L-19-182, Response to RAI Regarding an Application for Order Consenting to Transfer of License

Response to RAI Regarding an Application for Order Consenting to Transfer of License

ML19214A100
Person / Time
Site:	Beaver Valley, Davis Besse, Perry, 07201043, 07200069
Issue date:	08/02/2019
From:	Benyak D FirstEnergy Nuclear Operating Co
To:	Document Control Desk, Office of Nuclear Material Safety and Safeguards, Office of Nuclear Reactor Regulation
Shared Package
ML19214A099	List: L-19-182, Response to RAI Regarding an Application for Order Consenting to Transfer of License
References
EPID L-2019-LLM-0000, L-19-182
Download: ML19214A100 (72)

Text

PERSONALLY IDENTIFIABLE INFORMATION TO BE WITHHELD FROM PUBLIC DISCLOSURE PURSUANT TO 10 CFR 2.390 AND 10 CFR 9.17 FENOC Firsf Energ/ r\t/e t er fuati rq Compa ry 341 White Pond Drive Akron, Ohio 44320 Darin M. Benyak Vice President, Nuclear Support and Regulatory Affairs August 2,2019 L-1 g-1 82 10 cFR 50.80 10 cFR 50.90 10 cFR 72.50 U.S. Nuclear Regulatory Commission Attention: Document Control Desk Washington, D.C. 20555

SUBJECT:

Beaver Valley Power Station, Unit Nos. 1 and 2 Docket No. 50-334, License No. DPR-66 Docket No. 50-412, License No. NPF-73 Beaver Valley Power Station, Unit Nos. 1 and 2, ISFSI Docket No. 72-1043 Davis-Besse Nuclear Power Station, Unit No. 1 Docket No. 50-346, License No. NPF-3 Davis-Besse Nuclear Power Station, Unit No. 1 ISFSI Docket No. 72-14 Perry Nuclear Power PIant, Unit No. 1 Docket No. 50-440, License No. NPF-58 Perry Nuclear Power Plant, Unit No. 1 ISFSI Docket No. 72-69 Resoonse to Reouest for Additional lnformation Reoardino an Application for Order Consentinq to Transfer of Licenses and Conforminq License Amendments (EP r p-L-20 1 e-LLM-0000)

By application dated April 26,2019 (Accession No. ML19116A087), as supplemented by letter dated May 3'1,2019 (Accession No. ML1915'1A531), FirstEnergy Nuclear Operating Company (FENOC), acting on behalf of itself and FirstEnergy Nuclear Generation, LLC (FENGen),

requested Nuclear Regulatory Commission (NRC) consent to the transfer of the licenses for Beaver Valley Power Station, Unit Nos. 'l and 2; Davis-Besse Nuclear Power Station, Unit No. 1; Attachment 2 to this letter contains personally identifiable information. Withhold from public disclosure pursuantto 10 CFR 2.390 and 10 CFR 9.17. Upon removal of Attachment 2, this letter is uncontrolled.

PERSONALLY IDENTIFIABLE INFORMATION TO BE WITHHELD FROM PUBLIC DISCLOSURE PURSUANT TO 10 CFR 2.390 AND 10 CFR 9.17 Beaver Valley Power Station, Unit Nos. 1 and 2 Beaver Valley Power Station lndependent Spent Fuel Storage lnstallation Davis-Besse Nuclear Power Station, Unit No. 1 Davis-Besse Nuclear Power Station Independent Spent Fuel Storage lnstallation Perry Nuclear Power Plant, Unit No. 1 Perry Nuclear Power Plant lndependent Spent Fuel Storage lnstallation L-1s-182 Page 2 and Perry Nuclear Power Plant, Unit No. 1; and their respective generally Iicensed independent spent fuel storage installation facilities to a newly created ultimate parent company that will be a separate legal entity from FirstEnergy Corp. (Application).

By letter dated July 18, 2019 (Accession No. ML191924222), the NRC staff issued a request for additional information (RAl) to complete its review. The FENOC response is contained in Attachment 1. The information in the RAI responses supplements the Application. Attachments 2 through 5 contain information associated with the FENOC responses to the RAl.

Certain personally identifiable information is included in Attachment 2 of the RAI response. FENOC requests that Attachment 2 be withheld from public disclosure pursuant to 10 CFR 2.390 and 10 CFR 9.17. A redacted version of attachment is provided in Attachment 3. The redacted information is identified by the brackets ]. [

ln the Application, FENOC made several commitments to provide information to the NRC when it became available. This submittal supplements the Application by providing the following information:

a Names and citizenships of known, post-emergence directors and principal otficers of New HoldCo, OpCo, and OwnerCo, and a Incorporation details (state of incorporation and type of corporate entity) for New HoldCo, OpCo, and OwnerCo.

By providing this information, the actions of Commitments 2,3, and 4 listed in the Application are completed, and the commitments in this RAI response supersede Commitment 1 listed in the Application.

The information provided in this submittal does not invalidate the no significant hazards consideration analysis provided in the April 26,2019 Application.

A list of regulatory commitments contained in this submittal is provided in Attachment 6. lf there are any questions or if additional information is required, please contact Mr. Thomas A. Lentz, Manager, Nuclear Licensing and Regulatory Affairs, at (330) 315-6810.

Attachment 2 to this letter contains personally identifiable information. Withhold from public disclosure pursuantto 10 CFR 2.390 and 10 CFR 9.17. Upon removal of Attachment 2, this letter is uncontrolled.

PERSONALLY IDENTIFIABLE INFORMATION TO BE WITHHELD FROM PUBLIC DISCLOSURE PURSUANT TO 10 CFR 2.390 AND 10 CFR 9.17 Beaver Valley Power Station, Unit Nos. 1 and 2 Beaver Valley Power Station lndependent Spent Fuel Storage Installation Davis-Besse Nuclear Power Station, Unit No. 1 Davis-Besse Nuclear Power Station lndependent Spent Fuel Storage lnstallation Perry Nuclear Power Plant, Unit No. 1 Perry Nuclear Power Plant lndependent Spent Fuel Storage lnstallation L-19-182 Page 3 I declare under penalty of perjury that the foregoing is true and correct. Executed on August L .,2019.

Sincerely, r

Darin M. Benyak Attachments:

1. Response to Request for Additional lnformation

2. Unredacted Personally ldentifiable lnformation, "General Corporate lnformation and Key Personnel"

3. Redacted Personally ldentifiable lnformation, "General Corporate lnformation and Key Personnel"

4. New HoldCo Stockholders' Agreement

5. Amended and Restated Certificate of lncorporation of New HoldCo, Certificate of lncorporation for OpCo, and Limited Liability Company Operating Agreement of OwnerCo

6. List of Regulatory Commitments cc: Director, NRR (without Attachment 2)

NRC Region I Administrator (without Attachment 2)

NRC Region lll Administrator (without Attachment 2)

NRC Project Manager - FENOC Fleet (without Attachment 2)

NRC Resident lnspector - Beaver Valley Power Station (without Attachment 2)

NRC Resident lnspector - Davis-Besse Nuclear Power Station (without Attachment 2)

NRC Resident lnspector - Perry Nuclear Power Plant (without Attachment 2)

Director BRP/DEP (without Attachment 2)

Site Representative BRP/DEP (without Attachment 2)

Branch Chief, Ohio Emergency Management Agency, State of Ohio (NRC Liaison) (without Attachment 2)

Utility Radiological Safety Board (without Attachment 2)

Attachment 2 to this letter contains personally identifiable information. Withhold from public disclosure pursuantto 10 CFR 2.390 and 10 CFR 9.17. Upon removal of Attachment 2, this Ietter is uncontrolled.

Attachment 1 L-19-182 Response to Request for Additional lnformation Page 1 of 5 By application dated April 26,2019 (Accession No. ML19116A087), as supplemented by letter dated May 31 , 2019 (Accession No. ML19151A531), FirstEnergy Nuclear Operating Company (FENOC), acting on behalf of itself and FirstEnergy Nuclear Generation, LLC (FENGen),

requested Nuclear Regulatory Commission (NRC) consent to the transfer of the licenses for Beaver Valley Power Station, Unit Nos. 1 and 2', Davis-Besse Nuclear Power Station, Unit No. 1; and Perry Nuclear Power Plant, Unit No. 1; and their respective generally licensed independent spent fuel storage installation facilities to a newly created ultimate parent company that will be a separate legal entity from FirstEnergy Corp. (Application).

ln order to complete the review of the Application, the NRC requested additional information The requested information is provided below in bold typeface, followed by the Applicants' responses.

Request for Additional lnformation

l. Based on the NRC stafr review, it appearc that the application involves both indirect and direct tranefers of the eubject licenses yettus only an indirect transfer, as the application appcarc to refer to new corporate entities as fte NRC licenseeo.

Specifically, according to the application, the names, state(s) of incorporation, and final manageraldircctorc and principal officerc ior OpCo and OrnerCo are not yet known. To the extent that the traneaction is not a aimple name change in that OpCo and OwnerGo arc new corporate entities, the NRC would consider the transaction to involve a direct transfer of control of the subject licenses. Based on the above, provido additiona! information on why the application should be treated only as an indirect license transfier. Othenrise, supplement the application to reflect that the request involves both dircct and indircct transfErc of the subiect licenses.

Response

FENOC acknowledges that the transfer of the licenses includes elements of both a direct and indirect transfer. The creation of New HoldCo as the ultimate owner of the licensees involves an indirect transfer of control. The two cunent licensee entities, FENOC (OpCo) and FENGen (OwnerCo), will be reorganized pursuant to a Joint Plan of Reorganization (Plan) in the Chapter 11 bankruptcy proceeding before the United States Bankruptcy Court for the Northern District of Ohio. Though the corporate existence and operations of the current licensees will continue essentially unchanged, the state under which the reorganized companies are organized will be changed from Ohio to Delaware. Therefore, elements of the reorganization of FENOC and FENGen involve a direct transfer of control.

L-19-182 Page 2 of 5

2. The application does not provide the final legal entity name for the new holding company (New HoldCo) or its subsidiaries, referred to as OpCo (reorganized FENOC) and Clwnerco (reorganized FENGen). According to the application, the proposed licenae transfens involve administrative changes to the Facility'e Licenses to reflect Owne6o as owner, and OpCo as operator, as the post-reorganization entities responsible for the Facility. Accordingly, FENOC rcquests conforming license amendments. The Applicants state that the names in the application (aforementioned) are placeholderc and that the Applicants will inform the NRC of the final legal entity names and submit updated proposed operating license rcvision pages. Purcuant to 10 CFR 50.33(a) submit the fina! legal entity names of New Holdco, Ownerco and OpGo.

Response

The final legal entity names for New HoldCo, OpCo, or OwnerCo have not yet been identified.

As described in the Application, FENOC made a commitment to provide the entity names and relevant incorporation details to the NRC when they were identified. This action was scheduled for completion by August 1,2019. However, the names will not be known by that date.

FENOC will provide the NRC the final legal names of New HoldCo, OwnerCo, and OpCo prior to consummation of license transfer.

3. The application does not provide compleb information regarding all directorc, principal ofricels, or board membens of New Holdco or its subeidiaries, including the proposed licensees OvynerCo and OpGo after emergence from bankruptcy.

However, in the application, the applicant identifies regulatory commitments that state "When the fina! New HoldCo directorc and principal officerc are identified prior to the transfer, the Applicants wil! inform the NRC of their names, in writing, through a supplement to the application." Additionally, according to the application, the state(s) of incorporation of OrnelCo and OpCo are not yet known. Putsuant to 10 CFR 50.33(dX3XD and (ii) and 10 CFR 50.38, submit the stab(s) of incorporation, as appropriate, and the names, addresses, and citizenship of the dircctors and principa! officep of New HoldCo, OwnerGo, and OpGo after emergence from bankruptcy.

Response

The names and citizenships of the directors and principal officers, post-emergence, of New HoldCo, OpCo, and Ownerco are provided in Attachment 2.

L-1 9-1 82 Page 3 of 5 Since personally identifiable information is required to satis! the RAI response, Attachment 2 contains the unredacted version of the requested information. The redacted information is identified by the brackets [ ]. Attachment 3 contains a redacted version of the requested information. FENOC requests that Attachment 2 be withheld from public disclosure pursuant to 10 CFR 2.390 and 10 CFR 9.17.

The business addresses, states of incorporation, and form of corporate entity for New HoldCo, OpCo, and OwnerCo are also provided in Attachment 2.

4. The application does not provide complete information regarding the creditorc and shareholdee of the New Holdco.

The application states, "[b]ased on the currently understood holding of FES and Applicant debt, and other claims, the identities and approximate percentages of the New HoldGo voting shares expected to be held by the largest shareholders (those holding more that 5 percent of equity) after consummation of the transaction will be as follows: [Nuveen Asset Management, LLC (30 percent] and Avenue Capital Management ll L.P. (15 percentl]." Pursuantto 10 CFR 50.33(fl(4xi), submitthe legal and financial relationships New HoldCo has or proposes to have with its shareholders and owners. Additionally, pursuant to 10 CFR 50.33(0(4Xi), submit any additional legal and financial relationships Ownerco or OpCo have or propose to have with sharehoiders and owners that are not included in tlie New HoldGo request above.

Response

As described in the Application, following the reStructuring transactions contemplated by the Reorganization Plan, OwnerCo and OpCo will be wholly-owned subsidiaries of a newly formed privately-held company referred to as New HoldCo. New HoldCo will be legally separated from FirstEnergy Corp.

The initial stockholders of New HoldCo will be certain creditors of FirstEnergy Solutions Corp.

(FES), its subsidiaries, and affiliates who have converted their claims to equity in New HoldCo pursuant to the Reorganization Plan, as well as management of New HoldCo. Equity will be in the form of common stock. ln accordance with the plan, the management shares are expected to comprise up to a total of 7.5 percent of New HoldCo's @mmon stock. The management shares of New HoldCo will be distributed across the management team, with no single member of management expected to hold more than 5 percent of New HoldCo common stock. The shares of New HoldCo owned by current creditors will be distributed according to the Sixth Amended Joint Plan of Reorganization of FirstEnergy Solutions Corp.,

et al. pusuant to Chapter 11 of the Bankruptry Code. Based on currently available information, Nuveen Asset Management, LLC and Avenue Capital Management ll, L.P. are expected to be the only entities at emergence with more than 5 percent of New HoldCo's common stock. Those entities are described in the Application for purposes of demonstrating L-1 9-1 82 Page 4 of 5 that there will be no foreign ownership, control or domination of the licensees, as defined by the NRC. The remaining shares of New HoldCo are expected to be initially distributed among a number of parties each holding less than 5 percent. The governance documents for New HoldCo, principally including the Bylaws, Certificate of lncorporation, and the Stockholders Agreement (included in the Plan of Reorganization supplement), do not contain any provisions requiring shareholders, including those with less than 5 percent interest, to vote together in the corporate governance of New HoldCo. Nor will such shareholders, under these governan@ documents, have any special shareholder rights (that is, veto authorities) that confer effective minority control of New HoldCo operations. ln the unexpected event the Applicants become aware of other creditors that would be expected to own more than 5 percent, the Applicants will supplement the Application with information to facilitate the NRC's review of those entities.

New HoldCo's legal and financial relationships with its shareholders are defined by corporate governance documents, in particular the Stockholders Agreement (Attachment 4) and the Amended and Restated Certificate of lncorporation of New HoldCo the Certificate of lncorporation of OpCo, and the Limited Liability Company Operating Agreement of OwnerCo (Attachment 5). These corporate governanoe documents were submitted to the Bankruptcy Court as part of the Plan Supplement filed on July 23, 2019. They define the obligations and rights of the stockholders with respect to New HoldCo and each other.

The Stockholders Agreement contains customary stockholder rights provisions consistent with the description at pages 10-1 1 of Enclosure A of the Application. The Stockholders Agreement covers the initial composition of the Board of Directors of New HoldCo, stockholder information rights, and transfer restrictions on the company's stock. With respect to the Board of Directors, Article ll of the Stockholders Agreement provides that the initial board will consist of no fewer than eight members, as follows: one member, who shall be the Chief Executive Officer; Mr. John Kiani, who shall serve as Executive Chairman of the Board; two members designated by Nuveen; one member designated by Avenue; and three additional directors designated by the creditors and noteholders. Nuveen will have the right to designate two members of the Board of Directors, and Avenue will have the right to designate one member of the Board of Directors, so long as Nuveen and Avenue each maintains at least 7.5 percent of New HoldCo's stock. The Stockholder Agreement, Article Vl, provides a list of the information stockholders will have a right to receive. This information includes an annual financial report, similar to a United States Securities and Exchange Commission (SEC) Form 10-K, 'Annual Report Pursuant to Section 1 3 or 15(d) of the Securities Exchange Ac't of 1934;' a quarterly financial report, similar to a SEC Form 10-Q, "Quarterly Report Pursuant to Sec.tion 1 3 or 15(d) of the Securities Exchange Act of 1934;" and written notice of any events that would trigger an SEC Form 8-K, "Current Repoft,' as if the company was an SEC registrant. With respect to transfer restrictions, Article lV of the Stockholders Agreement incorporates by reference the Certificate of lncorporation's provisions concerning Drag-Along and Tag-Along rights. These provisions were described in the Application, Enclosure A pages 10-1 1 .

