FirstEnergy Corp. S-3ASR
As filed with the Securities and Exchange Commission on
August 22, 2008.
Registration
No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
FirstEnergy Corp.
(Exact name of registrant as
specified in its charter)
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Ohio
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34-1843785
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer Identification
No.)
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76 South Main Street, Akron,
Ohio 44308-1890
(800) 736-3402
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Rhonda S. Ferguson
Corporate Secretary
FirstEnergy Corp.
76 South Main Street
Akron, Ohio 44308-1890
(330) 384-5620
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
With copies
to:
Lucas F.
Torres, Esq.
Akin Gump Strauss Hauer &
Feld LLP
590 Madison Avenue
New York, New York
10022
(212) 872-1016
Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this Registration Statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same
offering. o
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following
box. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2 of the Exchange Act:
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Large accelerated filer þ
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Accelerated filer o
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Non-accelerated filer o
(do not check if a smaller reporting company)
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Smaller reporting company o
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CALCULATION OF REGISTRATION
FEE
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Proposed Maximum
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Proposed Maximum
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Title of Each Class of
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Amount to be
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Offering Price
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Aggregate Offering
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Amount of
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Securities to be Registered
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Registered(1)
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per Share(2)
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Price(2)
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Registration Fee
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Common Stock, $0.10 par value per share
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3,000,000
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$71.59
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$214,770,000
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$8,441.00
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(1)
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Pursuant to Rule 416(a) under
the Securities Act of 1933, as amended (the Securities
Act), this Registration Statement registers such
indeterminate number of additional shares of Common Stock as may
be issued in connection with share splits, share dividends or
similar transactions in accordance with the provisions of the
Plan.
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(2)
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Estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(c)
under the Securities Act. The proposed maximum offering price
per share is based upon the average of the high and low prices
per share of the Common Stock as quoted on the New York Stock
Exchange on August 18, 2008.
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Pursuant to Rule 429 under the Securities Act, the
prospectus filed as part of this Registration Statement will be
used as a combined prospectus in connection with this
Registration Statement and a prior Registration Statement on
Form S-3 (File No. 333-102074), or the Prior
Registration Statement. Accordingly, upon effectiveness this
Registration Statement will act as a post-effective amendment to
the Prior Registration Statement. The registration fee
associated with the shares registered pursuant to the Prior
Registration Statement was paid at the time of filing of the
Prior Registration Statement. The registration fee paid herewith
relates only to the 3,000,000 shares of Common Stock being
registered pursuant hereto.
Prospectus
FirstEnergy
Corp.
Stock Investment Plan
3,000,000 Shares
Common Stock
The FirstEnergy Corp. Stock Investment Plan provides a way for
shareholders and employees of FirstEnergy Corp. and its
subsidiaries, as well as others, to purchase shares of
FirstEnergys common stock. (See Question 4.) Holders of
preferred stock of our subsidiaries are also eligible to
participate in the Plan. Participants in the Plan may:
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Reinvest all or a portion of cash dividends paid on stock of
FirstEnergy or its subsidiaries that is registered in their
names, as well as any common stock credited to their Plan
accounts, to purchase shares of FirstEnergy common stock.
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Make an initial investment in FirstEnergy common stock with a
cash payment of at least $250 or, if already a shareholder or
employee of FirstEnergy or its subsidiaries, make an investment
in FirstEnergy common stock with optional cash investments at
any time of at least $25 per payment. After non-shareholders or
non-employees make the initial investment, such persons can also
make additional optional cash investments of at least $25. Cash
investments are limited to a maximum of $100,000 per calendar
year.
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Receive certificates for whole shares of common stock credited
to their Plan accounts upon request.
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Deposit certificates representing FirstEnergy common stock into
the Plan for safekeeping.
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Sell shares of common stock credited to their Plan accounts
through the Plan.
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Cash dividends and cash investments under the Plan will be used
to purchase shares of FirstEnergy common stock which, at our
option, either will be purchased on behalf of Plan participants
in the open market by Morgan Stanley & Co.
Incorporated, who we refer to as the Independent Agent, or will
be newly issued shares. (See Questions 2 and 13.) The price of
shares purchased in the open market under the Plan will be the
weighted average price paid by the Independent Agent for the
shares over the purchase period. (See Question 13.) The price of
newly issued shares acquired under the Plan will be the average
of the high and low prices of FirstEnergy common stock as
reported in The Wall Street Journals report of New York
Stock Exchange Composite Transactions for the investment date.
In both cases, the purchase price will include a transaction fee
to cover our administrative costs and, if shares are purchased
in the open market, the fees of the Independent Agent for its
services in executing those purchases. Currently shares are
being purchased on the open market, and the total transaction
fee is $0.09 per share. (See Question 15.) We will receive all
of the proceeds resulting from the purchase of newly issued
shares under the Plan. We do not receive any part of the
proceeds resulting from the purchase of shares in the open
market under the Plan other than the indicated portion of the
transaction fees. Our estimated annual administrative cost to
operate the Plan is $200,000. Some or all of this cost may be
recovered through the transaction fees.
Fees payable by a Plan participant will be added to the purchase
price for shares purchased, and deducted from the selling price
for shares sold, under the Plan. (See Questions 15 and 22.)
To the extent required by applicable law in certain
jurisdictions, including Arizona, Florida, Idaho, Maine, New
Jersey and North Dakota, shares of common stock offered under
the Plan to persons who are not already holders of FirstEnergy
common stock will be offered only through a registered
broker/dealer in those jurisdictions. Currently we have
arrangements with Morgan Stanley & Co.
Incorporated to act in this capacity.
This Prospectus describes the provisions of the Plan and should
be retained by participants for future reference. Shares of
FirstEnergy common stock are traded on the New York Stock
Exchange under the symbol FE.
Before you invest, you should carefully read this Prospectus
and the information referred to under the heading Where
You Can Find More Information. Also, because investing in
our common stock involves risks, you should consider the
information presented under Risk Factors beginning
on page 3.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these
securities or determined that this Prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this Prospectus is
August 22, 2008.
No person is authorized to give any information or make any
representation not contained, or incorporated by reference, in
this Prospectus, and, if given or made, such information or
representation must not be relied upon as having been authorized
by FirstEnergy. This Prospectus is not an offer to sell or a
solicitation of an offer to buy any of the securities offered
hereby in any jurisdiction to any person to whom it is unlawful
to make such offer in such jurisdiction. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no
change in the affairs of FirstEnergy since the date of this
Prospectus.
Unless the context requires otherwise, references to
we, us, our and
FirstEnergy refer specifically to FirstEnergy Corp.
and its subsidiaries.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements contained in this Prospectus and
incorporated by reference into this Prospectus are
forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, or
the Securities Act, and Section 21E of the Securities
Exchange Act of 1934, as amended, or the Exchange Act. These
statements include declarations regarding our or our
managements intents, beliefs and current expectations. In
some cases, you can identify forward-looking statements by
terminology such as may, will,
should, expects, plans,
anticipates, believes,
estimates, predicts,
potential or continue or the negative of
such terms or other comparable terminology. Forward-looking
statements are not guarantees of future performance, and actual
results could differ materially from those indicated by the
forward-looking statements. Forward-looking statements involve
estimates, assumptions, known and unknown risks, uncertainties
and other factors that may cause our or our industrys
actual results, levels of activity, performance or achievements
to be materially different from any future results, levels of
activity, performance or achievements expressed or implied by
such forward-looking statements.
