SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
In the Matter of |
FirstEnergy Corp. |
| File Nos. 70-9793 and 70-9941
(Public Utility Holding |
Company Act of 1935) |
---------------------------------
CERTIFICATE OF NOTIFICATION
This Certificate of Notification is filed by FirstEnergy Corp.
("FirstEnergy"), an Ohio corporation, in connection with the following
transactions proposed in FirstEnergy's Applications/Declarations on Form U-1, as
amended (the "Applications-Declarations"), and authorized by Order of the
Securities and Exchange Commission (the "Commission") dated October 29, 2001
(the "Order"), pursuant to the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act"), in File Nos. 70-9793 and 70-9941 (Release No.
35-27459). Capitalized terms used herein without definition have the meaning
ascribed to them in the Applications-Declarations or the Agreement and Plan of
Merger dated as of August 8, 2000 between GPU, Inc. ("GPU") and FirstEnergy.
FirstEnergy hereby certifies pursuant to Rule 24:
i) That FirstEnergy acquired all of the issued and outstanding
common stock of Northeast Ohio Natural Gas Corp. ("NONGC") and that the NONGC
stock is held by FirstEnergy's wholly-owned subsidiary MARBEL Energy
Corporation, which is exempt from all requirements of the 1935 Act, except for
section 9(a)(2) thereof pursuant to section 3(a)(1) and Rule 2 thereunder.
ii) That FirstEnergy acquired all of the issued and outstanding
common stock of GPU, which thereafter merged with and into FirstEnergy and
ceased to exist.
iii) That FirstEnergy has paid in cash for 50%, and issued of its
common stock in exchange for 50%, of the shares of common stock of GPU
outstanding at the time of the Merger.
iv) That FirstEnergy acquired through the Merger directly all of the
issued and outstanding voting securities of the GPU Energy Companies and
indirectly acquired all of the issued and outstanding voting securities of York
Haven Power Company and Waverly Electric Power & Light Company.
v) That FirstEnergy continues to provide, at cost as defined in
Rules 90 and 91, services to affiliates including the Utility Subsidiaries
during an interim period ending on or before February 1, 2003, at which time all
such services will be provided by FirstEnergy Service Company.
vi) That FirstEnergy retains directly or indirectly FirstEnergy's
and GPU's non-utility businesses existing as of October 29, 2001, as set forth
in the Applications-Declarations.
vii) That except with respect to financing transactions, which will
be reported as set out in the Order, the transactions described in the
Applications-Declarations have been completed.
Attached hereto as Exhibits F-2.1 - F-2.5 and Exhibit D-2 are past tense
opinions of counsel to FirstEnergy with respect to the
Applications-Declarations.
SIGNATURE
Pursuant to the requirements of the 1935 Act, the undersigned company
has duly caused this document to be signed on its behalf by the undersigned
thereunto duly authorized.
FirstEnergy Corp.
By: /s/ Leila L. Vespoli
-------------------------------
Leila L. Vespoli
Senior Vice President and General Counsel
Dated: November 7, 2001
EXHIBIT D-2
FirstEnergy Corp.
76 South Main Street
Akron, Ohio 44308
Phone: 330-384-5800
November 7, 2001
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: FirstEnergy Corp. and Northeast Ohio Natural Gas Corp.; SEC File
No. 70-9941
Ladies and Gentlemen:
I refer to the Application-Declaration on Form U-1 in File No. 70-9941,
as amended (the "Application"), under the Public Utility Holding Company Act of
1935 (the "Act"), filed by FirstEnergy Corp, an Ohio corporation ("FirstEnergy")
and a registered holding company under the Act, which sought authority for the
acquisition (the "Transaction") by FirstEnergy of all the issued and outstanding
voting securities of Northeast Ohio Natural Gas Corp., an Ohio corporation
("NONGC"). The Transaction was authorized by order of the Securities and
Exchange Commission (the "Commission"), dated October 29, 2001, Release No.
35-27459 (the "Commission Order").
I am Senior Vice President and General Counsel of FirstEnergy and have
acted as such in connection with the filing of the Application. All capitalized
terms used herein, but not defined herein, shall have the meaning ascribed to
them in the Application.
In connection with this opinion, I (or persons under my supervision or
control) have examined the Application and the exhibits thereto and originals,
or copies certified to my satisfaction, of such corporate records of the
FirstEnergy and NONGC, certificates of public officials, orders of regulatory
bodies having jurisdiction over aspects of the Transaction including the
Commission Order, certificates of officers and representatives of FirstEnergy,
and NONGC and such other documents, records and matters of law as I have deemed
necessary for the purposes of this opinion.
Based on the foregoing, and subject to the assumptions, qualifications
and limitations hereinafter specified, I am of the opinion that, for the
Transaction described in the Application and authorized by the Commission Order:
1. The laws of the State of Ohio applicable to the Transaction have
been complied with.
2. FirstEnergy and NONGC are validly organized and duly existing
corporations.
3. FirstEnergy has acquired all the outstanding common stock of
NONGC.
4. The consummation of the Transaction did not violate the legal
rights of the lawful holders of any securities issued by FirstEnergy or any
associate company of FirstEnergy.
This opinion in respect of the Transaction as described in the
Application and authorized by the Commission Order is subject to the following
assumptions or conditions:
(i) No opinions are expressed with respect to laws other
than those of the State of Ohio.
