Exhibit C-470
October 13, 2001
Xx. Xxxx X. Xxxxx
0000 Xxxxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Special Severance Agreement
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Dear Xx. Xxxxx:
The Board of Directors (the "Board") of FirstEnergy (the "Company")
recognizes that, as is the case with many publicly held corporations, there
always exists the possibility of a change in control of the Company. This
possibility and the uncertainty it creates may result in the loss or distraction
of members of management of the Company and its subsidiaries to the detriment of
the Company and its shareholders.
The Board considers the establishment, maintenance, and continuity of
a sound and vital management to be essential to protecting and enhancing the
best interests of the Company and its shareholders. The Board also believes that
when a change in control is perceived as imminent, or is occurring, the Board
should be able to receive and rely on disinterested advice from management
regarding the best interests of the Company and its shareholders without concern
that members of management might be distracted or concerned by the personal
uncertainties and risks created by their perception of an imminent or occurring
change in control.
Accordingly, the Board has determined that appropriate steps should be
taken to assure the Company of the continued employment and attention and
dedication to duty of certain members of management of the Company and to ensure
the availability of their disinterested advice, notwithstanding the possibility,
threat or occurrence of a change in control.
Therefore, in order to fulfill the above purposes, the Board has
designated you as eligible for severance benefits as set forth below.
1. Offer
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In order to induce you to remain in the employ of the Company and to
provide continued services to the Company now and in the event that a Change in
Control is imminent or occurring, this letter agreement (the "Agreement") sets
forth severance benefits which the Company offers to pay to you in the event of
a termination of your employment (in the manner described in Section 5 below)
subsequent to a Change in Control of the Company (as defined in Section 4
below).
2. Operation
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This Agreement shall be effective immediately upon its execution
but anything in this Agreement to the contrary notwithstanding, neither this
Agreement nor any of its provisions shall be operative unless and until there
has been a Change in Control while you are still an employee of the Company, nor
shall this Agreement govern or affect your employment relationship with the
Company except as explicitly set forth herein. Upon a Change in Control, if you
are still employed by the Company, this Agreement and all of its provisions
shall become operative immediately. If your employment relationship with the
Company is terminated before a Change in Control, you shall have no rights or
obligations under this Agreement.
3. Term
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(a) Term of Agreement: The term of this Agreement shall
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commence immediately upon the date hereof and continue until December 31, 2004.
This agreement supersedes all other Agreements of a like or similar nature. Such
former agreements are considered null and void.
(b) One-Year Evergreen Provision: Subject to subsection (c)
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below, this Agreement shall be reviewed annually by the Board at a regular
meeting held between October 1 and December 31 of each year. At such yearly
review, the Board shall consider whether or not to extend the term of this
Agreement for an additional year. Unless the Board affirmatively votes not to
extend this Agreement, the term of this Agreement shall be extended for a period
of one year from the previous termination date. In the event the Board votes not
to extend this Agreement, the termination date of this Agreement shall be the
later of December 31, 2004 or thirty-six full calendar months from December 31st
of the year in which this Agreement was last extended.
(c) Subsection (b) above notwithstanding, upon the
occurrence of a Change in Control, this Agreement shall be automatically
extended for a period of thirty-six full calendar months commencing on the date
of such Change in Control. At the end of such thirty-six month period, this
Agreement shall terminate.
