-----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, TZjrL9mgOQRa1FiTNznmTED/Sw/tiM90DqVUbB0+kROO9841AYA3b6JTaI5RS9R3 x6yq/Z+la3Me6d14v4qgAQ== 0000950131-97-005133.txt : 19970819 0000950131-97-005133.hdr.sgml : 19970819 ACCESSION NUMBER: 0000950131-97-005133 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19970818 EFFECTIVENESS DATE: 19970818 SROS: CSX SROS: NYSE SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: COMMONWEALTH EDISON CO CENTRAL INDEX KEY: 0000022606 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 360938600 STATE OF INCORPORATION: IL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-33847 FILM NUMBER: 97665708 BUSINESS ADDRESS: STREET 1: ONE FIRST NATIONAL PLZ 37TH FL STREET 2: P O BOX 767 CITY: CHICAGO STATE: IL ZIP: 60690 BUSINESS PHONE: 3123944321 MAIL ADDRESS: STREET 1: 10 SOUTH DEARBORN STREET STREET 2: 37TH FLOOR CITY: CHICAGO STATE: IL ZIP: 606900767 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on August 18, 1997 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------- FORM S-8 REGISTRATION STATEMENT Under the Securities Act of 1933 --------------------- COMMONWEALTH EDISON COMPANY (Exact Name of Registrant as Specified in Its Charter) Illinois 36-0938600 (State or Other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) 10 South Dearborn Street -- 37th Floor P.O. Box 767 Chicago, Illinois 60690-0767 (Address of Principal Executive Offices) (Zip code) Commonwealth Edison Company Excess Benefit Savings Plan (Full Title of the Plan) ___________________________ John C. Bukovski Vice President Commonwealth Edison Company 10 South Dearborn Street -- 37th Floor P.O. Box 767 Chicago, Illinois 60690-0767 (Name and Address of Agent for Service) (312) 394-3117 (Telephone Number, Including Area Code, of Agent for Service) Copy to: Richard W. Astle Sidley & Austin One First National Plaza Chicago, Illinois 60603 (312) 853-7000
- ------------------------------------------------------------------------------------------------------ CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------ Proposed Proposed Title of Securities Amount to be Maximum Offering Maximum Aggregate Amount of to be Registered (1) Registered Price Per Unit (2) Offering Price (2) Registration Fee - ------------------------------------------------------------------------------------------------------ Commonwealth Edison $20,000,000 100% $20,000,000 $6,061 Company Excess Benefit Savings Plan Obligations ======================================================================================================
(1) The Commonwealth Edison Company Excess Benefit Savings Plan Obligations are unsecured obligations of Commonwealth Edison Company to pay certain benefits in the future in accordance with the terms of the Commonwealth Edison Company Excess Benefit Savings Plan. (2) Estimated solely for the purpose of calculating the registration fee. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents heretofore filed by Commonwealth Edison Company (the "Registrant") with the Securities and Exchange Commission (File No. 1-1839) are incorporated herein by reference: (a) Annual Report on Form 10-K for the year ended December 31, 1996. (b) Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 1997 and June 30, 1997. (c) Current Reports on Form 8-K of the Registrant dated January 29, 1997, January 31, 1997, and May 30, 1997. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this Registration Statement and prior to the filing of a post- effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents (such documents, and the documents enumerated above, being hereinafter referred to as "Incorporated Documents"). Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be 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 of this Registration Statement. Item 4. Description of Securities. The Commonwealth Edison Company Excess Benefit Savings Plan Obligations ("Obligations") are general unsecured obligations of the Registrant to pay certain benefits in the future in accordance with the terms of the Commonwealth Edison Company Excess Benefit Savings Plan (the "Plan") from the general assets of the Registrant, and rank pari passu with other unsecured and unsubordinated indebtedness of the Registrant from time to time outstanding. The Obligations are not subject to redemption, in whole or in part, prior to the termination, retirement or death of the Participant. However, the Registrant reserves the right to amend or terminate the Plan at any time, except that no such amendment or termination shall adversely affect a Participant's right to Obligations in the amount of the Participant's account as of the date of such amendment or termination. The Obligations are not convertible into another security of the Registrant. The Obligations will not have the benefit of a negative pledge or any other affirmative or negative covenant on the part of the Registrant. No trustee has been appointed having the authority to take action with respect to the Obligations and each Participant will be responsible for acting independently with respect to, among other things, the giving of notices, responding to any requests for consents, waivers or amendments pertaining to the Obligations, enforcing covenants and taking action upon a default. II-1 Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Certain provisions of the Illinois Business Corporation Act of 1983, as amended (the "BCA"), provide that the Registrant may, and in some circumstances must, indemnify the directors and officers of the Registrant and of each subsidiary company against liabilities and expenses incurred by such person by reason of the fact that such person was serving in such capacity, subject to certain limitations and conditions set forth in the statute. The Registrant's Restated Articles of Incorporation and By-Laws provide that the Registrant will indemnify its directors and officers, and may indemnify any person serving as director or officer of another business entity at the Registrant's request, to the extent permitted by the statute. In addition, the Registrant's Restated Articles of Incorporation