L-1 9-1 82 Page 5 of 5 Since OwnerCo and OpCo are wholly-owned subsidiaries of New HoldCo, they have no additional legal or financial relationships with stockholders or owners. However, as described in the Application, there will be an Operating Agreement and a Power Supply Agreement that define specific authorities, entitlements, and obligations of OwnerCo and OpCo, and their counterparties.

5. The application references, and includes as Exhibit A, the Fourth Amended Joint PIan of Reorganization, submitted to the United States Bankruptcy Gourt for the Northern District of Ohio (Bankruptcy Gourt) on April 18, 2019. The application also refers to and incorporates by reference, the Applicants'March 15,2019, lrradiated Fuel Management Plan (ADAMS Accession No. MLl9074A2441, which references the Disclosure Statement for the First Amended Joint Plan of Reorganization filed on March 9,2019. On May 30,2019, the Debtors filed a Fifth Amended Joint Plan of Reorganization with the Bankruptcy Court. The application should reference the current version of the reorganization plan submitted to the Bankruptcy Court for approval. Provide a supplement to the application which includes a reference to the current reorganization plan. The NRC expects that the applicants will continue to supplement the application with references to any other such amendments, as necessary, until the NRG has made a final decision.

Response

The Sixth Amended Joint Plan of Reorganization of FirstEnergy Solutions Corp., et al.

pursuant to Chapter 1'l of the Bankruptcy Code was submitted to the United States Bankruptcy Court for the Northern District of Ohio on July 23, 2019. As of the date of this submittal, this is the current amendment of the reorganization plan. Therefore, this RAI response supplements the Application by providing the reference to the current amendment of the reorganization plan.

The Sixth Amended Joint Plan of Reorganization changed the number of New HoldCo Directors from no less than seven to no less than eight. Attachment 2 provides the names and citizenships of the eight New HoldCo Directors.

Additionally, the Sixth Amended Joint Plan of Reorganization changed a part of the organization that was described in the Application. Specifically, the RetailCo will not be created, and will be replaced in the corporate organization by a reorganized FirstEnergy Solutions Corp. (Reorganized FES). Reorganized FES will be a wholly-owned subsidiary of New HoldCo. A supplement to the Application that provides updated organization information will be submitted prior to August 30, 2019.

FENOC intends to notify the NRC of any other amendments to the reorganization plan, as necessary, until the NRC has made a final decision.

Attachment 3 L-1 9-1 82 Redacted Personally ldentifiable lnformation, "General Corporate lnformation and Key Personnel" (Three pages follow)

Page 1 of 3 NAME New HoldCo STATE of INCORPORATION Delaware FORM of CORPORATE ENTITY Corporation BUSINESS ADDRESS 341 White Pond Drive, Akron, OH 44320 DIRECTORSl Name/Citizenship:

John Kianis [ ]2 John W. Judge t )2 Douglas G. Johnston I I2 John W. Pitesa t 12 Stephen E. Burnazian t I2 Kevin T. Howell t 1' John C. Blickle t 12 Jennifer R. Kneale t I 2

KEY EXECUTIVE Name/Citizenship PERSONNELl President and Chief Executive Officer:

John W. Judge [ ]2 Executive Vice President, Corporate Development:

Stephen E. Burnazian [ ]2 Executive Vice President, Retail Sales and Commercial Operations:

Brian A. Farley [ ]2 Senior Vice President, Fossil:

Jay K. Bellingham I I' Vice President, Governmental Affairs:

David L. Griffing t 12 Chief Financial Officer, Chief Risk Officer, and Corporate Secretary:

Kevin T. Warvell [ ]2 Notes

1. Names and citizenships are listed.

2. lnformation contained within the brackets [ ] is considered personally identifiable information.

3. Mr. Kiani does not have a middle name.

Page 2 of 3 NAME OwnerCo STATE of INCORPORATION Delaware FORM of CORPORATE ENTITY Limited Liability Company BUSINESS ADDRESS 341 White Pond Drive, Akron, OH 44320 MANAGERSl Name/Citizensh ip David R. Hamilton t l2 Stephen E. Burnazian t l2 John W. Judge []'

KEY EXECUTIVE Name/Citizenship:

PERSONNELl President and Chief Nuclear Officer:

David R. Hamilton I 1' Senior Vice President, Fleet Engineering:

Raymond A. Lieb [ ]2 Vice President FIeet Oversight:

Terry J. Brown [ ]'

Corporate Secretary, Chief Financial Officer, Chief Risk Officer.

Kevin T. Warvell [ ]2 Notes:

1. Names and citizenships are listed.

2. Information contained within the brackets [ ] is considered personally identifiable information.

Page 3 of 3 NAME OpCo STATE of INCORPORATION Delaware FORM of CORPORATE Corporation ENTITY BUSINESS ADDRESS 341 White Pond Drive, Akron, OH 44320 DIRECTORSl Name/Citizenship:

David R. Hamilton t 12 Stephen E. Burnazian t I f 12 John W. Judse KEY EXECUTIVE Name/Citizenship:

PERSONNELl Senior Vice President and Chief Nuclear Officer:

David R. Hamilton I J2 Senior Vice President, Fleet Engineering:

Raymond A. Lieb [ ]2 Vice President Nuclear Support and Regulatory Affairs:

Darin M. Benyak [ ]2 Vice President Davis-Besse:

Mark B. Bezilla I J' Vice President Beaver Valley:

Rod L. Penfield [ ]2 Vice President Fleet Oversight:

Terry J. Brown [ ]'

Vice President Government Affairs:

David L. Griffing [ ]'

Vice President Perry:

Frank R. Payne [ ]2 Corporate Secretary, Chief Financlal Officer, Chief Risk Officer:

Kevin T. Warvell I F N otes

1. Names and citizenships are listed.

2. lnformation contained within the brackets [ ]as considered personally identifiable information.

Attachment 4 L-1 g-1 82 New HoldCo Stockholders' Agreement (Twenty-six pages follow)

Exhihit I New Holdco Stockholders' Agreement 18-50757-amk Doc 2936-9 FILED O7l23lLg ENTERED OTl23l19 23.L1:29 Page L of 26

INEWCOIt STO CKHOLDERS AGREEMENT This STOCKHOLDERS AGREEMENT (this "Asreement") is made as of the [ ] day of

[ ],2019, hy and among [NEWCO], aDelaware corporation (the "Company"), each of the Initial Stockholders and each Person that hereafter becomes a Stockholder and becomes a party to this Agreement.

WITNESSETH:

WHEREAS, on March 31, 2018, the Company and certain of its Subsidiaries and affiliates (the "Debtors") filed a joint plan of reorganization under chapter I I of title 11 of the United States Code, l l U.S.C. $$ 101-1330 (the "Bankruptcy Code") in the United States Bankruptcy Court for the Northern District of Ohio (the "Bankruptcv Court");

WHEREAS, on [ ],2019, the Bankruptcy Court entered an order (the "Confirmation Order") confirming the Debtors' [Sixth] Amended Joint Plan of Reorganization (the "Plan")

pursuant to the Bankruptcy Code; WHEREAS, on or as of the date hereof, (i) the effective date as provided for in the Plan and the Confirmation Order (the "Effective Date") occurred, and (ii) a total of [ ] shares of the Company's Common Stock were issued pursuant to the Plan; WHEREAS, pursuant to the Plan, as of the Effective Date, the Initial Stockholders have executed, or pursuant to the Plan and the Confirmation Order are deemed to have entered into, this Agreement to govern certain rights of the Stockholders and to provide certain other rights and obligations among them; and WHEREAS, pursuant to the Certificate of Incorporation, for so long as this Agreement is in effect, shares of Common Stock may not be transferred to a Person after the Effective Date unless such Person shall enter into, and become bound by, this Agreement; NOW THEREFORE, in consideration of the premises and the mutual agreements, covenants and provisions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

ARTICLE I CERTAIN DEFINITIONS As used in this Agreement, the following terms shall have the definitions set forth below:

(a) "Ad Hoc Noteholder Group" means members of the ad hoc group of certain holders of (i) pollution control revenue bonds supported by notes (the "PCNs") issued by

' NTD: name to be determined 18-50757-amk Doc 2936-9 FILED 07123119 ENTERED 07123/19 23:1,L:29 Page 2 of 26

FirstEnergy Generation, LLC and FirstEnergy Nuclear Generation, LLC and (ii) certain unsecured notes (the "FES Notes") issued by FirstEnergy Solutions Corp. (which group includes holders of at least 50% of the outstanding amount of PCNs and FES Notes, in the aggregate).

(b) "Affiliate" means, with respect to any Person, any other Person that (either directly or indirectly) controls, is controlled by, or is under direct or indirect common control with the specified Person. The term "control" means the possession, directly or indirectly, sole or shared, of the power to direct the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

(c) "Asreement" has the meaning specified in the preamble of this Agreement.

(d) "Altemative Rights Notice" has the meaning specified in Section 3.2.

(e) "Altemative Rights Offer" has the meaning specified in Section 3.2.

(f) ",{venue." means Avenue Capital Management II L.P. and any successor entity (g) "Avenue Designee" means one (l) member of the Board that may be designated by (i) Avenue, for so long as Avenue and its Affiliates in the aggregate beneficially own a number of shares of Common Stock at least equal to the Designation Threshold, or (ii) a Qualified Avenue Assignee.

(h) 'oBankruptcy Code" has the meaning specified in the recitals to this Agreement.

(i) "Banhruptcy Court" has the meaning specified in the recitals to this Agreement.

0) "Board" means the board of directors of the Company or any body performing a similar function.

(k) "Business Day" means any day (other than a day which is a Saturday, Sunday or legal holiday in the State of New York) on which banks are open for business in the City of New York.

(l) "Bylaws" means the Bylaws of the Company in effect as of the date hereof and as may be in effect from time to time.

(m) "Capital Stock" means the Common Stock and any and all other shares or equivalents units of capital stock of the Company, whether voting or nonyoting and whether common or preferred.

(n) "Certificate of Incorporation" means the Amended and Restated Certificate of Incorporation of the Company in effect as of the date hereof and as may be in effect from time to time.

,)

18-50757-amk Doc 2936-9 FILED 07lz3lLg ENTERED 07/231L9 23.11:29 Page 3 of 26

(o) "Common Stock" means the common stock of the Company and any Capital Stock into which such Common Stock may hereafter be converted or changed (in any ffranner contemplated by Section 8.13).

(p) "Co-mpggy" has the meaning specified in the preamble of this Agreement.

(q) "Confidential Information" means all non-public, proprietary information (financial or otherwise), reports, data, know-how, trade secrets, ideas, concepts, techniques and other intellectual property rights conceming the businesses and activities of the Company, or any other Stockholder to the extent related to the Company or its investment in the Company; provided, however, that Confidential Information, with respect to the confidentiality obligations of a particular Stockholder, shall not include information that (i) is or becomes generally available to the public other than as a result of a disclosure by such Stockholder or its Affiliates in breach of this Agreement, (ii) was in such Stockholder's or its Affiliates' possession or available to such Stockholder or its Affiliates prior to the disclosure of such information to such Stockholder by the Companf, its Affiliates, representatives or agents, (iii) becomes available to such Stockholder or its Affiliates from a source other than the Company, its Affiliates, representatives or agents, provided that such source is not known by such Stockholder or its Affiliates to be bound by a confidentiality agreement with the Company, its Affiliates, representatives or agents, or (iv) is independently developed by such Stockholder or its Affiliates without reliance on the Confidential Information.

(r) "Confirmation Order" has the meaning specified in the recitals to this Agreement.

(s) "Data Room" has the meaning specified in Section 6.1.

(t) "Debtors" has the meaning specified in the recitals to this Agreement.

(u) "Designation Threshold" means a number of shares of Common Stock equal to seven and one-half percent (7.5o/o) of the outstanding shares of Common Stock, which for these purposes shall exclude any shares of Common Stock issued by the Company at any time following the Effective Date as provided in clauses (iii) and (v) through (viii) of the definition of Excluded Issuance.

(v) "DGCL" means the Delaware General Corporation Law in effect as of the date hereof and as may be amended from time to time.

(w) "Effective Date" has the meaning specified in the recitals to this Agreement.

(x) "Exghgnge AcI" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

(V) 'oExcluded Issuance" means (i) shares of Common Stock issued as of the Effective Date pursuant to the Plan; (ii) New Securities issued by means of a stock-split, stock dividend or pro rata distribution to all holders of Common Stock; (iii) shares of Common Stock or other equity awards issued pursuant to the Management Equity PIan or any future 18-50757-amk Doc 2936-9 FILED A7ft3119 ENTERED 071231L9 23.11:29 Page 4 ot 26

management equity plan approved by the Board; (iv) New Securities issued upon the exercise of options, warrants or other rights, or upon the conversion or exchange of convertible securities, in each case provided such issuance is pursuant to the terms of such option, warrants, rights or convertible securities and such options, warrants, rights and convertible securities were issued in compliance with the terms of this Agreement; (v) New Securities issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board; (vi) New Securities issued as acquisition consideration pursuant to the acquisition by the Company or any Subsidiary of the Company of the securities or assets of another Person by merger, consolidation, share exchange, purchase of assets or similar business combination transaction; (vii) New Securities issued pursuant to a bona fide joint venture, collaboration, technology license, development, marketing or other similar agreement or strategic partnership approved by the Board; (viii) New Securities issued in a bona fide settlement of litigation approved by the Board; (ix) New Securities issued in a bona fide underwritten public offering in which the anticipated proceeds to the Company are not less than $100 million; and (x) any capital stock or other securities issued by a Subsidiary of the Company to the Company or any of its wholly-owned Subsidiaries.

(z) "Foreign Person" means any Person other than a Person that is treated as a U.S. person under the United States Internal Revenue Code of 1986, as amended.

(aa) "GAAP" means generally accepted accounting principles in the United States.

(bb) "independent," when used to describe the relationship of a Person with respect to any other Person, means that the former Person is independent of the latter Person as determined in accordance with the independence standards of The New York Stock Exchange or The Nasdaq Stock Market, mutatis mutandis.

(cc) "Independent Director" means a director designated as such, who is independent of the Company and from each Stockholder with director designation rights under the terms of this Agreement, and who is not an Affiliate of any such Stockholders.

(dd) "Initial Stockholder" means (i) any Person that received shares of Common Stock as of the Effective Date pursuant to the Plan and executed a counterpart of this Agreement and is listed on Schedule 4 hereto; and (ii) any other Person that received shares of Common Stock, beneficially or of record, as of the Effective Date pursuant to the Plan and is deemed to have entered into this Agreement pursuant to the Plan and the Confirmation Order as further specified in Section. 8.7 hereof Section t ] of the Plan and Section t ] of the Confirmation Order.

(ee) "Listing Event" means the Common Stock's becoming listed for trading (as the term "listed" is defined in Rule 3b-l of the Exchange Act) on The New York Stock Exchange or The Nasdaq Stock Market.

(f0 "Management Equity Plan" means any option, bonus, incentive or similar compensation plan for members of the management of the Company and/or its Subsidiaries 18-50757-amk Doc 2936-9 FILED 07l?3ltg ENTERED 07l23lL9 ?3:L1,:29 Page 5 of 26

providing for the issuance of equity securities (as such term is defined in Rule 3a1 l - l under the Exchange Act) adopted by the Board.

(gg) "Mansfield RSA Maioritv" means members of the ad hoc group of certain holders of pass-through certificates (any claims of holders arising therefrom, the "Certificate Claims") issued in connection with the sale-leaseback transaction for Unit I of the Bruce Mansfield Power Plant, holding at least 65% of the total aggregate outstanding principal amount of the Certificate Claims held by such group.

(hh) "MD&A" has the meaning specified in Section 6.1.

(ii) "New Securities" means, collectively, (i) any Capital Stock, (ii) any options, warrants or other rights to acquire Capital Stock, (iii) any securities that are convertible into or exchangeable for Capital Stock and (iv) any options, warrants or other rights to acquire any of the foregoing.

0i) " " has the meaning specified in Section 3.1.

(kk) "Nuvegn" means Nuveen Asset Management, LLC and any successor entity (ll) "Nuveen Designee" means each of two (2) members of the Board that may be designated by (i) Nuveen, for so long as it and its Affiliates in the aggregate beneficially own a number of shares of Common Stock at least equal to the Designation Threshold, or (ii) a Qualified Nuveen Assignee.

(mm) o'Person" means an individual, partnership, corporation, unincorporated organization, joint stock company, limited liability company, limited liability partnership, limited liability limited partnership, association, trust or joint venture, or a governmental agency or political subdivision thereof.

(nn) {6fu" has the meaning specified in the recitals to this Agreement.

(oo) "Preemptive Purch ' has the meaning specified in Section 3.1.

(pp) "Preemptive Rishts ' has the meaning specified in Section 3.1.

(qq) "Preemptive Rights 0 ' has the meaning specified in Section 3.2.

