Unassociated Document


    
      

      

    

     

    
      


      


      


      


      


      


      


      


      


      


      FIRSTENERGY
        CORP.

      


      SUPPLEMENTAL
        EXECUTIVE RETIREMENT PLAN

      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      Effective
        September
        29, 1985

      


      Amended
        and Restated
        as of January 1, 2005

      



      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      


      TABLE
        OF CONTENTS

      


      


      
        	 	 	 	 	
                Page

              
	 	 	 
	
                ARTICLE
                  1 –
                  PURPOSE

              	 	
                1

              
	 	 	 	 	 
	
                ARTICLE
                  2 –
                  ELIGIBILITY AND PARTICIPATION

              	
                1

              
	 	
                2.1

              	
                Eligibility

              	 	
                1

              
	 	
                2.2

              	
                Participation

              	 	
                2

              
	 	
                2.3

              	
                Designation
                  of
                  Participating Companies

              	
                2

              
	 	
                2.4

              	
                Withdrawal
                  From Plan of Participating Employer

              	
                2

              
	 	
                2.5

              	
                Delegation
                  of
                  Authority

              	 	
                2

              
	 	 	 	 	 
	
                ARTICLE
                  3 –
                  TYPE AND LEVEL OF BENEFITS

              	
                2

              
	 	
                3.1

              	
                Supplemental
                  Benefit After Separation From Service

              	
                2

              
	 	
                3.2

              	
                Separation
                  From Service

              	 	
                3

              
	 	
                3.3

              	
                Affiliate

              	 	
                3

              
	 	
                3.4

              	
                Month
                  of
                  Service; Year of Service

              	
                3

              
	 	
                3.5

              	
                Eligible
                  Spouse

              	
                3

              
	 	
                3.6

              	
                Conditions
                  of
                  Benefits

              	 	
                3

              
	 	
                3.7

              	
                Forfeiture
                  of
                  Benefits

              	 	
                7

              
	 	
                3.8

              	
                Change
                  in
                  Control

              	 	
                8

              
	 	
                3.9

              	
                Commencement
                  of Payments

              	 	
                8

              
	 	 	 	 	 
	
                ARTICLE
                  4 –
                  UNFUNDED PLAN

              	 	
                9

              
	 	
                4.1

              	
                Unfunded
                  Plan

              	 	
                9

              
	 	
                4.2

              	
                Nontransferability

              	 	
                9

              
	 	 	 	 	 
	
                ARTICLE
                  5 –
                  ADMINISTRATION

              	
                9

              
	 	
                5.1

              	
                Committee;
                  Duties

              	 	
                9

              
	 	
                5.2

              	
                Agents

              	 	
                10

              
	 	
                5.3

              	
                Indemnity
                  of
                  Committees

              	 	
                10

              
	 	 	 	 	 
	
                ARTICLE
                  6 –
                  CLAIMS PROCEDURE

              	
                11

              
	 	
                6.1

              	
                Claim

              	 	
                11

              
	 	
                6.2

              	
                Initial
                  Claim
                  Review

              	 	
                11

              
	 	
                6.3

              	
                Review
                  of
                  Claim

              	 	
                12

              
	 	
                6.4

              	
                Review
                  of
                  Claims on and After a Change in Control

              	
                14

              


      

      



      
        
          
          

        

        
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                ARTICLE
                  7 –
                  MISCELLANEOUS

              	
                14

              
	 	
                7.1

              	
                Unsecured
                  General Creditor

              	 	
                14

              
	 	
                7.2

              	
                Liability
                  for
                  Benefits

              	 	
                14

              
	 	
                7.3

              	
                Obligations
                  to
                  Company and Participating Companies

              	
                15

              
	 	
                7.4

              	
                Not
                  a Contract
                  of Employment

              	 	
                15

              
	 	
                7.5

              	
                Protective
                  Provisions

              	 	
                15

              
	 	
                7.6

              	
                Captions

              	 	
                15

              
	 	
                7.7

              	
                Governing
                  Law

              	 	
                15

              
	 	
                7.8

              	
                Validity

              	 	
                15

              
	 	
                7.9

              	
                Mistaken
                  Information

              	 	
                16

              
	 	
                7.10

              	
                Taxes
                  and
                  Expenses

              	 	
                16

              
	 	
                7.11

              	
                Notice

              	 	
                16

              
	 	 	 	 	 
	
                ARTICLE
                  8 –
                  EFFECTIVE DATE, TERMINATION AND AMENDMENT

              	
                16

              
	 	
                8.1

              	
                Effective
                  Date

              	
                16

              
	 	
                8.2

              	
                Termination
                  of
                  the Plan

              	 	
                16

              
	 	
                8.3

              	
                Distribution
                  of Benefits on Plan Termination

              	
                17

              
	 	 	 	 	 
	
                ARTICLE
                  9 –
                  SUCCESSORS

              	 	
                18

              
	 	 	 	 	 
	
                ARTICLE
                  10 –
                  CODE SECTION 409A

              	
                18

              
	 	 	 	 	 
	
                APPENDIX
                  A

              	 	
                20

              
	 	 	 	 	 
	
                APPENDIX
                  B

              	 	
                21

              


      

      


      


      



      
        
          
          

        

        
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    FIRSTENERGY
      CORP.

    


    SUPPLEMENTAL
      EXECUTIVE RETIREMENT PLAN

    


    


    


    ARTICLE
      1—PURPOSE

     

    


    The
      Supplemental Executive Retirement Plan (the
“Plan”) was established on September 29, 1985 as part of an integrated
      executive compensation program that is intended to attract, retain, and motivate
      certain key executives (“Executives”) who are in positions to make significant
      contributions to the operation and profitability of FirstEnergy Corp. (the
      “Company”) for the benefit of stockholders and customers.

    


    The
      Plan was amended and restated as of January
      1, 1996 and again as of January 1, 1999. Each Executive who was eligible to
      participate in the Plan on December 31, 1998 and who is employed by the Company
      on January 1, 2005 shall be entitled to receive (i) the supplemental benefits
      calculated in accordance with Section 3.6 of this
      Plan; or (ii) the supplemental benefits calculated in accordance with Section
      II
      of the Ohio Edison System Supplemental Executive Retirement Plan, amended and
      restated as of January 1, 1996, whichever is greater.

    


    This
      Plan is hereby amended and restated
      effective as of January 1, 2005 in order to comply with Code Section 409A of
      the
      Internal Revenue Code of 1986, as amended (the “Code”) and to make other changes
      to the Plan. The terms of this Plan shall govern all benefits payable with
      respect to Executives who have not separated from service with the Company
      as of
      January 1, 2005, except as stated above. The terms of the Plan prior to this
      2005 amendment and restatement shall govern the benefits of Executives who
      separated from service prior to January 1, 2005.