The forward-looking statements contained and incorporated by
reference herein are qualified in their entirety by reference to
the following important factors, which are difficult to predict,
contain uncertainties, are beyond our control and may cause
actual results to differ materially from those contained in
forward-looking statements:
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the speed and nature of increased competition in the electric
utility industry and legislative and regulatory changes
affecting how generation rates will be determined following the
expiration of existing rate plans in Ohio and Pennsylvania;
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the impact of the rulemaking process of Public Utilities
Commission of Ohio, or PUCO, on the Ohio companies
Electric Security Plan and Market Rate Offer filings;
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economic or weather conditions affecting future sales and
margins;
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changes in markets for energy services;
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changing energy and commodity market prices and availability;
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replacement power costs being higher than anticipated or
inadequately hedged;
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the continued ability of FirstEnergys regulated utilities
to collect transition and other charges or to recover increased
transmission costs;
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maintenance costs being higher than anticipated;
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other legislative and regulatory changes, revised environmental
requirements, including possible greenhouse gases emission
regulations;
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the impact of the U.S. Court of Appeals July 11,
2008 decision to vacate the Clean Air Interstate Rules and the
scope of any laws, rules or regulations that may ultimately take
their place;
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the uncertainty of the timing and amounts of the capital
expenditures needed to, among other things, implement our air
quality compliance plan (including that such amounts could be
higher than anticipated) or levels of emission reductions
related to the consent decree resolving the new source review
litigation or other potential regulatory initiatives;
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adverse regulatory or legal decisions and outcomes (including,
but not limited to, the revocation of necessary licenses or
operating permits and oversight) by the Nuclear Regulatory
Commission (including, but not limited to, the Demand for
Information issued to FirstEnergy Nuclear Operating Company on
May 14, 2007);
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the timing and outcome of various proceedings before the:
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PUCO (including, but not limited to, the distribution rate cases
and the generation supply plan filing for our Ohio operating
subsidiaries and the successful resolution of the issues
remanded to the PUCO by the Ohio Supreme Court regarding the
Rate Stabilization Plan and Rate Certainty Plan including the
deferral of fuel costs), and
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Pennsylvania Public Utility Commission (including the resolution
of the Petitions for Review filed with the Commonwealth Court of
Pennsylvania with respect to the transition rate plan for
Metropolitan Edison Company and Pennsylvania Electric Company);
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the continuing availability of generating units and their
ability to operate at, or near full capacity;
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the changing market conditions that could affect the value of
assets held in our nuclear decommissioning trusts, pension
trusts and other trust funds;
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the ability to comply with applicable state and federal
reliability standards;
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the ability to accomplish or realize anticipated benefits from
strategic goals (including employee workforce initiatives);
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the ability to improve electric commodity margins and to
experience growth in the distribution business;
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the ability to access the public securities and other capital
markets and the cost of such capital;
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the risks and other factors discussed from time to time in our
filings with the SEC, including our Annual Report on
Form 10-K
for the year ended December 31, 2007 and our Quarterly
Reports on Form
10-Q for the
quarters ended March 31, 2008 and June 30, 2008 and in
this Prospectus or any prospectus supplement under the heading
Risk Factors; and
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other similar factors.
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Any forward-looking statements speak only as of the date of this
Prospectus, and we undertake no obligation to update any
forward-looking statements to reflect events or circumstances
after the date on which such statements are made or to reflect
the occurrence of unanticipated events. The foregoing review of
factors should not be construed as exhaustive. New factors
emerge from time to time, and it is not possible for us to
predict all of such factors, nor can we assess the impact of any
such factors on our business or the extent to which any factor,
or combination of factors, may cause results to differ
materially from those contained in any forward-looking
statements. Also, a security rating is not a recommendation to
buy, sell or hold securities, and it may be subject to revision
or withdrawal at any time and each such rating should be
evaluated independently of any other rating.
RISK
FACTORS
Investing in our common stock involves risks. Please see the
risk factors described in our most recent Annual Report on
Form 10-K
and, to the extent applicable, our subsequent Quarterly Reports
on
Form 10-Q,
filed with the SEC, which are all incorporated by reference in
this Prospectus. Before making an investment decision, you
should carefully consider these risks as well as other
information contained or incorporated by reference in this
Prospectus. Any of these risks, as well as other risks and
uncertainties, could materially harm our business, financial
condition, results of operations or cash flows. In that case,
the value or trading price of our common stock could decline,
and you could lose part or all of your investment.
FIRSTENERGY
CORP.
We are a diversified energy company headquartered in Akron,
Ohio. Our subsidiaries and affiliates are involved in the
generation, transmission and distribution of electricity, as
well as energy management and other energy-related services. Our
seven electric utility operating companies comprise the
nations fifth largest investor-owned electric system,
based on 4.5 million customers served within a
36,100-square-mile area of Ohio, Pennsylvania and New Jersey;
and our generation subsidiaries control more than
14,000 megawatts of capacity.
We are an Ohio corporation, and our principal executive offices
are located at 76 South Main Street, Akron, Ohio 44308. Our
telephone number is
(800) 736-3402.
3
DESCRIPTION
OF THE PLAN
The following questions and answers describe the terms and
conditions of the Plan. We suggest that you keep this Prospectus
for future reference.
Purpose
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1.
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Q.
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What is the purpose of the Plan?
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A.
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The purpose of the Plan is to provide shareholders and employees
of FirstEnergy and its subsidiaries, as well as others, a way to
purchase shares of FirstEnergy common stock. Purchases can be
made by investing cash and/or reinvesting cash dividends.
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Administration
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2.
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Q.
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Who administers the Plan?
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A.
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We administer the Plan. This includes keeping the Plan records
and serving as custodian for shares held in the Plan. If we
elect to meet the purchase requirements of participants through
purchases of shares of common stock in the open market, funds
for investment will be deposited promptly into an escrow account
for the benefit of Plan participants. An Independent Agent
appointed by us will then act on behalf of participants in
buying shares. The Independent Agent, or such other registered
securities broker designated by us, will sell Plan shares on
behalf of participants.
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The Independent Agent is not an affiliate of FirstEnergy or our
subsidiaries. Neither FirstEnergy, any affiliate of ours nor any
participant will exercise any direct or indirect control or
influence over (a) the times when, or the prices at which, the
Independent Agent purchases shares for the Plan, (b) the amount
of the securities to be purchased, (c) the manner in which the
securities are to be purchased, or (d) the selection of a broker
or dealer (other than the Independent Agent itself) through
which the purchase may be executed. We will not change more than
once, in any three-month period, the source of the shares to
fund the plan.