4. Change in Control
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For the purpose of this Agreement, a "Change in Control" shall mean:
(a) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 50% (25% if such Person proposes any individual for election to the Board or
any member of the Board is the representative of such Person) or more of either
(i) the then outstanding shares of common stock of the Company (the "Outstanding
Company Common Stock") or (ii) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however, that
the following acquisitions shall not constitute a Change of Control: (i) any
acquisition directly from the Company (excluding an acquisition by virtue of the
exercise of a conversion privilege), (ii) any acquisition by the Company, (iii)
any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or (iv)
any acquisition by any corporation pursuant to a reorganization, merger or
consolidation, if, following such reorganization, merger or consolidation, the
conditions described in clauses (i), (ii) and (iii) of subsection (c) of this
Section 4 are satisfied; or
(b) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of either an actual or threatened election contest (as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board; or
(c) Approval by the shareholders of the Company of a
reorganization, merger or consolidation, in each case, unless, following such
reorganization, merger or consolidation, (i) more than 75% of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
reorganization, merger or consolidation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such reorganization,
merger or consolidation in substantially the same proportions as their
ownership, immediately prior to such reorganization, merger or consolidation, of
the Outstanding Company Common Stock and Outstanding Company Voting Securities,
as the case may be, (ii) no Person (excluding the Company, any employee benefit
plan (or related trust) of the Company or such corporation resulting from such
reorganization, merger or consolidation and any Person beneficially owning,
immediately prior to such reorganization, merger or consolidation, directly or
indirectly, 25% or more of the Outstanding Company Common stock or Outstanding
Voting Securities, as the case may be) beneficially owns, directly or
indirectly, 25% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors and (iii) at least a majority of the members of the board of directors
of the corporation resulting from such reorganization, merger or consolidation
were members of the Incumbent Board at the time of the execution of the initial
agreement providing for such reorganization, merger or consolidation; or
(d) Approval by the shareholders of the Company of (i) a
complete liquidation or dissolution of the Company or (ii) the sale or other
disposition of all or substantially all of the assets of the Company, other than
to a corporation, with respect to which following such sale or other
disposition, (A) more than 75% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately prior to such
sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (B) no Person
(excluding the Company and any employee benefit plan (or related trust) of the
Company or such
corporation and any Person beneficially owning, immediately prior to such sale
or other disposition, directly or indirectly, 25% or more of the Outstanding
Company Common Stock or Outstanding Company Voting Securities, as the case may
be) beneficially owns, directly or indirectly, 25% or more of, respectively, the
then outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors and (C) at least a
majority of the members of the board of directors of such corporation were
members of the Incumbent Board at the time of the execution of the initial
agreement or action of the Board providing for such sale or other disposition of
assets of the Company.
5. Termination
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(a) Termination Following Change in Control: If, within a
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period of thirty-six full calendar months after a Change in Control (as defined
above) of the Company, you are discharged without Cause or resign for Good
Reason (as defined below), you shall be entitled to the benefits provided by
this Agreement as set forth in Section 6 below.
(b) Good Reason: If any of the following events occurs
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without your express consent and within thirty-six full calendar months after a
Change in Control, you may voluntarily terminate your employment within 30 days
of the occurrence of such event and be entitled to the severance benefits set
forth in Section 6 below:
(1) The Company assigns any duties to you which are
inconsistent with your position, duties, offices, titles, status
(including membership on the Board of Directors) responsibilities
or reporting requirements in effect immediately prior to a Change
in Control, or your removal from or any failure to re-elect you to
any of such positions or offices, except in connection with
termination of your employment for Cause, Disability, Death or
Normal Retirement, or by you other than for Good Reason, or;
(2) Changes to your base salary are inconsistent with
your annual performance review and the salary program applicable
to other senior executives of the Company; or
(3) The Company discontinues any bonus or other
compensation plans or any other benefit, stock ownership plan,
stock purchase plan, stock option plan, life insurance plan,
health plan, disability plan or similar plan (as the same existed
immediately prior to the Change in Control) in which you
participated or were eligible to participate in immediately prior
to the Change in Control and in lieu thereof does not make
available plans providing at least comparable benefits; or
(4) The Company takes action which adversely affects
your participation in, or eligibility for, or materially reduces
your benefits otherwise earned or payable under, any of the plans
described in (3) above (unless such action is required by law), or
which deprives you of any material fringe benefit enjoyed by you
immediately prior to the Change in Control, or fails to provide
you with the number of paid vacation days to which you were
entitled in accordance with normal vacation policy immediately
prior to the Change in Control; or
(5) The Company requires you to be based at any
office or location other than one within a 50 mile radius of the
office or location at which you were based immediately prior to
the Change in Control; (except for required travel on the
Company's business to an extent substantially consistent with your
business travel obligations as they existed at the time of a
Change in Control of the Company); or, in the event you consent to
being based anywhere more than fifty miles from such location, the
failure by the Company to pay (or reimburse you for) all
reasonable moving expenses incurred by you relating to a change of
your principal residence in connection with such relocation and to
indemnify you against any loss (defined as the difference between
the actual sale price of such residence after the deduction of all
real estate brokerage charges and related selling expenses) and
the higher of (1) your aggregate investment in such residence or
(2) the fair market value of such residence (as determined by a
real estate appraiser designated by you and reasonably
satisfactory to the Company) realized upon the sale of such
residence in connection with any such change of residence; or
(6) The Company's requiring you to perform duties or
services which necessitate absence overnight from your place of
residence, because of travel involving the business or affairs of
the Company, to a degree not substantially consistent with the
extent of such absence necessitated by such travel during the
period of twelve months immediately preceding a Change in Control
of the Company; or
(7) The Company purports to terminate your employment
otherwise than as expressly permitted by this Agreement; or
(8) The Company fails to comply with and satisfy
Section 9 below, provided that such successor has received at
least ten days prior written notice from the Company or from you
of the requirements of Section 9 below.