provide, as permitted by the BCA, that directors shall not be personally liable for monetary damages for breach of fiduciary duty as a director, except (i) for breaches of their duty of loyalty to the Registrant or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 8.65 of the BCA, and (iv) for transactions from which a director derived an improper personal benefit. The Registrant maintains liability insurance policies which indemnify the Registrant's directors and officers, the directors and officers of subsidiaries of the Registrant, and the trustees of the Commonwealth Edison Company Service Annuity Fund and the Commonwealth Edison Company of Indiana, Inc. Service Annuity Fund, against loss arising from claims by reason of their legal liability for acts as such directors, officers or trustees, subject to limitations and conditions as set forth in the policies. The Registrant indemnifies assistant officers and other employees against liabilities and expenses incurred by reason of acts performed in connection with the operations of the various employee benefit systems of the Registrant and its subsidiaries. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. The exhibits accompanying this Registration Statement are listed on the accompanying Exhibit Index. Item 9. Undertakings. (a) 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 II-2 information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (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) 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 Securities and Exchange 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 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 which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to 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. (c) 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 Securities Act of 1933 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 Securities Act of 1933 and will be governed by the final adjudication of such issue. II-3 SIGNATURES The Registrant. 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 the City of Chicago, State of Illinois, on this 18th day of August, 1997. COMMONWEALTH EDISON COMPANY By: James J. O'Connor -------------------------------------------------------- James J. O'Connor, Chairman and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on this 18th day of August, 1997.
Signature Title --------- ----- James J. O'Connor Chairman and Chief Executive Officer and Director ------------------------------------------ (principal executive officer) James J. O'Connor John C. Bukovski Vice President ------------------------------------------ (principal financial officer) John C. Bukovski Robert E. Berdelle Comptroller ------------------------------------------ (principal accounting officer) Robert E. Berdelle * ------------------------------------------ Director Edward A. Brennan * ------------------------------------------ Director James W. Compton * ------------------------------------------ Director Bruce DeMars * ------------------------------------------ Director Sue L. Gin * ------------------------------------------ Director Donald P. Jacobs * ------------------------------------------ Director Edgar D. Jannotta * Director ------------------------------------------ George E. Johnson * ------------------------------------------ President and Director Samuel K. Skinner *By: David A. Scholz ------------------------------------ David A. Scholz, Attorney-in-fact
II-4 INDEX TO EXHIBITS TO REGISTRATION STATEMENT -------------------------------------------
Exhibit Number Description of Document - ------- ----------------------- (4)-1 Restated Articles of Incorporation of the Registrant (File No. 1-1839, Form 10-K for the year ended December 31, 1994, Exhibit (3)-2, which is incorporated herein by reference). (4)-2 By-Laws of the Registrant (File No. 1-1839, Form 10-K for the year ended December 31, 1996, Exhibit (3)-4, which is incorporated herein by reference). * (4)-3 Commonwealth Edison Company Excess Benefit Savings Plan. * (5) Opinion regarding legality of securities being registered. *(23) Consent of Arthur Andersen LLP. *(24) Powers of Attorney.
- -------------------- *Filed herewith. EX-4.3 2 COMMONWEALTH EDISON EXCESS BENEFIT SAVINGS PLAN Exhibit (4)-3 Commonwealth Edison Company Form S-8 File No. 333- COMMONWEALTH EDISON EXCESS BENEFIT SAVINGS PLAN WHEREAS, Commonwealth Edison Company, an Illinois corporation (the "Company"), has for many years maintained the Commonwealth Edison Employe Savings and Investment Plan (the "ESIP") for the benefit of its employes and employes of certain of its subsidiaries which have, with the consent of the Company, adopted the ESIP (the "Employers"); WHEREAS, section 401(a)(17) of the Internal Revenue Code of 1986, as amended (the "Code"), limits the amount of annual compensation that may be taken into account under the ESIP to $150,000 (as adjusted for increases in the cost of living) (the "Compensation Limit"); WHEREAS, section 402(g) of the Code limits the contributions to a participant's Compensation Conversion Account under the ESIP to $7,000 (adjusted for increases in the cost of living) (the "Dollar Limit"); WHEREAS, sections 401(k) and 401(m) of the Code (the "Before-Tax Contribution Limit" and the "Matching Contribution Limit," respectively) may limit the amount of contributions which may be allocated to the Compensation Conversion Accounts and Employer Contribution Accounts of certain highly compensated participants under the ESIP; WHEREAS, section 415 of the Code requires that allocations to participants' accounts under the ESIP generally be limited to the lesser of $30,000 and 25% of a participant's compensation and in certain other respects (the "Section 415 Limit"); and WHEREAS, the Company and the Employers desire to provide benefits to "a select group of management or highly compensated employes," within the meaning of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), equal to the contributions which, but for sections 401(a)(17), 401(k), 401(m), 402(g) and 415 of the Code would have been contributed to the