    


    The
      Plan provides for the payment of
      supplemental retirement, death, and disability benefits to or in respect of
      key
      senior Executives who are designated by the Compensation Committee of the Board
      of Directors of the Company (“Compensation Committee”) as eligible.

    


    Except
      as otherwise provided in Section 5.1, the Chief Executive Officer of the Company
      (“Chief Executive Officer”) shall appoint an Administrative Committee (the
“Committee”) to administer this Plan. The Committee shall consist of three or
      more individuals.

    


    


    ARTICLE
      2—ELIGIBILITY AND PARTICIPATION

     

    2.1           Eligibility

     

    Eligibility
      to participate in the Plan shall be
      limited to those Executives who are designated by the Compensation Committee
      as
      eligible, except that any Executive who is participating in the Plan on January
      1, 2005 shall continue to participate, notwithstanding the above.

    


    
      
        
          
          

        

        
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    2.2           Participation

     

    An
      Executive’s participation in the Plan shall
      be effective on January 1 of the year following the year in which he or she
      becomes eligible.

    


    2.3           Designation
      of Participating Companies

     

    The
      Compensation Committee or the Chief
      Executive Officer may allow other corporations or other entities affiliated
      with
      or subsidiary to the Company to participate in the Plan without approval or
      ratification by the Company’s Board of Directors. Such companies (“Participating
      Companies”) and their adoption dates shall be added to Appendix A, which is
      attached hereto and incorporated herein by reference.

    


    2.4           Withdrawal
      From Plan of Participating Employer

     

    Any
      Participating Company may at any time, by
      resolution of its Board of Directors (with notice thereof to the Company’s Board
      of Directors if the terminating company is not FirstEnergy Corp.), terminate
      its
      participation in the Plan. Participating Companies which cease to be
      Participating Companies shall be shown in Appendix A together with their
      adoption dates and termination dates.

    


    2.5           Delegation
      of Authority

     

    The
      Company is hereby fully empowered to act on
      behalf of itself and the other Participating Companies as it may deem
      appropriate in maintaining the Plan. Furthermore, the adoption by the Company
      of
      any amendment to the Plan or the termination thereof will constitute and
      represent, without any further action on the part of any Participating Company,
      the approval, adoption, ratification or confirmation by each Participating
      Company of any such amendment or termination. In addition, the appointment
      of or
      removal by the Company of any Committee member or other person under the Plan
      shall constitute and represent, without any further action on the part of any
      Participating Company, the appointment or removal by each Participating Company
      of such person.

    


    


    ARTICLE
      3—TYPE AND
      LEVEL OF BENEFITS

     

    3.1           Supplemental
      Benefit After Separation From Service

     

    An
      Executive included in the Plan shall,
      subject to the terms and conditions set forth herein, be eligible to receive
      a
      supplemental benefit under the Plan after a Separation from Service due to
      retirement, death, Disability or involuntary separation as set forth in this
      Plan.

    


    
      
        
          
          

        

        
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    3.2           Separation
      from Service.

     

                   
      For the purposes of this Plan, “Separation from Service” shall mean with respect
      to any Executive, the separation from service within the meaning of Section
      409A
      of the Internal Revenue Code, of the Executive with the Company and all of
      its
      Affiliates, for any reason, including without limitation, quit, discharge,
      retirement, leave of absence (including military leave, sick leave, or other
      bona fide leave of absence such as temporary employment by the government if
      the
      period of such leave exceeds the greater of six months, or the period for which
      the Executive’s right to reemployment is provided either by statute or by
      contract) or permanent decrease in service to a level that is no more than
      twenty percent (20%) of its prior level. For this purpose, whether a Separation
      from Service has occurred is determined based on whether it is reasonably
      anticipated that no further services will be performed by the Executive after
      a
      certain date or that the level of bona fide services the Executive will perform
      after such date (whether as an employee or as an independent contractor) would
      permanently decrease to no more than twenty percent (20% of the average level
      of
      bona fide services performed (whether as an employee or an independent
      contractor) over the immediately preceding 36-month period (or the full period
      of services if the Executive has been providing services for less than 36
      months).

     

    3.3           Affiliate

     

    For
      the purposes of this Plan, “Affiliate” shall mean a member of the affiliated
      group of corporations that includes the Company as defined in Section 414(b)
      and
      (c) of the Internal Revenue Code except that in applying Section 1563 of the
      Internal Revenue Code, “50 percent” shall be substituted for “80
      percent.”

    


    3.4           Month
      of Service; Year of Service

     

    For
      the purposes of this Plan, a “Month of
      Service” shall be a whole month of service with a Participating Company based
      upon the Executive’s service anniversary date with the Company. Further, a “Year
      of Service” shall be equal to twelve (12) “Months of Service,” with a
      Participating Company based upon the Executive’s service anniversary date with
      the Company.

    


    3.5           Eligible
      Spouse

     

    For
      the purposes of this Plan, “Eligible
      Spouse” shall mean the spouse to whom the Executive is married at the time
      payment of a supplemental benefit from the Plan commences and who is so
      designated, or deemed to have been designated in accordance with the FirstEnergy
      Corp. Pension Plan (“Pension Plan”).

    


    3.6           Conditions
      of Benefits

     

    A
      supplemental benefit under this Plan will be
      determined in accordance with and shall be non- forfeitable upon the date the
      Executive terminates employment under the conditions described in the following
      sections:

    


    
      
        
          
          

        

        
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    (a)           Retirement
      Benefits

     

    (i)        
          An Executive retiring from the Company or any Participating
      Company on or after age fifty-five (55) who has completed ten (10) Years of
      Service will be entitled to receive, commencing at retirement, a monthly
      supplemental retirement benefit under the Plan equal to sixty-five percent
      (65%)
      of the Executive’s Highest Average Monthly Base Earnings or fifty-five percent
      (55%) of the Executive’s Highest Average Monthly Total Compensation, whichever
      is greater, multiplied by the number of Months of Service the Executive has
      completed after having completed ten (10) Years of Service, up to a maximum
      of
      sixty (60) months, divided by sixty (60). The benefit shall be paid by the
      Company or the Participating Company at which the benefit was earned. This
      amount shall be reduced by:

     

    (A)           The
      monthly primary Social Security benefit to which the Executive may be entitled
      at such retirement (or the projected age sixty-two (62) benefit if retirement
      occurs prior to age sixty-two (62)), irrespective of whether the Executive
      actually receives such benefit at the time of retirement, and

     

    (B)           The
      monthly early, normal or deferred retirement income benefit to which the
      Executive may be entitled at such retirement, under the Pension Plan, the
      monthly supplemental pension benefit under the Deferral Plan and the monthly
      benefit, or actuarial equivalent, under the tax-qualified or nonqualified
      defined benefit pension plans of previous employers, all calculated by an
      actuary selected by the Company, with the following assumptions based on the
      Executive’s marital status at the time of such retirement:

     

    a)           in
      the form of a fifty percent (50%) joint and survivor annuity if the Executive
      is
      married, and

     

    b)           in
      the form of a single-life annuity if the Executive is not married.

