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Special Severance Agreement
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Dear Mr. xxxxxx:
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 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.
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 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).
2. 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, 1999.
(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, 1999 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
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For the purpose of this Agreement, a "Change of 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 of Control: If, within a
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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
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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
(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
(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
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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
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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 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 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
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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 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,
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
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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 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
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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:
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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 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
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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
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.
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:
xxxxxxxxxxxxxxx
xxxxxxxxxxxxxxx
xxxxxxxxxxxxxxx
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
--------
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
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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:
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Accepted and Agreed as of the date
first above written:
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