(r.) "Preemptive Stockho " has the meaning specified in Section 3.1.

(ss) "Preferred Stock" has the meaning specified in the Certificate of Incorporation.

(tt) "Pro Rata Portion" has the meaning specified in Section 3.1.

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(uu) "Oualified Avenue Assignee" means a Person to whom Avenue has assigned its right under this Agreement to designate the Avenue Designee in connection with the transfer to such Person by Avenue and its Affiliates of a number of shares of Common Stock equal to at least the Designation Threshold, but only for so long as such Person and its Affiliates irr the aggregate beneficially own a number of shares of Common Stock at least equal to the Designation Threshold.

(vv) "Oualified Nuveen Assignee" means a Person to whom Nuveen has assigned its right under this Agreement to designate one or both Nuveen Designees in connection with the transfer to such Person by Nuveen and its Affiliates of a number of shares of Common Stock equal to at least the Designation Threshold, but only for so long as such Person and its Affiliates in the aggregate beneficially own a number of shares of Common Stock at least equal to the Designation Threshold.

(ww) "Reporting Event" means (i) the Company's becoming an SEC Registrant or (ii) the Company's being obligated to file periodic reports with the SEC under Section I5(d) of the Exchange Act, but a Reporting Event shall be deemed to have occurred under this clause (ii) only for so long as the Company continues to file such periodic reports.

(xx) "Restricted Person" has the meaning specified in Section 6.2.

(ry) ((SEC" means the United States Securities and Exchange Commission, or any other federal agency at the time administering the Securities Act or the Exchange Act.

(zz) "SEC Registrant" means an issuer with a class of equity securities registered under the Exchange Act.

(aaa) "Securitieg-Ac!" means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

(bbb) "Stockholders" means (i) the Initial Stockholders, and (ii) any other Person that is a holder beneficially or of record of issued and outstanding shares of Common Stock (whether acquired from another Stockholder or from the Company). The term "Stockholder" means any one of the Stockholders (and, in the case of a Stockholder who is a natura[person,theterm.,@,,alsoincludessuchStockholder,slegalrepresentatives, executors or administrators when the context so requires).

(ccc) "Subgidigry" means any Person in which the Company, directly or indirectly through one or more Subsidiaries or otherwise, beneficially owns more than 50% of either the equity interests in, or the voting power of, such Person.

(ddd) "hlb" means (a) any direct or indirect sale, transfer, gift, hypothecation, pledge, assignment, devise or other disposition of Common Stock (including (x) the granting of any option or entering into any agreement for the future sale, transfer or other disposition of Common Stock, or (y) the sale, transfer, assignment or other disposition of any securities or rights convertible into or exchangeable for Common Stock), whether voluntary or involuntary, whether of record, constructively or beneficially and whether by operation of law or otherwise, and (b) any other transaction or event, including without limitation a merger, 18-50757-amk Doc 2936-9 FILED O7l23l1g ENTERED 07123/19 23:1,L:29 Page 7 of ?6

consolidation, or acquisition of any Person, or the aggregation of the Common Stock beneficially owned by one Person with the Common Stock beneficially owned by any other Person, which would affect the beneficial ownership of Common Stock; provided, that for purposes of the definition of "Qualified Avenue Assignee" and "Qualified Nuveen Assignee," the term "Transfer" shalI not include a bona fide pledge, hypothecation or similar disposition.

(eee) "LJCC" means the Official Committee of Unsecured Creditors appointed in the cases under the Bankruptcy Code in the Bankruptcy Court on March 3l , 2018 by the Company and its Subsidiaries and FirstEnergy Nuclear Operating Company.

ARTICLE II BOARI} OF DIRECTORS SECTION 2.1 Desisnation Rights.

(a) (i) Nuveen, for so long as it and its Affiliates in the aggregate beneficially own a number of shares of Common Stock at least equal to the Designation Threshold and it has not assigned such right with respect to a particular Nuveen Designee to a Qualified Nuveen Assignee, or (ii) any Qualified Nuveen Assignee, shall have the right to designate one or both of the Nuveen Designees as provided in this Article II.

(b) (i) Avenue, for so long as it and its Affiliates in the aggregate beneficially own a number of shares of Common Stock at least equal to the Designation Threshold and it has not assigned such right to a Qualified Avenue Assignee, or (ii) any Qualified Avenue Assignee, shall have the right to designate the Avenue Designee as provided in this Article II.

(c) Anything to the contrary in this Agreement notwithstanding, no Nuveen Designee or Avenue Designee shall be an individual employed by, or serving as a consultant to, or otherwise constituting an Affiliate ofl, a competitor of the Company, fls reasonably determined by a majority of the members of the Board, not including members of the Board who are Affiliates of the Person having the right to designate such Nuveen Designee or Avenue Designee, as the case may be.

SECTION 2.2 Board Composition.

(a) The following persons shall be appointed to the Board as of the Effective Date, and shall serve as the initial members of the Board:

(i) One (l) member who shall be the chief executive offrcer of the Company; (ii) Mr. John Kiani, who shall serve as the initial chairman of the Finance and Strategy Committee (as described in the Bylaws) and Executive Chairman of the Board (as described in the Bylaws);

(iii) Two (2) members designated by Nuveen on behalf of itself and its affiliated investment funds; provided, that one (l) such member shall (i) be independent

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of each Stockholder with director designation rights, including Nuveen, and (ii) be reasonably acceptable to the Mansfield RSA Majority; (iv) One (l) member designated by Avenue; (v) One (l) member designated jointly by the Ad Hoc Noteholder Group and the Mansfield RSA Majority, subject to the reasonable consent of the UCC; (vi) One (l) member designated jointly by the Ad Hoc Noteholder Group, the Mansfield RSA Majority, and the UCC; and (vii) One (l ) member, who shall be the Independent Director, designated jointly by the Ad Hoc Noteholder Group, the Mansfield RSA Majority, and the UCC, who shall not be an Affiliate, and shall otherwise be independent, of any Stockholder with director designation rights under the terms of this Agreement.

(b) From and after the Effective Date, the Board shall take such action to nominate, and each Stockholder agrees to vote, or cause to be voted, all shares of Common Stock owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times and in whatever manner as shall be necessary, to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board:

(i) The Nuveen Designees; (ii) The Avenue Designee; (iii) The Independent Director; and (iv) The chief executive officer of the Company.

(c) If and to the extent there shall be no Person having the right to designate one or both of the Nuveen Designees or the Avenue Designee in accordance with Section 2.1 or the Person having such right of designation affirmatively declines by notice to the Board to exercise such right or timely fails, subject to Section 2.3, to exercise such right (but in such case only for so long as such Person has not affirmatively indicated by notice to the Board that it is again exercising such right of designation), the provisions of Section 2.2ft) shall be inapplicable to such Nuveen Designee(s) or Avenue Designee, and position(s) on the Board that would otherwise have been filled by such Nuveen Designee(s) or Avenue Designee shall instead be filled in in accordance with, and pursuant to, the Certificate of Incorporation, the Bylaws and the DGCL applicable to the designation and election or appointment of directors generally.

SECTION 2.3 Failure to Desisnate a Boafd Member. In the absence of any designation from a Person having the right to designate a director as specified in this Agreement, and for so Iong as such Person shall continue to have such right of designation, the director previously designated by such Person and then serving shall be re-nominated by the Board, and reelected by the Stockholders as provided in Section 2.2ft), if such director remains eligible and willing to serve as provided herein and otherwise.

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SECTION 2.4 Removal of Board Members; Vacancies. The Board shall take such action, and each Stockholder agrees to vote, or cause to be voted, all shares of Common Stock owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times and in whatever manner, as shall be necessary to ensure that:

(i) no director elected pursuant to Section 2.2(bXi) or Section 2.2(bXii) may be removed from office unless (i) such removal is for "cause," as such term is commonly understood under section l4l(k) of the DGCL, in accordance with the Bylaws; (ii) such removal is directed or approved by the Person having the right under this Agreement to designate that director; or (iii) the Person entitled to designate such director is no longer so entitled to designate or approve such director, as provided in Section 2.2(c);

(ii) upon the request of any Person having the right to designate a director as provided in Section 2.1(.a) or Section 2.1(b) to remove such director, such director shall be removed; (iii) the Independent Director sha(( not be removed other than for o'cause," as such term is commonly understood under section 141(k) of the DGCL; (iv) any vacancies created by the resignation, removal, death or incapacity of a director elected pursuant to Section 2.2(bXi) or Section 2.2(bXii) shall be filled pursuant to the provisions of Section 2.2(b) as directed by the Person having the right to designate such director; and (v) any vacancies created by the resignation, removal, death or incapacity of a director elected pursuant to Section 2.2ftXiii) or Section 2.2ftXiv) shall be filled by a replacement director satisfying the criteria for nomination and election of the director whose resignation, retirement, death or incapacity created such vacancy.

SECTION 2.5 Other Actions.

(a) All Stockholders agree, if so requested by the Board or any Person having the right to designate a director (with respect to such director), to execute any written consents in lieu of a meeting of stockholders in order to elect directors as provided in this Article II.

(b) The Board, at the request of any Person having the right to designate a director, shall call a special meeting of stockholders in order to elect such director as provided in this Article II.

SECTION 2.6 No Liabilitv for Election of Desienated Directors. No Stockho lder, nor any Affiliate of any Stockholder, shall have any liability as a result of designating a person for election as a director for any act or omission by such designated person in his or her capacity as a director of the Company, nor shall any Stockholder have any liability as a result of voting for any such designee in accordance with the provisions of this Agreement.

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ARTICLE III PREEMPTIVE RIGHTS SECTION 3.1 Preemptive Rights Offer.

(a) The Company shall not sell or otherwise issue to any Person (including any then-current Stockholder) (a "Preemptive Purchaser"), i, one transaction or series of related transactions, any New Securities, other than pursuant to an Excluded Issuance (each such sale or issuance a "New Securities Issuance Transaction"), unless the Company (x) first delivers written notice (the "Preemptive Rights Notice") to each Stockholder party to this Agreement that, together with its Affliliates, holds shares of Common Stock representing in the aggregate 0.504 or more of the then issued and outstanding shares of Common Stock on a fully diluted basis (a "Preemptive Stockholder") identifying the terms of the New Securities (including the price, number or aggregate principal amount and type of securities, and all other material terms) and (y) offers (a "Preemptive Rights Offer") to each Preemptive Stockholder the opportunity to purchase a portion of the New Securities determined in accordance with Section 3.1(b) (a "Pro Rata Portion") on terms and conditions, including price, not less favorable to the Preemptive Stockholder than those on which the Company proposes to sell or issue the New Securities to the Preemptive Purchaser.

(b) A Preemptive Stockholder's Pro Rata Portion shall be equal to (x) the total number of New Securities subject to the sale or issuance multiplied by (y) a fraction, (A) the numerator of which is the number of then-issued and outstanding shares of Common Stock owned by the Preemptive Stockholder on a fully diluted basis, and (B) the denominator of which is the total number of the then-issued and outstanding shares of Common Stock on a fully diluted basis. "Fully diluted basis" means on a basis as if all options, warrants, other rights or convertible or exchangeable securities that are exercisable or exchangeable for or convertible into Common Stock directly or indirectly, have been so exercised, exchanged or converted by a Preemptive Stockholder, or by all holders of such options, warrants, rights or convertible or exchangeable securities, as the case may be.

(c) The Company's offer to a Preemptive Stockholder shall remain open for a period of twenty (20) days after the Preemptive Rights Notice is delivered in accordance with Section 8.2 (or if such day is not a Business Duy, the following Business Day), during which time the Preemptive Stockholder may accept such offer by written notice to the Company setting forth the number of such New Securities to be purchased by such Preemptive Stockholder, up to a maximum amount equal to such Preemptive Stockholder's Pro Rata Portion.

(d) In the event that a Preemptive Stockholder declines to exercise the option to purchase its Pro Rata Portion of any New Securities Issuance Transaction, such Preemptive Stockholder shall be deemed to have peffnanently waived the preemptive rights granted under this Section 3.1 in connection with such New Securities Issuance Transaction but shall remain eligible to participate in any future New Securities Issuance Transaction pursuant to this Section 3.1. If at the end of one hundred eighty (180) calendar days following the delivery of the Preemptive Rights Notice, the Company shall not have completed the New Securities Issuance Transaction, then any acceptance by a Preemptive Stockholder shall be null and void and it shall 18-50757-amk Doc2936-9 FILED07l23l1-9 ENTERED 071231L923:lL:29 Page 11of 26

be necessary for the Company to issue a separate Preemptive Rights Notice that complies with the terms and provisions of this Section 3.1 in order for the Company to subsequently consummate such proposed New Securities Issuance Transaction.

(e) References in this Section -3.1 and Section 3.2 to issuances of New Securities hy the Company shall include issuances of New Securities by any wholly-owned Subsidiary of the Company, and the Company shall cause any Subsidiary that proposes to issue any New Securities to comply with the provisions of this Section 3.1 and Section 3.2 to the same extent as applicable to the Company.

SECTION 3.2 Altemative Rishts Offer.

(a) Anything to the contrary in Section 3.1 notwithstanding, if the Company proposes to engage in a New Securities Issuance Transaction, then, in lieu of comptying with Section 3.1 in respect thereof, the Company may, no later than twenty (20) days after the date on which such New Securities Issuance Transaction is finally consummated, deliver written notice (the "Alternative Rights Notice") to each Preemptive Stockholder identifying the terms of the New Securities (including the price, number or aggregate principal amount and type of securities, and all other material terms) and (y) offer (the "Alternative Riflhts Offer") to each Preemptive Stockholder the opportunity to purchase New Securities, on terms and conditions, including price, not less favorable to the Preemptive Stockholder than those on which the Company sold New Securities in the New Securities Issuance Transaction, in an amount such that, after taking account of all New Securities issued in the New Securities Issuance Transaction and pursuant to the Alternative Rights Offer, including the New Securities issued to such Preemptive Stockholder and all other Preemptive Stockholders, the Pro Rata Portion of such Preemptive Stockholder would remain unchanged.

(b) All other terms of an Alternative Rights Offer shall be the same as the terms of a Preemptive Rights Offer, as set forth in Section 3.1 , mutatis mutandis.

ARTICLE IV TRANSF'ER RE STRICTIONS SECTION4.I Incorporation.

The provisions of Section 6 of the Certificate of Incorporation ("Transfer of Shares"), as they may be amended from time to time, are incorporated by reference into this Article IV and thereby made a part of this Agreement. In addition, and not by way of limitation of the foregoing, no Stockholder shall Transfer any shares of Common Stock to any Person unless such transferee confirms that, effective upon consummation of such Transfer (or if such Transfer is a pledge, hypothecation or similar devise of a security interest, upon any foreclosure thereof), such Person will become a party to this Agreement by execution of a joinder agreement substantially in the form of Exhibit A hereto or such other form of documentation as shall be approved by the Board of Directors, and each of the representations and warranties in Section 7.1 will be true and correct with respect to such Person.

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ARTICLE V DRAG.ALONG AND TAG-ALONG TRANSACTIONS SECTION 5.1 Incorporation.

The provisions of Section 7 of the Certificate of Incorporation ("Drag-Along Transactions; Tag-Along Transactions"), as they may be amended from time to time, are incotporated by reference into this Article V and thereby made a part of this Agreement.

ARTICLE \/I STOCKHOLDER INFORMATION RIGHTS; CONFIDENTIALITY SECTION 6.1 Stockholder Information Rishts.