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We reserve the right to interpret and regulate the Plan as
deemed necessary or desirable. Neither FirstEnergy nor our
Independent Agent will be liable for any act done in good faith
or for any omission to act in good faith, including, without
limitation, any claim of liability arising out of failure to
close a participants account upon the participants
death prior to receipt of written notice of such death, or with
respect to the prices at which shares of common stock are
purchased or sold for the participants account and the
times when such purchases and sales are made, or with respect to
any loss or fluctuation in the market value after the purchase
or sale of such shares. However, we shall not be relieved from
any liability imposed under any federal, state or other
applicable securities law that cannot be waived.
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3.
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Q.
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Who should I contact with questions concerning the Plan or
FirstEnergy?
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A.
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You may call our Shareholder Services toll-free at (800)
736-3402 or visit our Web site at www.firstenergycorp.com. You
may also write to us at the following address:
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FirstEnergy Corp.
Shareholder Services
76 South Main Street
Akron, OH
44308-1890
Participation
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4.
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Q.
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Who is eligible to participate in the Plan?
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A.
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All registered shareholders and employees of FirstEnergy and its
subsidiaries, including holders of preferred stock of
subsidiaries, are eligible to participate. In addition, any
person or entity who is not a registered shareholder or employee
is eligible to participate provided that in the case of citizens
or residents of a country other than the United States, its
territories and possessions, their participation would not
violate local laws applicable to FirstEnergy, the Plan or the
participant.
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5.
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Q.
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How do I enroll in the Plan or change my method of participation?
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A.
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Shareholders Current registered shareholders
can enroll by completing and signing a Plan Enrollment Form.
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Employees Employees can enroll by completing
and signing a Plan Enrollment Form/Payroll Deduction
Authorization Form. If voluntary payroll deductions are not
desired, this form must be accompanied by a cash payment.
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Other Persons or Entities If you are not a
registered shareholder or employee, you can enroll by making an
initial cash investment of at least $250 and completing and
signing a Plan Enrollment Form. The Plan Enrollment Form
provides information necessary to open an account, such as the
stock registration desired, address and taxpayer identification
number.
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You may change your method of participation at any time by
completing and signing another Plan Enrollment Form. In the case
of an employee who is using payroll deductions to invest in the
Plan, the amount of the deduction can be changed or canceled by
completing and signing another Plan Enrollment Form/Payroll
Deduction Authorization Form.
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6.
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Q.
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What dividend payment options are provided under the Plan?
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A.
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The Plan provides complete flexibility in regard to how
dividends are paid. You are asked to provide payment
instructions by completing both Parts (A) and (B) of the
Dividend Reinvestment and Payment Instructions Section of the
Plan Enrollment Form. Part (A) contains payment instructions for
shares that are held by you in certificate form. Part (B)
contains payment instructions for shares that are held by us in
an account for you. Dividend payment options are as follows:
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Reinvest dividends on all shares All
dividends are reinvested to purchase shares of FirstEnergy
common stock.
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Pay cash dividends on all shares All
dividends are paid in cash.
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Pay cash dividends on portion of shares You
may elect to have a portion of dividends paid in cash and
reinvest the remaining dividends to purchase shares of
FirstEnergy common stock by selecting the number of shares, the
percent, or the dollar amount of dividends to be paid in cash.
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If you elect to receive all or a portion of your dividends in
cash, your cash dividends may be deposited directly into your
checking, savings or credit union account at any financial
institution that accepts electronic direct deposits. Receiving
your payments by direct deposit ensures that the funds will be
deposited into your bank account on the payment date. If you are
interested in direct deposit of dividends, you should complete
the appropriate section on the Plan Enrollment Form or call
Shareholder Services for a Direct Deposit Authorization Form.
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7.
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Q.
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When must my Plan Enrollment Form be received by FirstEnergy?
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A.
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For dividends to be reinvested, your Plan Enrollment Form must
be received by FirstEnergy on or before the record date for the
dividend payment; otherwise, reinvestment of dividends will
start with the next succeeding dividend payment. The dividend
record and payment dates for preferred stock dividends vary and
can be obtained by contacting Shareholder Services. The dividend
record and payment dates for common stock dividends, which must
be declared by our board of directors, are expected to be as
follows:
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Record Dates Fifth business day of February,
May, August, November
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Payment Dates March 1, June 1, September 1,
December 1
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For initial cash investments, a properly completed Plan
Enrollment Form and the initial cash payment must be received by
FirstEnergy prior to a cash Investment Date, which are the 1st
and 15th day of each month. Otherwise, the investment will
be made on the next succeeding cash Investment Date. See
Question 11 for additional information.
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Dividend
Reinvestment
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8.
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Q.
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What is meant by dividend reinvestment?
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A.
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If you elect to reinvest all or a portion of your dividends, we
will take those dividends and purchase shares of FirstEnergy
common stock for you. The amount reinvested will be reduced by
(1) any amount that is required to be withheld under any
applicable tax or other statutes and (2) applicable transaction
fees. See the Purchases section for more detailed
information.
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Cash
Investments
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9.
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Q.
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Who is eligible to make cash investments?
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A.
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All persons and entities that are eligible to participate in the
Plan are eligible to make cash investments. See Question 4 for
Plan eligibility requirements.
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10.
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Q.
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What are the minimum and maximum cash investments?
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A.
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If you are not a registered shareholder or employee of
FirstEnergy or its subsidiaries, the initial cash investment
must be at least $250.
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If you are a registered shareholder or employee of FirstEnergy
or its subsidiaries, the minimum cash investment is $25 per
payment; however, for employees who elect to use payroll
deduction to make cash investments, the minimum deduction is $10.
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The maximum amount of cash investments is $100,000 per calendar
year.
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11.
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Q.
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How do I make a cash investment?
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A.
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If you are not a current Plan participant, you must enclose a
check with your Plan Enrollment Form.
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If you are a current Plan participant, you can make a cash
investment by sending a check or by signing up for automatic
electronic investments as discussed below. When sending a check,
you should attach a cash investment form, which is attached to
your Plan statements. You may also send a check without a cash
investment form; however, your stock registration or tax
identification number should be included on your check for
account identification purposes, along with a cover letter
requesting that the check be used to purchase common stock of
FirstEnergy. If you are sending a cash payment to open a new
account, you must send a letter of instruction providing the
name, address and tax identification number (include an IRS Form
W-9) for the new account.
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All checks should be made payable to FirstEnergy
Corp. and sent to FirstEnergy Shareholder Services at 76
South Main Street, Akron, OH 44308-1890. For the protection of
participants, we discourage sending cash or endorsed
second-party checks. Cash investments received from foreign
shareholders must be in United States dollars.
