February 17, 2004
Xx. Xxxxxxx X. Xxxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxx, XX 00000
Special Severance Agreement
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Dear Xxxx:
The Board of Directors (the "Board") of FirstEnergy Corp. (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 become 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 commence
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immediately upon the date hereof and continue until December 31, 2006. This
Agreement supersedes all other agreements of a like or similar nature, including
those Special Severance Agreements that you signed on November 11, 1997 and
December 31, 2003 (the "Prior Agreements"). 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 commencing in 2004 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 at such yearly review, the term of this Agreement
shall be extended for a period of one year from the previous termination date.
In the event the Board so votes not to extend this Agreement, the termination
date of this Agreement shall be the later of December 31, 2006 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 in 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
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(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 (within the meaning of
solicitations subject to Rule 14a-12(c) of Regulation 14A promulgated under the
Exchange Act or any such successor rule) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(c) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Company, in each case, unless, following such reorganization, merger,
consolidation or sale or other disposition of assets, (i) more than 75% of,
respectively, the then outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation or acquiring such
assets 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, consolidation or sale or other
disposition of assets in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger, consolidation or sale or other
disposition of assets, 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, consolidation or
acquiring such assets and any Person beneficially owning, immediately prior to
such reorganization, merger, consolidation or sale or other disposition of
assets, 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 the corporation resulting from such reorganization,
merger or consolidation or acquiring such assets 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 or acquiring such assets were members of
the Incumbent Board at the time of the execution of the initial agreement
providing for such reorganization, merger, consolidation or sale or other
disposition of assets; or
(d) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
5. Termination
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(a) Termination Following Change in Control: If, within a period
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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 (each
as defined below), you shall be entitled to the benefits provided by this
Agreement as set forth in Section 6 below.
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(b) Good Reason: If any of the following events occurs without
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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 (as
such terms are defined below), 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 such discontinuation
is not generally applicable to all participants in any such plan; 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
unless such action by the Company is generally applicable to all
participants in any such plan; 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
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(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 10
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 10 below.
You shall have the sole right to determine, in good faith, whether any
of the above events has occurred.
(c) For a period of 90 days following the eighteen (18) month
anniversary of a Change in Control, you may elect to terminate employment at
your discretion. In the event of such termination at your discretion, you shall
receive all benefits under this Agreement that you would have received if you
resigned for Good Reason and you will be deemed, for purposes of this Agreement,
as having resigned for Good Reason.
(d) Cause: Cause shall mean: conviction of a felony or crime
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involving an act of moral turpitude, dishonesty, or misfeasance.
(e) 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 12 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.
(f) Date of Termination: "Date of Termination" means (1) if your
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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
party hereto 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
your receipt of Notice of Termination, or the first of the month following the
month you reach the normal retirement age for employees in your position,
respectively.
(g) 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 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.
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(h) Termination for Cause: If subsequent to a Change in Control,
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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 (f)
of this Section 5), and the Company shall thereupon have no further obligation
to you under this Agreement.
(i) 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 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
------------------
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,
in 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.
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(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 the Company's group health and life insurance
plans:
(1) If, on the Date of Termination, the addition of three
(3) years to your age would make you eligible to qualify for retiree
health or life insurance coverage under the Company's then-in-effect
group health or life insurance plans, then you shall be considered as
having retired for purposes of retiree health or life insurance
coverage under such plan or plans for which the addition of three (3)
years to your age would make you so eligible and for purposes of such
coverage you shall be credited with three (3) additional years of age
and service. You shall be responsible for paying the normal retiree
share of the applicable premiums for retiree coverage under the group
health and life insurance plans.
(2) If you are not entitled to retiree health or life
insurance coverage under Subsection (d)(1), then you shall be entitled
to continue to participate, on the same terms and conditions as active
employee participants, in such plan or plans for which you are not so
entitled to retiree coverage for a period of three (3) years after the
Date of Termination. During such continuation period, you shall be
responsible for paying the normal employee share of the applicable
premiums for coverage under the health and life insurance plans.
(3) The Company shall have the right to modify, amend or
discontinue the Company's group health and life insurance plans
following the Date of Termination and your continued participation
therein, and the continued participation of any other person therein
under Subsection (h) below, shall be subject to such modification,
amendment or discontinuation if such modification, amendment or
discontinuation applies generally to the then-current participants in
such plan.
(4) If the Company is not permitted to provide continuing
coverage under the terms of the Company's group health and life
insurance plans and related trusts, then the Company may purchase
health and/or life insurance for you for the period specified in
Subsection (d)(1) or (d)(2), as applicable, with coverage comparable
to the applicable coverage under the Company's group health or life
insurance plan, as applicable, then in effect, as the same may have
been modified amended or discontinued in accordance with the terms and
provisions of the applicable plan under this Subsection (d).