     

    (C)           This
      benefit amount shall be reduced by one-fourth (1/4) of one percent (1%) for
      each
      month the commencement of benefits under this Plan precedes the month the
      Executive attains age sixty-five (65).

     

    (ii)           Grandfathered
      Participants. Each employee who is a Participant in this Plan on January 1,
      1999, shall be entitled to Retirement Benefits as follows:

     

    Each
      such Participant retiring from the Company
      or any Participating Company on or after age fifty-five (55) will be entitled
      to
      receive, commencing on the first day of the month following retirement, a
      monthly supplemental retirement benefit under the Plan equal to sixty-five
      percent (65%) of the Executive’s Highest Average Monthly Base Earnings or
      fifty-five percent (55%) of the Executive’s Highest Average Monthly Total
      Compensation, whichever is greater, multiplied by the number of Months of
      Service the Executive has with the Company up to a maximum of sixty (60) months,
      divided by sixty (60). This amount will be reduced by one-fourth (1/4) of one
      percent (1%) for each month the commencement of benefits under this Plan
      precedes the month the Executive attains age sixty-five (65). This amount will
      be reduced by those items specified in Section 3.6(a)(i)(A) and (B)
      above.

     

     

    
      
        
        

      

      
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    (iii)           After
      commencement of supplemental retirement benefits to the Executive, such payments
      shall continue in monthly installments thereafter ending with a payment for
      the
      month in which such Executive’s death occurs. At death, benefits under Section
3.6(c)(ii) may be paid to the Executive’s surviving
      Eligible Spouse.

     

    (b)           Disability
      Benefits

     

    (i)          
        An Executive who becomes Disabled while employed by the Company will
      be entitled to receive, commencing on the first day of the month following
      the
      Executive’s Separation from Service by reason of Disability, a monthly
      supplemental Disability benefit under the Plan equal to sixty-five percent
      (65%)
      of the Executive’s Highest Base Earnings or fifty-five (55%) of the Executive’s
      Highest Total Compensation, whichever is greater, less:

     

    (A)           The
      monthly Social Security disability benefit to which the Executive may become
      entitled due to such Disability.

     

    (B)           The
      monthly disability pension payment under the Pension Plan, the monthly benefit
      provided by the Long-Term Disability Plan of the Company and the monthly
      disability or pension benefits, or actuarial equivalent, from plans of previous
      employers to which the Executive may be entitled at termination of
      employment.

     

    “Disabled”
and
“Disability”
mean
      (i) the
      Executive is unable to engage in any substantial gainful activity by reason
      of
      any medically determinable physical or mental impairment which can be expected
      to result in death or can be expected to last for a continuous period of not
      less than twelve (12) months; or (ii) the Executive is, by reason of any
      medically determinable physical or mental impairment which can be expected
      to
      result in death or can be expected to last for a continuous period of not less
      than twelve (12) months, receiving income replacement benefits for a period
      of
      not less than three (3) months under an accident and health plan covering
      employees of the Company.

    


    (ii)           After
      commencement of supplemental Disability benefits to the Executive, such payments
      shall continue in monthly installments thereafter ending with a payment in
      the
      month in which the Executive attains age sixty-five (65) or retires from the
      Company, dies, or is no longer Disabled, whichever first occurs. Upon
      retirement, benefits under Section 3.4(a) may be paid. At death, benefits under
      Section 3.6(c) may be paid to the Executive’s
      surviving Eligible Spouse.

     

     

    
      
        
        

      

      
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    (c)           Death
      Benefits

     

    (i)           
      If an Executive, including an Executive receiving a supplemental Disability
      benefit under the Plan, dies prior to retiring from the Company, the Executive’s
      surviving Eligible Spouse shall be entitled to receive, commencing on the first
      day of the month following the Executive’s death, a monthly supplemental
      surviving spouse benefit under the Plan equal to fifty percent (50%) of the
      monthly supplemental retirement benefit, calculated in accordance with Section
      3.6(a), which the Executive would have received had
      he or she retired in the month of death, except that if the Executive dies
      prior
      to attaining age fifty-five (55), such monthly supplemental retirement benefit
      will be calculated as if the Executive had attained age fifty-five (55) and
      retired on the date of his or her death. In addition, if at the time of his
      or
      her death the deceased Executive had completed less than ten (10) Years of
      Service with a Participating Company, the death benefit, if any, shall be
      calculated as if the Executive had been credited with five (5) Years of Service
      at the time of his/her employment with the Company.

     

    The
      surviving spouse benefit payment shall be
      paid in monthly installments thereafter ending with a payment for the month
      in
      which such surviving Eligible Spouse’s death occurs.

    


    (ii)           If
      an Executive dies after retiring from the Company, the Executive’s surviving
      Eligible Spouse shall be entitled to receive a monthly supplemental surviving
      spouse benefit under the Plan equal to fifty percent (50%) of the supplemental
      retirement benefit which the deceased Executive was receiving on the day before
      his or her death.

     

    This
      monthly supplemental surviving spouse
      benefit payment shall commence on the first day of the month following the
      Executive’s death and shall be paid in monthly installments thereafter ending
      with a payment for the month in which such surviving Eligible Spouse’s death
      occurs.

    


    (d)           Involuntary
      Separation Benefits

     

    An
      Executive under age fifty-five (55) with ten
      (10) or more Years of Service at the time of an involuntary Separation from
      Service, due to the closing of a facility, corporate restructuring, reduction
      in
      the work force, or job elimination, will be entitled to receive, beginning
      on
      the first day of the month following the attainment of age fifty-five (55),
      a
      supplemental retirement benefit under the Plan calculated in accordance with
      Section 3.6(a). If the Executive dies prior to or
      after commencement of his or her supplemental retirement benefit, the
      Executive’s surviving Eligible Spouse shall be entitled to receive a monthly
      supplemental surviving spouse benefit under the Plan calculated in accordance
      with Section 3.6(c). Such supplemental benefits
      will be calculated using the number of Months of Service the Executive had
      with
      the Company at his or her Separation from Service. However, the Executive will
      not be eligible for a supplemental retirement benefit beginning at age
      fifty-five (55) if the separation is due to any other reason including but
      not
      limited to: voluntary resignation; discharge for misconduct or poor job
      performance; failure to return from a leave of absence; or as a result of a
      merger or acquisition of the Company or any of its assets and the Executive’s
      employment with the acquiring or merging company is continued and the Executive
      does not suffer unemployment.

