As filed with the Securities and Exchange Commission on
November 5, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRSTENERGY CORP.
(Exact Name of Registrant as Specified in Its Charter)
Ohio 34-1843785
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
76 South Main Street
Akron, Ohio 44308
(Address of Principal Executive Offices, Including Zip Code)
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GPU Companies Employee Savings Plan for Nonbargaining Employees
GPU Companies Employee Savings Plan for Employees Represented by
IBEW System Council U-3
GPU Companies Employee Savings Plan for Employees Represented by
IBEW Local 459 and UWUA Local 180
GPU Companies Employee Savings Plan for Employees Represented by
IBEW Local 777
(Full Title of the Plan)
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Nancy C. Ashcom Copy to:
Corporate Secretary Edward W. Moore, Esq.
FirstEnergy Corp. Calfee, Halter & Griswold LLP
76 South Main Street 1400 McDonald Investment Center
Akron, Ohio 44308 800 Superior Avenue
(330) 384-5504 Cleveland, Ohio 44114
(216) 622-8200
(Name, Address and Telephone Number, Including Area Code, of Agent for
Service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To Be To Be Price Per Offering Registration
Registered(1) Registered(2) Share (3) Price Fee
------------- ------------ --------- ------- --------------
Common stock,
par value
$0.10 per 707,000
share shares $34.01 $24,045,070 $6,012
(1) Includes rights to purchase shares of common stock ("Share
Purchase Rights") under FirstEnergy Corp.'s Rights Agreement
that, prior to the occurrence of certain events, will not be
exercisable or evidenced separately from the shares of
common stock. In addition, pursuant to Rule 416(c) under
the Securities Act of
1933, as amended (the "Securities Act"), this registration
statement also covers an indeterminate amount of interests
issuable under the employee benefit plans described above.
(2) This Registration Statement also covers additional
securities that may be issued with respect to these shares
in connection with, or as a result of, stock splits, stock
dividends or similar transactions.
(3) Estimated in accordance with Rule 457(c) and (h) under the
Securities Act solely for the purpose of calculating the
registration fee and based upon the average of the high and
low prices of FirstEnergy Corp. common stock reported on the
New York Stock Exchange on October 30, 2001.
EXPLANATORY NOTE
FirstEnergy Corp., an Ohio corporation (the "Company"), is filing
this Registration Statement on Form S-8 relating to its common stock, par
value $0.10 per share, issuable under each of the employee benefit plans
listed below (collectively, the "Plans").
Under the terms of the Agreement and Plan of Merger, dated as of
August 8, 2000, between the Company and GPU, Inc., a Pennsylvania
corporation ("GPU"), GPU will be merged into the Company (the "Merger").
As a result of the Merger, interests in the Company's common stock may be
offered to participants under the terms of the Plans upon or after the
Merger.
This Registration Statement relates to the Company's common stock
issuable under the terms of the Plans as follows:
- 419,000 shares issuable under the GPU Companies Employee
Savings Plan for Nonbargaining Employees;
- 74,000 shares issuable under the GPU Companies Employee
Savings Plan for Employees Represented by IBEW System
Council U-3;
- 76,000 shares issuable under the GPU Companies Employee
Savings Plan for Employees Represented by IBEW Local 459
and UWUA Local 180; and
- 138,000 shares issuable under the GPU Companies Employee
Savings Plan for Employees Represented by IBEW Local 777.
In addition, the Registration Statement relates to an indeterminate
amount of interests issuable under each Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by the Company or the
Plans with the Securities and Exchange Commission (the "Commission") are
incorporated by reference in this Registration Statement:
(1) The Company's Annual Report on Form 10-K for the year
ended December 31, 2000, as amended;
(2) The Company's Quarterly Reports on Form 10-Q for the
quarters ended June 30, 2001 and March 31, 2001;
(3) The Company's Current Report on Form 8-K, dated
October 29, 2001;
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(4) The Company's Current Report on Form 8-K, dated
October 18, 2001;
(5) The Annual Report on Form 11-K of the GPU Companies
Employee Savings Plan for Nonbargaining Employees for
the year ended December 31, 2000;
(6) The Annual Report on Form 11-K of the GPU Companies
Employee Savings Plan for Employees Represented by
IBEW System Council U-3 for the year ended December
31, 2000;
(7) The Annual Report on Form 11-K of the GPU Companies
Employee Savings Plan for Employees Represented by
IBEW Local 459 and UWUA Local 180 for the year ended
December 31, 2000;
(8) The Annual Report on Form 11-K of the GPU Companies
Employee Savings Plan for Employees Represented by
IBEW Local 777 for the year ended December 31, 2000;
(9) The description of the Company's common stock
contained in the Company's Registration Statement on
Form S-4, Amendment No. 1 (Registration No. 333-
46444), filed with the Commission on October 13, 2000,
and any amendment or report filed for the purpose of
updating such description; and
(10) The description of the Share Purchase Rights of the
Company contained in the Company's Current Report on
Form 8-K, dated November 18, 1997, and any amendment
or report filed for the purpose of updating that
description.