ESIP. NOW, THEREFORE, effective August 1, 1994, the Company and the Employers hereby agree as follows: 1. Definitions. All capitalized terms used herein shall have the respective meanings assigned to such terms by the ESIP, except as otherwise set forth in the preamble to or text of this Plan or below: (a) Plan. This Commonwealth Edison Excess Benefit Savings Plan, as from time to time amended. (b) Participant. For any Plan Year, an employe of the Company or an Employer who is an "Active Participant" in the ESIP for a Plan Year and: (i) who is one of the following: (A) an officer of the Company or any Employer, (B) included on an Employer's "Executive" payroll or (C) classified as management personnel in job grade 12 or above, or if an Employer maintains a system of pay classification different from that of the Company, is in a classification determined by such Employer and the Company to be comparable to the above- described eligible classifications of the Company; and (ii) who elects to participate in this Plan for a calendar year pursuant to paragraph 2. (c) Account. An account established on behalf of an Participant pursuant to this Plan. (d) Valuation Date. The date as of which interest is credited to an Account pursuant to paragraph 4 of this Plan. 2. Participant Elections. An election to participate for a calendar year shall be made (i) for 1994 within 30 days after adoption, (ii) for the calendar year in which an Employe first becomes eligible to become a Participant, within 30 days after such Employe becomes so eligible and (iii) for any other calendar year, by December 31 of the preceding calendar year. Each election to participate in the Plan for a calendar year shall authorize the Participant's Employer to reduce the Participant's Compensation by a whole percentage not in excess of ten, and such election shall apply to Compensation payable after both (1) the effective date of such election and (2) the date on which the Participant's Compensation is no longer reduced by reason of contributions to his or her Compensation Conversion Account under the ESIP on account of the limits imposed by: (a) The last two sentences of Section 2.1(i) of the ESIP, relating to the Compensation Limit; (b) The third paragraph of Section 4.2 of the ESIP, relating to the Dollar Limit; (c) Section 4.4 of the ESIP, relating to the Section 415 Limit; and (d) Section 4.5 of the ESIP relating to the Before Tax Contribution Limit and the Matching Contribution Limit. -2- Notwithstanding the foregoing, (i) a Participant's election under Section 4.2 of the ESIP at any time during 1994 and prior to the effective date of the Plan was for less than the maximum amount allowed under the terms of the ESIP or (ii) a Participant's contributions to his or her Compensation Conversion Account for 1994 ceased on account of any of the above-described limitations prior to the effective date of the Participant's election for such year and (iii) the Participant's election under Section 4.2 as of the effective date of the Plan is for the maximum amount allowed under the terms of the ESIP, then the Participant's election for 1994 shall, if so designated by the Participant, be applied by determining the amount of Compensation reduction that would have been made had (x) the Participant's election under Section 4.2 of the ESIP been for the maximum amount under the terms of the Plan throughout 1994, or (y) the Participant's election become effective at the time the Participant's Contributions to his or her Compensation Conversion Account ceased, whichever is the larger (the "Make-Up Amount"), and adding a pro rata portion of the Make-Up Amount to the amount by which the Participant's Compensation is otherwise reduced pursuant to such election. 3. Accounts. There shall be established on the books of the Company and of each Employer an Employe Account and an Employer Account in the name and on behalf of each Participant who is an employe of the Company or such Employer, as the case may be. Each Employe Account shall be credited with the amounts by which the Participant's Compensation is reduced pursuant to his or her election under paragraph 2 of this Plan as of the time such Compensation would have been paid to the Participant but for such election. Each Employer Account shall be credited with an amount equal to the matching contributions that would have been allocated to the Participant's Employer Contribution Account under Section 4.3 of the ESIP in respect of amounts credited to the Participant's Employe Account pursuant to the preceding sentence had such amounts been allocated to the Participant's Compensation Conversion Account, but after taking into account any such matching contributions made under Section 4.3 of the ESIP in respect of any contributions by the Participant to his or her Basic Savings Accounts as of the date on which the related amount is credited to his or her Employe Account. 4. Interest on Accounts. The Company and each Employer shall credit to each Account established on its books pursuant to paragraph 3 of this Plan interest on the balance of such Account as of the end of each calendar month while any amounts are credited thereto at an annual rate equal to the imbedded rate of interest then being accrued by the Company on its long-term debt, as determined from time to time by the Comptroller of the Company. 5. Vesting. Amounts credited to a Participant's Employe Account pursuant to the terms of this Plan shall be fully vested and not subject to forfeiture for any reason. Amounts credited to a Participant's Employer Account shall become vested at the same time and to the same extent as the contributions credited to his or her Employer Contribution Account. 6. Distributions. Payment in respect of a Participant's Accounts under this Plan shall be made at such time as the Committee shall, in its sole discretion, determine, but in no event later than 60 days after the close of the calendar year in which the Participant's employment by the Company and all Employers terminates. Such payment shall be based on -3- the balance of his Accounts as of the Valuation Date, coinciding with or immediately preceding the payment date and shall be made in a single lump sum payment. 