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 Identification No.)
Incorporation or Organization)
76 South Main Street
Akron, Ohio 44308
(Address of Principal Executive Offices, Including Zip Code)
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GPU, Inc. 1990 Stock Plan for Employees of GPU, Inc. and Subsidiaries
Deferred Stock Unit Plan for Outside Directors of GPU, Inc.
GPU, Inc. Stock Option and Restricted Stock Plan for MYR Group Inc.
Employees
(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 Price Fee
------------- ------------- --------- ------------ -------------
Common stock,
par value 1,339,989 $25.02(3) $33,526,525(3) $8,382
$0.10 per share shares
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Common stock, 390,011 $34.01(4) $13,264,274(4) $3,317
par value shares
$0.10 per share
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(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.
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement also covers
additional shares of FirstEnergy Corp. common stock that may be
issued or become issuable under the terms of the stock plans and
related agreements described herein (collectively, the "Plans") in
order to prevent dilution resulting from any stock split, stock
dividend or similar transaction.
(3) Estimated in accordance with Rule 457(h) under the Securities Act
solely for the purpose of calculating the registration fee and based
upon the weighted average price at which outstanding options granted
under the Plans may be exercised.
(4) 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 upon the exercise, conversion or payment
of stock options, performance units, deferred vested units and restricted
stock under 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")
and the Company will assume the obligations of GPU under the Plans. As a
result, shares of the Company's common stock may be issued under the Plans
upon or after the Merger.
This Registration Statement relates to the Company's common stock
issuable under the Plans as follows:
- up to 1,400,000 shares issuable under the GPU, Inc. 1990 Stock
Plan for Employees of GPU, Inc. and Subsidiaries;
- up to 55,000 shares issuable under the Deferred Stock Unit Plan
for Outside Directors of GPU, Inc.; and
- up to 275,000 shares issuable under the GPU, Inc. Stock Option
and Restricted Stock Plan for MYR Group Inc. Employees.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by the Company 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;
(4) The Company's Current Report on Form 8-K, dated October 18,
2001;
(5) 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-
2
46444), filed with the Commission on October 13, 2000, and any
amendment or report filed for the purpose of updating such
description; and
(6) 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 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.
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
3
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 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.
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Item 8. Exhibits.
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
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 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
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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
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 Executive
------------------------- Officer and a Director
H. Peter Burg (Principal Executive Officer)
* President and Director
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Anthony J. Alexander
* Vice President and Chief Financial Officer
------------------- (Principal Financial Officer)
Richard H. Marsh
* Controller
------------------- (Principal Accounting Officer)
Harvey L. Wagner
* Director
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Dr. Carol A. Cartwright
* Director
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William F. Conway
* Director
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Robert B. Heisler, Jr.
* Director
------------------------
Robert L. Loughhead
* Director
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Russell W. Maier
* Director
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Paul J. Powers
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* Director
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Robert C. Savage
* Director
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George M. Smart
* Director
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Jesse T. Williams, Sr.
*By: /s/ Nancy C. Ashcom
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Nancy C. Ashcom
Attorney-in-Fact
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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)
24 Power of Attorney. (x)
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* Incorporated herein by reference.
(x) Filed herewith.
E-1