All documents filed by the Company or the Plans with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), subsequent to the
filing of this Registration Statement and prior to the filing of a post-
effective amendment to this Registration Statement which indicates that
all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and made a part hereof from
their respective dates of filing (such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated
Documents").
Any statement contained in an Incorporated Document shall be deemed
to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other
subsequently filed Incorporated Document modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
The validity of the Company's common stock being registered will be
verified by Leila L. Vespoli, Esq., the Company's Vice President and
General Counsel. As of October 10, 2001, Ms. Vespoli owned 3,682 shares
of the Company's common stock.
Item 6. Indemnification of Directors and Officers.
Section 1701.13(E) of Title 17 of the Ohio Revised Code gives a
corporation incorporated under the laws of Ohio power to indemnify any
person who is or has been a director, officer, employee or agent of that
corporation, or of another corporation at the request of that
corporation, against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection
with any threatened, pending or completed action, suit or proceeding,
criminal or civil, to which he or she is or may be made a party because
of being or having been such director, officer, employee or agent,
provided that in connection therewith, such person is determined to have
acted in good faith in what he or she reasonably believed to be in or
not opposed to the best interest of the corporation of which he or she
is a director, officer, employee or agent and without reasonable cause,
in the case of a criminal matter, to believe that his or her conduct was
unlawful. The determination as to the conditions precedent to the
permitted indemnification of such person is made by the directors of the
indemnifying corporation acting at a meeting at which, for that purpose,
any director who is a party to or is threatened with any such action,
suit or proceeding may not be counted in determining the existence of a
quorum and may not vote. If, because of the foregoing limitations, the
directors are unable to act in this regard, such determination may be
made by the majority vote of the corporation's voting shareholders, by
judicial proceeding or by written opinion of legal counsel not retained
by the corporation or any person to be indemnified during the five years
preceding the date of the determination.
Section 1701.13(E) of Title 17 of the Ohio Revised Code further
provides that the indemnification thereby permitted shall not be
exclusive of, and shall be in addition to, any other rights that
directors, officers, employees or agents have, including rights under
insurance purchased by the corporation.
Regulation 31 of the Company's Amended Code of Regulations provides
as follows:
The Company shall indemnify, to the full extent then permitted by
law, any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a member of the Board of
Directors or an officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, trustee, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise. The Company shall pay, to the full extent
then required by law, expenses, including attorney's fees, incurred by a
member of the Board of Directors in defending any such action, suit or
proceeding as they are incurred, in advance of the final disposition
thereof, and may pay, in the same manner and to the full extent then
permitted by law, such expenses incurred by any other person. The
indemnification and payment of expenses provided hereby shall not be
exclusive of, and shall be in addition to, any other rights granted to
those seeking indemnification under any law, the Articles of
Incorporation, any agreement, vote of shareholders or disinterested
members of the Board of Directors, or otherwise, both as to action in
official capacities and as to action in another capacity while he or she
is a member of the
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Board of Directors, or an officer, employee or agent of the Company, and
shall continue as to a person who has ceased to be a member of the Board
of Directors, trustee, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Regulation 32 of the Company's Amended Code of Regulations provides
as follows:
The Company may, to the full extent then permitted by law and
authorized by the Board of Directors, purchase and maintain insurance or
furnish similar protection, including but not limited to trust funds,
letters of credit or self-insurance, on behalf of or for any persons
described in Regulation 31 against any liability asserted against and
incurred by any such person in any such capacity, or arising out of his
status as such, whether or not the Company would have the power to
indemnify such person against such liability. Insurance may be
purchased from or maintained with a person in which the Company has a
financial interest.
Regulation 33 of the Company's Amended Code of Regulations provides
as follows:
The Company, upon approval by the Board of Directors, may enter
into agreements with any persons whom the Company may indemnify under
the Amended Code of Regulations or under law and undertake thereby to
indemnify such persons and to pay the expenses incurred by them in
defending any action, suit or proceeding against them, whether or not
the Company would have the power under law or the Amended Code of
Regulations to indemnify any such person.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
The Company hereby undertakes that it will submit or has submitted
each of the Plans and any amendments thereto to the Internal Revenue
Service in a timely manner and has made or will make all changes
required by the Internal Revenue Service in order to qualify such Plans
under Section 401 of the Internal Revenue Code of 1986, as amended.