(a) Stockholders who are a party to this Agreement shall have the right to recelve:

(i) within ninety (90) days after the end of the fiscal year of the Company which ends on or prior to the six (6) month anniversary of the Effective Date, if any, and within seventy-five (75) days after the end of each subsequent fiscal year of the Company, on annual report containing (x) audited consolidated financial statements of the Company and its subsidiaries for such fiscal year (including balance sheets, statements of operations and statements of cash flows as would be required to be included in an Annual Report on Form l0-K if the Company were an SEC Registrant, which financial statements shall include segment reporting for retail and generation, as well as footnotes, as applicable), certified by a national accounting firm and prepared in accordance with GAAP), and (y) a management's discussion and analysis of financial condition and results of operations ("MD&A"), in narrative form, with respect to such financial statements (such MD&A to be substantially similar to that which would be required to be included in an Annual Report on Form lO-K if the Company were an SEC registrant);

(ii) within sixty (60) days after the end of any of the first three (3) fiscal quarters of a fiscal year which ends on or prior to the six (6) month anniversary of the Effective Date, and within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year thereafter, a report containing (x) unaudited condensed consolidated financial statements of the Company and its subsidiaries for such quarter and the year-to-date period and the comparable period of the prior fiscal year (including balance sheets, statements of operations and statements of cash flows as would be required to be included in a Quarterly Report on Form 10-Q if the Company were an SEC Registrant, which frnancial statements shall include segment reporting for retail and generation, as well as footnotes, as applicable), prepared in accordance with GAAP, and (y) an MD&A, in narrative form, with respect to such financial statements (such MD&A 1-B-50757-amk Doc 2936-9 FILED 07lz3lLg ENTERED 07123/Lg 23:LL:29 Page 13 of 26

to be substantially similar to that which would be required to be included in a Quarterly Report on Form l0-Q if the Company were an SEC registrant);

(iii) written notice of the occurrence of any event that would be required to be reported by the Company in a Current Report on Form 8-K if the Company were an SEC Registrant with respect to events requiring disclosure under Items 1.01, 1.02, 1.03,2.01 (which, for the avoidance of doubt, will not require financial information under Item 9.01), 2.03, 2.04, 3.03, 4.02, 5.01, 5.A2 (other than compensation-related information required thereunder, including vesting metrics and valuation methodologies, except that whenever the Company would be required to make disclosures under Item 5.02(e) with respect to a compensatory plan, contract or arrangement to which an executive officer is a party or in which the executive officer participates, the Company shall disclose the total annual cash compensation of, and total number of shares beneficially owned by, the executive officer, after giving effect to such plan, contract or affangement) and 5.03 of Form 8-K, which information sha(( be made available (x) from the day following the Effective Date through the six (6) month anniversary of the Effective Date, within fifteen (15) Business Days of the occurrence of the applicable triggering event described above (but, for the avoidance of doubt, only with respect to events occurring after the Effective Date) and (y) after the six (6) month anniversary of the Effective Date, within ten (10)

Business Days after the occurrence of the applicable triggering event described above; (iv) notice of the sale of New Securities to a third party that generates in excess of $10 million of proceeds, which notice shall be made available within the time period set forth in clause (iii) above, unless such sale is subject to, and the Company has complied with, the provisions of Section 3.1 with respect thereto; and (v) promptly upon the written request of any Stockholder that is a Foreign Person (or any Stockholder that is not a Foreign Person that is taxable as a partnership for United States federal income tax purposes and has at least one beneficial owner that is a Foreign Person), a statement satisfying the requirements of the applicable Treasury regulations under Section 1445 of the Intemal Revenue Code signed by an authorized representative of the Company (and the Company shall duly file a corresponding notice with the Internal Revenue Service pursuant to the applicable Treasury regulations under Section 897 of the Internal Revenue Code) setting forth the Company's determination of whether the Company is a U.S. Real Property Holding Corporation for the purposes of the Foreign Investment in Real Property Tax Act of 1980 at any time during the period such foreign Stockholder held their Common Stock, provided that no such statement shall be required to be delivered to any Person that is not described in Treasury Regulation Section 1.897-l(cX2XiiiXA) at any time that the Company is regularly traded on an established securities market within the meaning of Section S97(c)(3) of the lntemal Revenue Code.

(b) The reporting required by Section 6.1(a) shall be subject to the following qualifications:

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(i) the Company will not be required by clauses (i), (ii) or (iii) of Section 6.1(a) to deliver any reports that are more extensive or more detailed than those that would be required if the Company were an SEC Registrant; (ii) the Company will not be required by clauses (i) and (ii) of Section6.l(a) to make any MD&A disclosures solely to the extent that the Board reasonably determines, after taking into account confidentiality, regulatory and market considerations, that such disclosure would cause material harm to the Company's business; (iii) for purposes of clauses (i) and (ii) of $ection 6.1(a), for any period ending prior to the six (6) month anniversary of the Effective Date, if the Board reasonably determines that despite the Company's reasonable best efforts it is unable to comply with one or more then-applicable SEC requirements with respect to such financial statements, the Company shall make available financial statements that are prepared on a basis substantially consistent with the above other than such then-applicable SEC requirements that the Company is unable to comply with (so long as in all cases such frnancial statements include a balance sheet, statement of income and statement of cash flows prepared in accordance with GAAP);

(iv) the Company will not be required by clause (iii) of Section 6.1(a) to make any current disclosures solely to the extent that the Board reasonably determines, after taking into account confidentiality, regulatory and market considerations, that such disclosure would cause material harm to the Company's business; and (v) the reporting requirements of Section 6.1(a) shall cease to apply at such time as there shall have occurred a Reporting Event.

(c) The reports required by clauses (i), (ii), (iii) and (iv) of Section 6.1(a) above,shallbedeliveredviaasecuredwebsite(the,.@,)requiringentryintoa customary "Click Through" non-disclosure agreement consistent with Section 6,2 hereof. The statement required by clause (v) of Section 6.1(a) shall be delivered by e-mail to the requesting Stockholder.

(d) As promptly as practicable, but no earlier than three (3) Business Days, following the quarterly and annual financial statements described in clauses (i) and (ii) of Section 6.1(a), above, being posted to the Data Room, the Company will hold a conference call to discuss the results of operations and to answer questions posed by Stockholders.

SECTION 6.2 Confidentiality.

(a) Each Stockholder covenants and agrees that (i) it will hold all Confidential Information, whether received from the Company, another Stockholder or any Affiliate of any Stockholder, in strict confidence; (ii) it will treat all such Confidential Information with at least the same degree of care as it would treat its own confidential or proprietary information; and (iii) it will not: (x) communicate, divulge or disseminate such Confidentia[ Information to any Person at any time except in accordance with the terms of this Agreement; or (y) use such Confidential Information for a purpose unrelated to the Company or its business and affairs or such Stockholder's investment in the Company.

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(b) Notwithstanding anything herein to the contrary, a Stockholder may disclose Confidential Information (i) to its employees, officers, directors, agents, lenders, contractors and advisors to the extent such Person (x) needs to know such information in connection with the transactions contemplated by this Agreement or the businesses and activities of the Company, (y) is instructed as to the confidential nature thereof and (z) is bound by a duty of confidentiality that extends to such Confidential Information that is at least as stringent as the terms of this Section 6.2; (ii) for purposes of complying with any subpoena, order or other legal process, or to a regulatory body, pursuant any applicable regulatory requirements, to which such Stockholder or any of its Affiliates are subject in compliance with Section 2(c); or (iii) as provided in Section 6.2(d).

(c) If a Stockholder receives a request to disclose any Confidential Information pursuant to any subpoena, order or legal process, such Stockholder shall (i) promptly notify the Company of such request, (ii) consult with the Company as to the advisability of taking steps to resist or narrow such request, and (iii) reasonably cooperate with the Company, at the expense of the Company, in any attempt it or they make to obtain an order or other assurance that any Confidential Information so disclosed will be given confidential treatment to the maximum extent practicable under the circumstances. If a Stockholder determines that it is required to disclose any Confidential Information to a regulatory body pursuant to applicable regulatory requirements, it shall similarly use reasonable efforts to obtain assurances that any Confidential Information so disclosed will be given confidential treatment to the maximum extent practicable under the circumstances.

(d) Subject to the following sentence, a Stockholder that proposes to sell any shares of Common Stock to any potential transferee in compliance with the transfer restrictions contained in the Certificate of Incorporation or this Agreement may make available to such potential transferee Confidential Information, subject to such potential transferee entering into an agreement with the Company to comply with the confidentiality provisions of this Section 6.2, including through entry into a customary "Click Through" non-disclosure agreement as described in Sectiog 6.1. No such information may be shared with a potential transferee that is a Restricted Person. "Restricted Person" shall mean any Person determined by the Board to be a material customer, supplier or competitor of the Company, the disclosure to whom of Confidential Information could result in commercial or competitive harm to the Company, and in each case listed on Schedule B to this Agreement. Schedule B shall be updated in good faith by the Board from time to time and made available in the Data Room and posted on the Company's website.

(e) The provisions of this Section 6.2 shall be and continue in effect for the period commencing on the Effective Date and ending on the occuffence of a Reporting Event, except that the provisions of this Section 6.2 shall continue to apply to any Confidential Information disclosed prior to the Reporting Event to the extent it is not made public in connection with such Reporting Event.

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ARTICLE VII REPRESENTATIONS AND WARRANTIES SECTION 7.1 Representations. Each Stockholder executing or otherwise becoming a party to this Agreement, severally and not jointly, shall be deemed to represent and warrant to the Company as follows:

(a) Such Stockholder has all necessary power and authority to enter into this Agreement and perform its obligations as a Stockholder hereunder.

(b) The participation by such Stockholder in this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary actions on the part of such Stockholder. No other proceedings on the part of such Stockholder, and no other votes or written consents or actions or proceedings by or on behalf of such Stockholder, are necessary to authorize this Agreement or the performance of such Stockholder's obligations hereunder.

(c) This Agreement constitutes the valid and binding obligation of such Stockholder, enforceable in accordance with its terms (except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws relating to or affecting creditors' rights generally and the effect and application of general principles of equity and the availability of equitable remedies).

(d) The execution and delivery of this Agreement by such Stockholder does not, and the performance by such Stockholder of its obligations hereunder will not, in any material respect, conflict with or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, (i) the organizational documents of such Stockholder, (ii) any material contract or agreement to which such Stockholder is a party or by which its assets are bound, or (iii) any law, rule or regulation applicable to such Stockholder.

(e) Such Stockholder has read this Agreement and has had an opportunity to consult with counsel of its choosing to discuss the terms, provisions, conditions and obligations of this Agreement applicable to such Stockholder.

ARTICLE \ilII MISCELLANEOUS SECTION 8.1 Termination.

(a) The provisions of Article III ("Preemptive Rights"), Article IV ("Transfer Restrictions"), and Article V ("Drag-Along and Tag-Along Transactions") shall terminate automatically upon the occuffence of a Listing Event.

(b) At such time as any Stockholder, together with its Affiliates, shall cease to own Common Stock, such Person shall cease to be a party to this Agreement but shall continue 1-B-50757-amk Doc 2936-9 FILED O7lz3fl-g ENTERED A7123/Lg 23.1L:29 Page L7 ot 26

to be bound by the confidentiality provisions of Section 6.2 with respect to any Confidential Information received by such Person while it was a party to this Agreement.

(c) This Agreement may be terminated in its entirety at any time with the written approval of those Stockholders having the requisite power and authority to amend each and every provision of this Agreement as provided in Section 8.5.

SECTION 8.2 Notices. All notices, requests, waivers and other communications made pursuant to this Agreement shall be in writing and shall be deemed to have been effectively given (i) when personally delivered to the party to be notified; (ii) when sent by confirmed facsimile to the party to be notified; (iii) three (3) Business Days after deposit in the United States mail, postage prepaid, by certified or registered mail with retum receipt requested, addressed to the party to be notified; (iv) one (l) Business Day after deposit with a national overnight delivery service, postage prepaid, addressed to the party to be notified with next-Business Day delivery guaranteed; or (v) if by other means of electronic transmission to the extent permitted under Section I 16 of the DGCL (or any successor statute), as provided thereunder, in each case as follows: (x) in the case of any Stockholder, to such Stockholderat its address or facsimile number set forth in the stock records of the Company, or if by other means of electronic transmission, as instructed by such Stockholder to the Secretary of the Company; and (y) in the case of the Company, to the Secretary of the Company at the Company's principal place of business. A party may change its address or other means of receipt for purposes of notice hereunder by giving notice of such change to all other parties in the manner provided in this Section 8.2. Notwithstanding the foregoing, in the case of a Stockholder that holds Common Stock beneficially but not of record, notice shall be given to such address, facsimile number or other means of electronic transmission as has been provided to the Secretary of the Company by such beneficial holder, and shall be deemed given at the times specified above, but if no such address, facsimile number or other means of electronic transmission has been provided to the Secretary of the Company, notice shall be given (x) by a publicly disseminated press release; (y) through an investor communication service providing communications to holders of securities in "street name"; or (z) through the communication facilities of the Depository Trust Company, and such notice shall be deemed to be given one (1) business day after public dissemination by press release or three (3) business days after delivery to such an investor communication service or to the communication facilities of the Depository Trust Company.

SECTION 8.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.

SECTION 8.4 Entire Agreement. This Agreement supersedes all prior discussions and agreements among any of the parties hereto (and their Affiliates) with respect to the subject maffer hereof and, together with documents referenced herein, contains the sole entire understanding of the parties with respect to the subject matter hereof.

SECTION 8.5 Amendment.

(a) This Agreement may be amended only with the written approval of the Stockholders party to this Agreement holding at least sixty-six and two-thirds percent (66-213%)

issued and outstanding shares of Common Stock in the aggregate by all such Stockholders; 18-50757-amk Doc2936-9 FlLED0T/23l19 ENTERED 07l23lL923illi29 PagelSof 26

provided, however, that (i) any amendment, modification or waiver that adversely affects the rights granted to an identified Stockholder or group of Stockholders (e.9., the right to designate a member of the Board) requires the consent of such Stockholder(s); and (ii) any amendment or modification to the provisions of Article III ("Preemptive Rights"), Article V ("Drag-Along and Tag-Along Transactions"), Article VI ("Stockholder Information Rightr"), or this Section 8.5

("Amendment"), or any defined term used in any such article or section, shall require the written approval of the Stockholders party to this Agreement holding at least eighty percent (80%) in voting power of the then-issued and outstanding shares of Common Stock held in the aggregate by all such Stockholders.

(b) Notwithstanding Section 8.5(a), the Company may amend this Agreement to (i) cure any ambiguity, defect or inconsistency or (ii) make any other changes in the provisions of this Agreement which the Company deems necessary or desirable, provided that any such amendment does not adversely affect the rights of any Stockholder under this Agreement.

SECTION 8.6 No Third Party Beneficiary. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and its successors and permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other Person.

SECTION 8.7 Deemed Execution: Effective Date. On the Effective Date, pursuant to Section [ ] of the Plan, the Company and each holder of then-issued and outstanding Common Stock shall be deemed to have entered into this Agreement. This Agreement shall take effect immediately and automatically on the Effective Date.

SECTION 8.8 Headinqs. The headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.

SECTION 8.9 Governing Law: Consent to Jurisdiction and Service of Process. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of law doctrine. The Company and each Stockholder hereby submit to the exclusive jurisdiction of the courts of the State of Delaware, and any judicial proceeding brought against the Company or any Stockholder with respect to any dispute arising out of this Agreement or any matter related hereto shall be brought only in such courts.

The Company and each Stockholder hereby irrevocably waive, to the fullest extent permitted by law, any objection it may have or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. The Company and each Stockholder hereby consent to process being served in any such proceeding by the mailing of a copy thereof by registered or certified mail, postage prepaid, to the address specified in Section 8.2, or in any other manner permitted by law. THE COMPANY AND EACH STOCKHOLDER HEREBY KNOWINGLY, VOLTINTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUCH ACTION OR PROCEEDTNG.

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SECTION 8.10 Injunctive Relief. It is hereby agreed and acknowledged that it will be impossible to measure in money the damages that would be suffered if the parties to this Agreement fail to comply with any of the obligations imposed on them by this Agreement and that in the event of any such failure, an aggrieved Person will be irreparably damaged and will not have an adequate remedy at law. Any such Person sha((, therefore, be entitled to injunctive relief, including specific performance, to enforce such obligations, and if any action should be brought in equity to enforce any of the provisions of this Agreement, none of the parties hereto shall raise the defense that there is an adequate remedy at law. The parties hereby waive, and cause their respective representatives to waive, flfly requirement for the securing or posting of any bond in connection with any action brought for injunctive relief hereunder.

SECTION 8.11 Severability. The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law.

SECTION Ll2 Conflicts. In the event that any of the terms or provisions of this Agreement conflict with any of the terms or provisions of the Certificate of Incorporation, the terms and provisions ofthe Certificate of Incorporation sha(( control.

SECTION 8.13 Recapitalization, etc. In the event that any capital stock or other securities are issued in respect of, in exchange for, or in substitution of, shares of Capital Stock of the Company by reason of any reorganization, recapitalization, reclassification, merger, consolidation, spin-off, partial or complete liquidation, stock dividend, split-up, sale of assets, distribution to stockholders or combination of Common Stock or any other change in the Company's capital structure, appropriate adjustments shall be made to the provisions of this Agreement so as to fairly and equitably preserve, as far as practicable, the original rights and obligations of the parties hereto under this Agreement.

IREMAINDER OF'PAGE INTENTIONALLY LEFT BTANK]

18-50757-amk Doc2936-9 FILED07l23l79 ENTERED 0712311923:tL:29 Page20of 26

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives, or are deemed to have executed this Agreement, as of the Effective Date.

THE COMPAFIY:

lNEwcol Name:

Title:

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STOCKHOLDERS:

[ ],

as investment adviser to certain funds and accounts By:

Name:

Title:

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STOCKHOLDERS:

t1 By:

Name:

Title:

nn 1-8-50757-amk Doc 2936-9 FILED ATnSl1g ENTERED 07l23lL9 23:11:29 Page 23 of 26

SCHEDULE A LIST OF SIGNATORIES OF THE STOCKHOLDERS AGREEMENT AS OF THE EFFECTIVE DATE L8-50757-amk Doc 2936-9 FILED A7123119 ENTERED 07/23 lL9 23:L1.:29 Page 24 of 26

SCHEDULE B LIST OF RBSTRICTED PERSONS 1,8-50757-amk Doc 2936-9 FILED 07123179 ENTERED 07l23ll9 23:Ll:29 Page 25 of 26

Exhibit A Form of Joinder Agreement The undersigned hereby agrees, effective as of the date hereof, to become a party to that certain Stockholders Agreement dated as of [ ], 2019 (as amended, the "Asreement"), by and among [NEWCO] (the "eglnp4uy") and the Stockholders (as defined in the Agreement), and for all purposes of the Agreement the undersigned shall, effective as of the date hereof, be bound by the terms and provisions of the Agreement applicable to Stockholders and be included within the term "Stockholders" (as defined in the Agreement).

