As filed with the Securities and Exchange Commission on November 26, 2002
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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FirstEnergy Corp. Executive Deferred Compensation Plan
FirstEnergy Corp. Deferred Compensation Plan for Outside Directors
(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 Share/ Offering Registration
Registered Registered Obligation Price Fee
---------- ---------- ---------- ----- ---
Common Stock, par value
$0.10 per share(1) 200,000 shares(3) $31.63(4) $6,326,000.00 $0(6)
Deferred Compensation
Obligations(2) $19,000,000.00 100% $19,000,000.00(5) $1,748(6)
(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) The Deferred Compensation Obligations are unsecured obligations of
FirstEnergy Corp. to pay deferred compensation in the future in
accordance with the terms of the FirstEnergy Corp. Executive Deferred
Compensation Plan and the FirstEnergy Corp. Deferred Compensation Plan
for Outside Directors (collectively, the "Plans").
(3) 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 Plans in order to prevent dilution
resulting from any stock split, stock dividend or similar transaction.
(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 November 21,
2002.
(5) Estimated solely for purposes of determining the registration fee.
(6) Pursuant to Rule 457(i) under the Securities Act, the registration fee
is calculated on the basis of the proposed offering price of the
Deferred Compensation Obligations, which may convert to FirstEnergy
Corp. common stock at distribution.
STATEMENT PURSUANT TO GENERAL INSTRUCTION E
Pursuant to and as permitted by General Instruction E to Form S-8, this
Registration Statement on Form S-8 is being filed by FirstEnergy Corp., an Ohio
corporation (the "Company"), to register an additional 200,000 shares of common
stock, par value $0.10 per share, of the Company and an additional
$19,000,000.00 in principal amount of Deferred Compensation Obligations of the
Company. The contents of the following Registration Statements of the Company
are hereby incorporated herein by reference: (i) the Company's Registration
Statement on Form S-8 (filed on June 21, 1999), including all exhibits attached
thereto, and Post-Effective Amendment No. 1 to Form S-8 (filed on June 30,
1999), both filed as Registration No. 333-81183; (ii) the Company's Registration
Statement on Form S-8 (filed on February 23, 2001), including all exhibits
attached thereto, filed as Registration No. 333-56094; and (iii) the Company's
Registration Statement on Form S-8 (filed on November 5, 2001), including all
exhibits attached thereto, filed as Registration No. 333-72768. Of the total
amount of shares of common stock and Deferred Compensation Obligations being
registered by this Registration Statement, 150,000 shares of common stock and
$14,000,000.00 in principal amount of Deferred Compensation Obligations are
being registered for the FirstEnergy Corp. Executive Deferred Compensation Plan
and 50,000 shares of common stock and $5,000,000.00 in principal amount of
Deferred Compensation Obligations are being registered for the FirstEnergy Corp.
Deferred Compensation Plan for Outside Directors.
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, 2001;
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ended September 30, 2002, June 30, 2002 and March 31, 2002;
(3) The Company's Current Reports on Forms 8-K and 8-K/A, dated
February 21, 2002, February 22, 2002, March 12, 2002, March
15, 2002, March 25, 2002, April 11, 2002, April 18, 2002, May
8, 2002, May 23, 2002, August 1, 2002, August 8, 2002,
September 9, 2002, October 7, 2002, and October 31, 2002;
(4) 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
(5) 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.
After reasonable efforts, the Company was not able to obtain the
consent of Arthur Andersen LLP, the former independent accountant of the
Company, to the incorporation by reference of its audit report dated March 18,
2002 into this Registration Statement. As permitted by Rule 437a under the
Securities Act, the Company has not filed the written consent of Arthur Anderson
LLP that would otherwise be required by the Securities Act. Because Arthur
Anderson LLP has not consented to the inclusion of its report in this
Registration Statement, investors in the securities registered by this
Registration Statement may not be able to recover amounts from Arthur Andersen
LLP under Section 11(a) of the Securities Act for any untrue statement of a
material fact or any omission to state a material fact, if any, contained in or
omitted from the financial statements included in the Company's Annual Report on
Form 10-K for the year ended December 31, 2001, which are incorporated by
reference in this Registration Statement.
Item 4. Description of Securities.
The description of the Company's common stock and the Share Purchase
Rights is incorporated by reference. See Item 3.
The summary of the Deferred Compensation Obligations created pursuant
to the Plans is qualified in its entirety by reference to the terms and
conditions of the Plans, which are filed as exhibits to certain of the Company's
public documents filed with the Commission, which are incorporated herein by
reference. The Deferred Compensation Obligations are unsecured general
obligations of the Company to make future payments of compensation that certain
employees and directors have elected to defer under the terms of the Plans.
The Deferred Compensation Obligations rank pari passu with any of the
Company's other unsecured and unsubordinated indebtedness that may be
outstanding from time to time. Except for the portion of those Deferred
Compensation Obligations that are payable at distribution in shares of common
stock under the terms of the applicable plan, the Deferred
Compensation Obligations are not convertible into any of the Company's other
securities. No sinking fund has or will be established with respect to the
Deferred Compensation Obligations.
The Company reserves the right to amend or terminate the plans at any
time, except that no such amendment or termination can adversely affect a
participant's rights with respect to amounts deferred prior to the amendment or
termination. A participant's rights to and under the Deferred Compensation
Obligations are not assignable or transferable, except by way of transfer to a
participant's beneficiary or estate upon the participant's death. Except as
otherwise stated in the applicable plan, the Deferred Compensation Obligations
do not enjoy the benefit of any affirmative or negative pledges or covenants by
the Company.