You shall have the sole right to determine, in good faith, whether
any of the above events has occurred.
(c) Cause: Cause shall mean: conviction of a felony or crime
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involving an act of moral turpitude, dishonesty, or misfeasance.
(d) Notice of Termination: Any termination by the Company
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for Cause, or by you for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 11
hereof. For purposes of this Agreement, a "Notice of Termination" means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
your employment under the provision so indicated and (iii) if the Date of
Termination (as defined below) is other than the date of receipt of such notice,
specifies the Date of Termination.
(e) Date of Termination: "Date of Termination" means (1) if
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your employment is terminated by the Company for Cause or without Cause, or by
you for Good Reason or other than for Good Reason, the date of receipt by the
other of the Notice of Termination, and (2) if your employment is terminated by
reason of Death, Disability or Normal Retirement (as defined below), the Date of
Termination shall be the date of your death, the date of receipt of your Notice
of
Termination, or the first of the month following the month you reach the
normal retirement age for employees in your position, respectively.
(f) Normal Retirement: If your employment is terminated due
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to normal retirement, you shall not be entitled to severance benefits under this
Agreement, regardless of the occurrence of a Change in Control. A termination by
normal retirement shall have occurred where your termination is caused by the
fact that you have reached normal retirement age for employees in your position.
(g) Termination for Cause: If subsequent to a Change in
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Control, your employment is terminated by the Company for Cause, the Company
shall pay you your full base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given, and you shall also receive
all accrued or vested benefits of any kind to which you are, or would otherwise
have been, entitled throughout the Date of Termination (as defined in subsection
(e) of this Section 5), and the Company shall thereupon have no further
obligation to you under this Agreement.
(h) Disability or Death: If termination of your employment
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results from your Disability or death, you shall not be entitled to severance
benefits under this Agreement, regardless of the occurrence of a Change in
Control. You or your designated beneficiary, in the case of your death, shall
receive all accrued or vested benefits of any kind to which you are, or would
otherwise have been, entitled through the Date of Termination, and the Company
shall thereupon have no further obligation to you under this Agreement.
"Disability" shall mean, for the purposes of this Agreement, your
total and permanent disability such that you would be entitled to receive
Disability Retirement Income under the Company's qualified pension plans, except
for purposes of this provision you need not have completed ten (10) years of
service with the Company, followed by the Company giving you thirty days written
notice of its intention to terminate your employment by reason thereof, and your
failure because of your Disability to resume the full-time performance of your
duties within such period of thirty days and thereafter perform the same for a
period of two consecutive months.
6. Severance Benefits
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If, within a period of thirty-six full calendar months after a
Change in Control of the Company, you are discharged without Cause or resign for
Good Reason, the following shall be applicable:
(a) The Company shall pay to you within ten business days
following the Date of Termination a lump sum severance benefit, payable in cash,
the amounts determined as provided below:
(1) Your full base salary through the Date of
Termination at the rate in effect at the time Notice of
Termination, is given.