(ii) I have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as
originals and the conformity with the originals of all
documents submitted to us as copies. As to various
questions of fact material to such opinions I have, when
relevant facts were not independently established,
relied upon certificates by officers of FirstEnergy,
NONGC and other appropriate persons and statements
contained in the Application.
I hereby consent to the filing of this opinion as Exhibit D-2 to the
Application to be filed with the Certificate of Notification.
Respectfully yours,
/s/ Leila L. Vespoli
Leila L. Vespoli
Senior Vice President and General Counsel
2
EXHIBIT F-2.1
Jones, Day, Reavis & Pogue
77 West Wacker Drive
Suite 3500
Chicago, Illinois 60601
Phone: 312-782-3939
November 7, 2001
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: FirstEnergy Corp. and GPU, Inc.; SEC File No. 70-9793
Ladies and Gentlemen:
We refer to the Application-Declaration on Form U-1 in File No.
70-9793, as amended (the "Application"), under the Public Utility Holding
Company Act of 1935 (the "Act"), filed by FirstEnergy Corp, an Ohio corporation
("FirstEnergy") and a registered holding company under the Act, and certain
Subsidiaries of FirstEnergy and authorized by order of the Securities and
Exchange Commission (the "Commission") dated October 29, 2001 (the "Order")
granting authority for the following, all as more fully described in the
Application and the Order (the "Transactions"):
a. the acquisition by FirstEnergy of all the issued and outstanding
voting securities of the following U.S. electric utility
operating subsidiaries of GPU, Inc. ("GPU"): Jersey Central
Power & Light Company, a New Jersey corporation ("JCP&L"),
Pennsylvania Electric Company, a Pennsylvania corporation
("Penelec") and Metropolitan Edison Company, a Pennsylvania
corporation ("Met-Ed") and the indirect acquisition of York
Haven Power Company, a Pennsylvania corporation ("York Haven")
and Waverly Electric Power & Light Company, a Pennsylvania
corporation ("Waverly Electric"); such acquisition to be
accomplished through a merger (the "Merger") of GPU into
FirstEnergy pursuant to the terms of the Agreement and Plan of
Merger, dated as of August 8, 2000 (the "Merger Agreement"),
between FirstEnergy and GPU.
b. The issuance by FirstEnergy of its common stock in exchange for
50% of the shares of GPU common stock outstanding at the time
the Merger is completed, subject to a certain adjustments
described in the Merger Agreement. The Merger and the issuance
of common stock in connection therewith are referred to as the
"Merger Transactions."
c. Financing transactions by FirstEnergy, and in the limited
circumstances set out in the Application, by the Utility
Subsidiaries, in the amount of $8.0 billion (which includes the
common stock issued in the Merger) and related transactions (the
"Financings"), representing additions to capital, additional
equity securities, preferred securities and debt (which amount
includes debt required to finance the cash portion of the
Merger), in each case including refinancings which do not alter
outstanding capital but which will not count against the limits,
for the period beginning with the effective date of an order
issued pursuant to the Application and continuing to and
including June 30, 2003 (the "Authorization Period").
d. The issuance of 30 million shares of common stock under dividend
reinvestment and stock-based management incentive and employee
benefit plans pursuant to Sections 6(a) and 7 of the Act (the
"Plan Common Stock issuances").
e. The issuance of one purchase right (a "Right") together with
each share of FirstEnergy common stock issued in accordance with
the authority requested in the Application.
f. The issuance by FirstEnergy and the Subsidiaries of guarantees
(the "Guarantees") in an aggregate amount not to exceed $4.0
billion outstanding at any time in exposure.
g. The authorization and approval of intra-system guarantees, the
formation and operation of a utility money pool (the "Utility
Money Pool") and a non-utility money pool (the "Non-Utility
Money Pool"). The Financings, the Plan Common Stock issuances,
the Rights transactions, the Guarantees, the Utility Money Pool
transactions and Non-Utility Money Pool Transactions are
referred to as the "Securities Transactions."
We have acted as counsel to FirstEnergy in connection with the filing of
the Application. All capitalized terms used herein but not defined herein shall
have the meaning ascribed to them in the Application.
In connection with this opinion, we have examined the Application and
the exhibits thereto and the Merger Agreement, and originals, or copies
certified to our satisfaction, of such corporate records of FirstEnergy, GPU and
other entities, certificates of public officials, orders of regulatory bodies
having jurisdiction over aspects of the Transaction, certificates of officers
and representatives of FirstEnergy, GPU and other entities and such other
documents, records and matters of law as we have deemed necessary for the
purposes of this opinion.
Based on the foregoing, and subject to the assumptions, qualifications
and limitations hereinafter specified, we are of the opinion that:
1. FirstEnergy legally acquired pursuant to the Merger all the
outstanding common stock of JCP&L, Penelec and Met-Ed and the other Subsidiaries
of GPU in existence at the date of the Merger.
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2. The consummation of the Transactions did not violate the legal
rights of the lawful holders of any securities issued by FirstEnergy or any
associate company of FirstEnergy.
This opinion in respect of the Transactions as described in the
Application is subject to the following assumptions or conditions:
(i) The authorizations and approvals of the Transactions
given by the Boards of Directors and shareholders of
FirstEnergy and GPU remained in effect at the closings
thereof and the Financing Transactions shall have been
conducted in accordance with the applicable
authorizations and approvals.