     

     

    


    
      
        
          
          

        

        
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    (e)           Minimum
      Benefit

     

    Notwithstanding
      the above provisions in Section
3.6, the Chief Executive Officer in consultation
      with the Compensation Committee or the Compensation Committee, in their sole
      discretion, may authorize a minimum supplemental benefit payable to the
      Executive upon retirement or Disability, or to the Executive’s spouse upon
      death.

    


    (f)           For
      the purposes of this Plan, the following terms shall be defined as:

     

    (i)     
            Highest Average Monthly Base Earnings is the
      average of the highest twelve (12) consecutive full months of base salary
      earnings paid to the Executive in the one hundred twenty (120) consecutive
      full
      months prior to Separation from Service, including any salary deferred in the
      FirstEnergy Corp. Executive Deferred Compensation Plan (“Deferral Plan”) or the
      FirstEnergy Corp. Savings Plan (“Savings Plan”), but excluding any incentive
      payments.

     

    (ii)           Highest
      Average Monthly Total Compensation is the average of the highest thirty-six
      (36)
      consecutive full months of base salary earnings paid to the Executive in the
      one
      hundred twenty (120) consecutive full months prior to Separation from Service,
      including any salary deferred under the Deferral Plan and Savings Plan. Highest
      Total Compensation shall also include any Annual Incentive Award from the
      Executive Incentive Compensation Plan either paid to the Executive or deferred
      under the Deferral Plan after January 1, 1996.

     

    3.7           Forfeiture
      of Benefits

     

    If
      it is determined, in the sole discretion of
      the Compensation Committee or its delegate, that the Executive has engaged
      in
      any of the following enumerated actions within twenty-four (24) months after
      Separation from Service with the Company, and unless such engagement has been
      approved by the Compensation Committee or its delegate in writing, all future
      benefit payments under this Plan shall be immediately forfeited. Notwithstanding
      any other provision of this paragraph, the forfeiture of benefits will only
      apply to those supplemental retirement benefits accrued on or after January
      1,
      1999 and shall not apply to supplemental benefits accrued before January 1,
      1999.

    


    (a)           Participate
      or engage, directly or indirectly, in the business of selling, servicing, and/or
      manufacturing products, supplies or services of the kind, nature or description
      of those sold by the Company or any Affiliate except pursuant to his/her
      employment with Company or an Affiliate;

     

    (b)           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 or any Affiliate except pursuant to his/her employment with
      the
      Company or an Affiliate.

     

     

     

    
      
        
        

      

      
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    (c)           Solicit,
      divert, take away or attempt to take away any of the Company’s or any
      Affiliate’s Customers or the business or patronage of any such Customers of the
      Company or an Affiliate;

     

    (d)           Solicit,
      entice, lure, employ or endeavor to employ any of the Company’s or any
      Affiliate’s employees;

     

    (e)           Divulge
      to others or use for his/her own benefit any confidential information obtained
      during the course of his /her employment with Company or any Affiliate relative
      to sales, services, processes, methods, machines, manufacturers, compositions,
      ideas, improvements, patents, trademarks, or inventions belonging to or relating
      to the affairs of Company or any Affiliate;

     

    (f)         
        Divulge to others or use to his/her own benefit any trade secrets
      belonging to the Company or any Affiliate obtained during the course of his/her
      employment or that he/she became aware of as a consequence of his/her
      employment.

     

    The
      term “Customer” shall mean any person,
      firm, association, corporation or other entity to which the Executive or the
      Company has sold the Company’s or an Affiliate’s products or services within the
      twenty-four (24) month period immediately preceding the Executive’s Separation
      from Service, to which the Executive, the Company or an Affiliate is in the
      process of selling its products or services, or to which the Executive, the
      Company or any Affiliate has submitted a bid, or is in the process of submitting
      a bid to sell the Company’s or an Affiliate’s products or services.

    


    Should
      it be necessary for the Company or an
      Affiliate to initiate legal action to recover any amounts due, the Company
      or
      the Affiliate shall be entitled to recover from the Executive, in addition
      to
      such amounts due, all costs, including reasonable attorneys fees, incurred
      as a
      result of such legal action.

    


    3.8           Change
      in Control

     

    In
      the event of a Change in Control, as defined
      in Appendix B, the Forfeiture of Benefit provisions in Section 3.7 will not apply to an Executive who has a
      Separation from Service within twenty-four (24) months after a Change in
      Control.

    


    3.9           Commencement
      of Payments

     

    Notwithstanding
      anything herein to the
      contrary, benefits payable to an Executive shall commence as soon as
      administratively feasible, but not more than ninety (90) days following the
      date
      of retirement, termination, death or Disability, except that an Executive who
      is
      a “specified employee” as defined in Code Section 409A(a)(2)(B)(i) on his date
      of Separate from Service (except due to death) shall not receive a distribution
      before the date which is six (6) months after the date of Separation from
      Service. In the event a distribution must be deferred, the first installment
      payment shall include an amount equal to the sum of the monthly payments which
      would have been paid to the Participant but for the payment deferral mandated
      pursuant to Code Section 409A(a)(2)(B)(i).

    


    
      
        
          
          

        

        
          8

          
            

          

        

        
          
          

        

      

    

    


    


    ARTICLE
      4—UNFUNDED
      PLAN

     

    


    4.1           Unfunded
      Plan

     

    The
      Plan shall be unfunded. The Plan is
      intended to benefit key senior Executives who are considered to be a select
      group of management or highly compensated employees within the meaning of the
      Employee Retirement Income Security Act of 1974, as amended.

    


    4.2           Nontransferability

     

    Neither
      an Executive nor any other person shall
      have any right to transfer, pledge, or otherwise encumber, in advance of actual
      receipt, any amounts payable hereunder. No part of the amounts payable shall,
      prior to actual payment, be subject to seizure or sequestration for the payment
      of any debts, judgments, alimony, or separate maintenance owed by an Executive
      or any other person, nor be transferable by operation of law in the event of
      an
      Executive’s or any other person’s bankruptcy or insolvency.