(2) In lieu of further salary payments to you for
periods subsequent to the Date of Termination, an amount equal to
2.99 multiplied by the sum of your annual base salary at the rate
in effect as of the Date of Termination (or, if higher, at the
rate in effect as of the time of the Change in Control) plus the
average annual short-term incentive
amount awarded to you under the FirstEnergy System Executive
Incentive Compensation Plan ("EICP") for the three years
immediately preceding the year during which the Date of
Termination occurs whether or not fully paid.
(b) For purposes of the EICP, you shall be considered to
have retired and will be paid the pro rata portion of any incentive award
earned, if any, and any long-term deferred incentive awards earned, if any, per
the terms of the plan.
(c) For purposes of FirstEnergy stock options issued pursuant
to the FirstEnergy Executive and Director Incentive Compensation Plan, all
outstanding options will follow the terms of the option agreement(s).
(d) For purposes of determining the amount of benefits you
may continue after the Date of Termination under the Company's group health and
life insurance plans, you shall be considered as having retired at your current
age or age 55, whichever is greater, and your current years of service
calculated as if you are age 55, whichever is greater.
(e) For purposes of the FirstEnergy System Executive
Deferred Compensation Plan ("Deferred Compensation Plan"), you shall be
considered to have retired at age 60, entitling you to the full amount of your
Retirement and Stock Account, if any, payable in accordance with the terms of
the Deferred Compensation Plan.
(f) For purposes of calculating your benefit under the
FirstEnergy System Supplemental Executive Retirement Plan ("SERP"), you shall be
considered as having retired from the Company at your current age or age 55,
whichever is greater, and your current years of service or 15 years of service,
whichever is greater. Your benefit under the SERP will commence on the first of
the month following the Date of Termination as follows:
(1) If, on the Date of Termination, you are less than age
55, your monthly benefit from the SERP shall be calculated in
accordance with the terms of the SERP except that (a) until you
reach age 55, such SERP benefit shall be offset by any
compensation earned by you from a subsequent employer as provided
in paragraph (j) below; (b) at age 55, such SERP benefit shall
only be offset by the monthly amounts to which you will be
entitled at age 55 from the Company's tax-qualified pension plan,
the supplementary pension make-up benefit under the Deferred
Compensation Plan and/or the tax-qualified pension plan of any
previous employers (collectively, "Pension Income"), irrespective
of whether you receive such benefits at that time; and, (c) at age
62 such SERP benefit shall be offset only by Pension Income and
the monthly primary Social Security Benefit to which you will be
entitled at age 62, irrespective of whether you receive such
benefits at that time;
(2) If, on the Date of Termination, you are at least age 55
but less than age 62, your monthly benefit from the SERP shall be
calculated in accordance with the terms of the SERP, except that
(a) until you reach age 62, such SERP benefit shall be offset only
by your Pension Income, irrespective of whether you receive such
benefits at that time; and (b) at age 62 such SERP benefit shall
be offset only by Pension Income and the monthly primary Social
Security benefit to which you will be entitled at age 62,
irrespective of whether you receive such benefits at that time;
(3) If, on the Date of Termination, you are at least age 62,
your monthly benefit from the SERP shall be calculated and offset
in accordance with the terms of the SERP.
(g) For purposes of the Executive Supplemental Life Plan
("ESLP"), you may continue to participate as if you retired from the Company
prior to age 65 in accordance with the terms of the ESLP, irrespective of your
age at the Date of Termination.
(h) In the event that because of their relationship to you,
members of your family or other individuals are covered by any plan, program, or
arrangement described in subsection (d) above immediately prior to the Date of
Termination, the provisions set forth in subsection (d) shall apply equally to
require the continued coverage of such persons; provided, however, that if under
the terms of any such plan, program or arrangement, any such person would have
ceased to be eligible for coverage during the period in which the Company is
obligated to continue coverage for you, nothing set forth herein shall obligate
the Company to continue to provide coverage which would have ceased even if you
had remained an employee of the Company.