7. Beneficiaries. If a Participant shall die while any amount remains credited to the Accounts established on his behalf pursuant to paragraph 3 of this Plan, such amount shall be paid as provided in paragraph 6 of this Plan to the beneficiary or beneficiaries as the Participant may, from time to time, designate in writing delivered to the Committee. An Participant may revoke or change his beneficiary designation at any time in writing delivered to the Committee. If a Participant does not designate a beneficiary under this Plan, or if no designated beneficiary survives the Participant, the balance of his Accounts shall be paid to the person or persons entitled to his Account under Section 7.6 of the ESIP (or who would be so entitled if there were then an amount remaining unpaid under the ESIP). 8. Amendment and Termination. This Plan shall be subject to the same reserved powers of amendment and termination as the ESIP (without regard to any limitations imposed on such powers by the Code or ERISA), except that no such amendment or termination shall reduce or otherwise adversely affect the rights of Participants in respect of amounts credited to their Accounts as of the date of such amendment or termination. 9. Application of ERISA. This Plan is intended to be an "excess benefit plan" within the meaning of section 3(36) of ERISA and an unfunded plan maintained primarily for the purpose of providing deferred compensation to a select group of management or highly compensated employees within the meaning of sections 201(2), 301(a)(3) and 401(a)(1) of ERISA and Department of Labor Regulation (S) 2520.104-23. This Plan shall not be a funded plan, and the Company and the Employers shall be under no obligation to set aside any funds for the purpose of making payments under this Plan. Any payments hereunder shall be made out of the general assets of the Company and the Employers. 10. Administration. The Committee shall be charged with the administration of this Plan and shall have the same powers and duties, and shall be subject to the same limitations, as are described in Article IX of the ESIP. 11. Nonassignment of Benefits. Notwithstanding anything contained in the ESIP to the contrary, it shall be a condition of the payment of benefits under this Plan that neither such benefits nor any portion thereof shall be assigned, alienated or transferred to any person voluntarily or by operation of any law, including any assignment, division or awarding of property under state domestic relations law (including community property law). If any person shall endeavor or purport to make any such assignment, alienation or transfer, the amount otherwise provided hereunder which is the subject of such assignment, alienation or transfer shall cease to be payable to any person. 12. No Guaranty of Employment. Nothing contained in this Plan shall be construed as a contract of employment between any Employer and any employe or as conferring a right on any employe to be continued in the employment of any Employer. -4- 13. Adoption By Employers. Any corporation which is or becomes an "Employer" under the ESIP may, with the consent of the Company, become an Employer under this Plan by delivery to the Company of a resolution of its board of directors or duly authorized committee to such effect, which resolution shall specify the first Plan Year under the ESIP for which this Plan shall be effective in respect of the employes of such corporation. 14. Miscellaneous. (a) Certain ESIP Provisions. Except as otherwise provided herein, the miscellaneous provisions contained in Sections 10.5 (relating to notice of address) and 10.6 (relating to applicable law) of the ESIP are hereby incorporated herein by reference, and shall be applicable as if such provisions were set forth herein. (b) FICA Taxes. For each calendar year in which a Participant's compensation is reduced pursuant to this Plan, his or her Employer shall withhold from the Participant's compensation the taxes imposed upon the Participant pursuant to section 3121 of the Code in respect of (i) the amount by which the Participant's Compensation is reduced and the related amount credited to his or her Employee Account; (ii) the amount credited to the Participant's Employer Account upon the vesting thereof and (iii) the interest credited to the Accounts upon vesting and to the extent required by law. (c) Successors and Assigns. The provisions of this Plan shall bind and inure to the benefit of each Employer and its successors and assigns, as well as each Participant and his or her beneficiaries and successors. IN WITNESS WHEREOF, Commonwealth Edison Company has caused this instrument to be executed in its name and its corporate seal to be hereunder affixed on this 1st day of July, 1994. COMMONWEALTH EDISON COMPANY By: ____________________________ Title: ____________________________ (Corporate Seal) ATTEST: _______________________________ Title: __________________________ -5- AMENDMENT NO. 1 TO COMMONWEALTH EDISON EXCESS BENEFIT SAVINGS PLAN --------------------------- WHEREAS, Commonwealth Edison Company, an Illinois corporation (the "Company"), has heretofore adopted and maintains a non-qualified deferred compensation plan intended to provide benefits that would have been provided under the Commonwealth Edison Employee Savings and Investment Plan (the "ESIP") but for certain limits imposed by the Internal Revenue Code, designated the Commonwealth Edison Excess Benefit Savings Plan (the "Plan"); WHEREAS, the ESIP was amended and restated, effective January 1, 1995; and WHEREAS, the Company desires to amend the Plan to reflect certain changes in the ESIP definitions made by such amendment and restatement and to provide additional deferrals equal to the amount that would have been credited to a Participant's Before-Tax Contributions Accounts pursuant to Section 8.1(f) the ESIP on account of dividends distributed to such Participant but for the Dollar Limit or the Before-Tax Contribution Limit. NOW, THEREFORE, pursuant to the power of amendment contained in Section 8 of the Plan, the Plan is hereby amended, effective as of January 1, 1995, as follows: 1. All references in the Plan to the term "Compensation Conversion Account" shall be amended to the term "Before-Tax Contributions Account." 