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this
Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a
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fundamental change in the information set forth in
this Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation
of Registration Fee" table in this effective
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this Registration Statement or any
material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Company pursuant to Sections 13 or
15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-
effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense
of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, as amended, the Company certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on
Form S-8 and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Akron, State of Ohio, on this 5th day of November, 2001.
FIRSTENERGY CORP.
By: /s/ Nancy C. Ashcom
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Nancy C. Ashcom
Corporate Secretary (Duly
Authorized Officer)
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the
following persons in the capacities indicated on this 5th day of
November, 2001.
Signature Title
----------*---------- Chairman of the Board, Chief
H. Peter Burg Executive Officer and Director
(Principal Executive Officer)
----------*---------- President and Director
Anthony J. Alexander
----------*---------- Vice President and Chief
Richard H. Marsh Financial Officer
(Principal Financial Officer)
----------*---------- Controller
Harvey L. Wagner (Principal Accounting Officer)
----------*---------- Director
Dr. Carol A. Cartwright
----------*---------- Director
William F. Conway
----------*---------- Director
Robert B. Heisler, Jr.
----------*---------- Director
Robert L. Loughhead
----------*---------- Director
Russell W. Maier
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----------*---------- Director
Paul J. Powers
----------*---------- Director
Robert C. Savage
----------*---------- Director
George M. Smart
----------*---------- Director
Jesse T. Williams, Sr.
*By: /s/ Nancy C. Ashcom
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Nancy C. Ashcom
Attorney-in-Fact
The Plans. Pursuant to the requirements of the Securities Act of
1933, as amended, the trustees (or other persons who administer the
employee benefit plans) have duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Morristown, State of New Jersey, on this 5th day of
November, 2001.
GPU COMPANIES EMPLOYEE SAVINGS
PLAN FOR NONBARGAINING EMPLOYEES
By: /s/ C. B. Snyder
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C. B. Snyder
Chairperson
Administrative Committee
GPU COMPANIES EMPLOYEE SAVINGS
PLAN FOR EMPLOYEES
REPRESENTED BY IBEW SYSTEM
COUNCIL U-3
By: /s/ C. B. Snyder
----------------
C. B. Snyder
Chairperson
Administrative Committee
8
GPU COMPANIES EMPLOYEE SAVINGS
PLAN FOR EMPLOYEES
REPRESENTED BY IBEW LOCAL 459
AND UWUA LOCAL 180
By: /s/ C. B. Snyder
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C. B. Snyder
Chairperson
Administrative Committee
GPU COMPANIES EMPLOYEE SAVINGS
PLAN FOR EMPLOYEES
REPRESENTED BY IBEW LOCAL 777
By: /s/ C. B. Snyder
----------------
C. B. Snyder
Chairperson
Administrative Committee
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EXHIBIT INDEX
Exhibit No. Description of Document
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4(a) Amended Articles of Incorporation of FirstEnergy
Corp. (physically filed and designated in the
Registration Statement on Form S-4 (Registration
No. 333-21011) as Exhibit (3)-1).*
4(b) Amended Code of Regulations of FirstEnergy Corp.
(physically filed and designated in the
Registration Statement on Form S-4 (Registration
No. 333-21011) as Exhibit (3)-2).*
4(c) Form of Common Stock Certificate (physically filed
and designated in the Registration Statement on
Form S-3/A (Registration No. 333-40063) as Exhibit
4(c)).*
4(d) Rights Agreement, dated as of November 18, 1997,
between FirstEnergy Corp. and The Bank of New York
and form of Right Certificate (physically filed
and designated in the Current Report on Form 8-K,
dated November 18, 1997, as Exhibit 4.1).*
5 Opinion of Leila L. Vespoli, Esq., Vice President
and General Counsel for the Company, as to the
validity of the Company's common stock being
registered. (x)
15 Letter of Arthur Andersen LLP to the Company
regarding unaudited interim financial information.
(x)
23(a) Consent of Leila L. Vespoli, Esq. (included in
Exhibit 5).
23(b) Consent of Independent Public Accountants, Arthur
Andersen LLP. (x)
23(c) Consent of Independent Accountants, Milligan &
Company, LLC. (x)
24 Power of Attorney. (x)
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* Incorporated herein by reference.
(x) Filed herewith.
E-1