The address and facsimile number to which notices may be sent to the undersigned is as follows:

Address:

Facsimile No.:

Date Name n<

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Attachment 5 L-1 9-1 82 Amended and Restated Certificate of lncorporation of New HoldCo, Certificate of lncorporation for OpCo, and Limited Liability Company Operating Agreement of OwnerCo (Thirty-one pages follow)

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION of INEWCOIt

[NEWCO], a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

The name of the corporation is [NEWCO] (the "Corporation"). The Corporation's original certificate of incorporation was filed with the Secretary of State of the State of Delaware on I LZA1'9. This Amended and Restated Certificate of Incorporation (this "Certificate of Incorporation"; with terms not otherwise defined herein having the meanings assigned in Section l7) was duly adopted, without the need for approval of the board of directors of the Corporation (the "Board of Directors") or the stockholders of the Corporation, in accordance with $$ 242, 245 and 303 of the Delaware General Corporation Law (the "DGCL") and in accordance with a plan of reorganization of the Corporation (the "Plan") approved by order of the United States Bankruptcy Court for the Northern District of Ohio in In re: FirstEnerry Solutions Corp., et al.,

under Chapter 11 of the United States Bankruptcy Code (11 U.S.C. $ l0l-1330), as amended (the "Bankruptcy Code"), which Plan became effective on [ ],2019.

The Corporation's original certificate of incorporation is hereby amended and restated to read in its entirety as follows:

l. Name. The name of the Corporation is [NEWCO].

2. Registered Office and Agent. The Corporation's registered office in the State of Delaware is located at [ ]. The name of its registered agent at such address is [ ].

3. Purpose. The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.

4. Authorized Canital Stock; Number of Shares. The total number of shares of all classes of capital stock that the Corporation shall have the authority to issue is five hundred five million (505,000,000) shares, of which (a) five hundred million (500,000,000) shares shall be common stock, $.001 par value per share ("Common Stock"), and (b) five million (5,000,000) shares shall be preferred stock, $.001 par value per share ("Preferred Stock").

Notwithstanding anything herein to the contrary, the Corporation shall not be authorized to issue non-voting capital stock of any class, series or other designation to the extent prohibited by Section I 123(a)(6) of title I I of the Bankruptcy Code; provided, however,thatthe foregoing restriction shall (i) have no further force and effect beyond that required under Section I123(a)(6) of the Bankruptcy Code and (ii) only have such force and effect to the extent and for so long as such Section I123(a)(6) is in effect and applies to the Corporation.

NTD: Name to be determined 18-50757-amk Doc2936-L FILEDO7l23l79 ENTEREDO7l23lL923'.1t:29 Page20ol77

5. Rishts of Stockholders.

5. I Preferred Stock Shares of Preferred Stock may be issued from time to time in one or more series. To the maximum extent permitted by applicable Iaw and the provisions of this Certificate of Incorporation, the Board of Directors is authorized to determine the designation of any series of Preferred Stock, to fix the number of shares of any series of Preferred Stock, and to determine the rights, powers (including voting powers, if any),

preferences, privileges, limitations and restrictions granted to or imposed upon any wholly unissued series of Preferred Stockand, withinthe limits and restrictions stated in anyresolution or resolutions of the Board of Directors originally fixing the number of shares constituting any series of Preferred Stock, to increase or decrease (but not below the number of shares of any such series then outstanding) the number of shares of any such series subsequent to the issuance of shares of that series. If the number of shares of any series of Preferred Stock shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series.

5.2 Common Stock.

(i) The Common Stock shall be subject to all of the rights, privileges, preferences and priorities of any series of Preferred Stock.

(ii) Subject to the rights of holders of any outstanding series of Preferred Stock, the Board of Directors may cause dividends to be declared and paid on outstanding shares of Common Stock out of funds legally available for the payment of dividends.

When, as and if dividends are declared by the Board of Directors, whether payable in cash, in property, in stock or otherwise, in accordance with this Certificate of Incorporation and the bylaws of the Corporation, as in effect from time to time (the "B@"), out of the assets of the Corporation which are at law available therefor, the holders of outstanding shares of Common Stock shall be entitled to receive all such dividends in accordance with the number of shares of Common Stock held by each such holder. In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of issued and outstanding shares of Common Stock shall be entitled to share, ratably according to the number of shares of Common Stock held by each such holder, in the remaining assets of the Corporation available for distribution to its stockholders after the payment, or provision for payment, of all debts and other liabilities of the Corporation and the payment of any outstanding Prefened Stock. Subject to applicable law and except as otherwise expressly provided in this Certificate of Incorporation or the Bylaws, and subject to the rights of holders of any outstanding series of Preferred Stock, each holder of record of one or more issued and outstanding shares of Common Stock shall be entitled to one vote for each share of Common Stock standing in such holder's name on the books of the Corporation.

6 Transfers of Shares.

6.1 Restrictions on Transfer.

(i) Subject to Section 7.1 and Section 7.2, no shares of Common Stock or other securities of the Corporation shall be sold or otherwise Transferred by any holder 2

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or group of holders thereof (regardless of the manner in which the Transferor initially acquired such shares of Common Stock), if such Transfer (x) would, if effected, require the Corporation to register its Common Stock or any other security under the Securities Exchange Act of 1934 (the "Exchange Act") (as a result of the number of stockholders or otherwise), unless, in any such case, at the time of such sale or other Transfer, the Corporation is already subject to the reporting obligations under Sections l3 or l5(d) of the Exchange Act, (y) violates applicable securities laws, or (z) otherwise violates the terms of this Certificate of Incorporation, the Bylaws, the Stockholders Agreement or, to the extent applicable, any management equity plan adopted by the Board of Directors.

(ii) In addition to the restrictions set forth in Section 6.I (i), for so long as the Stockholders Agreement shall be in effect, no shares of Common Stock shall be sold or otherwise Transferred unless the Transferee thereof shall execute a joinder to the Stockholders Agreement, in the form provided for in the Stockholders Agreement or as otherwise approved by the Board of Directors, within seven (7) business days after the applicable sale or other Transfer.

6.2 Notice of Transfer. The Corporation may require such notice or other documentation of sale or other Transfer as the Board of Directors shall deem reasonably necessary or desirable to evidence compliance with the provisions of this Section 6.

6.3 Prohibited Transfers Void. The Corporation shall not record upon its books any sale or other Transfer of any shares of securities of the Corporation except in accordance with the provisions of this Certificate of Incorporation. Any purported sale or other Transfer in violation of such provisions shall be void ab initio and shall not be recognized by the Corporation.

6.4 Lesend on Certificates.

(i) All certificates evidencing shares of Common Stock shall conspicuously bear the following legend:

..THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO VARIOUS CONDITIONS, TNCLUDTNG CERTAIN RESTRICTIONS ON SALE, DISPOSITION OR OTHER TRANSFER AS SET FORTH IN THE CORPORATION'S AMENDED AND RESTATED CERTIFICATE OF INCORPORATION, STOCKHOLDERS AGREEMENT AND/OR MANAGEMENT EQUITY PLAN. NO REGISTRATION OR TRANSFER OF SUCH SHARES WILL BE MADE, ON THE BOOKS OF THE CORPORATION UNLESS AND LTNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED WITH. THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS CE,RTIF'ICATE A COPY OF THE CERTIFICATE OF INCORPORATION, STOCKHOLDERS AGREEMENT AND/OR MANAGEMENT EQUITY PLAN, CONTATNTNG THE ABOVE.

REFERENCED RESTRICTIONS ON TRANSFERS OF STOCK, UPON WRITTEN REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS."

J 18-50757-amk Doc 2936-L FILED 07123179 ENTERED 07123179 23ilti29 Paoe 22 ol77

In the event that any shares of Common Stock shall cease to be subject to the restrictions on Transfer set forth in this Se_ction 6, or the Board of Directors otherwise determines that the legend required by this Section 6.4(.i) is no longer necessary to insure compliance with any remaining restrictions set forth in this Sgction 6, the Corporation shall, upon the written request of the holder of such shares, issue to such holder a new certificate evidencing such shares without the legend required by this Section 6.4(i).

(ii) In addition, all certificates evidencing securities whose Transfer is restricted because of the absence of registration under applicable federal or state securities laws shall conspicuously bear the following legend:

..THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, OR AN EXEMPTION THEREF'ROM AND, TN EACH CASE,, IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS."

In the event that any such securities of the Corporation shall be registered for Transfer under the Securities Act of 1933, or shall otherwise no longer he subject to restrictions on Transfer under applicable federal or state securities laws, the Corporation shall, upon the written request of the holder of such securities and presentation of such evidence of the absence of restriction on Transfer as the Corporation shall reasonably require, issue to such holder a new certificate evidencing such shares without the legend required by this Section 6.4(ii).

(iii) If the Corporation shall issue any uncertificated securities, then, in lieu of the legends set forth in Section 6.4(.i) and Section 6.4(ii), the Corporation shall make appropriate notation of the applicable restrictions on Transfer in the securities register maintained by the Corporation for registering Transfer of the relevant securities and, within a reasonable time after the issuance or Transfer of uncertificated securities, the registered owner thereof shall be given notice, in writing or by electronic transmission, of such restrictions on Transfer.

7. Dras-Alons T ransactionst Tag-Along Transactions.

7.1 Dras-Alons Transactions. Subject to Section 16:

(i) In the event that one or more holders of Common Stock holding at least sixty-six and two-thirds percent (66-213%) of the then-issued and outstanding shares of Common Stock (on a fully diluted basis) (the "Sellinq Holders") seek to effect a Drag-Along Transaction (as defined below), the Corporation or the Selling Holders (or a designated representative acting on behalf of the Selling Holders) shall deliver written notice thereof (a "Sale Notice") to all other holders of the Common Stock (the "Dragged Holders") no less than ten (10) days prior to the closing of such Drag-Along Transaction. Such written notice shall be delivered in accordance with Section 12, and shall contain a description of the material terms and 4

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conditions of the Drag-Along Transaction, including without limitation the identity of the Third Party Purchaser (as defined below) and the amount and form of the consideration per share of Common Stock to be paid by the Third Party Purchaser in the Drag-Along Transaction.

(ii) If the Drag-Along Transaction shall involve a sale or other Transfer of Common Stock, all shares of Common Stock held by the Dragged Holders (or the applicable portion of such shares as set forth in the next sentence) shall be sold or Transferred to the Third Party Purchaser for the same type and amount of consideration per share of Common Stock and on the same terms as the Selling Holders, upon consummation of the Drag-Along Transaction, free and clear of any liens and duly endorsed for Transfer, or accompanied by duly endorsed stock powers. In the case of a Drag-Along Transaction involving less than 100% of the then-issued and outstanding shares of the Common Stock, each of the Dragged Holders shall sell or Transfer in the Drag-Along Transaction a portion of its shares of Common Stock, which shall be in the same ratio to the total number of shares that it owns as the ratio of the shares of Common Stock held by the Selling Holders (in the aggregate) that are proposed to be included in such Drag-Along Transaction bears to the total number of shares of Common Stock that they own (in the aggregate).

(iii) No Dragged Holder shall be required to make any representations or waffanties, except as they relate to such Dragged Holder's ownership of and authority to sell or Transfer its Common Stock, or to make any covenants, or to provide any indemnity, except for (x) indemnification related to breaches of such Dragged Holder's representations and warranties as aforesaid, and (y) any other indemnity agreed to by the Setting Holders (other than relating to a breach of representations, warranties or covenants by such Selling Holders);

provided that (A) in the case of clause (y) above, each Dragged Holder's obligation shall be on a pro rata basis in proportion to the number of shares of Common Stock that it owns compared with the total number of shares of Common Stock outstanding, and (B) in no event shall any Dragged Holder be liable under either or both clause (x) or (y) above for any amount in excess of the net proceeds received by such Dragged Holder in connection with such Drag-Along Transaction. The liability of the Dragged Holders shall be several and not joint, and no Dragged Holder shall have any liability to the Corporation or any other holder of Common Stock for any breaches of the representations, warranties or covenants of any other holder of Common Stock.

(iv) Each of the Selling Holders and the Dragged Holders shall receive a portion of the aggregate consideration from the Drag-Along Transaction in such proportion as the number of shares of Common Stock owned by it bears to the total number of shares of Common Stock outstanding, with appropriate adjustment to account for the treatment of any outstanding options, waffants or other rights, on a fully diluted basis, whose holders are entitled to participate in such consideration in accordance with their terms. If the Selling Holders or any of their respective Affiliates or representatives, directly or indirectly, receive any consideration from the Third Party Purchaser or any of the Third Party Purchaser Affiliates in connection with, or pursuant to oral or written agreements entered into substantially contemporaneously with, a Drag-Along Transaction (including any payment for non-compete covenants, consulting alrangements or advisory or transaction services) other than (i) the consideration that is received by the Dragged Holders on a pro rata basis as part of the Drag-Along Transaction in accordance with Section 7.1 and (ii) consideration that is received by any Selling Holder for bona fide services rendered to the Corporation for periods commencing following the closing of a Drag-5 1-B-50757-amk Doc 2936-1 FILED O7l23llg ENTERED 07123/1-9 23.1.1.:29 Page 24 of 77

Along Transaction on an arrns-length basis, then the Selling Holders shall cause each of the Dragged Holders to receive thefu pro rata share, determined by reference to the respective amounts of consideration otherwise payable to each holder of Common Stock (including the Selling Holders) as part of the Drag-Along Transaction, of such consideration. All holders of Common Stock shall receive the same amount and form of consideration per share of Common Stock in connection with a Drag-Along Transaction (or if any holder is given an option as to the form of consideration to be received, all other holders shatl be given the same option on the same terms).

(v) Each Selling Holder and Dragged Holder shall bear its pro rata share (based upon the number of shares of Common Stock held, sold or Transferred by such holder) of the costs of any Drag-Along Transaction to the extent such costs are incurred for the benefit of all such holders and are not otherwise paid by the Corporation or the Third Party Purchaser, which costs shall be deducted from the aggregate consideration paid in such Drag-Along Transaction. Costs incurred by such holders on their own behalf will not be considered costs of the Drag-Along Transaction.

(vi) Each Dragged Holder shall use commercially reasonable efforts to cooperate in any proposed Drag-Along Transaction and shall not knowingly take any action which reasonably would be expected to impede any such Drag-Along Transaction. Without limiting the foregoing, each Dragged Holder shall, to the extent a vote or consent of stockholders is required in connection with a Drag-Along Transaction, vote or consent in favor, including by proxy, of any Drag-Along Transaction that is the subject of a Sale Notice and against any competing transaction, shall not object to any such Drag-Along Transaction, and shall waive, and agrees not to exercise, any appraisal, dissenters or similar rights that it may lrave with respect to such Drag-Along Transaction.

(vii) The Corporation shall use commercially reasonable efforts to cause its officers, employees, agents, contractors and others under its control to cooperate in any proposed Drag-Along Transaction and shall not take any action which reasonably would be expected to impede any such Drag-Along Transaction; provided, however, that the Board of Directors shall at all times act in accordance with its fiduciary duties. Without limiting the foregoing, at the request of the Selling Holders, the Board of Directors (subject to its fiduciary duties) shall authorize and direct the Corporation and any existing or hereafter created subsidiary of the Corporation to execute such agreements, documents, applications, authorizations, registration statements and instruments as it may deem necessary or appropriate in connection with any Drag-Along Transaction.

(viii) Subject to the provisions of this Section 7.1, the Selling Holders, in exercising their rights under this Section 7.1, shall have complete discretion over whether to consummate or abandon a Drag-Along Transaction, and the terms and conditions of any Drag-Along Transaction effected thereby, including, without limitation, price, payment terms, conditions to closing, representations, warranties, affirmative covenants, negative covenants, indemnification, holdbacks and escrows. To the fullest extent permitted by law, the Corporation and the Selling Holders shall have no liability if any such Drag-Along Transaction is not consummated for any reason. If the Selling Holders have not completed the Drag-Along Transaction within one hundred eighty (180) calendar days following the delivery of the Sale 6

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Notice (the "Dras-Along Transaction Outside Date"), then no Dragged Holder shall have any further obligation with respect to the Drag-Along Transaction set forth in such Sale Notice and it shall be necessary for a separate Sale Notice to be furnished and the terms and provisions of this Section 7.1 separately complied with, in order to subsequently consummate such proposed Drag-Along Transaction; provided, that (i) if a Drag-Along Transaction shall not have been completed by the Drag-Along Transaction Outside Date as a result of not having received any required regulatory approval, the Drag-Along Transaction Outside Date shall automatically extend to five (5) business days after receipt of any required regulatory approval, provided that such extension shall only continue for so long as the Corporation is actively pursuing receipt of such regulatory approval, and (ii) the provisions of this Section 7.1 shall apply to any subsequent Sale Notice.