(ii) The Transactions have been accomplished in accordance
with required approvals, authorizations, consents,
certificates and orders of all state and federal
commissions or regulatory authorities having
jurisdiction over any of the Transactions (including,
with respect to the Merger, the approval and
authorization of the Federal Energy Regulatory
Commission under the Federal Power Act, the Federal
Communications Commission under the Communications Act,
the Nuclear Regulatory Commission under the Atomic
Energy Act, the Pennsylvania Public Utility Commission
under the applicable laws of the Commonwealth of
Pennsylvania, the New Jersey Board of Public Utilities
under the applicable laws of New Jersey and the New York
Public Service Commission under laws of the State of New
York) and all such required approvals, authorizations,
consents, certificates, orders and registrations
remained in effect at the closings thereof.
(iii) With respect to those Transactions occurring after
FirstEnergy became subject to registration pursuant to
Section 5 of the Act and the rules of the Securities and
Exchange Commission thereunder, FirstEnergy has duly
registered with the Securities and Exchange Commission
as a holding company pursuant to Section 5 of the Act
and the rules of the Securities and Exchange Commission
thereunder.
(iv) The Merger has been completed in accordance with the
Merger Agreement; instruments of merger have been duly
and validly filed with the Secretaries of State of the
Commonwealth of Pennsylvania and State of Ohio,
respectively, and such other corporate formalities as
are required by the laws of such jurisdictions for the
consummation of the merger contemplated by the Merger
Agreement have been taken; and such merger became
effective in accordance with the laws of Pennsylvania
and Ohio, respectively.
(v) The parties have obtained all consents, waivers and
releases, if any, required for the Transactions under
all applicable governing corporate documents, contracts,
agreements, debt instruments, indentures, franchises,
licenses and permits.
-3-
(vi) The documentation necessary for the Financing
Transactions shall constitute the valid, binding and
enforceable obligations of the parties to such documents
other than the FirstEnergy or other issuer thereof (the
"Issuers") and each Issuer shall have received the
agreed upon consideration for the securities in
accordance with the authorizations and approvals
referred to in subparagraphs (i) and (iii) above.
(vii) A registration statement shall have been declared
effective under the Securities Act of 1933 or an
exemption from registration shall be applicable under
such act with respect to each Financing Transaction and
no stop order shall have been entered by the Securities
and Exchange Commission with respect thereto.
(viii) No opinions are expressed with respect to laws other
than those of the States of Ohio, New Jersey and New
York and the Commonwealth of Pennsylvania and U.S.
federal law. With respect to all matters governed by the
laws of the (1) State of Ohio, we have relied on the
opinion of Leila L. Vespoli, Vice President and General
Counsel of FirstEnergy, (2) the State of New Jersey, we
have relied on the opinion of Thelen, Reid & Priest LLP,
(3) the State of New York, we have relied on the opinion
of Whiteman Osterman & Hanna LLP and (4) the
Commonwealth of Pennsylvania, we have relied on the
opinion of Ryan, Russell, Ogden & Seltzer LLP, each
dated the date hereof.
(ix) We have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as
originals and the conformity with the originals of all
documents submitted to us as copies. As to various
questions of fact material to such opinions we have,
when relevant facts were not independently established,
relied upon certificates by officers of FirstEnergy, GPU
and other appropriate persons and statements contained
in the Application.
We hereby consent to the filing of this opinion as an exhibit to the
Application.
Respectfully yours,
JONES, DAY, REAVIS & POGUE
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EXHIBIT F-2.2
FirstEnergy Corp.
76 South Main Street
Akron, Ohio 44308
Phone: 330-384-5800
November 7, 2001
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: FirstEnergy Corp. and GPU, Inc.; SEC File No. 70-9793
Ladies and Gentlemen:
I refer to the Application-Declaration on Form U-1 in File No.
70-9793, as amended (the "Application"), under the Public Utility Holding
Company Act of 1935 (the "Act"), filed by FirstEnergy Corp, an Ohio corporation
("FirstEnergy") and a registered holding company under the Act, and certain
Subsidiaries of FirstEnergy and authorized by order of the Securities and
Exchange Commission (the "Commission") dated October 29, 2001 (the "Order")
granting authority for the following, all as more fully described in the
Application and the Order (the "Transactions"):
a. the acquisition by FirstEnergy of all the issued and outstanding
voting securities of the following U.S. electric utility
operating subsidiaries of GPU, Inc. ("GPU"): Jersey Central
Power & Light Company, a New Jersey corporation ("JCP&L"),
Pennsylvania Electric Company, a Pennsylvania corporation
("Penelec") and Metropolitan Edison Company, a Pennsylvania
corporation ("Met-Ed") and the indirect acquisition of York
Haven Power Company, a Pennsylvania corporation ("York Haven")
and Waverly Electric Power & Light Company, a Pennsylvania
corporation ("Waverly Electric"); such acquisition to be
accomplished through a merger (the "Merger") of GPU into
FirstEnergy pursuant to the terms of the Agreement and Plan of
Merger, dated as of August 8, 2000 (the "Merger Agreement"),
between FirstEnergy and GPU.