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You may authorize monthly automatic electronic cash investments
by completing the appropriate section on the Enrollment Form or
by completing an Automatic Electronic Investment Authorization
Form available from Shareholder Services. This enables you to
make regular investments, if you choose, without the
inconvenience of writing and mailing checks. If you authorize
automatic electronic cash investments, funds will be withdrawn
from your bank or credit union account around the 25th day
of each month and will be invested on the next Investment Date
following the withdrawal. Your bank, savings association or
credit union must be a member of the National Automated
Clearinghouse Association. You may change the amount
automatically withdrawn or the financial institution at any time
by completing a new Automatic Electronic Investment
Authorization Form, and you may stop automatic electronic cash
investments by notifying Shareholder Services in writing.
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Cash investments, pending purchase of common stock through the
Plan, will be credited to your Plan account and held in a bank
account separate from funds of FirstEnergy. No interest will be
paid to you on cash held for investment. You may request the
return of a cash investment upon written request received by
FirstEnergy not later than 48 hours prior to the applicable
Investment Date.
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7
Investment
Dates
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12.
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Q.
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When are the Investment Dates for Plan purchases?
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A.
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Investment Dates for reinvested dividends are the dividend
payment dates. Payment dates for common stock dividends are
expected to be March 1, June 1, September 1 and December 1.
Payment dates for preferred stock dividends can be obtained by
contacting Shareholder Services. Investment Dates for cash
investments are the 1st and 15th day of each month. A cash
investment must be received by FirstEnergy by the business day
before the Investment Date in order to be invested on such
Investment Date. Otherwise, the cash investment will be held by
FirstEnergy and invested on the next Investment Date.
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In order to receive dividends on shares of common stock
purchased with a cash investment, the shares must be purchased
on an Investment Date prior to the dividend record date. Record
dates for common stock dividends are expected to be the fifth
business day of February, May, August and November.
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Purchases
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13.
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Q.
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What is the price of shares purchased under the Plan?
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A.
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Reinvested dividends and cash investments will be used to
purchase shares of FirstEnergy common stock which, at the option
of FirstEnergy, will be either purchased on behalf of Plan
participants in the open market by an Independent Agent
appointed by FirstEnergy or newly issued shares. When shares are
purchased in the open market, the purchase price per share will
be the weighted average price of the aggregated shares purchased
by the Independent Agent during the purchase period plus a
transaction fee of $.09 per share. The purchase period may begin
no more than three business days before the Investment Date, and
should be completed no more than ten days after the Investment
Date, although it could be longer. The length of the purchase
period is affected by the amount of funds to be invested, the
availability of shares in the open market, and market
conditions. Purchases of shares pursuant to cash payments will
be completed no later than 30 days after receipt of cash
payments. The Independent Agent will combine the funds of all
participants for the purpose of executing purchase transactions.
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When shares to be purchased are satisfied by newly issued
shares, the price will be the average of the high and low prices
of FirstEnergys common stock, as reported in the New York
Stock Exchange Composite Index on The Wall Street Journals
Website, for the Investment Date (or the next preceding day on
which FirstEnergy common stock is traded on the New York Stock
Exchange, if it is not traded on the Investment Date), plus a
transaction fee which is not expected to exceed $.09 per share.
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The determination of the source of shares of common stock to be
used for purchases under the Plan will be solely based on
FirstEnergys need to increase equity capital. If
FirstEnergy does not need to raise funds externally or if the
need for funds is satisfied using sources other than the
issuance of new shares through the Plan, shares of common stock
purchased for participants under the Plan will be purchased in
the open market. As of the date of this Prospectus, shares of
common stock purchased for participants under the Plan are being
purchased in the open market. We will not change more than once
in any three-month period the source of the purchase of the
shares.
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8
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If shares cannot be purchased with respect to an Investment Date
due to the inability to purchase shares during the purchase
period, or if such purchase is deemed to be otherwise
inadvisable by FirstEnergy or the Independent Agent, the
dividends and cash investments which otherwise would have been
invested will be paid or returned, as the case may be, by the
Company issuing checks to the affected participants without
interest.
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14.
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Q.
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How many shares of common stock will be purchased?
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A.
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The number of shares (including any fraction of a share) of
common stock purchased for you will be determined by dividing
the total amount of the cash dividend and/or cash investment to
be invested for you on the Investment Date by the purchase
price. All shares purchased under the Plan are held by
FirstEnergy and credited to your Plan account until such time as
you request the withdrawal of shares from your Plan account.
Because only the Independent Agent may direct the time or price
at which shares are purchased, we cannot exercise, directly or
indirectly, control or influence over the number of shares to be
purchased.
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15.
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Q.
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Do I incur any fees for shares purchased under the Plan?
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A.
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Yes. There is a transaction fee for each share purchased to
cover brokerage commissions and administrative costs of the
Plan. This transaction fee is not expected to exceed $0.09 per
share; however, there is currently no maximum amount set for the
Plans fees. Although not anticipated, Plan participants
will receive advance written notice if there is a need to charge
a transaction fee of greater than $0.09 per share due to
increased administrative costs or broker commissions.
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Safekeeping
Option for Common Stock Certificates
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16.
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Q.
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What is the purpose and advantages of the safekeeping option?
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A.
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The purpose of the Plans safekeeping option is to enable
you to deposit any FirstEnergy common stock certificates into
the Plan for safekeeping. The certificates are canceled and the
shares are credited to your Plan account. The shares are shown
on dividend checks and/or Plan account statements and otherwise
treated in the same manner as shares purchased through the Plan.
FirstEnergy does not offer safekeeping for preferred stock
certificates.
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Benefits of the Plans safekeeping option include: you do
not have to worry or bear the cost of protecting stock
certificates or replacing certificates due to loss, theft or
destruction; you can request that a certificate for whole shares
be issued at no cost to you at any time; and because shares held
in safekeeping are treated in the same manner as shares
purchased through the Plan, you may conveniently sell them
through the Plan.
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17.
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Q.
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How do I use the safekeeping option?
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A.
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At the time of Plan enrollment, you may take advantage of the
safekeeping option by sending your certificate(s), unsigned, to
FirstEnergy Shareholder Services with a Plan Enrollment Form.
Or, at any time after enrollment, you may send your
certificate(s), unsigned, with a signed letter of instruction
requesting that FirstEnergy hold the shares in safekeeping and
stating whether the dividends for shares being sent are to be
reinvested or paid in cash. Registered mail is suggested when
mailing certificates.
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9
Sales,
Certificate Withdrawals and Closing Plan Accounts
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18.
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Q.
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How do I receive a certificate for or sell a portion of my Plan
shares?
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A.
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To receive a certificate for or to sell a portion of the shares
credited to your Plan account, you must notify us of the number
of whole shares to be issued in certificate form or to be sold.
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19.
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Q.
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How do I close my Plan account?
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A.
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To close a Plan account, you must notify us and provide
instructions as to whether a certificate is to be issued, the
shares are to be sold, or both. If both, the number of whole
shares for which a certificate is to be issued must be specified
so that the remainder of the shares can be sold. When requested
to issue a certificate only, or if no instructions are provided,
we will issue a certificate for all whole shares credited to the
account and a check for the value of any fraction of a share.