(5) The health benefit continuation provided under this
Subsection (d) shall satisfy the Company's obligations to provide, and
any rights that you may have to, COBRA coverage continuation under the
health care continuation requirements under the federal Consolidated
Omnibus Budget Reconciliation Act, as amended, Part VI of Subtitle B
of Title I of the Employee Retirement Income Security Act of 1974, as
amended, and Section 4980B(f) of the Internal Revenue Code of 1986, as
amended (the "Code"), or any successor provisions thereto.
7
(e) For purposes of the FirstEnergy Corp. Executive Deferred
Compensation Plan ("Deferred Compensation Plan"), you shall be credited with
three (3) additional years of age and service.
(f) For all purposes under the FirstEnergy Corp. Supplemental
Executive Retirement Plan ("SERP"), you shall be credited with three (3)
additional years of age and service, and your accrued benefit, if any, shall be
fully vested. If you are eligible on the Date of Termination under the SERP and
with such additional age and service credit to commence your benefit under the
SERP, your benefit under the SERP will commence on the first of the month
following the Date of Termination and your monthly benefit from the SERP shall
be calculated in accordance with the terms of the SERP and this Subsection (f)
except that (1) until you reach age 55, such SERP benefit shall be offset only
by any compensation earned by you from a subsequent employer as provided in
paragraph (j) below, (2) at age 55 and until you reach age 62, such SERP benefit
shall be offset only 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, (3) at age
62 and thereafter 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.
(g) In addition to the payment required by Subsection (a), the
Company shall pay to you within ten business days following the Date of
Termination a special lump sum severance benefit, payable in cash, in an amount
equal to $33,000.
(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 other than because of your termination of
employment 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) 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.
(j) 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
8
may have against you 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 Subsection (f)(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 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.
(l) Certain Additional Payments by the Company:
(1) Anything in this Agreement to the contrary
notwithstanding, in the event that you become 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 you or for your benefit, 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 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 you shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by you of all
taxes (including any interest or penalties imposed with respect to
such taxes), including any Excise Tax, imposed upon the Gross-Up
Payment, you retain 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 (l), 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
you within 15 business days after the date of termination of your
employment, if applicable, or such earlier time as is requested by the
Company. If the Company determines that no Excise Tax is payable by
you, it shall furnish you with an opinion of counsel that you have
substantial authority not to report any Excise Tax on your federal
income tax return. Except as hereinafter provided, any determination
by the Company shall be binding upon the Company and you. 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 you are
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 you or for
your benefit.
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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, 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 your employment.
The term "Customer" shall mean any person, firm, association,
corporation or other entity to which you or the Company has sold
the Company's products or services within the twenty-four (24)
month period immediately preceding the termination of your
employment with the Company or to which you or the Company is in
the process of selling its products or services, or to which you
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, nothing herein contained shall prevent you from purchasing
and holding for investment less than 5% of the shares of any corporation the
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shares of which are regularly traded either on a national securities exchange or
in the over-the-counter market, and notwithstanding any provision hereof, you
may disclose to any and all persons, without limitation of any kind, the tax
treatment and any facts that may be relevant to the tax structure of the
transactions contemplated by this Agreement, other than any information for
which nondisclosure is reasonably necessary in order to comply with applicable
federal or state securities laws, and except that, with respect to any document
or other information that in either case contains information concerning the tax
treatment or tax structure of such transactions as well as other information,
this paragraph shall apply only to such portions of the document or similar item
that is relevant to an understanding of such tax treatment or tax structure.
9. Non-Disparagement
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You and the Company agree that neither party shall disparage the other
nor shall either party communicate to any person and/or entity in a manner that
is disrespectful, demeaning, and/or insulting toward the other party.
10. 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 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.
11. 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.
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12. Notices
-------
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:
---------
Xx. Xxxxxxx X. Xxxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxx, XX 00000
If to the Company:
------------------
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.
13. 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.
14. 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.
15. Entire Agreement
----------------
This Agreement contains the entire understanding of the Company and
you with respect to the subject matter hereof and supercedes all other
agreements of like or similar nature, including the Prior Agreements.
16. 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.
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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 CORP.
By:_______________________________________
Xxxx X. Xxxxxxxx
Vice President, Human Resources
Accepted and Agreed as of the date first above written:
------------------------------------------
Xxxxxxx X. Xxxxxxxxx
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