b. The issuance by FirstEnergy of its common stock in exchange for
50% of the shares of GPU common stock outstanding at the time
the Merger is completed, subject to a certain adjustments
described in the Merger Agreement. The Merger and the issuance
of common stock in connection therewith are referred to as the
"Merger Transactions."
c. Financing transactions by FirstEnergy, and in the limited
circumstances set out in the Application, by the Utility
Subsidiaries, in the amount of $8.0 billion (which includes the
common stock issued in the Merger) and related transactions (the
"Financings"), representing additions to capital, additional
equity securities, preferred securities and debt (which amount
includes debt required to finance the cash portion of the
Merger), in each case including refinancings which do not alter
outstanding capital but which will not count against the limits,
for the period beginning with the effective date of an order
issued pursuant to the Application and continuing to and
including June 30, 2003 (the "Authorization Period").
d. The issuance of 30 million shares of common stock under dividend
reinvestment and stock-based management incentive and employee
benefit plans pursuant to Sections 6(a) and 7 of the Act (the
"Plan Common Stock issuances").
e. The issuance of one purchase right (a "Right") together with
each share of FirstEnergy common stock issued in accordance with
the authority requested in the Application.
f. The issuance by FirstEnergy and the Subsidiaries of guarantees
(the "Guarantees") in an aggregate amount not to exceed $4.0
billion outstanding at any time in exposure.
g. The authorization and approval of intra-system guarantees, the
formation and operation of a utility money pool (the "Utility
Money Pool") and a non-utility money pool (the "Non-Utility
Money Pool"). The Financings, the Plan Common Stock issuances,
the Rights transactions, the Guarantees, the Utility Money Pool
transactions and Non-Utility Money Pool Transactions are
referred to as the "Securities Transactions."
I am Senior Vice President and General Counsel of FirstEnergy and have
acted as such in connection with the filing of the Application. All capitalized
terms used herein but not defined herein shall have the meaning ascribed to them
in the Application.
In connection with this opinion, I (or persons under my supervision or
control) have examined the Application and the exhibits thereto and the Merger
Agreement, and originals, or copies certified to my satisfaction, of such
corporate records of the FirstEnergy, GPU and other entities, certificates of
public officials, orders of regulatory bodies having jurisdiction over aspects
of the Transaction, certificates of officers and representatives of FirstEnergy,
GPU and other entities and such other documents, records and matters of law as I
have deemed necessary for the purposes of this opinion.
Based on the foregoing, and subject to the assumptions, qualifications
and limitations hereinafter specified, I am of the opinion that:
1. The laws of the State of Ohio applicable to the Transactions
will have been complied with.
2. FirstEnergy is a validly organized and duly existing
corporation.
3. The common stock issued by FirstEnergy in the Merger in exchange
for the common stock of GPU, and issued in any Financing Transaction, are,
respectively, will be validly issued, fully paid and nonassessable and the
holders thereof will be entitled to the rights and privileges appertaining
thereto set forth in the Amended Articles of Incorporation of FirstEnergy
4. Each debt, preferred or other security to be issued by any
Issuer in connection with any Financing Transaction will be a valid and binding
obligation of such Issuer in accordance with its terms.
5. FirstEnergy legally acquired pursuant to the Merger all the
outstanding common stock of JCP&L, Penelec and Met-Ed and the other Subsidiaries
of GPU in existence at the date of the Merger.
6. The consummation of the Transactions did not violate the legal
rights of the lawful holders of any securities issued by FirstEnergy or any
associate company of FirstEnergy.
This opinion in respect of the proposed Transactions as described in the
Application is subject to the following assumptions or conditions:
(i) The authorizations and approvals of the Transactions
given by the Boards of Directors and shareholders of
FirstEnergy and GPU remained in effect at the closings
thereof and the Financing Transactions shall have been
conducted in accordance with the applicable
authorizations and approvals.
(ii) Transactions have been accomplished in accordance with
required approvals, authorizations, consents,
certificates and orders of all state and federal
commissions or regulatory authorities having
jurisdiction over any of the Transactions (including,
with respect to the Merger, the approval and
authorization of the Federal Energy Regulatory
Commission under the Federal Power Act, the Federal
Communications Commission under the Communications Act,
the Nuclear Regulatory Commission under the Atomic
Energy Act, the Pennsylvania Public Utility Commission
under the applicable laws of the Commonwealth of
Pennsylvania, the New Jersey Board of Public Utilities
under the applicable laws of New Jersey, the New York
Public Service Commission under laws of the State of New
York and the Regulatory Entity of Provincial Public
Services of the Province of Salta, Argentina) and all
such required approvals, authorizations, consents,
certificates, orders and registrations remained in
effect at the closings thereof.
(iii) With respect to those Transactions occurring after
FirstEnergy became subject to registration pursuant to
Section 5 of the Act and the rules of the Securities and
Exchange Commission thereunder, FirstEnergy has duly
registered with the Securities and Exchange Commission
as a holding company pursuant to Section 5 of the Act
and the rules of the Securities and Exchange Commission
thereunder.
(iv) The Merger has been completed in accordance with the
Merger Agreement; instruments of merger shall have been
duly and validly filed with the Secretaries of State of
the Commonwealth of Pennsylvania and State of Ohio,
respectively, and such other corporate formalities as
are required by the laws of such jurisdictions for the
consummation of the merger contemplated by the Merger
Agreement have been taken; and such merger became
effective in accordance with the laws of Pennsylvania
and Ohio, respectively.