2. Sections 2(a), (b), (c) and (d) are amended to read as follows: (a) The third sentence of subdivision (10) of Article 2 of the ESIP, relating to the Compensation Limit; (b) Section 4.2 of the ESIP, relating to the dollar limit; (c) Section 4.4 of the ESIP, relating to the Before-Tax Contribution Limit and the Matching Contribution Limit; and (d) Section 7.4 relating to the Section 415 limit. 3. Section 2 is further amended by substituting "Section 4.1" for "Section 4.2" in each place where the latter term appears therein. 4. Section 2 is further amended by adding the following new sentence after the second sentence thereof: Each such election shall be deemed to authorize the Participant's compensation by an amount equal to the amount that would have been credited to the Participant's Before-Tax Contributions Account pursuant to the deemed election contained in the fourth sentence of Section 3.2 of the ESIP (providing for additional Before-Tax Contributions equal to dividends distributed to the Participant pursuant to Section 8.1(f) of the ESIP) but for the provisions described in clauses (a), (b), (c) and (d) of the preceding sentence. 5. Section 3 is amended by substituting "Section 7.3(a)" for "Section 4.3" each time the latter term appears therein. 6. Section 7 is amended by substituting "Section 8.5" for "Section 7.6" appearing in the last sentence thereof. 7. Section 10 is amended by substituting "Article II" for "Article IX" appearing therein. 8. Section 14 is amended by substituting the terms "Sections 11.4 and 11.5" and "Section 14.7" for the terms "Section 10.5" and "Section 10.6," respectively, appearing therein. IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officers on this 24th day of March, 1995. COMMONWEALTH EDISON COMPANY By ---------------------------- Title ------------------------- ATTEST: - ---------------------------- Title ----------------------- -2- AMENDMENT NO. TWO TO COMMONWEALTH EDISON EXCESS BENEFIT SAVINGS PLAN --------------------------- WHEREAS, Commonwealth Edison Company, an Illinois corporation (the "Company"), has heretofore adopted and maintains a non-qualified deferred compensation plan for the benefit of its employees and employees of certain of its subsidiaries designated the Commonwealth Edison Company Excess Benefit Savings Plan (the "Plan"); and WHEREAS, the Company desires to amend the Plan in certain respects. NOW, THEREFORE, pursuant to the power of amendment contained in paragraph 8 of the Plan, the Plan is hereby amended, effective September 1, 1997, as follows: 1. Paragraph 3 is amended by adding the following new sentence at the end thereof: Each Account shall be divided into a separate subaccount with respect to each earnings election made by a Participant pursuant to paragraph 4 below. 2. Section 4 is hereby amended in its entirety to read as follows: 4. Earnings Elections. The Committee shall from time to time designate two or more investment benchmarks, the rates of return or loss of which, based upon a Participant's earnings election, shall be used to determine the rate of return or loss to be credited to the subaccounts established within the Participant's Account pursuant to this paragraph 4. A Participant's earnings election shall specify the percentages of the Participant's Account allocated to the subaccounts with respect to each investment benchmark selected by the Participant, in increments of 5% (or multiples thereof). A Participant may change his or her earnings election as of the first business day of any calendar month by delivering to the Participant's Employer, at such time as may be specified by the Committee, a revised earnings election. A revised earnings election may apply to the then balance of a Participant's Account, to the future amounts to be credited thereto on account of the Participant's election under paragraph 2 of this Plan or both. If for any period of time an earnings election is not in effect pursuant to this paragraph 4, the Participant's Account shall be credited with interest on the balance thereof as of the end of each calendar month at an annual rate equal to the imbedded rate of interest then being accrued by the Company on its long-term debt, as determined from time to time by the Comptroller of the Company. 3. Paragraph 6 is amended to read as follows: 6. Distribution. Distribution of the balance of a Participant's Account shall be made at the time and in the manner specified below. (a) Retirement or Disability. If a Participant's employment terminates under circumstances entitling the Participant to a normal or early retirement pension under the Commonwealth Edison Company Service Annuity System or on account of the Participant's "disability" as defined therein, and as of the date of such termination the balance of the Participant's Account is at least $25,000, the balance of the Participant's Account shall be distributed to the Participant in installments, payable on or about the first day of each calendar quarter commencing with the first calendar quarter beginning after the date on which the Participant's employment terminates and continuing for fifteen years (the "Installment Period"). The amount of each installment payment shall be determined: (i) for the year in which installment payments are to commence, by dividing the balance of the Participant's Account as of the last day of the calendar quarter during which the Participant's employment terminates by the total number of payments to be made in the Installment Period; (ii) except as provided in clause (iii) below, for each subsequent calendar year, by dividing the balance of the Participant's Account as of September 30 (but subtracting from such balance the amount of the installment payment to be made on the next following October 1) by the total number of payments remaining to be made in the Installment Period (excluding the installment