The price of the shares sold, including any fractional shares,
will be the weighted average price of the aggregated shares sold
by the Independent Agent or designated broker less a transaction
fee of $.09 per share.
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20.
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Q.
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How long does it take to withdraw certificates or close my Plan
account?
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A.
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It normally takes less than three business days from the time we
receive a request for an account to be closed or a certificate
to be issued. However, if we receive your request to close your
Plan account between a dividend [payment] date and the date that
the additional shares purchased with your reinvested dividend
are credited to your account, your request may not be processed
until the additional shares are credited to your Plan account
(approximately two weeks after the dividend payment date). The
additional shares purchased will be added to your account, and
all shares will be issued or sold as soon as possible
thereafter, depending on your instructions. Upon request,
however, we can issue a certificate for or sell all whole shares
currently in your Plan account, and then close your account by
issuing another certificate for or selling the additional shares
purchased after the shares are credited to your Plan account.
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The Plan does not provide for the automatic issuance of
certificates after a purchase, and certificates for fractions of
shares will not be issued under any circumstances. Certificates
representing Plan shares will be issued in the name in which
your account is registered. If you desire to transfer Plan
shares to another registration, you should contact us for
transfer instructions.
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21.
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Q.
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How often are shares sold and at what price?
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A.
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Participants requests to sell Plan shares will be
aggregated and sold at least once a week. (See Question 20 for
information on requests to sell all shares and close a Plan
account after a dividend record date). We will place a market
order with the Independent Agent or broker designated by us, who
will sell the shares as soon as practicable. Neither FirstEnergy
nor any participant will have any authority or power to direct
the time or price at which shares may be sold.
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The price of the shares sold will be the weighted average price
of the aggregated shares sold by the Independent Agent or
designated broker less a transaction fee of $.09 per share. A
check for sale of the shares, less the transaction fee, will
generally be mailed to the participant three business days after
the shares are sold.
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22.
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Q.
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Will I incur any fees for shares sold under the Plan?
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A.
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Yes. There is a transaction fee for each share sold to cover
brokerage commissions and administrative costs of the Plan. This
transaction fee is currently $.09 per share.
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10
Statements
to Participants
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23.
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Q.
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Will I receive Plan account statements?
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A.
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If you reinvest some or all of your dividends, you will receive
a Plan statement about three weeks after each dividend payment
date. You will also receive a Plan statement about two weeks
after any Investment Date that you invest cash.
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If you receive a dividend check for some or all of your
dividends, you will receive account information on the stub
attached to the check.
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In addition to periodic account statements, a Plan account
history report is available at any time upon request to
FirstEnergy. This report is a summary of all Plan purchases and
withdrawals and provides a concise and thorough record for you.
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Tax
Consequences
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24.
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Q.
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What are the tax consequences of participation in the Plan?
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A.
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You will have the same federal income tax obligations with
respect to your dividends as shareholders who are not Plan
participants. This means that dividends reinvested under the
Plan are taxable as ordinary income even though you did not
actually receive them in cash.
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The selling of shares, including any fractional share, may give
rise to a capital gain or loss for federal income tax purposes.
Any such gain or loss will be determined by the difference
between your net proceeds from the sale and your tax basis in
the shares sold.
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The original tax basis of shares acquired through the Plan is
equal to their purchase price per share, including brokerage
commission and other fees. See Question 13 for information
regarding the purchase price of shares acquired through the Plan.
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Any capital gain or loss will be long-term or short-term
according to your holding period and current tax laws. The
holding period for the shares acquired under the Plan commences
the day after the applicable Investment Date.
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The above tax information is only a general discussion of
certain tax aspects of an investment in the Plan. You should
consult your personal tax adviser as to all of the tax
consequences of participating in the Plan, including the
application of current and proposed federal, state, local,
foreign and other tax laws.
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Other
Information
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25.
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Q.
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What happens if we issue a stock dividend or declare a stock
split?
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A.
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Any shares of common stock distributed by us as a stock dividend
on shares credited to your Plan account, or as a split of these
shares, will be credited to your Plan account. Stock dividends
or split shares distributed on any shares held by you in
certificate form will be mailed directly to you in the same
manner as to shareholders who are not participating in the Plan.
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26.
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Q.
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If FirstEnergy has a rights offering, how will the rights on
Plan shares be handled?
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A.
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Rights on shares held by you in certificate form and on any
shares, both whole and fractional, credited to your Plan account
will be mailed directly to you in the same manner as to
shareholders not participating in the Plan.
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11
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27.
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Q.
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How will shares I hold in the Plan be voted at meetings of
shareholders?
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A.
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You will receive a proxy card which will enable you to vote both
shares credited to your Plan account and shares held by you in
certificate form.
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28.
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Q.
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Can shares credited to my Plan account be pledged?
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A.
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No. Shares credited to your Plan account may not be pledged. If
you wish to pledge such shares you must request the issuance of
a stock certificate for such shares.
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29.
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Q.
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Who bears the risk of market price fluctuations affecting the
value of Plan shares?
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A.
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Each individual participant in the Plan bears the risk of market
price changes affecting the value of the stock. We cannot assure
you of a profit or protect you against a loss on any shares you
hold, purchase or sell under the Plan.
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30.
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Q.
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Can FirstEnergy terminate my participation in the Plan?
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A.
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Yes. After mailing written notice to you, we may terminate your
participation in the Plan for any reason, including if your
ownership interest is less than one full share. If your
participation has been terminated, you will receive (1) a
certificate for any or all of the whole shares of common stock
credited to your account, (2) any uninvested dividend or cash
investment credited to your account and (3) a check for the cash
value of any fraction of a share of common stock credited to
your account. Any fraction of a share will be sold and the cash
value for such fraction of a share will be the weighted average
price of the aggregated fractions of shares sold by the
Independent Agent or designated broker less a transaction fee of
$.09 per share.
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31.
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Q.
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May the Plan be changed, suspended or discontinued?
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A.
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We reserve the right, for any reason, to modify, suspend or
terminate any provision of the Plan, or the Plan as a whole, at
any time. All participants will receive notice of any such
modification, suspension or termination. Typically, notice will
be provided prior to the effectiveness of the applicable
modification, suspension or termination. However, notices of
suspension or termination caused by the inability to purchase or
inadvisability of purchasing shares may be given after the fact.
If the Plan is suspended, we may similarly, for any reason,
reinstate the Plan at any time. Again, notice will be given to
participants of the reinstatement and such notice may be given
before or after the fact.
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Upon any termination of the Plan by us, you will receive (1) a
certificate for all of the whole shares of common stock credited
to your account, (2) any uninvested dividend or cash investment
credited to your account and (3) a check for the cash value for
any fraction of a share of common stock credited to your
account. The price of the shares sold will be the weighted
average price of the aggregated shares sold by the Independent
Agent or designated broker less a transaction fee of $.09 per
share Any fraction of a share will be sold and the cash value
for such fraction of a share will be the weighted average price
of the aggregated fractions of shares sold by the Independent
Agent or designated broker less a transaction fee of $.09 per
share.