    


    


    ARTICLE
      5—ADMINISTRATION

     

    5.1           Committee;
      Duties

     

    This
      Plan shall be administered by and under
      the direction of the Committee. Members of the Committee may be participants
      in
      this Plan. However, no member of the Committee may participate in a review
      of
      his or her own claim under Article 6. The Committee
      shall administer the Plan and shall have the power and the duty to take all
      action and to make all decisions necessary or proper to carry out the Plan.
      The
      determination of the Committee as to any question involving the general
      administration and interpretation of the Plan shall be final, conclusive, and
      binding except as otherwise provided in Article 6.
      A majority vote of the Committee members shall control any decision. Any
      discretionary actions to be taken under the Plan by the Committee with respect
      to the Executives’ benefits shall be uniform in nature and applicable to all
      persons similarly situated. Without limiting the generality of the foregoing,
      the Committee shall have the following discretionary authority, powers and
      duties:

    


    (a)           To
      require any person to furnish such information as it may request for the purpose
      of the proper administration of the Plan as a condition to receiving any benefit
      under the Plan;

     

    (b)           To
      make and enforce such rules and regulations and prescribe the use of such forms
      as it deems necessary for the efficient administration of the Plan;

     

    (c)           To
      interpret the Plan and to resolve ambiguities, inconsistencies and
      omissions;

     

    


    
      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

      

    

    


    


     

    (d)           To
      decide all questions concerning the Plan and any questions concerning the
      eligibility of any Employee to participate in the Plan; and

     

    (e)           To
      determine the amount of benefits which will be payable to any person in
      accordance with the provisions of the Plan.

     

                 
        Upon and after the occurrence of a Change in Control, the
“Committee” shall be at least three (3) independent third parties selected by
      the individual who, immediately prior to such event, was the Company’s Chief
      Executive Officer or, if not so identified, the Company’s highest ranking
      officer (the “Ex-CEO”); provided, however, the Committee, as constituted
      immediately prior to a Change in Control, shall continue to act as the Committee
      for this Plan until the date on which the independent third parties selected
      by
      the Ex-CEO accept the responsibilities as members of the Committee for this
      Plan. Upon and after a Change in Control, the Committee shall have all
      discretionary authorities and powers granted to the Committee under this Plan
      including the discretionary authority to determine all questions arising in
      connection with the administration of the Plan and the interpretation of the
      Plan except benefit entitlement determinations upon appeal. Upon and after
      the
      occurrence of a Change in Control, the Company must: (1) pay all reasonable
      administrative expenses and fees of the Committee; (2) indemnify the Committee
      against any costs, expenses and liabilities including, without limitation,
      attorney’s fees and expenses arising in connection with the performance of the
      Committee hereunder, except with respect to matters resulting from the gross
      negligence or willful misconduct of the Committee or its employees or agents;
      and (3) supply full and timely information to the Committee on all matters
      relating to the Plan, the Participants and their Beneficiaries, the Account
      balances of the Participants, the date and circumstances of the Retirement,
      Disability, death or Separation from Service of the Participants, and such
      other
      pertinent information as the Committee may reasonably require. Upon and after
      a
      Change in Control, a member of the Committee may only be removed (and a
      replacement may only be appointed) by the Ex-CEO.

    


    5.2           Agents

     

    In
      the administration of this Plan, the
      Committee may, from time to time, employ agents and delegate to them such
      administrative duties as it sees fit, and may from time to time consult with
      counsel, who may be counsel to the Company.

    


    5.3           Indemnity
      of Committees

     

    The
      Company and the Participating Companies,
      jointly and severally, shall indemnify and hold harmless members of the
      Committee and the Compensation Committee against any and all claims, loss,
      damage, expense of liability arising from any action or failure to act with
      respect to this Plan, except in the case of intentional misconduct.

    


    


    
      
        
          
          

        

        
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    ARTICLE
      6—CLAIMS
      PROCEDURE

     

    6.1           Claim

     

    Any
      person claiming a benefit (“Claimant”)
      under the Plan shall present the request in writing to the
      Committee.

    


    6.2           Initial
      Claim Review

     

              
           In the case of a claims regarding Disability, the
      Committee will make a benefit determination within forty-five (45) days of
      its
      receipt of an application for benefits.  This period may be extended
      up to an additional thirty (30) days, if the Committee provides the Claimant
      with a written notice of the extension within the initial forty-five (45)-day
      period.  The extension notice will explain the reason for the
      extension and the date by which the Committee expects a decision will be
      made.  The Committee may obtain a second thirty (30)-day extension by
      providing you written notice of such second extension within the thirty (30)-day
      extension.  The second extension notice must include an explanation of
      the special circumstances necessitating the second extension and the date by
      which the Committee’s decision will be made.  If the extension is
      necessary because additional information is needed to decide the claim, the
      extension notice will describe the required information.  The Claimant
      will have forty-five (45) days after receiving the extension notice to provide
      the required information.

    


    In
      the case of all other claims, the Committee
      will make a benefit determination within ninety (90) days of its receipt of
      an
      application for benefits.  This period may be extended up to an
      additional ninety (90) days, if the Committee provides the Claimant with a
      written notice of the extension within the initial ninety (90)-day
      period.  The extension notice will explain the reason for the
      extension and the date by which the Committee expects a decision will be
      made.

    


    The
      Committee will notify the Claimant in
      writing, delivered in person or mailed by first-class mail to the Claimant’s
      last known address, if any part of a claim for benefits under the Plan has
      been
      denied.  The notice of a denial of any claim will
      include:

    


    (a)           the
      specific reason for the denial;

     

    (b)           reference
      to specific provisions of the Plan upon which the denial is based;

     

    (c)           a
      description of any internal rule, guidelines, protocol or similar criterion
      relied on in making the denial (or a statement that such internal criterion
      will
      be provided free of charge upon request);

     

    


    
      
        
          
          

        

        
          11

          
            

          

        

        
          
          

        

      

    

    


    


     

    (d)           a
      description of any additional material or information deemed necessary by the
      Committee for the Claimant to perfect the claim, and an explanation of why
      such
      material or information is necessary; and

     

    (e)           an
      explanation of the claims review procedure under the Plan.

     

    If
      the notice described above is not furnished and if the claim has not been
      granted within the time specified above for payment of the claim, the claim
      will
      be deemed denied and will be subject to review as set forth in Section
      9.3.

    


    6.3           Review
      of Claim

     

    If
      a claim for benefits is denied, in whole or in part, the Claimant may request
      to
      have the claim reviewed.  The Claimant will have one hundred eighty
      (180) days in which to request a review of a claim regarding Disability, and
      will have sixty (60) days in which to request a review of all other
      claims.  The request must be in writing and delivered to the
      Compensation Committee.  If no such review is requested, the initial
      decision of the Compensation Committee will be considered final and
      binding.