(i) The Company shall enable you to purchase the automobile,
if any, which the Company was providing for your use at the time Notice of
Termination was given at the wholesale value of such automobile at such time.
(j) Other Benefits Payable: The severance benefits described
in Subsections (a), (b), (c), (d), (e), (f), (g) and (h) above shall be payable
in addition to, and not in lieu of, all other accrued or vested or earned but
deferred compensation, rights, options or other benefits which may be owed to
you following your discharge or resignation (and are not contingent on any
Change in Control preceding such termination), including but not limited to,
accrued and/or banked vacation, amounts or benefits payable, if any, under any
bonus or other compensation plans, stock option plan, stock ownership plan,
stock purchase plan, life insurance plan, health plan, disability plan or
similar plan.
(k) Payment Obligations: Other than as set forth in the
Deferred Compensation Plan or the SERP, upon a Change in Control the Company's
obligations to pay the severance benefits or make any other payments described
in this Section 6 shall not be affected by any set-off, counterclaim,
recoupment, defense or other right which the Company or any of its subsidiaries
may have against the Executive or anyone else. If you are less than age 55 at
the time of your discharge without Cause or your resignation for Good Reason,
then, commencing 24 months after the Date of Termination, you shall be required
to seek employment elsewhere and thereby mitigate the amount of SERP benefit
payable under Paragraph (d)(1). You shall not be required to accept a position
other than as a senior executive of an entity comparable in size to the Company
and having duties, responsibilities and authority substantially similar in scope
and nature to your position with the Company immediately prior to the Date of
Termination. Upon obtaining such employment, you shall promptly notify the
Company of the compensation and benefits you received or will receive from such
new employer and of any changes therein.
(l) Legal Fees and Expenses: Subject to and contingent upon
the occurrence of a Change in Control the Company agrees to pay promptly as
incurred, to the full extent permitted by law, all legal fees and expenses which
you may reasonably thereafter incur as a result of any contest, litigation or
arbitration (regardless of the outcome thereof) by the Company, you or others of
the validity or enforceability of, or liability under, any provision of this
Agreement, the Deferred Compensation Plan, or the SERP (including any contest by
you about the amount of any payment
pursuant to this Agreement, the Deferred Compensation Plan or the SERP), plus in
each case interest on any delayed payment at the rate of 150% of the Prime Rate
as published in the Wall Street Journal in the Money Rates Table on the business
day immediately preceding the conclusion of any such contest, litigation or
arbitration.
(m) Certain Additional Payments by the Company:
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(1) Anything in this Agreement to the contrary
notwithstanding, in the event that the Executive becomes entitled
to severance benefits under this Section 6 hereof, the Deferred
Compensation Plan, the SERP or otherwise, and it shall be
determined that any payment or distribution by the Company to or
for the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement, the Deferred Compensation Plan, the SERP or otherwise
(a "Payment"), would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code") or any interest or penalties with respect to such excise
tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise
Tax"), then the Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Payments.
(2) All determinations required to be made under this
subsection (i), including whether a Gross-Up Payment is required
and the amount of such Gross-Up Payment, shall be made in good
faith by the Company which shall provide detailed supporting
calculations to the Executive within 15 business days of the date
of termination of the Executive's employment, if applicable, or
such earlier time as is requested by the Company. If the Company
determines that no Excise Tax is payable by the Executive, it
shall furnish the Executive with an opinion of counsel that he has
substantial authority not to report any Excise Tax on his federal
income tax return. Except as hereinafter provided, any
determination by the Company shall be binding upon the Company and
the Executive. As a result of the uncertainty in the application
of Section 4999 of the Code at the time of the initial
determination by the Company hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company
should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the
Executive is required to make a payment of any Excise Tax, the
Company shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
7. Assignability
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This Agreement is binding on and is for the benefit of the parties
hereto and their respective successors, heirs, executors, administrators and
other legal representatives. Neither this Agreement nor any right or obligation
hereunder may be assigned by the Company (except to any subsidiary or affiliate)
or by you.