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If you have questions concerning the Plan or FirstEnergy,
please call Shareholder Services at
1-800-736-3402.
12
USE OF
PROCEEDS
The proceeds from the sale to the Plan of any newly issued stock
will be used to meet working capital and capital expenditure
requirements and for other corporate purposes.
DESCRIPTION
OF COMMON STOCK
Certain provisions of our Amended Articles of Incorporation and
Amended Code of Regulations are summarized or referred to below.
The summaries are merely an outline, do not purport to be
complete, do not relate to or give effect to the provisions of
statutory or common law, and are qualified in their entirety by
express reference to our Amended Articles of Incorporation and
Amended Code of Regulations.
We are authorized by our Amended Articles of Incorporation to
issue 375,000,000 shares of common stock, par value $.10
per share, of which 304,835,407 shares were issued and
outstanding as of August 14, 2008. The common stock
currently outstanding is, and the common stock offered pursuant
to this Prospectus will be, fully paid and non-assessable.
We are also authorized by our Amended Articles of Incorporation
to issue 5,000,000 shares of preferred stock, par value
$100 per share, of which none are currently issued and
outstanding. Our Amended Articles of Incorporation give our
board of directors authority to issue preferred stock from time
to time in one or more classes or series. Preferred stock could
be issued with terms that could delay, defer or prevent a change
of control of FirstEnergy.
Dividend
Rights
Subject only to any prior rights and preferences of any shares
of our preferred stock that may in the future be issued and
outstanding, the holders of the common stock are entitled to
receive dividends when, as and if declared by our board of
directors out of legally available funds. There can be no
assurance that funds will be legally available to pay dividends
at any given time or that, if funds are available, the board of
directors will declare a dividend.
Liquidation
Rights
In the event of our dissolution or liquidation, the holders of
our common stock will be entitled to receive, pro rata, after
the prior rights of the holders of any issued and outstanding
shares of our preferred stock have been satisfied, all of our
assets that remain available for distribution after payment in
full of all of our liabilities.
Voting
Rights
The holders of our common stock are entitled to one vote on each
matter submitted for their vote at any meeting of our
shareholders for each share of common stock held as of the
record date for the meeting. The holders of our common stock are
not entitled to cumulate their votes for the election of
directors. Our Amended Code of Regulations provides that the
board of directors be divided into three classes with the term
of office of the respective classes to expire in successive
years.
13
In order to amend or repeal, or adopt any provision inconsistent
with, the provisions of our Amended Articles of Incorporation
dealing with:
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the right of the board of directors to establish the terms of
unissued shares or to authorize our acquisition of our
outstanding shares;
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the absence of cumulative voting and preemptive rights; or
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the requirement that at least 80% of the voting power of our
outstanding shares must approve the foregoing;
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at least 80% of the voting power of our outstanding shares must
approve. In addition, the approval of at least 80% of the voting
power of our outstanding shares must be obtained to amend or
repeal the provisions of our Amended Code of Regulations dealing
with:
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the time and place of shareholders meetings, the manner in
which special meetings of shareholders are called or the way
business is conducted at such meetings;
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the number, election and terms of directors, the manner of
filling vacancies on the board of directors, the removal of
directors or the manner in which directors are nominated; or
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the indemnification of officers or directors.
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Amendment of the provision of the Amended Code of Regulations
that requires the approval of 80% of the voting power of our
outstanding shares in the instances enumerated above requires
the same level of approval.
Adoption of amendments to our Amended Articles of Incorporation
(other than those requiring 80% approval as specified above),
adoption of a plan of merger, consolidation or reorganization,
authorization of a sale or other disposition of all or
substantially all of our assets not made in the usual and
regular course of its business or adoption of a resolution of
dissolution, and any other matter which would otherwise require
a two-thirds approving vote, require the approval of two-thirds
of the voting power of our outstanding shares, unless our board
of directors provides otherwise, in which case, these matters
will require the approval of a majority of the voting power of
our outstanding shares and the approval of a majority of the
voting power of any shares entitled to vote as a class.
Ohio Law
Anti-takeover Provisions
Chapter 1704 of the Ohio General Corporation Law applies to
a broad range of business combinations between an Ohio
corporation and an interested shareholder. The Ohio law
definition of business combination includes mergers,
consolidations, combinations or majority share acquisitions. An
interested shareholder is defined as a shareholder
who, directly or indirectly, exercises or directs the exercise
of 10% or more of the voting power of the corporation in the
election of directors.
Chapter 1704 restricts corporations from engaging in
business combinations with interested shareholders, unless the
articles of incorporation provide otherwise, for a period of
three years following the date on which the shareholder became
an interested shareholder, unless the directors of the
corporation have approved the business combination or the
interested shareholders acquisition of shares of the
corporation
14
prior to the date the shareholder became an interested
shareholder. After the initial three-year moratorium,
Chapter 1704 prohibits such transactions absent approval by
the directors of the interested shareholders acquisition
of shares of the corporation prior to the date that the
shareholder became an interested shareholder, approval by
disinterested shareholders of the corporation or the transaction
meeting certain statutorily defined fair price provisions.
Under Section 1701.831 of the Ohio General Corporation Law,
unless the articles of incorporation, the regulations adopted by
the shareholders, or the regulations adopted by the directors
pursuant to division (A)(1) of Section 1701.10 of the Ohio
General Corporation Law provide otherwise, any control share
acquisition of a corporation can only be made with the prior
approval of the corporations shareholders. A control
share acquisition is defined as the acquisition, directly
or indirectly, by any person of shares of a corporation that,
when added to all other shares of that corporation in respect of
which the person may exercise or direct the exercise of voting
power, would enable that person, immediately after the
acquisition, directly or indirectly, alone or with others, to
exercise levels of voting power of the corporation in the
election of directors in any of the following ranges: at least
20% but less than
331/3%;
at least
331/3%
but no more than 50%; or more than 50%.
Anti-takeover
Effects
Some of the supermajority provisions of our Amended Articles of
Incorporation and Amended Code of Regulations and the rights or
the provisions of Ohio law described above, individually or
collectively, may discourage, deter, delay or impede a tender
offer or other attempt to acquire control of FirstEnergy even if
the transaction would result in the shareholders receiving a
premium for their shares over current market prices or if the
shareholders otherwise believe the transaction would be in their
best interests.
On November 18, 1997, we authorized and declared a dividend
of a one share purchase right for each outstanding share of our
common stock. Each right entitled the registered holder to
purchase one share of our common stock at a purchase price of
$70 per share, if and when the rights became exercisable in the
event that we became the subject of a takeover attempt or other
merger or acquisition. The rights, which could have had
anti-takeover effects by causing substantial dilution to a
person or group that attempted to acquire us unless redeemed by
our board of directors, were not extended or redeemed by our
board of directors prior to their expiration on
November 28, 2007.
No
Preemptive or Conversion Rights
Holders of our common stock have no preemptive or conversion
rights and are not subject to further calls or assessments by
us. There are no redemption or sinking fund provisions
applicable to our common stock.