    


    The
      request for review must specify the reason the Claimant believes the denial
      should be reversed.  He or she may submit additional written comments,
      documents, records, and other information relating to and in support of the
      claim; all information submitted will be reviewed whether or not it was
      available for the initial review.  The Claimant may request reasonable
      access to and copies of, all documents, records, and other information relevant
      to the Claimant’s claim for benefits.  A member of the Compensation
      Committee may not review his or her own claim.  In addition, if the
      Claimant requests a review, a full and fair review of the decision will be
      made
      by a different person who is not a subordinate of the original decision
      maker.  The review will not defer to the initial adverse
      determination.  If the denial was based in whole or in part on a
      medical judgment, the Compensation Committee will consult with an appropriate
      health care professional who was not consulted in the initial determination
      of
      his or her claim and who is not the subordinate of someone consulted in the
      initial determination.  Names of the health care professionals will be
      available on request.

    


    
      
        
          
          

        

        
          12

          
            

          

        

        
          
          

        

      

    

    


    


    Upon
      receipt of a
      request for review, the Compensation Committee may schedule a hearing within
      thirty (30) days of its receipt of such request, subject to availability of
      the
      Claimant and the availability of the Compensation Committee, at a time and
      place
      convenient for all parties at which time the Claimant may appear before the
      person or committee designated by the Compensation Committee to hear appeals
      for
      a full and fair review of the Administrative Committee’s initial
      decision.  The Claimant may indicate in writing at the time the
      Compensation Committee attempts to schedule the hearing, that he or she wishes
      to waive the right to a hearing.  If the Claimant does not waive his
      or her right to a hearing, he or she must notify the Compensation Committee
      in
      writing, at least fifteen (15) days in advance of the date established for
      such
      hearing, of his or her intention to appear at the appointed time and
      place.  The Claimant must also specify any persons who will accompany
      him or her to the hearing, or such other persons will not be admitted to the
      hearing.  If written notice is not timely provided, the hearing will
      be automatically canceled.  The Claimant or the Claimant’s duly
      authorized representative may review all pertinent documents relating to the
      claim in preparation for the hearing and may submit issues, documents,
      affidavits, arguments, and comments in writing prior to or during the
      hearing.

    


    The
      Compensation Committee will notify the Claimant of its decision following the
      reviews.  In the case of a claim regarding Disability, the
      Compensation Committee will render its final decision within forty-five (45)
      days of receipt of an appeal or such shorter period as may be required by
      law.  If the Compensation Committee determines that an extension of
      the time for processing the claim is needed, it will notify the Claimant of
      the
      reasons for the extension and the date by which the Compensation Committee
      expects a decision will by made.  The extended date may not exceed
      ninety (90) days after the date of the filing of the appeal.

    


    In
      the case of all other claims, the Compensation Committee will render its final
      decision within sixty (60) days of receipt of an appeal.  If the
      Compensation Committee determines that an extension of the time for processing
      the claim is needed, it will notify you of the reasons for the extension and
      the
      date by which the Compensation Committee expects a decision will be
      made.  The extended date may not exceed one hundred twenty (120) days
      after the date of the filing of the appeal.

    


    If
      after the review the claim continues to be denied, the Claimant will be provided
      a notice of the denial of the appeal which will contain the following
      information:

    


    (a)           The
      specific reasons for the denial of the appeal;

     

    (b)           A
      reference to the specific provisions of the Plan on which the denial was
      based;

     

    (c)           A
      statement that the Claimant is entitled to receive, upon request and free of
      charge, reasonable access to, and copies of, all documents, records, and other
      information relevant to the claim for benefits;

     

    (d)           A
      statement disclosing any internal rule, guidelines, protocol or similar
      criterion relied on in making the denial (or a statement that such information
      would be provided free of charge upon request); and

     

     

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

     

    (e)           A
      statement describing the Claimant’s right to bring a civil suit under Federal
      law and a statement concerning other voluntary alternative dispute resolutions
      options.

     

    6.4           Review
      of Claims on and after a Change in Control

     

    Upon
      and after the occurrence of a Change in
      Control, the Compensation Committee, as constituted immediately prior to a
      Change in Control, shall be the Appeals Committee.  In the event any
      member of the Appeals Committee resigns or is unable to perform the duties
      of a
      member of the Appeals Committee, successors to such members shall be selected
      by
      the Ex-CEO.  Upon and after a Change in Control, the Appeals Committee
      shall have all discretionary authorities and powers granted the Compensation
      Committee under this Plan to review denied claims as provided in Section 6.3.  A member of the Appeals Committee may
      not review his or her own claim and may not review a claim if he or she is
      a
      subordinate of the original decision maker.  Upon and after the
      occurrence of a Change in Control, the Company must: (1) pay all reasonable
      administrative expenses and fees of the Appeals Committee; (2) indemnify the
      Appeals Committee against any costs, expenses and liabilities including, without
      limitation, attorney’s fees and expenses arising in connection with the
      performance of the Appeals Committee hereunder, except with respect to matters
      resulting from the gross negligence or willful misconduct of the Appeals
      Committee or its employees or agents; and (3) supply full and timely information
      to the Appeals Committee on all matters relating to the Plan, the Participants
      and their Beneficiaries, the Account Balances of the Participants, the date
      and
      circumstances of the Retirement, Disability, death or Separation from Service
      of
      the Participants, and such other pertinent information as the Appeals Committee
      may reasonably require.  Upon and after a Change in Control, a member
      of the Appeals Committee may only be removed (and a replacement may only be
      appointed) by the Ex-CEO.

    


    


    ARTICLE
      7—MISCELLANEOUS

     

    7.1           Unsecured
      General Creditor

     

    Participants
      and their Beneficiaries, heirs,
      successors and assigns shall have no legal or equitable rights, interest or
      claims in any property or assets of Company or any Participating Company. Any
      and all assets of the Company and the Participating Companies shall be, and
      remain, their general, unpledged, unrestricted assets. The obligation of the
      Company and the Participating Companies under the Plan shall be merely that
      of
      an unfunded and unsecured promise of Company and the Participating Companies
      to
      pay money in the future.

    


    7.2           Liability
      for Benefits

     

    Except
      as otherwise agreed in writing,
      liability for the payment of a Participant’s benefit under this Plan shall be
      borne solely by the participating Employer that employs the Participant and
      reports the Participant as being on its payroll during the accrual or increase
      in the benefit.  No liability for the payment of any benefit shall be
      incurred by reason of Plan sponsorship or participation except for benefits
      of a
      Participating Company’s own employees.  Nothing in this Section shall
      be interpreted as prohibiting any Participating Company from expressly agreeing
      in writing to the assumption of liability or guarantee of payment of any benefit
      under this Plan.