7.2 Tas-Alons Transactions- Subject to Section l6:

(i) In the event that one or more holders of Common Stock (the "Initiating Holders") seek to effect a Tag-Along Transaction (as defined below; with the party to whom shares of Common Stock are being sold in such Tag-Along Transaction being referred to as the "Tag-Alonq Purchaser"), the Initiating Holders (or a designated representative acting on their behalf) shall first give written notice (a "Tag-Along Sale Notice") to all other holders of Common Stock party to the Stockholders Agreement at such time holding at least 1% of the then-issued and outstanding shares of Common Stock (on a fully diluted basis) (the "Tas-Along Sellers"), with a copy to the Corporation, in accordance with Section 12, offering the Tag-Along Sellers the option to participate in such Tag-Along Transaction on the terms and conditions set forth in the Tag-Along Sale Notice (which shall be on the same terms and conditions as the Initiating Holders). The Tag-Along Sale Notice shall contain a description of the material terms and conditions of the proposed Tag-Along Transaction, including without limitation the identities of the parties to the proposed Tag-Along Transaction and the proposed amount and form of the consideration per share of Common Stock to be paid by the Tag-Along Purchaser in the Tag-Along Transaction.

(ii) Each Tag-Along Seller (a "Participatins Tag ") may, by written notice (a "Tag-Along Respons ') to the Corporation and the Initiating Holders (or their designated representative) delivered within seven (7) business days after receipt of the Tag-Along Sale Notice, elect to sell shares of Common Stock in such Tag-Along Transaction, on the terms and conditions set forth in the Tag-Along Sale Notice, which terms and conditions shall be the same as those on which the Initiating Holders' shares of Common Stock are to be sold, and in an &mount as shall be equal to the lesser of (A) the number of shares specified in the Tag-Along Response Notice and (B) the product of (x) the total number of shares of Common Stock to be acquired by the Tag-Along Purchaser and (y) a fraction equal to (I) the number of shares of Common Stock owned by such Participating Tag-Along Seller divided by (lI) the total number of shares of Common Stock owned in the aggregate by all Initiating Holders and Participating Tag-Along Sellers. Any shares of Common Stock that the Tag-Along Sellers have the right to sell in the Tag-Along Transaction as provided in this Section 7.2(ii), but the Tag-Along Sellers have not elected to sell, may be sold by the Initiating Holders.

(iii) In connection with any Tag-Along Transaction, no Participating Tag-Along Seller shall be required to make any representations or warranties, except as they relate to such Participating Tag-Along Seller's ownership of and authority to sell Common 7

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Stock, or to make any covenants, or to provide any indemnity, except for (x) indemnification related to breaches of such Participating Tag-Along Seller's representations and warranties as aforesaid, and (y) any other indemnity agreed to by the Initiating Holders (other than relating to a breach of representations, warranties or covenants by such Initiating Holders); provided that (A) in the case of clause (y) above, each Participating Tag-Along Seller's obligation shall be on apro rata basis in proportion to the number of shares of Common Stock that it owns compared with the total number of shares of Common Stock owned by all Initiating Holders and the Participating Tag-Along Sellers in the aggregate, and (B) in no event shall any Participating Tag-Along Seller be liable under either or both clause (x) or (y) above for an amount in excess of the net proceeds received by such Participating Tag-Along Seller in connection with such Tag-Along Transaction. The liability of the Participating Tag-Along Sellers shall be several and not joint, and no Participating Tag-Along Seller shall have any liability to the Corporation or any other holder of Common Stock for any breaches of the representations, warranties or covenants of any other holder of Common Stock.

(iv) The election by any Tag-Along Seller to sell or not to sell all or any portion of such Tag-Along Seller's Common Stock in any Tag-Along Transaction shall not adversely affect such Tag-Along Seller's right to participate in any future Tag-Along Transaction.

(v) Upon consummation of the sale of Common Stock in a Tag-Along Transaction, each Initiating Holder and each Participating Tag-Along Seller shall deliver at the closing thereof, against payment of the purchase price therefor, certificates or other documentation governing the terms of any such Common Stock (or other evidence thereof reasonably acceptable to the Tag-Along Purchaser) representing its Common Stock to be sold, duly endorsed for Transfer or accompanied by duly endorsed stock powers, evidence of good title to the Common Stock to be sold, the absence of liens, encumbrances and adverse claims with respect thereto and such other documents as are deemed reasonably necessary by the Initiating Holders and the Corporation for the proper Transfer of such Common Stock on the books of the Corporation.

(vi) Subject to the provisions of this Section 7.2, the Initiating Holders shall have complete discretion over whether to consummate or abandon a Tag-Along Transaction, and the terms and conditions of such Tag-Along Transaction, including, without limitation, price, payment terms, conditions to closing, representations, warranties and indemnification; provided that the Initiating Holders shall not consummate a Tag-Along Transaction unless each Participating Tag-Along Seller shall be permitted to participate in such Tag-Along Transaction as provided in this Section 7.2. If (i) the Initiating Holders have not consummated the Tag-Along Transaction within one hundred eighty (180) days of the delivery of the related Tag-Along Sale Notice (the "Tae-Along Transac ") (for any reason other than the failure of a Participating Tag-Along Seller to sell its Common Stock under this Section 7.2) or (ii) the principal terms and conditions of the Tag-Along Transaction shall change, in any material respect, from those in the Tag-Along Sale Notice, then any Tag-Along Response Notice shall be null and void and it shall be necessary for a separate Tag-Along Sale Notice to be furnished and the terms and provisions of this Section 7.2 separately complied with, in order to subsequently consummate such proposed Tag-Along Transaction; provided, that if a Tag-Along Transaction shall not have been consummated by the Tag-Along Transaction Outside I

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Date as a result of not having received any required regulatory approval, the Tag-Along Transaction Outside Date shall automatically extend to five (5) business days after receipt of any required regulatory approval, provided that such extension shall only continue for so long as the Corporation is actively pursuing receipt of such regulatory approval. To the fullest extent permitted by law, the Corporation and the Initiating Holders shall have no liability if any such Tag-Along Transaction is not consummated for any reason.

(vii) In no event shall any Tag-Along Seller have any rights under this Section 7.2 or otherwise with respect to a sale by any Initiating Holders of any debt or equity securities of the Corporation other than the Common Stock.

7.3 Certain Definitions. For the purposes of this Section 7:

(i) "Drag-Along Transaction" means (x) the bona fide sale, lease or other Transfer, in one transaction or a series of related transactions of all or substantially a(( of the consolidated assets of the Corporationand its subsidiaries or(y)the bonafide sale orother Transfer of at least sixty-six and two-thirds percent (66-213%) of the then-issued and outstanding shares of Common Stock (on a fully diluted basis), in each case, to any Person or group of related Persons (other than the Selling Holders or any Affiliates thereof) (a "Third Party Purchaser") and whether directly or indirectly or by way of any merger, statutory share exchange, recapitalization, sale of equity, reclassification, consolidation or other business combination transaction or purchase of beneficial ownership.

(ii) "Tag-Along Transa " means any transaction or series of related transactions involving a sale or other Transfer by the Initiating Holders of at least 20o/o of the then-issued and outstanding shares of Common Stock (on a fully diluted basis) to any Person or group of related Persons; provided, however, that a Tag-Along Transaction shall not include, and none of the rights of the Tag-Along Sellers specified in Section 7.2 shall be triggered by, a sale or other Transfer of shares of Common Stock by any holder of Common Stock to any of its Affiliates.

8. Directors.

8.1 Board of Directors. Except as may otherwise be provided in this Certificate of Incorporation, the Bylaws or the DGCL, the business of the Corporation shall be managed by the Board of Directors.

8.2 Comnosition of the Board of Direglofs. Subject to the terms of the Stockholders Agreement (for so long as it shall remain in effect in accordance with its terms), the Board of Directors may, by majority vote, elect to establish the size of the Board of Directors from time to time at a number that is not less than five (5) or more than nine (9) directors. As of the date hereof, the Board of Directors shall consist of no fewer than eight (8) individuals identified in the Stockholders Agreement (such individuals, the "Initial Board"). Each member of the Initial Board shall hold office until his or her resignation or removal or until his or her respective successor is duly elected and qualified in accordance with the terms of this Certificate of Incorporation and the Bylaws at the next annual meeting of stockholders.

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8.3 Removal of Directors. Subject to the terms of the Stockholders Agreement (for so long as it shall remain in effect in accordance with its terms), any director may be removed at any time, with or without cause, upon the affirmative vote of holders of at least a majority of the then-issued and outstanding shares of capital stock of the Corporation entitled to vote in the election of directors.

8.4 Cumulative Votins. There shall not be cumulative voting by stockholders in the election of directors of the Corporation.

9. Limitation of Liabilitv. No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, including breaches resulting from such director's grossly negligent behavior, except for liability (a) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL or (d) for any transaction from which the director derived any improper personal benefits. If the DGCL is hereafter amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Any repeal ormodification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

10. Indemnification.

(i) To the extent not prohibited by law, the Corporation shall indemnify any Person who is or was made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding (a "Proceeding"), whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the Corporation to procure a judgment in its favor, by reason of the fact that such Person, or a Person of whom such Person is the legal representative, is or was a director or officer of the Corporation, or is or was serving as a director, officer, manager, member, employee or agent or in any other capacity at the request of the Corporation, for any other corporation, company, partnership, joint venture, trust, employee benefit plan or other enterprise (an "Qther EnIiIy")

while serving as a director or officer of the Corporation, against judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and expenses (including attorneys' fees and disbursements) actually and reasonably incurred by such Person in connection with such Proceeding, if such Person acted in good faith and in a manner such Person believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. To the extent specified by the Board of Directors at any time and to the extent not prohibited by law, the Corporation may indemnify any Person who is or was made, or threatened to be made, a party to any threatened, pending or completed Proceeding, whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the Corporation to procure a judgment in its favor, by reason of the fact that such Person is or was an employee or agent of the Corporation, or is or was serving as a director, officer, manager, member, employee or agent or in any other capacity at the request of the Corporation for any Other Entity, against judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and l0 1-B-50757-amk Doc 2936 FILED 07lz3lLg ENTERED 07l23lL9 23:1L:29 Page ?9 ot 77

expenses (including attorneys' fees and disbursements) actually and reasonably incurued by such Person in connection with such Proceeding, if such Person acted in good faith and in a manner such Person believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.

(ii) The Corporation shall, from time to time, reimburse or advance to any director or officer or other Person entitled to indemnification hereunder the funds necessary for payment of expenses, including attomeys' fees and disbursements, incurred in connection with any Proceeding, in advance of the final disposition of such Proceeding; provided, however, that, if required by the DGCL, such expenses incurred by or on behalf of any director or officer or other Person may be paid in advance of the final disposition of a Proceeding only upon receipt by the Corporation of an undertaking by or on behalf of such director or officer (or other such indemnified person) to repay any such amount so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal that such director, officer or other Person is not entitled to be indemnified for such expenses.

(iii) The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section l0 shall not be deemed exclusive of any other rights to which a Person seeking indemnification or reimbursement or advancement of expenses may have or hereafter be entitled under any statute, this Certificate of Incorporation, the Bylaws, any agreement (including any policy of insurance purchased or provided by the Corporation under which directors, officers, employees and other agents of the Corporation are covered) , dfly vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such off,rce.

(iv) The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section 10 shall continue as to a Person who has ceased to be a director or officer (or other Person indemnified hereunder) and shall inure to the benefit of the executors, administrators, legatees and distributees of such Person.

(v) The Corporation shall have the power to purchase and maintain insurance on behalf of any Person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, member, manager, employee or agent of an Other Entity, against any liability asserted against such Person and incurred by such Person in any such capacity, or arising out of such Person's status as such, whether or not the Corporation would have the power to indemnify such Person against such liability under the provisions of thisSection I 0, the Bylaws or under Section 145 of the DGCL or any other provision of law.

(vi) The provisions of this Section l0 shall be a contract between the Corporation, on the one hand, and each director and officer who serves in such capacity at any time while this Section 10 is in effect and any other Person indemnified hereunder, on the other hand, pursuant to which the Corporation and each such director, officer or other Person intend to be legally bound. No repeal or modification of this Section 10 shall affect any rights or obligations with respect to any state of facts then or theretofore existing or thereafter arising or 1l 18-50757-amk Doc 2936-1 FILED 07123179 ENTERED 07lz3ltg 23it7'.29 Page 30 of 77

any proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state offacts.

(vii) The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section l0 shall be enforceable by any Person entitled to such indemnification or reimbursement or advancement of expenses in any court of competent jurisdiction. Neither the failure of the Corporation (including its Board of Directors, its independent legal counsel and its stockholders) to have made a determination prior to the commencement of such action that such indemnification or reimbursement or advancement of expenses is proper in the circumstances nor an actual determination by the Corporation (including its Board of Directors, its independent legal counsel and its stockholders) that such Person is not entitled to such indemnification or reimbursement or advancement of expenses shall constitute a defense to the action or create a presumption that such Person is not so entitled. Such a Person shall also be indemnified, to the fullest extent permitted by law, for any expenses incurred in connection with successfully establishing his or her right to such indemnification or reimbursement or advancement of expenses, in whole or in paft, in any such proceeding.

(viii) Any director or officer of the Corporation serving in any capacity in (i) another corporation of which a majority of the shares entitled to vote in the election of its directors is held, directly or indirectly, by the Corporation or (ii) any employee benefit plan of the Corporation or any corporation referred to in clause (i) shall be deemed to be doing so at the request of the Corporation.

(ix) Any Person entitled to be indemnified or to reimbursement or advancement of expenses as a matter of right pursuant to this Section 10 may elect to have the right to indemnification or reimbursement or advancement of expenses interpreted on the basis of the applicable law in effect at the time of the occurrence of the event or events giving rise to the applicable Proceeding, to the extent permitted by law, or on the basis of the applicable law in effect at the time such indemnification or reimbursement or advancement of expenses is sought.

Such election shall be made, by u notice in writing to the Corporation, at the time indemnification or reimbursement or advancement of expenses is sought; provided, however, that if no such notice is given, the right to indemnification or reimbursement or advancement of expenses shall be determined by the law in effect at the time indemnification or reimbursement or advancement of expenses is sought.

II . Approval Requirements for Related Partv Transactions. In addition to any other approval that may be required hy law or by the provisions of this Certificate of Incorporation, the Corporation shall not, after the date of this Certificate of Incorporation, (i) enter into or modify any Related Party Transaction, or (ii) terminate any Related Party Transaction if upon such termination any payment would be made or other benefit conferred on the Related Party other than a payment made or benefit conferred pursuant to (x) the Related Party Transaction as previously approved pursuant to thisSection I I or (y) the terms of any Transaction as in effect prior to the date of this Certificate of Incorporation, without first obtaining the affirmative vote at a duly held meeting of the Board of Directors (at which a quorum is present) of a majority of the Disinterested Directors then in office; providedthat if such Related Party Transaction involves an aggregate payment of more than $25 million (or in t2 1-B-50757-amk Doc 2936 FILED 07l23lLg ENTERED A7123/L9 23:11:29 Page 31. ot 77

the case of any modification or termination, an incremental aggregate payment of more than $25 million), then in addition, at the sole determination of the Board of Directors, either: (x) the Related Party Transaction shall be approved by the affirmative vote of a majority of Disinterested Stockholders, or (y) the Board of Directors shall receive the opinion of an independent, nationally recognized investment banking firm, to be selected by the Disinterested Directors then in office and paid for by the Corporation, that the Related Party Transaction is fair to the Corporation from a financial point of view. The following terms shall have the indicated definitions for purposes of thisSection I 1.

"Affiliate" has the meaning assigned to such term in Section 17.

"Disinterested Dir " means, with respect to a Related Party Transaction, a director of the Corporation that (i) is not a party to such Related Party Transaction, (ii) does not otherwise have a direct or indirect material financial interest in such Related Party Transaction, and (iii) is not an Affiliate, representative or designee of a party to such Related Party Transaction, of another party with a material financial interest in such Related Party Transaction, or of an Affiliate to either of the foregoing.

"Disinterested St " means, with respect to a Related Party Transaction, a stockholder of the Corporation that (i) is not a party to such Related Party Transaction, (ii) does not otherwise have a direct or indirect material frnancial interest in such Related Party Transaction, and (iii) is not an Affiliate or representative of a party to such Related Party Transaction or a party with such material financial interest (other than the Corporation and its subsidiaries). A majority of Disinterested Stockholders shall refer to Disinterested Stockholders owning voting securities of the Corporation representing a majority of the voting securities of the Corporation held by all Disinterested Stockholders.

"Related Party" means (i) any director or executive officer bf the Corporation or any of its subsidiaries (or any member of the immediate family of any such director or executive officer); (ii) any Person of which a person described in clause (i) is a partner, director or executive officer; (iii) any Person beneficially owning, or otherwise controlling (or sharing control of), at least five percent (5%) of the Corporation's issued and outstanding voting securities; (iv) any Person that is an Affiliate of a Person described in clause (iii); or (v) any director or executive officer of a Person described in clause (iii) or in clause (iv) (or any member of the immediate family of any such director or executive officer).