8. Non-Competition
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If subsequent to a Change in Control of the Company if you are
discharged without Cause or resign for Good Reason, then for a period of two
years after the Date of Termination, you shall not on your own account without
the consent of the Company, or as a shareholder, employee, officer, director,
consultant or otherwise, engage directly or indirectly in any business or
enterprise which is in competition with the Company. For all purposes of this
agreement the words "competition with the Company" shall mean:
(a) Directly participate or engage, on the behalf of other parties, in the
purchase of products, supplies or services of the kind, nature or description of
those sold by the Company,
(b) Solicit, divert, take away or attempt to take away any of the Company's
Customers or the business or patronage of any such Customers of the Company;
(c) Solicit, entice, lure, employ or endeavor to employ any of the Company's
employees;
(d) Divulge to others or use for your own benefit any confidential information
obtained during the course of your employment with Company relative to sales,
services, processes, methods, machines, manufacturers, compositions, ideas,
improvements, patents, trademarks, or inventions belonging to or relating to the
affairs of Company;
(e) Divulge to others or use to your own benefit any trade secrets belonging to
the Company obtained during the course of your employment or that you became
aware of as a consequence of his/her employment.
The term "Customer" shall mean any person, firm, association,
corporation or other entity to which Executive or the Company has
sold the Company's products or services within the twenty-four
(24) month period immediately preceding the termination of
Executive's employment with Company or to which Executive or the
Company is in the process of selling its products or services, or
to which Executive or the Company has submitted a bid, or is in
the process of submitting a bid to sell the Company's products or
services.
However, that nothing herein contained shall prevent you from
purchasing and holding for investment less than 5% of the shares of any
corporation the shares of which are regularly traded either on a national
securities exchange or in the over-the-counter market.
9. Successor
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The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the company as
herein before defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise. Failure of the Company to obtain such agreement prior to the
effectiveness of such succession shall be a breach of this Agreement and shall
entitle you to compensation from the Company in the same amount and on the same
terms as you would be entitled hereunder if you terminated your employment for
Good Reason, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination.
This agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If you should die while any amounts
would still be payable to you hereunder if you had continued to live, all such
amounts, unless otherwise provided herein, shall be paid to such beneficiary or
beneficiaries as you shall have designated by written notice delivered to the
Company prior to your death or, failing such written notice, to your estate.
10. Amendment; Waiver
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This Agreement may be amended only by an instrument in writing
signed by the parties hereto, and any provision hereof may be waived only by an
instrument in writing signed by the party or parties against whom or which
enforcement of such waiver is sought. The failure of either party hereto at any
time to require the performance by the other party hereto of any provision
hereof shall in no way affect the full right to require such performance at any
time thereafter, nor shall the waiver by either party hereto of a breach of any
provision hereof be taken or held to be a waiver of any succeeding breach of
such provision or a waiver of the provision itself or a waiver of any other
provision of this Agreement.
11. Notices
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All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to you:
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Xx. Xxxx X. Xxxxx
0000 Xxxxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
If to the Company:
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Secretary
FirstEnergy
00 Xxxxx Xxxx Xxxxxx
Xxxxx, Xxxx 00000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
12. Validity
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The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect, nor
shall the invalidity or unenforceability of a portion of any provision of this
Agreement affect the validity or enforceability of the balance of such
provision. If any provision of this Agreement, or portion thereof is so broad,
in scope or duration, as to be unenforceable, such provision or portion thereof
shall be interpreted to be only so broad as is enforceable.
13. Withholding
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The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
14. Entire Agreement
----------------
This Agreement contains the entire understanding of the Company
and you with respect to the subject matter hereof.
15. Applicable Law
--------------
This Agreement shall be governed by and construed in accordance
with the substantive internal law and not the conflict of law provisions of the
State of Ohio.
If the terms of the foregoing Agreement are acceptable to you,
please sign and return to the Company the enclosed copy of this Agreement
whereupon this Agreement shall become a valid and legally binding contract
between you and the Company.
Very truly yours,
FIRSTENERGY
By:_______________________________________
Accepted and Agreed as of the date first above
written:
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Xxxx X. Xxxxx