    


    
      
        
          
          

        

        
          14

          
            

          

        

        
          
          

        

      

    

    


    


    7.3           Obligations
      to Company and Participating Companies

     

    If
      an Executive or the Executive’s surviving
      Eligible Spouse becomes entitled to a benefit under the Plan and the Executive
      has outstanding any debt, obligation, or other liability representing an amount
      owing to the Company or a Participating Company, then the Company or
      Participating Company may offset such amount owing to it or an affiliate against
      the amount of benefits otherwise distributable. The determination of the amount
      and duration of the offset shall be made by the Committee.

    


    7.4           Not
      a Contract of Employment

     

    The
      terms and conditions of the Plan shall not
      be deemed to constitute a contract of employment between the Company or any
      Participating Company and the Executive, and the Executive (or his or her
      surviving Eligible Spouse) shall have no rights against the Company or any
      Participating Company except as may be otherwise provided specifically herein.
      Moreover, nothing in the Plan shall be deemed to give an Executive the right
      to
      be retained in the service of the Company or any Participating Company, or
      to
      interfere with the right of the Company or any Participating Company to
      discipline or discharge him or her at any time.

    


    7.5           Protective
      Provisions

     

    An
      Executive shall cooperate with the Company
      and each Participating Company by furnishing any and all information requested
      by the Company or a Participating Company in order to evaluate a claim or to
      facilitate the payment of benefits hereunder, and by taking such physical
      examinations as the Company or Participating Company may deem necessary and
      taking such other action as may be requested by the Company or a Participating
      Company.

    


    7.6           Captions

     

    The
      captions of the articles, sections and
      paragraphs of the Plan are for convenience only and shall not control or affect
      the meaning or construction of any of its provisions.

    


    7.7           Governing
      Law

     

    The
      provisions of the Plan shall be construed,
      administered, and enforced according to and governed by the laws (other than
      conflict of law provisions) of the state of Ohio, except to the extent such
      laws
      are superseded by the Employee Retirement Income Security Act of 1974, as
      amended.

    


    7.8           Validity

     

    In
      case any provision of the Plan shall be
      illegal or invalid for any reason, such illegality or in validity shall not
      affect the remaining parts hereof, but the Plan shall be construed and enforced
      as if such illegal and invalid provision had never been included
      herein.

    


    
      
        
          
          

        

        
          15

          
            

          

        

        
          
          

        

      

    

    


    


    7.9           Mistaken
      Information

     

    If
      any information upon which an Executive’s
      benefit under the Plan is misstated or otherwise mistaken, such benefit shall
      not be invalidated (unless upon the basis of the correct information the
      Executive would not be entitled to a benefit), but the amount of the benefit
      shall be adjusted to the proper amount and any overpayments shall be charged
      against future payments.

    


    7.10        Taxes
      and Expenses

     

    Any
      taxes imposed on Plan benefits shall be the
      sole responsibility of the Executive or surviving Eligible Spouse. The Company
      shall deduct from Plan benefits any amounts required by applied law to be
      withheld. All Plan administration expenses incurred by the Company or Committee
      shall be borne by the Company.

    


    7.11        Notice

     

    Any
      notice or filing required or permitted to
      be given to the Committee under the Plan shall be sufficient if in writing
      and
      hand delivered, or sent by registered or certified mail to any member of the
      Committee, or to the Statutory Agent of the Company. Notice to the Committee
      may
      be given to any member of the Committee and if mailed shall be addressed to
      the
      principal executive offices of the Company. Notice mailed to the Executive
      shall
      be sent to the last address on file with the Company. Notices shall be deemed
      given as of the date of delivery or, if delivery is made by mail, as of the
      date
      shown on the postmark on the receipt for registration or
      certification.

    


    


    ARTICLE
      8—EFFECTIVE
      DATE, TERMINATION, AND AMENDMENT

     

    8.1           Effective
      Date

     

    The
      effective date of the Plan shall be September 29, 1985.

     

    8.2           Termination
      of the Plan

     

    The
      Plan may be terminated at any time and
      amended from time to time by action of the Board or the Compensation Committee
      or by a writing executed on behalf of the Board or the Compensation Committee
      by
      the Company’s duly authorized officers, provided that neither termination nor
      any amendment of the Plan may, without the written approval of a participating
      Executive or surviving Eligible Spouse, reduce or terminate any accrued benefit
      and provided such amendment or termination is consistent with Internal Revenue
      Code Section 409A.

    


    
      
        
          
          

        

        
          16

          
            

          

        

        
          
          

        

      

    

    


    


    8.3           Distribution
      of Benefits on Plan Termination

     

                    In
      the event the Corporation elects to terminate and liquidate the Plan solely
      with
      respect to benefits that accrued and/or vested after December 31, 2004,
      including deemed earnings, gains and losses credited thereon after that date,
      no
      right to the payment of benefits shall arise as a result of a Plan
      Termination;

    


    (a)           The
      Company may, in its discretion, provide by amendment to the Plan a right to
      the
      payment of all such benefits as a result of the liquidation and termination
      of
      the Plan where:

     

    (i)        
         The termination and liquidation does not occur proximate to a
      downturn in the financial health of the Company and the Participating
      Companies;

     

    (ii)           The
      Plan and all arrangements required to be aggregated with the Plan under Code
      Section 409A are terminated and liquidated;

     

    (iii)           No
      payments, other than those that would be payable under the terms of the Plan
      and
      the aggregated arrangements if the termination and liquidation had not occurred,
      are made within twelve (12) months of the date the Company takes all necessary
      action to irrevocably terminate and liquidate the Plan;

     

    (iv)           All
      payments are made within twenty-four (24) months of the date the Company takes
      all necessary action to irrevocably terminate and liquidate the Plan;
      and

     

    (v)           The
      Company and the Affiliates do not adopt a new arrangement that would be
      aggregated with any terminated arrangement under Code Section 409A, at any
      time
      within three (3) years following the date the Company takes all necessary action
      to irrevocably terminate and liquidate the Plan.