"Related Party Transaction" shall mean any Transaction involving payments or consideration between the Corporation (or any subsidiary of the Corporation) and a Related Party; provided, however, that the following shall not be deemed to be Related Party Transactions: (i) dividend payments or distributions to holders of the Corporation's capital stock; (ii) the payment of reasonable and customary compensation and fees to, and indemnities provided for the benefit of, officers, directors, employees or consultants of the Corporation (or any subsidiary) in the ordinary course of business; (iii) employment agreements, benefit plans (including a management equity plan) and similar arrangements for employees and directors of the Corporation (including the issuance of Common Stock or other equity interests thereunder) which, in each case, are approved by the Board of Directors or an authorized committee thereof; (iv) loans in the ordinary course of business to officers, employees or consultants of the 13 18-50757-amk Doc 2936-1 FILED 07123119 ENTERED 07123/1-9 23:1-1:29 Page 32 of 77

Corporation (or its subsidiaries) not in excess of $500,000 in the aggregate outstanding at any time; and (v) transactions between or among the Corporation and any of its direct or indirect whol ly-owned subsidiaries.

"Trau.saction" means, for purposes of the definition of Related Party Transaction, any transaction, contract, agreement, understanding, arrangement, loan, advance or guarantee, in e ach cass whether entered into prior to, on, or after the date of this Certificate of Incorporation.

12. Notices. All notices, requests, waivers and other communications made pursuant to this Certificate of Incorporation shall be in writing and shall be deemed to have been effectively given (a) when personally delivered to the party to be notified; (b) when sent by confirmed facsimile to the party to be notified; (c) three (3) business days afler deposit in the United States mail, postage prepaid, by certified or registered mail with return receipt requested, addressed to the party to be notified; or (d) one (1) business day after deposit with a national overnight delivery service, postage prepaid, addressed to the party to he notified with next-business day delivery guaranteed, in each case as follows: (i) in the case of any stockholder, to such stockholder at its address or facsimile number set forth in the stock records of the Corporation; and (ii) in the case of the Corporation, to the Secretary of the Corporation at the Corporation's principal place of business. A party may change its address for pu{poses of notice hereunder hy giving notice of such change to all other parties in the manner provided in this Section 12.

13. Restrictions on Transactions. The Corporation elects not to be governed by the restrictions on transactions with interested stockholders set forth in Section 203 of the DGCL.

14. Corporate Opnqrtunitie+. To the fullest extent allowed by applicable law, the doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to the Corporation or any of its officers or directors, or any of their respective Affiliates, and the Corporation renounces any expectancy that any of the directors or officers of the Corporation will offer any such corporate opportunity of which he or she may become aware to the Corporation; provided, however, the doctrine of corporate opportunity shall apply with respect to any of the directors or officers of the Corporation (i) with respect to a coqporate opportunity (x) offered to such person solely in his or her capacity as a director or officer of the Corporation and (l) such opportunity is one the Corporation is legally and contractually permitted to undertake and would otherwise be reasonable for the Corporation to pursue, (II) the Corporation is financially able to exploit the opportunity and (III) the director or officer is permitted to refer that opportunity to the Corporation without violating any legal obligation, or (y) identified by such person through disclosure by or on behalf of the Corporation; or (ii) where the failure to apply such doctrine would conflict with any fiduciary duties or contractual obligations such director or officer may have other than by reason of his or her being an officer or director of the Corporation.

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15. Amendments.

l5.l Amendments to the Certificate of Incorooralion.

(i) Except as provided in this Section 15, nny provision contained in this Certificate of Incorporation may be amended, altered, modified or repealed in the manner now or hereafter prescribed by applicable law.

(ii) In addition to any approval required by applicable law, the affirmative vote of holders of at least eighty percent (80%) of the then-issued and outstanding shares of Common Stock shall be required to amend, alter, modify or repeal the provisions of Section 7.1 ("Drag-Along Transactions") and Section 7.2 ("Tag-Along Transactions"), and any defined term to the extent used in such sections.

15.2 Amendments to the Bvlaws. In furtherance and not in limitation of the powers conferred by the DGCL or other applicable statute, the Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation, by the affirmative vote of at least a majority of the directors then in office; provided, however, that the Board of Directors shall not be permitted to adopt, amend or repeal any provision of the Bylaws to the extent adopted, amended or repealed by the stockholders of the Corporation.

16. Termination Unon a Listins Event. At such time as the Common Stock shall become listed for trading on the New York Stock Exchange or the NASDAQ Stock Market, the provisions of Section 6 ("Transfers of Shares") (except the legend requirements set forth in Section 6.4(i) or (ii), to the extent still applicable), Section 7.1 ("Drag-Along Transactions"),

Section 7.2 ("Tag-Along Transactions") and Section I I ("Approval Requirements for Related Party Transactions") shall terminate and be of no further force and effect.

17. Definitions.

17 .l Certain Definitions. As used in this Certificate of Incorporation, the following terms have the indicated meanings:

"Affiliate" means, with respect to any Person, any other Person that (either directly or indirectly) controls, is controlled by, or is under direct or indirect common control with the specified Person. The term "control" means the possession, directly or indirectly, sole or shared, of the power to direct the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

"business day" means any day other than Saturday, Sunday or any other day in which banks are authorized or required to remain closed in the City of New York, Borough of Manhattan.

"&fEq" means an individual, partnership, corporation, unincorporated organization, joint stock company, limited liability company, limited liability partnership, limited liability limited partnership, association, trust or joint venture, or a governmental agency or political subdivision thereof.

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"Stockholders Agreement" means the Stockholders Agreement, dated as of the date the Plan became effective, among the Corporation and the holders of Common Stock (as the same may be amended from time to time in accordance with the provisions thereof).

"Transfer" means, as the context requires: (a) any direct or indirect sale, transfer, gift, hypothecation, pledge, assignment, devise or other disposition of the applicable securities of the Corporations (including (x) the granting of any option or entering into any agreement for the future sale, transfer or other disposition of securities of the Corporation, or (y) the sale, transfer, assignment or other disposition of any securities or rights convertible into or exchangeable for securities of the Corporation), whether voluntary or involuntary, whether of record, constructively or beneficially and whether by operation of law or otherwise, and (b) any other transaction or event, including without limitation a merger, consolidation, or acquisition of any Person, or the aggregation of the applicable securities of the Corporation beneficially owned by one Person with the securities of the Corporation beneficially owned by any other Person, which would affect the beneficial ownership of Corporation; provided, that for purposes of Section 6.1(ii), Section 7.1 and Section 7.2, the term ooTransfer" shall not include a bona fide pledge, hypothecation or similar disposition (a "pfgdgg," and the Person to whom such pledge has been made, a "pLedgee.") that is not intended for the purpose of avoiding the transfer restrictions under this Certificate of Incorporation, except that a foreclosure or similar event as a result of which the pledgee acquires direct or indirect ownership of the security that is the object of the pledge shall be deemed a "Transfer." 'oTransferor" and "Transferee" shall have meanings that correspond, as applicable, to this definition.

17 .2 Beneficial Holders.

(i) References to a holder or holders of Common Stock in this Certificate of Incorporation shall mean (x) a Person who is a holder of record and beneficially of such Common Stock or (y) in the case of shares held by u direct or indirect nominee on behalf of a Person that is the beneficial owner of such Common Stock, such beneficial owner (each such holderreferencedinclause(x)and(y),a..@,'),ineachcaseasandtotheextent appropriate in context.

(ii) Without limiting the foregoing, (x) the Transferee for purposes of Section 6.1(ii) shall be deemed to be the Beneficial Holder of the shares of Common Stock referenced therein, and (y) holders for purposes of Section 7 shall refer to the Beneficial Holders of the shares of Common Stock referenced therein.

(iii) A Beneficial Holder that is not a holder of record may establish the number of shares of Common Stock owned beneficially by such holder for purposes of this Certificate of Incorporation in the manner provided in section 220(b) of the DGCL or in any other manner prescribed by the Board of Directors.

(iv) Where any notice is required in this Certifrcate of Incorporation to be given to a Beneficial Holder that is not a holder of record, such notice shall be given to such address or facsimile number as has been provided to the Corporation by such Beneficial Holder, and shall be deemed given at the times specified in Section 12, but if no such address or facsimile number has been provided to the Corporation, notice shall be given (x) by a publicly 16 18-50757-amk Doc 2936-L FILED O7l23l1g ENTERED 07123/L9 23:L1:29 Page 35 of 77

disseminated press release; (y) through an investor communication service providing communications to holders of securities in "street name"; or (z) through the communication facilities of the Depository Trust Company, and such notice shall be deemed to be given one (l) business day after public dissemination by press release or three (3) business days after delivery to such an investor communication service or to the communication facilities of the Depository Trust Company.

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Incorporation, which restates and amends the Corporation's original certificate of incorporation, to be made, executed and acknowledged by its duly authorized officer this day of [ ],2019, as directed by and provided for in the Order of the United States Bankruptcy Court for the Northem District of Ohio, dated [ ],2019, confirming the Plan under Chapter I I of the Bankruptcy Code.

Name:

Title:

Attest:

Secretary t7 18-50757-amk Doc 2936-1" FILED A7l?3lLg ENTERED A7l23lI9 23.LL:?9 Page 36 of 77

CERTIFICATE OF INCORPORATION of

[.],

a Delaware Corporation The undersigned, acting as the incorporator of a corporation under and in accordance with the provisions of the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended from time to time (the '?GCL"), hereby adopts the following Certificate of Incorporation for such corporation.

ARTICLE I Name The name of the corporation is [r] (the "Corporation").

ARTICLE II Addressl Reqistered Office and Asent The address of the Corporation's registered office is [r]l; and the name of its registered agent at such address is [r].

ARTICLE III Purposes The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.

ARTICLE IV Number of Shares The total number of shares of stock that the Corporation sha(( have authority to issue is one hundred (100), all of which shall be shares of Common Stock with the par value of

$0.01 per share.

Note to Draft: Registered Agent to be confirmed 4851-5584-7067 vZ 18-50757-amk Doc 2936-1 FILED 07lZ3llg ENTERED 07l23lL9 23:1L:29 Page 52 of 77

ARTICLE V Prohibition on Non-Votins Securities For the avoidance of doubt, notwithstanding anything herein to the contrary, pursuant to Section I123(aX6) of Title II of the United States Code, the Corporation shall not issue non-voting equity securities; provided, however, that the foregoing restriction (i) shall have no further force or effect beyond that required under such Section 1123, (ii) shall have such force and effect, if any, only for so long as such section is in effect and applicable to the Corporation and (iii) in all events may be amended or eliminated in accordance with applicable law as from time to time in effect.

ARTICLE VI Name and Mailins Address of Inco rnorator The name and mailing address of the incorporator is as follows:

[.]

Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036 ARTICLE VII Election of Directors Unless and except to the extent that the Bylaws of the Corporation (the "Bylaws")

shall so require, the election of directors ofthe Corporation need not be by written ballot.

ARTICLE VIII Limitation of Liahilitv To the fullest extent permitted under the DGCL, as amended from time to time, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Any amendment or repeal of this ARTICLE VIII shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment or repea[.

ARTICLE IX Adoption. Amendment or Repeal of Bylaws In furtherance and not in limitation of the powers conferred by statute, the Board of Directors of the Corporation is authorized to adopt, amend or repeal the Bylaws.

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ARTICLE X Certificate Amend ments The Corporation reserves the right at any time, and from time to time, to amend or repeal any provision contained in this Certificate of Incorporation, and add other provisions authorized by the laws of the State of Delaware at the time in force, in the manner now or hereafter prescribed by applicable law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incoqporation are granted subject to the rights reserved in this Article.

ARTICLE XI Indemnification (a) To the extent not prohibited by law, the Corporation shall indemnify any individual, partnership, corporation, unincorporated organization, joint stock company, limited liability company, limited liability partnership, limited liability limited partnership, association, trust or joint venture, or a govemmental agency or political subdivision thereof ("Person") who is or was made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding (a "Proceeding"), whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the Corporation to procure a judgment in its favor, by reason of the fact that such Person, or a Person of whom such Person is the legal representative, is or was a director or officer of the Corporation, or is or was serving as a director, officer, manager, member, employee or agent or in any other capacity at the request of the Corporation, for any other corporation, company, partnership, joint venture, trust, employee benefit plan or other enterprise (an "Other Entity") while serving as a director or officer of the Corporation, against judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and expenses (including attorneys' fees and disbursements) actually and reasonably incurred by such Person in connection with such Proceeding, if such Person acted in good faith and in a manner such Person believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. To the extent specified by the Board of Directors at any time and to the extent not prohibited by law, the Corporation may indemnify any Person who is or was made) or threatened to be made, a party to any threatened, pending or completed Proceeding, whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the Corporation to procure a judgment in its favor, by reason of the fact that such Person is or was an employee or agent of the Coqporation, or is or was serving as a director, officer, manager, member, employee or agent or in any other capacity at the request of the Corporation for any Other Entity, against judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and expenses (including attorneys' fees and disbursements) actually and reasonably incured by such Person in connection with such Proceeding, if such Person acted in good faith and in a manner such Person believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.

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(b) The Corporation shall, from time to time, reimburse or advance to any director or officer or other Person entitled to indemnification hereunder the funds necessary for payment of expenses, including attorneys' fees and disbursements, incurred in connection with any Proceeding, in advance of the final disposition of such Proceeding; provided, however, that, if required by the DGCL, such expenses incumed by or on behalf of any director or officer or other Person may be paid in advance of the final disposition of a Proceeding only upon receipt by the Corporation of an undertaking by or on behalf of such director or officer (or other such indemnified person) to repay any such amount so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal that such director, officer or other Person is not entitled to be indemnified for such expenses.

(c) The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this ARTICLE XI shall not be deemed exclusive of any other rights to which a Person seeking indemnification or reimbursement or advancement of expenses may have or hereafter be entitled under any statute, this Certificate of Incorporation, the Bylaws, any agreement (including any policy of insurance purchased or provided by the Corporation under which directors, officers, employees and other agents of the Corporation are covered), flfly vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such offrce.

(d) The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this ARTICLE Xl shall continue as to a Person who has ceased to be a director or officer (or other Person indemnified hereunder) and shall inure to the benefit of the executors, administrators, legatees and distributees of such Person.

(e) The Corporation shall have the power to purchase and maintain insurance on behalf of any Person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, member, manager, employee or agent of an Other Entity, against any liability asserted against such Person and incurred by such Person in any such capacity, or arising out of such Person's status as such, whether or not the Corporation would have the power to indemnify such Person against such liability under the provisions of this ARTICLE XI, the Bylaws or under Section 145 of the DGCL or any other provision of law.

(0 The provisions of this ARTICLE XI shall be a contract between the Corporation, on the one hand, and each director and officer who serves in such capacity at any time while this ARTICLE XI is in effect and any other Person indemnified hereunder, on the other hand, pursuant to which the Corporation and each such director, officer or other Person intend to be legally bound. No repeal or modification of this ARTICLE XI shall affect any rights or obligations with respect to any state of facts then or theretofore existing or thereafter arising or any proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.

(g) The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this ARTICLE XI shall be enforceable by any Person entitled to such indemnification or reimbursement or advancement of expenses in any court of competent jurisdiction. Neither the failure of the Corporation (including its Board of 4

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Directors, its independent legal counsel and its stockholders) to have made a determination prior to the commencement of such action that such indemnification or reimbursement or advancement of expenses is proper in the circumstances nor an actual determination by the Corporation (including its Board of Directors, its independent legal counsel and its stockholders) that such Person is not entitled to such indemnification or reimbursement or advancement of expenses shall constitute a defense to the action or create a presumption that such Person is not so entitled. Such a Person shall also be indemnified, to the fullest extent permitted by [aw, for any expenses incurred in connection with successfully establishing his or her right to such indemnification or reimbursement or advancement of expenses, in whole or in part, in any such proceeding.

(h) Any director or officer of the Corporation serving in any capacity in (i) another corporation of which a majority of the shares entitled to vote in the election of its directors is held, directly or indirectly, by the Corporation or (ii) any employee benefit plan of the Corporation or any corporation referred to in clause (i) shall be deemed to be doing so at the request of the Corporation.

(i) Any Person entitled to be indemnified or to reimbursement or advancement of sxpenses as a matter of right pursuant to this ARTICLE XI may elect to have the right to indemnification or reimbursement or advancement of expenses interpreted on the basis of the applicable law in effect at the time of the occurrence of the event or events giving rise to the applicable Proceeding, to the extent permitted by law, or on the basis of the applicable law in effect at the time such indemnification or reimbursement or advancement of expenses is sought.

Such election shall be made, by a notice in writing to the Corporation, at the time indemnification or reimbursemsnt or advancement of expenses is sought; provided, however, that if no such notice is given, the right to indemnification or reimbursement or advancement of expenses shall be determined by the law in effect at the time indemnification or reimbursement or advancement of expenses is sought.