Listing
Shares of our common stock are traded on the New York Stock
Exchange under the symbol FE.
Transfer
Agent and Registrar
The Transfer Agent and Registrar for our common stock is
FirstEnergy Securities Transfer Company, our wholly owned
subsidiary.
15
Dividend
Information
Cash dividends, per share of our common stock, declared in 2008
through the date of this prospectus include two quarterly
payments of $0.55 per share in 2008. Cash dividends, per
share of our common stock, declared in 2007 include three
quarterly payments of $0.50 per share in 2007 and one quarterly
payment of $0.55 per share in 2008, increasing the indicated
annual dividend rate from $2.00 to $2.20 per share. Dividends
declared in 2006 include three quarterly payments of $0.45 per
share in 2006 and one quarterly payment of $0.50 per share paid
in 2007. Dividends declared in 2005 include two quarterly
payments of $0.4125 per share in 2005, one quarterly payment of
$0.43 per share in 2005 and one quarterly payment of $0.45 per
share in 2006. Dividends declared in 2004 include four quarterly
dividends of $0.375 per share paid in 2004 and a quarterly
dividend of $0.4125 per share paid in 2005. Dividends declared
in 2003 include four quarterly dividends of $0.375 per share.
Dividends on our common stock are paid as declared by our board
of directors and are typically paid on the first day of March,
June, September and December. Future dividends will depend on
our future earnings and the ability of our subsidiaries to pay
cash dividends to us which, in the case of our regulated
subsidiaries, may be subject to regulatory limitations and to
charter and indenture limitations that may, in general, restrict
the amount of retained earnings available for the payment to us
of dividends. These limitations, however, do not currently
materially restrict payment of these dividends.
LEGAL
MATTERS
The legality of our common stock offered pursuant to this
Registration Statement is passed on for us by Wendy E. Stark,
Associate General Counsel for FirstEnergy. Ms. Stark is a
holder of shares (and options to purchase shares) of our common
stock. As of June 30, 2008, Ms. Stark owned
672 shares of our common stock.
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
The financial statements and managements assessment of the
effectiveness of internal control over financial reporting
(which is included in Managements Report on Internal Control
over Financial Reporting) incorporated in this Prospectus by
reference to the Annual Report on
Form 10-K
for the year ended December 31, 2007, have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
With respect to the unaudited financial information of
FirstEnergy Corp. for the three-month periods ended
March 31, 2008 and 2007 and for the three-month and
six-month periods ended June 30, 2008 and 2007,
incorporated by reference in this Prospectus,
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 May 7, 2008 and August 7, 2008 for the quarter
ended March 31, 2008 and for the quarter and six-month
periods ended June 30, 2008, respectively, incorporated by
reference herein states 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 a
report or a part of the registration
statement prepared or certified by PricewaterhouseCoopers LLP
within the meaning of Sections 7 and 11 of the Securities
Act.
16
WHERE YOU
CAN FIND MORE INFORMATION
We are required by the Exchange Act to file annual, quarterly
and current reports and other information with the SEC. These
reports and other information can be inspected and copied at the
Public Reference Room maintained by the SEC at
100 F Street, N.E., Washington, D.C. 20549. You
may obtain information on the operation of the Public Reference
Room by calling the SEC at
1-800-SEC-0330.
You may also read and copy these SEC filings by visiting the
SECs Website at
http://www.sec.gov
or our Website at
http://www.firstenergycorp.com.
Information contained on our Website does not constitute part of
this Prospectus.
We have filed with the SEC a registration statement on
Form S-3
under the Securities Act with respect to the securities offered
by this Prospectus. This Prospectus does not contain all of the
information included in the registration statement. For further
information, you should refer to the registration statement.
The SEC allows us to incorporate by reference in this Prospectus
the information we file with them, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is
considered to be part of this Prospectus. The information
included in this Prospectus is not complete, and should be read
together with the information incorporated by reference. We
incorporate by reference in this Prospectus the documents listed
below and any future filings we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
until the termination of this offering; information we file in
the future with the SEC will automatically update and supersede
this information:
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|
|
|
|
FirstEnergys Annual Report on
Form 10-K
for the year ended December 31, 2007;
|
|
|
|
FirstEnergys Quarterly Reports on
Form 10-Q
for the quarters ended March 31, 2008 and
June 30,2008; and
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|
|
|
FirstEnergys Current Report on
Form 8-K
filed January 2, 2008.
|
We also note that we have furnished to the SEC our Current
Reports on
Form 8-K
dated February 25, 2008 (two reports), May 1, 2008,
July 31, 2008 and August 1, 2008. As indicated in such
reports, the information in these
Form 8-Ks
and the Exhibits attached thereto was furnished pursuant to
Form 8-K
and is not deemed filed for purposes of
Section 18 of the Exchange Act, nor is such information
deemed incorporated by reference in this registration statement
on
Form S-3.
Likewise, information included in future reports on Form 8-K
similarly furnished to the SEC and not deemed filed
will not be deemed incorporated by reference in this
registration statement on Form S-3.
You may also request additional copies of these reports or
copies of our other SEC filings at no cost by writing or
telephoning us at the following address:
FirstEnergy
Corp.
76 South Main Street
Akron, Ohio
44308-1890
Attention: Corporate Secretary
(800) 736-3402
17
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
Item 14.
|
Other
Expenses of Issuance and Distribution
|
|
|
|
|
|
Registration fee
|
|
$
|
8,441
|
|
Costs of printing and engraving*
|
|
$
|
22,175
|
|
Legal fees and expenses*
|
|
$
|
35,000
|
|
Accounting fees and expenses*
|
|
$
|
13,000
|
|
New York Stock Exchange Listing Fee
|
|
$
|
5,700
|
|
Miscellaneous expenses*
|
|
$
|
27,750
|
|
|
|
|
|
|
Total
|
|
$
|
112,066
|
|
|
|
Item 15.
|
Indemnification
of Directors and Officers
|
Section 1701.13(E) of Title 17 of Pages Ohio
Revised Code Annotated gives a corporation incorporated under
the laws of Ohio power to indemnify any person who is or has
been a director, officer or employee 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 in connection with any
threatened, pending or completed action, suit or proceeding,
criminal or civil, to which he is or may be made a party because
of being or having been such director, officer or employee,
provided that in connection therewith, such person is determined
to have acted in good faith in what he reasonably believed to be
in or not opposed to the best interest of the corporation of
which he is a director, officer or employee, and without
reasonable cause, in the case of a criminal matter, to believe
that his 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 the purpose, any director who
is a party to or 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
corporations voting shareholders (or without a meeting
upon two-thirds written consent of such shareholders), by
judicial proceeding or by written opinion of independent legal
counsel other than an attorney, or a firm having associated with
it an attorney, who has been retained by or who has performed
services for the corporation or any person to be indemnified
during the five years preceding the date of determination.