All payments of Deferred Compensation Obligations will be made from the
Company's general assets. The Company may establish, however, one or more
grantor trusts to fund the payment of the Deferred Compensation Obligations.
But, if the Company does establish any such trusts, the Company retains
discretion to determine the amount and timing of any contributions to the
trusts. No participant will have any preferred claim to, or beneficial interest
in, any assets of the trusts, and the assets of the trusts will remain subject
to the claims of the Company's creditors. The Company's establishment of a trust
or trusts to fund payment of the Deferred Compensation Obligations will not
effect the status of the Deferred Compensation Obligations as general, unsecured
obligations of the Company.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities being registered will be verified by
Gary D. Benz, Esq., the Company's Associate General Counsel. As of November 19,
2002, Mr. Benz owned 2,368 shares of the Company's common stock. Mr. Benz is
eligible to participate in the FirstEnergy Corp. Executive Deferred Compensation
Plan, pursuant to which some of the Deferred Compensation Obligations and the
Company's common stock will be issued.
Item 8. Exhibits.
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
With respect to the unaudited financial information of FirstEnergy
Corp. for the three-month period ended March 31, 2002, the three- and six-month
periods ended June 30, 2002 and the three- and nine-month periods ended
September 30, 2002, incorporated by reference in this Registration Statement,
PricewaterhouseCoopers LLP reported that they have applied limited procedures in
accordance with professional standards for a review of such information.
However, their separate reports dated, respectively, May 15, 2002, August 8,
2002 and November 13, 2002 incorporated by reference herein, state that they did
not audit and they do not express an opinion on that unaudited financial
information. Accordingly, the degree of reliance on their reports on such
information should be restricted in light of the limited nature of the review
procedures applied. PricewaterhouseCoopers LLP is not subject to the liability
provisions of Section 11 of the Securities Act of 1933 for their reports on the
unaudited financial information because those reports are not "reports" or a
"part" of the registration statement prepared or certified by
PricewaterhouseCoopers LLP within the meaning of Sections 7 and 11 of the Act.
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 26th day of
November, 2002.
FIRSTENERGY CORP.
By: /s/ Nancy C. Ashcom
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Nancy C. Ashcom
Corporate Secretary (Duly Authorized Officer)
POWER OF ATTORNEY
Each of the undersigned directors and officers of the Company,
individually as such director and/or officer, hereby makes, constitutes and
appoints H. Peter Burg and Nancy C. Ashcom, and each of them, singly or jointly,
with full power of substitution, as his or her true and lawful attorney-in-fact
and agent to execute in his or her name, place and stead, in any and all
capacities, and to file with the Commission, this Registration Statement and any
and all amendments, including post-effective amendments, to this Registration
Statement, which amendment may make such changes in the Registration Statement
as the Company deems appropriate, hereby ratifying and confirming all that each
of said attorneys-in-fact, or his, her or their substitute or substitutes, may
do or cause to be done by virtue hereof.
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 and on the dates indicated.
Signature Title Date
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/s/ H. Peter Burg Chairman of the Board, Chief Executive November 19, 2002
--------------------------------------- Officer and Director
H. Peter Burg
/s/ Anthony J. Alexander President, Chief Operating Officer and November 19, 2002
--------------------------- Director
Anthony J. Alexander
/s/ Richard H. Marsh Senior Vice President and Chief November 19, 2002
--------------------------------------- Financial Officer
Richard H. Marsh
/s/ Harvey L. Wagner Vice President and Controller November 19, 2002
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Harvey L. Wagner
/s/ Carol A. Cartwright Director November 19, 2002
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Carol A. Cartwright
/s/ William F. Conway Director November 19, 2002
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William F. Conway
/s/ Robert B. Heisler, Jr. Director November 19, 2002
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Robert B. Heisler, Jr.
/s/ Robert L. Loughhead Director November 19, 2002
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Robert L. Loughhead
/s/ Russell W. Maier Director November 19, 2002
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Russell W. Maier
/s/ John M. Pietruski Director November 19, 2002
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John M. Pietruski
/s/ Robert N. Pokelwaldt Director November 19, 2002
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Robert N. Pokelwaldt
/s/ Paul J. Powers Director November 19, 2002
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Paul J. Powers
/s/ Catherine A. Rein Director November 19, 2002
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Catherine A. Rein
Signature Title Date
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/s/ Robert C. Savage Director November 19, 2002
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Robert C. Savage
/s/ George M. Smart Director November 19, 2002
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George M. Smart
/s/ Carlisle A. H. Trost Director November 19, 2002
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Carlisle A. H. Trost
/s/ Jesse T. Williams, Sr. Director November 19, 2002
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Jesse T. Williams, Sr.
/s/ Patricia K. Woolf Director November 19, 2002
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Patricia K. Woolf
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).*
4(e) FirstEnergy Corp. Executive Deferred Compensation Plan
(physically filed and designated in the Registration
Statement on Form S-8 (Registration No.
333-81183) as Exhibit 4(e)).*
4(f) FirstEnergy Corp. Deferred Compensation Plan for
Outside Directors.(x)
5 Opinion of Gary D. Benz, Esq., Associate General
Counsel for the Company, as to the validity of the
securities being registered. (x)
15 Letter of PricewaterhouseCoopers LLP to the Commission
regarding unaudited interim financial information.(x)
23 Consent of Gary D. Benz, Esq. (included in Exhibit 5).
24 Power of Attorney (included on the signature page).
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*........Incorporated herein by reference.
(x)......Filed herewith.