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IN WITNESS WHEREOF, this Certificate of Incorporation has been executedbyudulyauthorizedincorporatoroftheCorporationonthis-duyof-2019.

Name of Incorporator of the Corporation:

[Signature Page to Certificate of Incorporation]

4851-5584-7067 vZ 18-50757-amk Doc 2936-1 FILED ATDSlLg ENTERED 071231L9 23:1-1:29 Page 57 oI77

[AMENDED AND RESTATEDI LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF

[.], LLC This [Amended and Restated] Limited Liability Company Operating Agreement (this "Agreement") of [.], LLC, a Delaware limited liability company (the o'Compan!"), is entered into by [New HoldCo], a Delaware corporation, as the sole member of the Company (the "Membey), this [.] day of [.], 2019.

[WHEREAS, the Company previously entered into an Operating Agreement, dated as of

[.], 2012 (the "Prior LLC Agreement"); and WHEREAS, the Member desires to amend and restate the Prior LLC Agreement as set forth herein.

NOW, THEREFORE, it is hereby agreed that the Prior LLC Agreement shall be and hereby is amended and restated in its entirety asset forth below.]

1. Formationl Conversion. The Company was originally formed as a corporation under the laws of the State of Ohio on [.], 2000. The Company was converted to a limited liability company under the laws of the State of Ohio pursuant to the filing of a Certificate of Conversion and Articles of Organization with the Secretary of State of the State of Ohio on [.],

2012. The Company was converted to a limited liability company organized under the Delaware Limited Liability CompanyAct (6 Del. C. $$ l8-101, et seq.), as amended from time to time (the "Delaware Act") upon the execution and filing of the Certificate of Conversion and the Certificate of Formation with the office of the Secretary of State of the State of Delaware on [.],

2019.

2. Name. The name of the Company is [.] LLC. The business of the Company shall be conducted under such name or such other names that comply with applicable law as the Member may from time to time deem necessary or desirable.

3. Purpose and Powers. The purpose of the Company shall be to engage in any lawful business or activity for which limited liability companies may be formed under the Delaware Act and to engage in any and all activities necessary or incidental thereto. The Company shall possess and may exercise all of the powers and privileges granted by the Delaware Act or by any other law or by this Agreement, together with any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion or affainment of the purpose of the Company.

4. Registered Office and Registered Agent. The address of the registered agent of the Company in the State of Delaware is [.] and the name of the registered agent of the Company for service of process on the Company at such address is [r1.

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5. Memherg Interest. The Member is the sole member of the Company and agrees to be bound by the terms of this Agreement. The Member shall have the sole limited liability company interest (as defined in the Delaware Act) in the Company (the "fnturesf') and the respective other rights, powers, duties and obligations provided in the Delaware Act, except, to the extent permitted by the Delaware Act, as otherwise provided herein. The Company will not issue any certificates to evidence ownership of the Interest.

6. Prohibitions on Non-Voting Securities. For the avoidance of doubt, notwithstanding anything herein to the contrary, pursuant to Section I123(a)(6) of Title II of United States Code, the Company shall not issue non-voting equity securities; provided, however, that the foregoing restriction (a) shall have no further force or effect beyond that required under such Section 1123, (b) shall have such force and effect, if any, only for so long as such section is in effect and applicable to the Company and (c) in all events may be amended or eliminated in accordance with applicable law as from time to time in effect.

7. Capital Contribution. The Member shall not be obligated to make any capital contribution to the Company and the Interest held by the Member shall not be assessable by the Company.

8. Allocations and Distributions. The net profits and net losses of the Company, and other items of income, gain, loss, deduction and credit, will be allocated 100 percent to the Member for capital account and federal income tax purposes[, and the Company, as a separate entity, is to be disregarded for federal income tax purposes]. Subject to the Delaware Act, the Company shall make such distributions to the Member as the Board determines.

9. Management.

(a) Board of Manasers. The Company shall be managed by a Board of Managers (the "Boart') initially composed of three managers (each, a "Managef'). The initial Managers appointed by the Member are [.], [.J, and [.l.From time to time, the Member may elect additional Managers to serve on the Board. Each Manager is to serve until the earlier of their death, resignation or removal. The Member may remove or replace a Manager at any time. Any Manager may resign at any time by delivering their written resignation to the Member.

(b) Authority of the Board. Except as specifically reserved to the Member in this Agreement or as provided by the Delaware Act, the Board has all power and authority to manage, and to direct the management of, the business and affairs of the Company in the ordinary course of its business consistent with applicable law. Approval or action taken by the Board in accordance with this Agreement is the approval or action of the Company and is binding on each Manager and the Company. The Board may delegate to the officers, other employees and agents of the Company the authority to conduct the business of the Company in the ordinary course, in accordance with this Agreement and any policy of delegation which may be adopted and revised from time to time by the Board. Any power not delegated by the Board remains with the Board.

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(c) Board Meetings.

(i) All meetings of the Board may be held at any place that has been designated from time to time by resolution of the Board or in any notice properly given with respect to such meeting. In the absence of such a designation, regular meetings shall be held at the principal place of business of the Company. Any meeting, regular or special, may be held by conference telephone or similar communication equipment; provided, that all Managers participating in the meeting can hear one another, and all Managers participating by telephone or similar communication equipment shall be deemed to be present in person at the meeting.

(ii) Regular meetings of the Board shall be held at such times and at such places as shall be fixed by approval of the Managers. Such regular meetings may not be held without written notice.

(iii) Special meetings of the Board for any purpose or purposes may be called at any time by any of the Managers. Notice of the time and place of a special meeting shall be delivered personally to each Manager and sent by first class mail, by telegram, telecopy or email (or similar electronic means) or by nationally recognized overnight courier, charges prepaid, addressed to each Manager at that Manager's address as it is shown on the records of the Company. If the notice is mailed, it shall be deposited in the United States mail at least five business days before the date of the meeting. If the notice is delivered personally or by telegram, telecopy or email (or similar electronic means) or overnight courier, it shall be given at least 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> before the time of the holding of the meeting. Any notice of a special meeting shall be in writing and shall state generally the nature of the business to be transacted at such meeting.

(iv) The presence of at least two Managers shall constitute a quorum for the transaction of business. Every act done or decision made by the affirmative vote of the Managers holding a majority of the votes present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board, except to the extent that the vote of a higher number is required by the Delaware Act.

(v) Notice of any meeting need not be given to any Manager who either before or after the meeting signs a written waiver of notice or a consent to holding the meeting. The waiver of notice or consent shall specify the purpose of the meeting. All such waivers, consents and approvals shall be filed with the records of the Company.

Notice of a meeting shall also be deemed given to any Manager who attends the meeting without protesting at or prior to its commencement the lack of notice to that Manager.

(vi) Managers present at any meeting entitled to cast a majority of all votes entitled to be cast by such Managers, whether or not constituting a quorum, may adjourn any meeting to another time and place. Notice of the time and place of holding an adjourned meeting need not be given unless the meeting is adjoumed for more than 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />, in which case notice of the time and place shall be given before the time of the adjourned meeting in the manner specified in Section 9(cXiii).

a J

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(vii) Any action to be taken by the Board at a meeting may be taken without such meeting by the written consent of a majority of the Managers entitled to act at such meeting; provided, that written notice of such actions shall be provided to each Manager no more than 30 days after the date on which such actions became effective. Any such written consent may be executed and given by telecopy, email or similar electronic means.

(d) Officers Dele on ofA . The Board may, from time to time, designate one or more officers with such titles as may be designated by the Board to act in the name of the Company with such authority as may be delegated to such officers by the Board (each such designated person, an "Officef'). Any such Officer shall act pursuant to such delegated authority until such Officer is removed by the Board. Any action taken by an Officer designated by the Board pursuant to authority delegated to such Officer shall constitute the act of and serve to bind the Company. Persons dealing with the Company are entitled to rely conclusively on the power and authority of any officer set forth in this Agreement and any instrument designating such officer and the authority delegated to him or her.

10. Transfer of Interest; Admission of Additional Members. The Member may assign its Interest in whole or in part at any time. Upon assignment of the Member's entire Interest to a transferee, the transferee shall automatically be deemed admified to the Company as a substituted member of the Company, the Member shall simultaneously be deemed to have resigned from the Company as a member of the Company, and the Company shall continue without dissolution (and all applicable references herein to the "Member" shall be read as references to the transferee as the substituted member of the Company); provided, in any event, that the transferee must agree in a document or instrument to be bound by the terms of this Agreement. One or more additional members of the Company may be admitted to the Company with the consent of the Board. Upon the admission to the Company of any additional member(s),

the members of the Company shall cause this Agreement to be amended and restated to reflect the admission of such additional member(s) and the initial capital contribution, if any, of such additional member(s) and the intention of the members to cause the Company to be classified as a partnership or corporation for federal income tax purposes, and to include such other provisions as the members may agree to reflect the change of status of the Company from a single member limited liability company to a limited liability company with two or more members.

11. Resignation of Members; Events of Bankruptcy. Except as provided in the mandatory provisions of the Delaware Act and pursuant to the second sentence of Section 10, no right is given to any member of the Company to resign from the Company. The Member sha((

not cease to be a member of the Company upon the happening of any of the events specified in Section l8-304 of the Delaware Act.

12. Dissolution and Term of the Company. The Company shall dissolve upon any act or event causing the dissolution of the Company under the Delaware Act, unless, if permitted by the Delaware Act, the Company is continued in accordance with the Delaware Act. Subject to an earlier dissolution as described in the preceding sentence, the Company shall have a perpetual existence.

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13. Limitation of Liability and Indemnification of Memher.

(a) Except as otherwise required by the Delaware Act, the Member shall not be liable for the debts, obligations or liabilities of the Company, whether arising in contract, tort, or otherwise, solely by reason of being a member of the Company.

(b) The Member shall not be liable to the Company or to any other member of the Company or other person or entity who may become a party to or bound by this Agreement for any breach of this Agreement or of any duties (including fiduciary duties) arising under or in connection with this Agreement or the Company other than for any act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing.

(c) To the extent not prohibited by law, the Company shall indemnify any individual, partnership, corporation, unincorporated organization, joint stock company, limited liability company, limited liability partnership, limited liability limited partnership, association, trust or joint venture, or governmental agency or political subdivision thereof ("Person") who is or was made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding (a "Proceeding"), whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the Company to procure a judgment in its favor, by reason of the fact that such Person, or a Person of whom such Person is the legal representative, is or was a manager or officer of the Company, or is or was serving as a director, officer, manager, member, employee or agent or in any other capacity at the request of the Company, for any other coqporation, company, partnership, joint venture, trust, employee benefit plan or other enterprise (an "Other Entity") while serving as a manager or officer of the Company, against judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and expenses (including attorneys' fees and disbursements) actually and reasonably incurred by such Person in connection with such Proceeding, if such Person acted in good faith and in a manner such Person believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. To the extent specified by the Board at any time and to the extent not prohibited by law, the Company may indemnify any Person who is or was made, or threatened to be made, a party to any threatened, pending or completed Proceeding, whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the Company to procure a judgment in its favor, by reason of the fact that such Person is or was an employee or agent of the Company, or is or was serving as a director, officer, manager, member, employee or agent or in any other capacity at the request of the Company for any Other Entity, against judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and expenses (including attorneys' fees and disbursements) actually and reasonably incurred by such Person in connection with such Proceeding, if such Person acted in good faith and in a manner such Person believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.

(d) The Company shall, from time to time, reimburse or advance to any manager or officer or other Person entitled to indemnification hereunder the funds necessary for payment of expenses, including attorneys' fees and disbursements, incurred in connection with any 5

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Proceeding, in advance of the final disposition of such Proceeding; provided, however, that, if required by the Delaware Act, such expenses incurred by or on behalf of any manager or officer or other Person may be paid in advance of the final disposition of a Proceeding only upon receipt by the Company of an undertaking by or on behalf of such manager or officer (or other such irrdemnified person) to repay any such amount so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal that such manager, officer or other Person is not entitled to be indemnified for such expenses.

(e) The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section l3 shall not be deemed exclusive of any other rights to which a Person seeking indemnification or reimbursement or advancement of expenses may have or hereafter be entitled under any statute, this Agreement, any agreement (including any policy of insurance purchased or provided by the Company under which managers, officers, employees and other agents of the Company are covered), dfly vote of the Members or disinterested managers or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.

(f) The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section 13 shall continue as to a Person who has ceased to be a manager or officer (or other Person indemnified hereunder) and sha(( inure to the benefit of the executors, administrators, legatees and distributees of such Person.

(g) The Company sha(( have the power to purchase and maintain insurance on behalf of any Person who is or was a manager, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, member, manager, employee or agent of an Other Entity, against any liability asserted against such Person and incumed by such Person in any such capacity, or arising out of such Person's status as such, whether or not the Company would have the power to indemnify such Person against such liability under the provisions of this Section 13 or any provision of law.

(h) The provisions of this Section l3 shall be a contract between the Company, on the one hand, and each manager and officer who serves in such capacity at any time while this Section l3 is in effect and any other Person indemnified hereunder, on the other hand, pursuant to which the Company and each such manager, officer or other Person intend to be legally bound. No repeal or modification of this Sect-i.on 13 shall affect any rights or obligations with respect to any state of facts then or theretofore existing or thereafter arising or any proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.

(i) The rights to indemnification and reimbursement or advancement of expsnses provided by, or granted pursuant to, this Section 13 shall be enforceable by any Person entitled to such indemnification or reimbursement or advancement of expenses in any court of competent jurisdiction. Neither the failure of the Company (including its Board, its independent legal counsel and its Members) to have made a determination prior to the commencement of such action that such indemnification or reimbursement or advancement of expenses is proper in the circumstances nor an actual determination by the Company (including its Board, its independent legal counsel and its Members) that such Person is not entitled to such indemnification or 6

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reimbursement or advancement of expenses shall constitute a defense to the action or create a presumption that such Person is not so entitled. Such a Person shall also be indemnified, to the fullest extent permitted by law, for any expenses incurred in connection with successfully establishing his or her right to such indemnification or reimbursement or advancement of expenses, in whole or in part, in any such proceeding.

(j) Any manager or officer of the Company serving in any capacity in (i) another corporation of which a majority of the shares entitled to vote in the election of its directors is held, directly or indirectly, by the Company or (ii) any employee benefit plan of the Company or any corporation referred to in clause (i) shall be deemed to be doing so at the request of the Company.

(k) Any Person entitled to be indemnified or to reimbursement or advancement of expenses as a matter of right pursuant to this Section 13 may elect to have the right to indemnification or reimbursement or advancement of expenses interpreted on the basis of the applicable law in effect at the time of the occurrence of the event or events giving rise to the applicable Proceeding, to the extent permiued by law, or on the basis of the applicable law in effect at the time such indemnification or reimbursement or advancement of expenses is sought.

Such election shall be made, by a notice in writing to the Company, at the time indemnification or reimbursement or advancement of expenses is sought; provided, however, that if no such notice is given, the right to indemnification or reimbursement or advancement of expenses shall be determined by the law in effect at the time indemnification or reimbursement or advancement of expenses is sought.

14. Amendment. Amendments to this Agreement may be made only with the written consent of the Member.

15. Governing Law. This Agreement shall be govemed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law principles.

16. Severability. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof; provided that if any provision of this Agreement, as applied to any party or to any circumstance, is judicially determined not to be enforceable in accordanse with its terms, the court judicially making such determination may modify the provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases, and in its modified form, such provision will then be enforceable and will be enforced.

ll. Effectiveness. This Agreement sha(( be effective as of the date set forth above.

t,Nst:f {c 7

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IN WITNESS WHEREOF, the undersigned has executed this [Amended and Restated]

Limited Liability Company Agreement as of the date first written above.

SOLE MEMBER:

IFES NEWCOI By:

Name:

Title:

[Sigrrature Page to I Amended and Restated] Limited Liability Company Operating Agreement of [.], LLCI 1-B-50757-amk Doc 2936-1 FILED 07123119 ENTERED A7123/19 23:1L:29 Page 65 of 77

Attachment 6 L-19-182 List of Regulatory Commitments Page 1 of 1 The following list identifies those actions committed to by FirstEnergy Nuclear Operating Company (FENOC) for the Beaver Valley Power Station, Unit Nos. 1 and 2; Davis-Besse Nuclear Power Station, Unit 1; and Perry Nuclear Power Plant, Unit 1 in this document.

Any other actions discussed in the submittal represent intended or planned actions by FENOC. They are described only as information and are not Regulatory Commitments.

Please notify Mr. Thomas A. Lentz, Manager, FENOC Nuclear Licensing and Regulatory Affairs, at (330) 315-6810 of any questions regarding this document or associated Reg u latory Com m itments.

TYPE SCHEDULED ONE-TIME REGULATORY COMMITMENT CONTINUING COMPLETION ACTION COMPLIANGE DATE

1. FENOC will provide the NRC the x Prior to final legal names of New HoldCo, consummation of OwnerCo, and OpCo. license transfer.

2. A supplement to the Application x Prior to that provides updated August 30, 2019.

organization information will be submitted.