payment to be made on the next following October 1); and (iii) for the final calendar year in which installment payments are to be made, by dividing the balance of the Participant's Account as of the payment date by the number of payments remaining to be made in the Installment Period (including the installment payment which is then being made); provided, however, (I) if an installment payment calculated under subparagraph (i) above is to commence on October 1, such installments shall continue until the second succeeding January 1, (II) no installment shall exceed the balance of the Participant's Account immediately before the date of payment and (III) the final installment shall be equal to the then remaining balance of the Participant's Account. Notwithstanding the -2- foregoing, a Participant entitled to distribution under the first sentence of this paragraph 6(a) may elect to have such installments payable over ten years or five years, computed in the manner described in the preceding sentence, or to have the balance of his or her Account distributed in a single lump sum as of the first day of the calendar quarter next following the date the Participant's employment terminates, provided that such election is made at least one year prior to the date the Participant's employment terminates and provided further that in the case of a Participant who retires on or before September 1, 1998 and whose Account has not been distributed on or before August 1, 1997, such election may be made within 30 days after such Participant's termination of employment but shall not become effective until the first day of the calendar year that begins at least twelve months after such election. (b) Distributions in the Event of Death. If a Participant's employment is terminated on account of the Participant's death, the balance of the Participant's Account shall be distributed to the Participant's beneficiary determined pursuant to paragraph 7 in a single lump sum as soon as is practicable following the end of the first calendar quarter coinciding with or next following the Participant's death. If a Participant dies after installment distributions have begun pursuant to paragraph 6(a), such installment distributions shall continue to the Participant's beneficiary determined pursuant to paragraph 7. (c) Other Distributions. If a Participant's employment shall terminate for any reason other than those described in paragraph 6(a) and (b), or if as of the date of a Participant's termination of employment the balance of the Participant's Account is less than $25,000, the balance of the Participant's Account shall be distributed to the Participant in a lump sum as soon as is practicable after the last day of the calendar quarter coinciding with or next following such termination of employment. (d) The amount of any distribution pursuant to this paragraph 6 shall be reduced by any amount required by law to be deducted or withheld, including income tax withholding. IN WITNESS WHEREOF, the Company has caused this instrument to be executed on this 13th day of August, 1997. COMMONWEALTH EDISON COMPANY By --------------------------------- Title ------------------------------ ATTEST: - ------------------------------- Title ------------------------- -3- EX-5 3 CONSENT OF SIDLEY & AUSTIN Exhibit (5) Commonwealth Edison Company Form S-8 File No. 333- Sidley & Austin One First National Plaza Chicago, Illinois 60603 August 13, 1997 Commonwealth Edison Company 10 South Dearborn Street -- 37th Floor Chicago, Illinois 60603 Ladies and Gentlemen: We refer to the Registration Statement on Form S-8 (the "Registration Statement") being filed by Commonwealth Edison Company, an Illinois corporation (the "Company"), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), relating to the registration of $20,000,000 aggregate amount of Commonwealth Edison Company Excess Benefit Savings Plan Obligations (the "Obligations). The Obligations are unsecured obligations of the Company to pay certain benefits in the future in accordance with the terms of the Commonwealth Edison Company Excess Benefit Savings Plan (the "Plan"). We are familiar with the Plan and have examined such records, documents and questions of law, and satisfied ourselves as to such matters of fact, as we have considered relevant and necessary as a basis for this opinion. Based on the foregoing, we are of the opinion that: 1. The Company is duly incorporated and validly existing under the laws of the State of Illinois. 2. The Plan has been duly and validly authorized and adopted, and the Obligations being registered hereunder that may be issued to participants in the Plan, when issued or sold in accordance with the Plan, will be valid and binding obligations to the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other laws of general applicability relating to or affecting enforcement of creditors' rights or by general principles of equity. We do not find it necessary for the purposes of this opinion to cover, and accordingly we express no opinion as to, the application of the securities or blue sky laws of the various states to the sale of the Obligations. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to all references to our firm included in or made a part of the Registration Statement. Very truly yours, Sidley & Austin -2- EX-23 4 CONSENT OF ARTHUR ANDERSEN LLP Exhibit (23) Commonwealth Edison Company Form S-8 File No. 333- CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Form S-8 Registration Statement of our reports dated January 31, 1997, included or incorporated by reference in Commonwealth Edison Company's Annual Report on Form 10-K for the year ended December 31, 1996, our report dated May 9, 1997 included in Commonwealth Edison Company's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 1997, our report dated August 8, 1997 included in Commonwealth Edison Company's Quarterly Report on Form 10-Q for the quarterly period ended June 30, 1997 and our report dated January 31, 1997 included in Commonwealth Edison Company's Current Report on Form 8-K dated January 31, 1997. We also hereby consent to all references