Section 1701.13(E) of Title 17 of Pages Ohio
Revised Code Annotated provides that the indemnification thereby
permitted shall not be exclusive of any other rights that
directors, officers or employees may have, including rights
under insurance purchased by the corporation.
Regulation 31 of FirstEnergys Amended Code of
Regulations provides as follows:
The Corporation 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
II-1
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 Corporation, or is or was serving at the request of
the Corporation as a director, trustee, officer, employee or
agent of another corporation, partnership, joint venture, trust
or other enterprise. The Corporation shall pay, to the full
extent then required by law, expenses, including attorneys
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 Amended 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
Corporation, 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 FirstEnergys Amended Code of
Regulations provides as follows:
The Corporation 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 Corporation would have the power to
indemnify such person against such liability. Insurance may be
purchased from or maintained with a person in which the
Corporation has a financial interest.
Directors and Officers Liability
Insurance. The registrant maintains and pays the
premium on contracts insuring the registrant (with certain
exclusions) against any liability to directors and officers it
may incur under the above indemnity provisions and insuring each
director and officer of the registrant (with certain exclusions)
against liability and expense, including legal fees, which he or
she may incur by reason of his or her relationship to the
registrant, even if the registrant does not have the obligation
or right to indemnify him or her against such liability or
expense.
II-2
The following exhibits are incorporated by reference into this
registration statement or are filed herewith and made a part
hereof:
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|
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|
|
Exhibit No.
|
|
Description
|
|
|
4
|
|
(a)*
|
|
Amended Articles of Incorporation of FirstEnergy Corp.
(Exhibit 4(a) to the Registration Statement on
Form S-3
filed by the Registrant on February 3, 1997
(No. 333-21011))
|
|
4
|
|
(b)*
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|
Amended Code of Regulations of FirstEnergy Corp. (Exhibit 3
to
Form 10-K/A
filed by the Registrant on April 16, 2001)
|
|
4
|
|
(c)*
|
|
Form of Common Stock Certificate (Exhibit 4(c) to the
Registration Statement on
Form S-3/A
filed by the Registrant on November 24, 1997
(No. 333-40063))*
|
|
5
|
|
**
|
|
Opinion of Wendy E. Stark, Esq., Associate General Counsel
for FirstEnergy Corp., as to the validity of the Common Stock
being registered
|
|
15
|
|
**
|
|
Letter of PricewaterhouseCoopers LLP re unaudited interim
financial information
|
|
23
|
|
(a)**
|
|
Consent of PricewaterhouseCoopers LLP
|
|
23
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|
(b)**
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|
Consent of Wendy E. Stark, Esq. (contained in
Exhibit 5)
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24
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**
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Power of Attorney (included on signature pages)
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* |
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Incorporated by reference. |
|
** |
|
Filed herewith. |
The undersigned Registrant 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 of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of the
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 the
effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
II-3
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
Registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering
of securities of the undersigned Registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by
II-4
means of any of the following communications, the undersigned
Registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used
or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
(6) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the Registrants
annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in
the 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the
Registrant 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
Registrant 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 of 1933 and will be governed by the final
adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
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 the 22nd day of August,
2008.
FirstEnergy Corp.
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|
|
|
By:
|
/s/ Rhonda
S. Ferguson
|
Rhonda S. Ferguson
Corporate Secretary
POWER OF
ATTORNEY
Each of the undersigned directors and officers of the
Registrant, individually as such director
and/or
officer, hereby makes, constitutes and appoints Rhonda S.
Ferguson, Anthony J. Alexander and Lucas F. Torres and
each of them, singly or jointly, with full power of
substitution, as his true and lawful attorney-in-fact and agent
to execute in his 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
Registrant 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, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
|
|
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|
|
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|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Anthony
J. Alexander
Anthony
J. Alexander
|
|
President and
Chief Executive Officer, and Director
(Principal Executive Officer)
|
|
August 22, 2008
|
|
|
|
|
|
/s/ Richards
H. Marsh
Richards
H. Marsh
|
|
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
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|
August 22, 2008
|
|
|
|
|
|
/s/ Harvey
L. Wagner
Harvey
L. Wagner
|
|
Vice President, Controller and
Chief Accounting Officer
(Principal Accounting Officer)
|
|
August 22, 2008
|
II-6
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ George
M. Smart
George
M. Smart
|
|
Director
|
|
August 22, 2008
|
|
|
|
|
|
/s/ Paul
T. Addison
Paul
T. Addison
|
|
Director
|
|
August 22, 2008
|
|
|
|
|
|
/s/ Michael
J. Anderson
Michael
J. Anderson
|
|
Director
|
|
August 22, 2008
|
|
|
|
|
|
/s/ Dr. Carol
A. Cartwright
Dr. Carol
A. Cartwright
|
|
Director
|
|
August 22, 2008
|
|
|
|
|
|
/s/ William
T. Cottle
William
T. Cottle
|
|
Director
|
|
August 22, 2008
|
|
|
|
|
|
/s/ Robert
B. Heisler, Jr.
Robert
B. Heisler Jr.
|
|
Director
|
|
August 22, 2008
|
|
|
|
|
|
/s/ Ernest
J. Novak, Jr.
Ernest
J. Novak Jr.
|
|
Director
|
|
August 22, 2008
|
|
|
|
|
|
/s/ Catherine
A. Rein
Catherine
A. Rein
|
|
Director
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|
August 22, 2008
|
|
|
|
|
|
/s/ Wes
M. Taylor
Wes
M. Taylor
|
|
Director
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|
August 22, 2008
|
|
|
|
|
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/s/ Jesse
T. Williams, Sr.
Jesse
T. Williams Sr.
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Director
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August 22, 2008
|
II-7
INDEX TO
EXHIBITS
|
|
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
4
|
|
(a)*
|
|
Amended Articles of Incorporation of FirstEnergy Corp.
(Exhibit 4(a) to the Registration Statement on
Form S-3
filed by the Registrant on February 3, 1997
(No. 333-21011))
|
|
4
|
|
(b)*
|
|
Amended Code of Regulations of FirstEnergy Corp. (Exhibit 3
to
Form 10-K/A
filed by the Registrant on April 16, 2001)
|
|
4
|
|
(c)*
|
|
Form of Common Stock Certificate (Exhibit 4(c) to the
Registration Statement on
Form S-3/A
filed by the Registrant on November 24, 1997
(No. 333-40063))*
|
|
5
|
|
**
|
|
Opinion of Wendy E. Stark, Esq., Associate General Counsel
for FirstEnergy Corp., as to the validity of the Common Stock
being registered
|
|
15
|
|
**
|
|
Letter of PricewaterhouseCoopers LLP re unaudited interim
financial information
|
|
23
|
|
(a)**
|
|
Consent of PricewaterhouseCoopers LLP
|
|
23
|
|
(b)**
|
|
Consent of Wendy E. Stark, Esq. (contained in
Exhibit 5)
|
|
24
|
|
**
|
|
Power of Attorney (included on signature pages)
|
|
|
|
* |
|
Incorporated by reference. |
|
** |
|
Filed herewith. |