(v) The parties have obtained all consents, waivers and
releases, if any, required for the Transactions under
all applicable governing corporate documents, contracts,
agreements, debt instruments, indentures, franchises,
licenses and permits.
(vi) The documentation necessary for the Financing
Transactions shall constitute the valid, binding and
enforceable obligations of the parties to such documents
other than the FirstEnergy or other issuer thereof (the
"Issuers") and each Issuer shall have received the
agreed upon consideration for the securities in
accordance with the authorizations and approvals
referred to in subparagraph (iii) above.
(vii) A registration statement shall have been declared
effective under the Securities Act of 1933 or an
exemption from registration shall be applicable under
such act with respect to each Financing Transaction, and
no stop order shall have been entered by the Securities
and Exchange Commission with respect thereto.
(viii) No opinions are expressed with respect to laws other
than those of the State of Ohio. I understand that
Jones, Day, Reavis & Pogue will rely on this opinion in
giving its opinion with respect to the subject matter
hereof and I hereby consent to such reliance.
(ix) No stop order has been entered by the Securities and
Exchange Commission with respect to the Registration
Statement on Form S-4 (File No. 333-46444); and the
issuance of shares of FirstEnergy common stock in
connection with the Merger shall have been consummated
in compliance with the Securities Act of 1933 and the
rules and regulations thereunder.
(x) JCP&L will have received all necessary approvals, if
any, from the BPU prior to entering into any financing
transaction, participating in the Utility Money Pool or
entering into any Anticipatory Hedge or any other
interest rate management device, as more fully described
in the Application.
(xi) I have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as
originals and the conformity with the originals of all
documents submitted to us as copies. As to various
questions of fact material to such opinions I have, when
relevant facts were not independently established,
relied upon certificates by officers of FirstEnergy, GPU
and other appropriate persons and statements contained
in the Application.
I hereby consent to the filing of this opinion as an exhibit to the
Application.
Respectfully yours,
/s/ Leila L. Vespoli
Leila L. Vespoli
Senior Vice President and General Counsel
FirstEnergy Corp.
EXHIBIT F-2.3
Whiteman Osterman & Hanna LLP
One Commerce Plaza
Albany, New York 12260
Phone: 518-487-7600
November 7, 2001
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: FirstEnergy Corp. and GPU, Inc.; SEC File No. 70-9793
Ladies and Gentlemen:
We refer to the Application-Declaration on Form U-1 in File No.
70-9793, as amended (the "Application"), under the Public Utility Holding
Company Act of 1935 (the "Act"), filed by FirstEnergy Corp, an Ohio corporation
("FirstEnergy") and a registered holding company under the Act, and certain
Subsidiaries of FirstEnergy and authorized by order of the Securities and
Exchange Commission (the "Commission") dated October 29, 2001 (the "Order")
granting authority for the following, all as more fully described in the
Application and the Order (the "Transactions"):
a. The acquisition by FirstEnergy of all the issued and outstanding
voting securities of the following U.S. electric utility
operating subsidiaries of GPU, Inc. ("GPU"): Jersey Central
Power & Light Company, a New Jersey corporation ("JCP&L"),
Pennsylvania Electric Company, a Pennsylvania corporation
("Penelec") and Metropolitan Edison Company, a Pennsylvania
corporation ("Met-Ed") and the indirect acquisition of York
Haven Power Company, a Pennsylvania corporation ("York Haven")
and Waverly Electric Power & Light Company, a Pennsylvania
corporation ("Waverly Electric"); such acquisition to be
accomplished through a merger (the "Merger") of GPU into
FirstEnergy pursuant to the terms of the Agreement and Plan of
Merger, dated as of August 8, 2000 (the "Merger Agreement"),
between FirstEnergy and GPU.
b. certain financing transactions by FirstEnergy, and in the
limited circumstances set out in the Application, by the Utility
Subsidiaries, in the amount of $8.0 billion; and
c. the authorization and approval of certain guarantees and the
formation and operation of a utility money pool (the "Utility
Money Pool") and a non-utility money pool (the "Non-Utility
Money Pool").
We have acted as counsel to FirstEnergy and GPU in connection with the
filing of the Application. All capitalized terms used herein but not defined
herein shall have the meaning ascribed to them in the Application.
In connection with this opinion, we have examined the Application and
the exhibits thereto and the Merger Agreement, and originals, or copies
certified to our satisfaction, of such corporate records of the FirstEnergy, GPU
and other entities, certificates of public officials, orders of regulatory
bodies having jurisdiction over aspects of the Transactions, certificates of
officers and representatives of FirstEnergy, GPU and other entities and such
other documents, records and matters of law as we have deemed necessary for the
purposes of this opinion.
Based on the foregoing, and subject to the assumptions, qualifications
and limitations hereinafter specified, we are of the opinion that the laws of
the State of New York applicable to the Transactions have been complied with.
This opinion in respect of the proposed Transactions as described in the
Application is subject to the following assumptions or conditions:
(i) The authorizations and approvals of the Transactions
given by the Boards of Directors and shareholders of
FirstEnergy and GPU remained in effect at the closings
thereof and the Financing Transactions shall have been
conducted in accordance with the applicable
authorizations and approvals.
