000".
III
A new Section 4.5 is added to read in full as follows:
"4.5 Deferred Stock and Additional Option.
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(a) Deferred Stock. Effective on the date in 1999 on which
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Executive's Annual Incentive with respect to 1998 first becomes payable
pursuant to Section 4.3 (the "Grant Date"), Unicom grants to Executive a
right to receive, on the Payment Date (as defined in the last sentence of
this Section 4.5(b)) a number of shares of Common Stock (the "Deferred
Shares") equal to the sum of:
(i) a number of shares (the "Initial Deferred Shares") equal to
$600,000 divided by 100% of the fair market value (determined in
accordance with the LTIP or any applicable successor plan (the "Fair
Market Value")) of a share of the Common Stock on the Grant Date (such
price, the "Xxxxx Xxxxx"), and
(ii) the aggregate number of shares of Common Stock that would
be issued from time to time if all dividends (other than dividends
payable in Common Stock) payable in respect of the Initial Deferred
Shares were reinvested in additional shares of Common Stock (assuming
for this purposes that the Initial Deferred Shares were outstanding
throughout the period beginning on the Grant Date and ending the
Payment Date) based on the Fair Market Value of the Common Stock as of
the applicable dividend payment date;
provided, however, that the aggregate number and kind of Deferred Shares
shall from time to time be equitably adjusted to prevent any material
dilution or enlargement of the aggregate value of the Deferred Shares that
may otherwise occur by reason of a change in the number or kind of
outstanding shares of Common Stock resulting from any recapitalization,
reorganization, merger, consolidation, stock split, stock dividend or any
similar change affecting the Common Stock (other than a dividend which is
deemed to have been reinvested pursuant to clause (ii) of this Section
4.5(a)).
(b) Vesting. The Deferred Shares shall vest as follows: as to
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50% of the Deferred Shares specified in clause (i) of Section 4.5(a), on
the Grant Date, and as to all remaining Deferred Shares (the "Unvested
Deferred Shares") on the date in 2000 on which Executive's Annual Incentive
with respect to 1999 first becomes payable pursuant to Section 4.3 (the
"Year 2000 Bonus Date"). On or before the fifth business day following
Executive's Termination Date (such day, the "Payment Date"), Unicom shall
deliver to Executive a number of shares of Common Stock equal to the number
of Deferred Shares that have become vested on or before the Termination
Date, including Deferred Shares that have become vested pursuant to Section
4.5(e).
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(c) Effect on SERP Benefit. Solely for purposes of determining
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the amount of Executive's SERP Benefit pursuant to Section 6.3, Executive's
Annual Incentive with respect to each of 1998 and 1999 shall be deemed to
have been $300,000 greater than the Annual Incentive actually paid to
Executive in respect of such year; provided that, in the event of any
Termination of Employment (regardless of the circumstances thereof) at any
time during 1998 or 1999, then each such $300,000 amount shall be reduced
(but not below zero) by an amount equal to $821.92 (i.e., $300,000 divided
by 365) for each calendar day remaining in such year after Executive's
Termination Date.
(d) Additional Option. Effective as of the Grant Date, Unicom
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grants to Executive an Option (the "Additional Option") with an exercise
price equal to the Xxxxx Xxxxx and subject to such other terms and
conditions as are applicable to other stock options granted to senior
executives of the Company under the LTIP. The number of shares of Common
Stock subject to such Additional Option shall be such as to cause the
Additional Option to have a value as of the Grant Date (determined pursuant
to the Black-Scholes option pricing model with such assumptions and
adjustments as the Compensation Committee in its sole discretion deem
appropriate using the methodology in use by the Compensation Committee as
of the date of this First Amendment) equal to $90,000. The Additional
Option shall be exercisable during its term as follows: (i) as to 50% of
the shares subject thereto, at any time on or after the Grant Date, and
(ii) as to all of the other shares subject thereto (the "Unvested Option
Shares"), at any time on or after the Year 2000 Bonus Date.
(e) Effect of Termination of Employment. If at any time during
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the period beginning on the Grant Date and ending on December 31, 1999 (the
"Vesting Period"), a Termination Date occurs by reason of a Termination
Without Cause, a Termination for Good Reason, or any other Termination of
Employment due to Executive's death, Disability, Early Retirement or Normal
Retirement, then:
(i) Unicom shall pay to Executive a number of shares of Common
Stock equal to the product of the number of Unvested Deferred Shares
multiplied by the Proration Factor (as defined below); and
(ii) the Additional Option shall immediately become exercisable
as to a number of additional shares of Common Stock equal to the
product of the number of Unvested Option Shares multiplied by the
Proration Factor.
For purposes of this Section 4.5, "Proration Factor" means a fraction, the
numerator of which equals the number of days, if any, during the period
beginning on January 1, 1999 and ending on the Termination Date, and the
denominator of
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which is 365, but which fraction shall in no event be less than zero or
greater than one.
If at any time during the Vesting Period, Executive's employment is
terminated by the Company for Cause or by Executive for any reason other
than as set forth in the preceding paragraph of this Section 4.5(e), then
all Unvested Deferred Shares shall be forfeited as of the Termination Date
and the Additional Option shall expire as of such Date as to all Unvested
Option Shares.
In the event of any Termination of Employment for which the
Termination Date occurs before the Grant Date, this Section 4.5 shall be of
no effect and the provisions of Article VII of the Agreement as in effect
on the Agreement Date shall control."
IV
Except as amended hereby, the Employment Agreement remains in full force
and effect.
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V
This First Amendment may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall be
deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this First Amendment as of
the first date written above.
UNICOM CORPORATION
By: _______________________________________
Xxxxxx X. Xxxxxxx,
Chairman of the Compensation
Committee of the Board of Directors
By: _______________________________________
Xxxxxx X. Xxxxxx
Lead Non-employee Director
COMMONWEALTH EDISON COMPANY
By: _______________________________________
Xxxxxx X. Xxxxxxx,
Chairman of the Compensation
Committee of the Board of Directors
By: _______________________________________
Xxxxxx X. Xxxxxx
Lead Non-employee Director
EXECUTIVE:
_______________________________
Xxxx X. Xxxx
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