     

    (b)           Similarly,
      the Company may, in its discretion, provide by amendment to liquidate and
      terminate the Plan where the termination and liquidation occurs within twelve
      (12) months of a corporate dissolution taxed under Code Section 331, or with
      the
      approval of a bankruptcy court pursuant to 11 United States Code Section
      503(b)(1)(A), provided that all amounts deferred under the Plan are included
      in
      the Participants’ gross incomes in the latest of the following years (or, if
      earlier, the taxable year in which the amount is actually or constructively
      received):

     

    (i)        
         The calendar year in which the termination
      occurs;

     

    (ii)           The
      calendar year in which the amount is no longer subject to a substantial risk
      of
      forfeiture; or

     

    (iii)           The
      first calendar year in which the payment is administratively
      practicable.

     

    


    
      
        
          
          

        

        
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    ARTICLE
      9—SUCCESSORS

     

    The
      provisions of this Plan shall bind and
      inure to the benefit of the Company and its successors and assigns. The term
      successors as used herein shall include any corporate or other business entity
      which shall, whether by merger, consolidation, purchase or otherwise acquire
      all
      or substantially all of the business and assets of the Company, and successors
      of any such corporation or other business entity.

    


    


    ARTICLE
      10—CODE
      SECTION 409A

     

    Notwithstanding
      anything to the contrary in the
      provisions of this Plan regarding the benefits payable hereunder and the time
      and form thereof, this Plan is intended to meet any applicable requirements
      of
      Code Section 409A and this Plan shall be construed and administered in
      accordance with Section 409A of the Code, Department of Treasury regulations
      and
      other interpretive guidance issued thereunder, including without limitation
      any
      such regulations or other guidance that may be issued after the Effective Date.
      In the event that the Company determines that any provision of this Plan or
      the
      operation thereof may violate Section 409A of the Code and related Department
      of
      Treasury guidance, the Company may in its sole discretion adopt such amendments
      to this Plan and appropriate policies and procedures, including amendments
      and
      policies with retroactive effect, or take such other actions, as the Company
      determines necessary or appropriate to comply with the requirements of Section
      409A of the Code.

    


    


    
      
        
          
          

        

        
          18

          
            

          

        

        
          
          

        

      

    

    


    IN
      WITNESS WHEREOF, and pursuant to approval of
      the Compensation Committee of the Board, on ______________, the Company has
      caused this instrument to be executed by its duly authorized officers effective
      as of January 1, 2005.

    


    


    


    
      	 	
              FIRSTENERGY
                CORP.

            
	 	 
	 	 
	
              By:

            	 
	 	
              Its

            
	 	 
	
              Dated:

            	 
	 	 
	 	 
	
              Witness:

            	 
	 	
              Its

            
	 	 
	
              Dated:

            	 
	 	 


    

    


    


    


    
      
        
          
          

        

        
          19

          
            

          

        

        
          
          

        

      

    

    


    APPENDIX
      A

    


    


    
      	
              1

              Participating
                Company

            	
              2

              Adoption
                Date

            	
              3

              Termination
                Date

            
	
               

              American
                Transmissions Systems, Inc.

            	
               

              January
                1,
                2003

            	 
	
               

              Cleveland
                Electric Illuminating Company

            	
               

              July
                1,
                1998

            	 
	
               

              FirstEnergy
                Corp.

            	
               

              January
                1,
                1998

            	 
	
               

              FirstEnergy
                Facilities Services Group, Inc.

            	
               

              January
                1,
                2003

            	 
	
               

              FirstEnergy
                Generation Corp.

            	
               

              January
                1,
                2003

            	 
	
               

              FirstEnergy
                Nuclear Operating Company

            	
               

              January
                1,
                1999

            	 
	
               

              FirstEnergy
                Service Company

            	
               

              January
                1,
                1999

            	 
	
               

              FirstEnergy
                Solutions Corp.

            	
               

              January
                1,
                2003

            	 
	
               

              Jersey
                Central
                Power and Light

            	
               

              January
                1,
                2003

            	 
	
               

              Metropolitan
                Edison

            	
               

              January
                1,
                2003

            	 
	
               

              Ohio
                Edison
                Company

            	
               

              January
                1,
                1983

            	 
	
               

              Pennsylvania
                Electric

            	
               

              January
                1,
                2003

            	 
	
               

              Pennsylvania
                Power Company

            	
               

              January
                1,
                1983

            	 
	
               

              Toledo
                Edison
                Company

            	
               

              July
                1,
                1998

            	 


    

    


    


    
      
        
          
          

        

        
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    APPENDIX
      B

     

    Change
      in
      Control

    


    


    Effective
      as of the date approved by
      shareholders and for purposes of the Plan, a “Change in Control”
means:

    


    1.     
             An 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 fifty percent (50%) (twenty-five percent (25%) if such Person
      proposes any individual for election to the Board of Directors 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 (“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 (“Outstanding Company Voting Securities”); provided, however, that the
      following acquisitions will not constitute a Change in Control:

    


    (a)           Any
      acquisition directly from the Company (excluding an acquisition by virtue of
      the
      exercise of a conversion privilege);

    


    (b)           Any
      acquisition by the Company;

    


    (c)           Any
      acquisition by an employee benefit plan (or related trust) sponsored or
      maintained by the Company or any corporation controlled by the Company;
      or

    


    (d)           Any
      acquisition by any corporation pursuant to a reorganization, merger, or
      consolidation if, following such reorganization, merger, or consolidation,
      the
      conditions described in clauses 3(b), 3(c) and 3(d) of this Appendix B are
      satisfied.

    


    2.          
        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

    


    3.     
             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, or consolidation or sale or other disposition of
      assets:

    


    
      
        
          
          

        

        
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    (a)           More
      than seventy-five percent (75%) of, respectively, the then outstanding shares
      of
      common stock of the corporation resulting from such reorganization, merger,
      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;

    


    (b)           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 sale or other disposition of assets, and any Person
      beneficially owning, immediately prior to such reorganization, merger,
      consolidation, or sale or other disposition of assets, directly or indirectly,
      twenty-five percent (25%) or more of the Outstanding Company Common Stock or
      Outstanding Voting Securities, as the case may be) beneficially owns, directly
      or indirectly, twenty-five percent (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

    


    (c)           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.

    


    However,
      in no event will a Change in Control
      be deemed to have occurred, with respect to a Participant, if the Participant
      is
      part of a purchasing group which consummates the Change in Control transaction.
      The Participant will be deemed “part of a purchasing group” for purposes of the
      preceding sentence if the Participant is an equity participant or has agreed
      to
      become an equity participant in the purchasing company or group (excluding
      passive ownership of less than five percent (5%) of the voting securities of
      the
      purchasing company or ownership of equity participation in the purchasing
      company or group which is otherwise not deemed to be significant, as determined
      prior to the Change in Control by a majority of the nonemployee continuing
      members of the Board of Directors).

    


    


    


    
      
        
          
          

        

        
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