February 22, 1995
Xx. Xxxx X. Xxxx
000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Special Severance Agreement
---------------------------
Dear Xx. Xxxx:
The Board of Directors (the "Board") of Ohio Edison
Company (the "Company") recognizes that, as is the case with many
publicly held corporations, there always exists the possibility
of a change of 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 of
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 of
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 of control.
Therefore, in order to fulfill the above purposes, the
Board has designated you as eligible for severance benefits as
set forth below.
i. Offer
-----
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 of 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 of Control of the Company
(as defined in Section 4 below).
ii. Operation
---------
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 of
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
of 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 of Control, you shall have no rights
or obligations under this Agreement.
3. Term
----
(a) Term of Agreement: The term of this
-----------------
Agreement shall commence immediately upon the date hereof and
continue until December 31, 1997.
(b) One-Year Evergreen Provision: Subject to
----------------------------
subsection (c) 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, 1997 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 of Control, this Agreement shall be
automatically extended for a period of thirty-six full calendar
months commencing on the date of such Change of Control. At the
end of such thirty-six month period, this Agreement shall
terminate.
4. Change of Control
-----------------
For the purpose of this Agreement, a "Change of
Control" shall mean:
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(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
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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
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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
-----------
(a) Termination Following Change of Control:
---------------------------------------
If, within a period of thirty-six full calendar months after a
Change of 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 without your express consent and within thirty-six full
calendar months after a Change of 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 of
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 of Control) in which you participated or
were eligible to participate in immediately prior to
the Change of Control and in lieu thereof does not make
available plans providing at least comparable benefits;
or
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(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 of
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 of 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 of 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 of 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
of Control of the Company; or
(7) The Company purports to terminate your
employment otherwise than as expressly
permitted by this Agreement; or
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(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 involving an act of moral turpitude, dishonesty,
or misfeasance.
(d) Notice of Termination: Any termination by
---------------------
the Company 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 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 to normal retirement, you shall not be entitled to
severance benefits under this Agreement, regardless of the
occurrence of a Change of 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 of Control, your employment is terminated by the Company
for Cause, the Company shall pay you your full base salary
7
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 results from your Disability or death, you shall
not be entitled to severance benefits under this Agreement,
regardless of the occurrence of a Change of 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
------------------
If, within a period of thirty-six full calendar months
after a Change of 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
8
of the time of the Change of Control) plus the average
annual short-term incentive amount awarded to you under
the Ohio Edison System Executive Incentive Compensation
Plan ("Executive Incentive Plan") 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 Executive Incentive Plan,
you shall be considered to have retired and will be paid the pro
rata portion of your short-term 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 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.
(d) For purposes of the Ohio Edison System
Executive Deferred Compensation Plan ("Deferred Compensation
Plan"), you shall be considered to have retired at age 62,
entitling you to the full amount of your Retirement Account, if
any, payable in accordance with the terms of the Deferred
Compensation Plan.
(e) For purposes of calculating your benefit
under the Ohio Edison 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 5 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,
9
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.
(f) 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.
(g) 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 (b) above immediately prior to the Date of
Termination, the provisions set forth in subsection (b) 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.
(h) 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.
(i) 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
10
contingent on any Change of 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.
(j) Payment Obligations: Other than as set forth
-------------------
in the Deferred Compensation Plan or the SERP, upon a Change of
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.
(k) Legal Fees and Expenses: Subject to and
-----------------------
contingent upon the occurrence of a Change of 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.
(l) Certain Additional Payments by the Company:
------------------------------------------
(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,
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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.
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7. Assignability
-------------
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
---------------
If subsequent to a Change of Control of the Company you
should for Good Reason terminate your employment, 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 the provision of gas and/or electric services
on a retail and wholesale basis in the State of Ohio and in any
other state contiguous to the State of Ohio; provided, 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
---------
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
hereinbefore 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.
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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
-----------------
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:
---------
Xxxx X. Xxxx
000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
If to the Company:
-----------------
Secretary
Ohio Edison Company
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.
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12. Validity
--------
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
-----------
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,
OHIO EDISON COMPANY
By: /s/Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx
Accepted and Agreed as of the date
first above written:
/s/ Xxxx x. Xxxx
----------------------------
Xxxx X. Xxxx
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