(ii) The Transactions shall have been accomplished in
accordance with required approvals, authorizations,
consents, certificates and orders of all state and
federal commissions or regulatory authorities having
jurisdiction over any of the Transactions (including,
with respect to the Merger, the approval and
authorization of the Federal Energy Regulatory
Commission under the Federal Power Act, the Nuclear
Regulatory Commission under the Atomic Energy Act, the
Pennsylvania Public Utility Commission under the
applicable laws of the Commonwealth of Pennsylvania, the
New Jersey Board of Public Utilities under the
applicable laws of New Jersey and the New York Public
Service Commission under laws of the State of New York)
and all such required approvals, authorizations,
consents, certificates, orders and registrations
remained in effect at the closings thereof.
(iii) With respect to those Transactions occurring after
FirstEnergy became subject to registration pursuant to
Section 5 of the Act and the rules of the Securities and
Exchange Commission thereunder, FirstEnergy has duly
registered with the Securities and Exchange Commission
as a holding company pursuant to Section 5 of the Act
and the rules of the Securities and Exchange Commission
thereunder.
(iv) The Merger has been completed in accordance with the
Merger Agreement; instruments of merger shall have been
duly and validly filed with the Secretaries of State of
the Commonwealth of Pennsylvania and
-2-
State of Ohio, respectively, and such other corporate
formalities as are required by the laws of such
jurisdictions for the consummation of the merger
contemplated by the Merger Agreement have been taken;
and such merger became effective in accordance with the
laws of Pennsylvania and Ohio, respectively.
(v) The parties have obtained all consents, waivers and
releases, if any, required for the Transactions under
all applicable governing corporate documents, contracts,
agreements, debt instruments, indentures, franchises,
licenses and permits.
(vi) The documentation necessary for the Financing
Transactions shall constitute the valid, binding and
enforceable obligations of the parties to such documents
other than the FirstEnergy or other issuer thereof (the
"Issuers") and each Issuer shall have received the
agreed upon consideration for the securities in
accordance with the authorizations and approvals
referred to in subparagraph (iii) above.
(vii) A registration statement shall have been declared
effective under the Securities Act of 1933 or an
exemption from registration shall be applicable under
such act with respect to each Financing Transaction, and
no stop order shall have been entered by the Securities
and Exchange Commission with respect thereto.
(viii) No opinions are expressed with respect to laws other
than those of the State of New York. We understand that
Jones, Day, Reavis & Pogue will rely on this opinion in
giving its opinion with respect to the subject matter
hereof and we hereby consent to such reliance.
(ix) No stop order has been entered by the Securities and
Exchange Commission with respect to the Registration
Statement on Form S-4 (File No. 333-46444); and the
issuance of shares of FirstEnergy common stock in
connection with the Merger shall have been consummated
in compliance with the Securities Act of 1933 and the
rules and regulations thereunder.
(x) All necessary action, if any, under state "Blue Sky"
laws to permit the consummation of each of the
Transactions has been completed prior to consummation of
such Transaction.
(xi) Penelec and Waverly Electric will have received all
necessary approvals, if any, from the New York Public
Service Commission prior to entering into any financing
transaction, participating in the Utility Money Pool or
entering into any Anticipating Hedge or any other
interest rate management device, as more fully described
in the Application.
(xii) We have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as
originals and the conformity with the
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originals of all documents submitted to us as copies. As
to various questions of fact material to such opinions
we have, when relevant facts were not independently
established, relied upon certificates by officers of
FirstEnergy, GPU and other appropriate persons and
statements contained in the Application.
We hereby consent to the filing of this opinion as an exhibit to the
Application.
Respectfully yours,
Whiteman Osterman & Hanna LLP
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EXHIBIT F-2.4
Thelen, Reid & Priest LLP
65 Madison Avenue
Morristown, NJ 07960
Phone: 973-644-3400
November 7, 2001
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: FirstEnergy Corp. and GPU, Inc.; SEC File No. 70-9793
Ladies and Gentlemen:
We refer to our opinion dated October 29, 2001 filed as Exhibit
F-1.4 to Amendment No. 3, dated the same date, to the Application-Declaration on
Form U-1 in File No. 70-9793, as amended (the "Application"), under the Public
Utility Holding Company Act of 1935 (the "Act"), filed with the Securities and
Exchange Commission (the "Commission") by, inter alia, FirstEnergy Corp., an
Ohio corporation ("FirstEnergy") and, as of November 7, 2001, a registered
holding company under the Act, certain Subsidiaries of FirstEnergy. By order
dated October 29, 2001 (the "Order"), the Commission permitted the Application
to become effective and granted authority for, among other things, the following
actions, all as more fully described in the Application and the Order:
a. the acquisition by FirstEnergy of all the issued and outstanding
voting securities of the following U.S. electric utility operating subsidiaries
of GPU, Inc. ("GPU"): Jersey Central Power & Light Company, a New Jersey
corporation ("JCP&L"), Pennsylvania Electric Company, a Pennsylvania corporation
and Metropolitan Edison Company, a Pennsylvania corporation and the indirect
acquisition of York Haven Power Company, a Pennsylvania corporation and Waverly
Electric Power & Light Company, a Pennsylvania corporation; such acquisition to
be accomplished through a merger of GPU into FirstEnergy pursuant to the terms
of the Agreement and Plan of Merger, dated as of August 8, 2000, between
FirstEnergy and GPU;
b. certain financing transactions by FirstEnergy, and, in the
limited circumstances set out in the Application, by the Utility Subsidiaries,
in an amount of $8.0 billion; and
c. the authorization and approval of the formation and operation of
a utility money pool and a non-utility money pool.