to our Firm included in this Form S-8 Registration Statement. ARTHUR ANDERSEN LLP Chicago, Illinois August 15, 1997 EX-24 5 POWERS OF ATTORNEY Exhibit (24) Commonwealth Edison Company Form S-8 File No. 333- POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS: That the undersigned, a Director of Commonwealth Edison Company, an Illinois corporation, does hereby constitute and appoint JAMES J. O'CONNOR, LEO F. MULLIN, SAMUEL K. SKINNER and DAVID A. SCHOLZ, and each of them, his true and lawful attorneys and agents, each with full power and authority (acting alone and without the others) to execute in the name and on behalf of the undersigned as such Director, a Registration Statement under the Securities Act of 1933 relating to the registration of participatory interests in the Commonwealth Edison Excess Benefit Savings Plan and any and all amendments or supplements to such Registration Statement; hereby granting to such attorneys and agents, and each of them, full power of substitution and revocation in the premises; and hereby ratifying and confirming all that such attorneys and agents, or any of them, may do or cause to be done by virtue of these presents. IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of July, 1997. Edward A. Brennan ------------------------- STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) I, Mary L. Kwilos, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that EDWARD A. BRENNAN, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed and delivered said instrument as his free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and the notarial seal this 10th day of July, 1997. Mary L. Kwilos ----------------------------- Mary L. Kwilos Notary Public POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS: That the undersigned, a Director of Commonwealth Edison Company, an Illinois corporation, does hereby constitute and appoint JAMES J. O'CONNOR, LEO F. MULLIN, SAMUEL K. SKINNER and DAVID A. SCHOLZ, and each of them, his true and lawful attorneys and agents, each with full power and authority (acting alone and without the others) to execute in the name and on behalf of the undersigned as such Director, a Registration Statement under the Securities Act of 1933 relating to the registration of participatory interests in the Commonwealth Edison Excess Benefit Savings Plan and any and all amendments or supplements to such Registration Statement; hereby granting to such attorneys and agents, and each of them, full power of substitution and revocation in the premises; and hereby ratifying and confirming all that such attorneys and agents, or any of them, may do or cause to be done by virtue of these presents. IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of July, 1997. James W. Compton ------------------------ STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) I, Mary L. Kwilos, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that JAMES W. COMPTON, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed and delivered said instrument as his free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and the notarial seal this 10th day of July, 1997. Mary L. Kwilos ----------------------------- Mary L. Kwilos Notary Public POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS: That the undersigned, a Director of Commonwealth Edison Company, an Illinois corporation, does hereby constitute and appoint JAMES J. O'CONNOR, LEO F. MULLIN, SAMUEL K. SKINNER and DAVID A. SCHOLZ, and each of them, his true and lawful attorneys and agents, each with full power and authority (acting alone and without the others) to execute in the name and on behalf of the undersigned as such Director, a Registration Statement under the Securities Act of 1933 relating to the registration of participatory interests in the Commonwealth Edison Excess Benefit Savings Plan and any and all amendments or supplements to such Registration Statement; hereby granting to such attorneys and agents, and each of them, full power of substitution and revocation in the premises; and hereby ratifying and confirming all that such attorneys and agents, or any of them, may do or cause to be done by virtue of these presents. IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of July, 1997. Bruce DeMars ------------------------ STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) I, Mary L. Kwilos, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that BRUCE DEMARS, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed and delivered said instrument as his free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and the notarial seal this 10th day of July, 1997. Mary L. Kwilos ----------------------------- Mary L. Kwilos Notary Public POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS: That the undersigned, a Director of Commonwealth Edison Company, an Illinois corporation, does hereby constitute and appoint JAMES J. O'CONNOR, LEO F. MULLIN, SAMUEL K. SKINNER and DAVID A. SCHOLZ, and each of them, her true and lawful attorneys and agents, each with full power and authority (acting alone and without the others) to execute in the name and on behalf of the undersigned as such Director, a Registration Statement under the Securities Act of 1933 relating to the registration of participatory interests in the Commonwealth Edison Excess Benefit Savings Plan and any and all amendments or supplements to such Registration Statement; hereby granting to such attorneys and agents, and each of them, full power of substitution and revocation in the premises; and hereby ratifying and confirming all that such attorneys and agents, or any of them, may do or cause to be done by virtue of these presents. IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of July, 1997. Sue L. Gin -------------------------- STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) I, Mary L. Kwilos, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that SUE L. GIN, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that she signed and delivered said instrument as her free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and the notarial seal this 10th day of July, 