We have acted as counsel to GPU in connection with the filing of the
Application. All capitalized terms used herein but not defined herein shall have
the meaning ascribed to them in the Application.
In addition to the examination recited in the aforesaid opinion, we have
also examined the Order and FirstEnergy's Certificate of Notification, dated
this date, filed with the Commission pursuant to Rule 24 under the Act
certifying as to the completion certain of the transactions proposed in the
Application for which authority was granted in the Order (the transactions as so
completed being herein referred to as the "Transactions").
Based on the foregoing, and subject to the assumptions, qualifications
and limitations hereinafter specified, we are of the opinion that the laws of
the State of New Jersey applicable to the Transactions have been complied with.
This opinion in respect of the Transactions as described in the
Application is subject to the following assumptions or conditions:
(i) The parties have obtained all consents, waivers and
releases, if any, required for the Transactions under
all applicable governing corporate documents, contracts,
agreements, debt instruments, indentures, franchises,
licenses and permits.
(ii) No opinions are expressed with respect to laws other
than those of the State of New Jersey.
(iii) All action under state "Blue Sky" laws to permit the
consummation of the Transactions have been completed.
(iv) We have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as
originals and the conformity with the originals of all
documents submitted to us as copies. As to various
questions of fact material to such opinions we have,
when relevant facts were not independently established,
relied upon certificates by officers of GPU, JCP&L and
other appropriate persons and statements contained in
the Application.
We hereby consent to the filing of this opinion as an exhibit to the
aforesaid Certificate of Notification filed pursuant to Rule 24 and in any
proceeding before the Commission that may be held in connection therewith. We
understand that Jones, Day, Reavis & Pogue will rely on this opinion in giving
its opinion with respect to the subject matter hereof and we hereby consent to
such reliance.
Respectfully yours,
THELEN REID & PRIEST LLP
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EXHIBIT F-2.5
Ryan, Russell, Ogden & Seltzer LLP
1100 Berkshire Boulevard, Suite 301
Reading, Pennsylvania 19610-1221
Phone: 610-372-4761
November 7, 2001
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: FirstEnergy Corp. and GPU, Inc.; SEC File No. 70-9793
Ladies and Gentlemen:
We refer to the Application-Declaration on Form U-1 in File No.
70-9793, as amended (the "Application"), under the Public Utility Holding
Company Act of 1935 (the "Act"), filed by FirstEnergy Corp, an Ohio corporation
("FirstEnergy") and a registered holding company under the Act, and certain
Subsidiaries of FirstEnergy and authorized by order of the Securities and
Exchange Commission (the "Commission") dated October 29, 2001 (the "Order")
granting authority for the following, all as more fully described in the
Application and the Order (the "Transactions"):
a. the acquisition by FirstEnergy of all the issued and outstanding
voting securities of the following U.S. electric utility
operating subsidiaries of GPU, Inc. ("GPU"): Jersey Central
Power & Light Company, a New Jersey corporation ("JCP&L"),
Pennsylvania Electric Company, a Pennsylvania corporation
("Penelec") and Metropolitan Edison Company, a Pennsylvania
corporation ("Met-Ed") and the indirect acquisition of York
Haven Power Company, a Pennsylvania corporation ("York Haven")
and Waverly Electric Power & Light Company, a Pennsylvania
corporation ("Waverly Electric"); such acquisition to be
accomplished through a merger (the "Merger") of GPU into
FirstEnergy pursuant to the terms of the Agreement and Plan of
Merger, dated as of August 8, 2000 (the "Merger Agreement"),
between FirstEnergy and GPU.
b. The issuance by FirstEnergy of its common stock in exchange for
50% of the shares of GPU common stock outstanding at the time
the Merger is completed, subject to a certain adjustments
described in the Merger Agreement. The Merger and the issuance
of common stock in connection therewith are referred to as the
"Merger Transactions."
c. Financing transactions by FirstEnergy, and in the limited
circumstances set out in the Application, by the Utility
Subsidiaries, in the amount of $8.0 billion (which
includes the common stock issued in the Merger) and related
transactions (the "Financings"), representing additions to
capital, additional equity securities, preferred securities and
debt (which amount includes debt required to finance the cash
portion of the Merger), in each case including refinancings
which do not alter outstanding capital but which will not count
against the limits, for the period beginning with the effective
date of an order issued pursuant to the Application and
continuing to and including June 30, 2003 (the "Authorization
Period").
d. The issuance of 30 million shares of common stock under dividend
reinvestment and stock-based management incentive and employee
benefit plans pursuant to Sections 6(a) and 7 of the Act (the
"Plan Common Stock issuances").
e. The issuance of one purchase right (a "Right") together with
each share of FirstEnergy common stock issued in accordance with
the authority requested in the Application.
f. The issuance by FirstEnergy and the Subsidiaries of guarantees
(the "Guarantees") in an aggregate amount not to exceed $4.0
billion outstanding at any time in exposure.
g. The authorization and approval of intra-system guarantees, the
formation and operation of a utility money pool (the "Utility
Money Pool") and a non-utility money pool (the "Non-Utility
Money Pool"). The Financings, the Plan Common Stock issuances,
the Rights transactions, the Guarantees, the Utility Money Pool
transactions and Non-Utility Money Pool Transactions are
referred to as the "Securities Transactions."
We have acted as Pennsylvania counsel to FirstEnergy and GPU in
connection with the filing of the Application. All capitalized terms used herein
but not defined herein shall have the meaning ascribed to them in the
Application.
In connection with this opinion, we have examined the Application and
the exhibits thereto and the Merger Agreement, and originals, or copies
certified to our satisfaction, of such corporate records of FirstEnergy, GPU and
other entities, certificates of public officials, orders of regulatory bodies
having jurisdiction over aspects of the Transaction, certificates of officers
and representatives of FirstEnergy, GPU and other entities and such other
documents, records and matters of law as we have deemed necessary for the
purposes of this opinion.
Based on the foregoing, and subject to the assumptions, qualifications
and limitations hereinafter specified, we are of the opinion that the laws of
the Commonwealth of Pennsylvania applicable to the Transactions have been
complied with.
This opinion in respect of the proposed Transactions as described in the
Application is subject to the following assumptions or conditions:
(i) The authorizations and approvals of the Transactions
given by the Boards of Directors and shareholders of
FirstEnergy and GPU remained in effect
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at the closings thereof and the Financing Transactions
shall have been conducted in accordance with the
applicable authorizations and approvals.
(ii) The Transactions have been accomplished in accordance
with required approvals, authorizations, consents,
certificates and orders of all state and federal
commissions or regulatory authorities having
jurisdiction over any of the Transactions (including,
with respect to the Merger, the approval and
authorization of the Federal Energy Regulatory
Commission under the Federal Power Act, the Federal
Communications Commission under the Communications Act,
the Nuclear Regulatory Commission under the Atomic
Energy Act, the Pennsylvania Public Utility Commission
("PaPUC") under the applicable laws of the Commonwealth
of Pennsylvania, the New Jersey Board of Public
Utilities under the applicable laws of New Jersey and
the New York Public Service Commission under laws of the
State of New York) and all such required approvals,
authorizations, consents, certificates, orders and
registrations remained in effect at the closings
thereof.
(iii) With respect to those Transactions occurring after
FirstEnergy became subject to registration pursuant to
Section 5 of the Act and the rules of the Securities and
Exchange Commission thereunder, FirstEnergy has duly
registered with the Securities and Exchange Commission
as a holding company pursuant to Section 5 of the Act
and the rules of the Securities and Exchange Commission
thereunder.
(iv) The Merger has been completed in accordance with the
Merger Agreement; instruments of merger shall have been
duly and validly filed with the Secretaries of State of
the Commonwealth of Pennsylvania and State of Ohio,
respectively, and such other corporate formalities as
are required by the laws of such jurisdictions for the
consummation of the merger contemplated by the Merger
Agreement have been taken; and such merger became
effective in accordance with the laws of Pennsylvania
and Ohio, respectively.
(v) The parties have obtained all consents, waivers and
releases, if any, required for the Transactions under
all applicable governing corporate documents, contracts,
agreements, debt instruments, indentures, franchises,
licenses and permits.
(vi) The documentation necessary for the Financing
Transactions shall constitute the valid, binding and
enforceable obligations of the parties to such documents
other than the FirstEnergy or other issuer thereof (the
"Issuers") and each Issuer shall have received the
agreed upon consideration for the securities in
accordance with the authorizations and approvals
referred to in subparagraphs (i) and (iii) above.
(vii) A registration statement shall have been declared
effective under the Securities Act of 1933 or an
exemption from registration shall be
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applicable under such act with respect to each Financing
Transaction and no stop order shall have been entered by
the Securities and Exchange Commission with respect
thereto.
(viii) No opinions are expressed with respect to laws other
than those of the Commonwealth of Pennsylvania. We
understand that Jones, Day, Reavis & Pogue will rely on
this opinion in giving its opinion with respect to the
subject matter hereof and we hereby consent to such
reliance.
(ix) No stop order has been entered by the Securities and
Exchange Commission with respect to the Registration
Statement on Form S-4 (File No. 333-46444); and the
issuance of shares of FirstEnergy common stock in
connection with the Merger shall have been consummated
in compliance with the Securities Act of 1933 and the
rules and regulations thereunder.
(x) That all action under state "Blue Sky" laws to permit
the consummation of the Transactions have been
completed.
(xi) Penelec and Met-Ed will have received all necessary
approvals, if any, from the PaPUC prior to entering into
any financing transaction, participating in the Utility
Money Pool or entering into any Anticipatory Hedge or
any other interest rate management device, as more fully
described in the Application.
(xii) We have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as
originals and the conformity with the originals of all
documents submitted to us as copies. As to various
questions of fact material to such opinions we have,
when relevant facts were not independently established,
relied upon certificates by officers of FirstEnergy, GPU
and other appropriate persons and statements contained
in the Application.
We hereby consent to the filing of this opinion as an exhibit to the
Application.
Respectfully yours,
RYAN, RUSSELL, OGDEN & SELTZER LLP
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