1997. Mary L. Kwilos ----------------------------- Mary L. Kwilos Notary Public POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS: That the undersigned, a Director of Commonwealth Edison Company, an Illinois corporation, does hereby constitute and appoint JAMES J. O'CONNOR, LEO F. MULLIN, SAMUEL K. SKINNER and DAVID A. SCHOLZ, and each of them, his true and lawful attorneys and agents, each with full power and authority (acting alone and without the others) to execute in the name and on behalf of the undersigned as such Director, a Registration Statement under the Securities Act of 1933 relating to the registration of participatory interests in the Commonwealth Edison Excess Benefit Savings Plan and any and all amendments or supplements to such Registration Statement; hereby granting to such attorneys and agents, and each of them, full power of substitution and revocation in the premises; and hereby ratifying and confirming all that such attorneys and agents, or any of them, may do or cause to be done by virtue of these presents. IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of July, 1997. Donald P. Jacobs -------------------------- STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) I, Mary L. Kwilos, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that DONALD P. JACOBS, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed and delivered said instrument as his free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and the notarial seal this 10th day of July, 1997. Mary L. Kwilos ----------------------------- Mary L. Kwilos Notary Public POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS: That the undersigned, a Director of Commonwealth Edison Company, an Illinois corporation, does hereby constitute and appoint JAMES J. O'CONNOR, LEO F.MULLIN, SAMUEL K. SKINNER and DAVID A. SCHOLZ, and each of them, his true and lawful attorneys and agents, each with full power and authority (acting alone and without the others) to execute in the name and on behalf of the undersigned as such Director, a Registration Statement under the Securities Act of 1933 relating to the registration of participatory interests in the Commonwealth Edison Excess Benefit Savings Plan and any and all amendments or supplements to such Registration Statement; hereby granting to such attorneys and agents, and each of them, full power of substitution and revocation in the premises; and hereby ratifying and confirming all that such attorneys and agents, or any of them, may do or cause to be done by virtue of these presents. IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of July, 1997. Edgar D. Jannotta --------------------------- STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) I, Mary L. Kwilos, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that EDGAR D. JANNOTTA, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed and delivered said instrument as his free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and the notarial seal this 10th day of July, 1997. Mary L. Kwilos ----------------------------- Mary L. Kwilos Notary Public POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS: That the undersigned, a Director of Commonwealth Edison Company, an Illinois corporation, does hereby constitute and appoint JAMES J. O'CONNOR, LEO F. MULLIN, SAMUEL K. SKINNER and DAVID A. SCHOLZ, and each of them, his true and lawful attorneys and agents, each with full power and authority (acting alone and without the others) to execute in the name and on behalf of the undersigned as such Director, a Registration Statement under the Securities Act of 1933 relating to the registration of participatory interests in the Commonwealth Edison Excess Benefit Savings Plan and any and all amendments or supplements to such Registration Statement; hereby granting to such attorneys and agents, and each of them, full power of substitution and revocation in the premises; and hereby ratifying and confirming all that such attorneys and agents, or any of them, may do or cause to be done by virtue of these presents. IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of July, 1997. George E. Johnson --------------------------- STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) I, Mary L. Kwilos, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that GEORGE E. JOHNSON, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed and delivered said instrument as his free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and the notarial seal this 10th day of July, 1997. Mary L. Kwilos ----------------------------- Mary L. Kwilos Notary Public POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS: That the undersigned, a Director and Officer of Commonwealth Edison Company, an Illinois corporation, does hereby constitute and appoint JAMES J. O'CONNOR and DAVID A. SCHOLZ, and each of them, his true and lawful attorneys and agents, each with full power and authority (acting alone and without the other) to execute in the name and on behalf of the undersigned as such Director and Officer, a Registration Statement under the Securities Act of 1933 relating to the registration of participatory interests in the Commonwealth Edison Excess Benefit Savings Plan and any and all amendments or supplements to such Registration Statement; hereby granting to such attorneys and agents, and each of them, full power of substitution and revocation in the premises; and hereby ratifying and confirming all that such attorneys and agents, or any of them, may do or cause to be done by virtue of these presents. IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of July, 1997. Samuel K. Skinner ---------------------------- STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) I, Mary L. Kwilos, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that SAMUEL K. SKINNER, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed and delivered said instrument as his free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and the notarial seal this 10th day of July, 1997. Mary L. Kwilos ----------------------------- Mary L. Kwilos Notary Public -----END PRIVACY-ENHANCED MESSAGE-----