As filed with the Securities and Exchange Commission on November 21, 2003
Registration No. 333-
------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRSTENERGY CORP.
(Exact Name of Registrant as Specified in Its Charter)
Ohio 34-1843785
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
76 South Main Street
Akron, Ohio 44308
(Address of Principal Executive Offices, Including Zip Code)
-------------------------------
FirstEnergy Corp. Savings Plan
(Full Title of the Plan)
-------------------------------
David W. Whitehead Copy to:
Corporate Secretary Edward W. Moore, Esq.
FirstEnergy Corp. Calfee, Halter & Griswold LLP
76 South Main Street 1400 McDonald Investment Center
Akron, Ohio 44308 800 Superior Avenue
(330) 384-4400 Cleveland, Ohio 44114
(216) 622-8200
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
-------------------------------
CALCULATION OF REGISTRATION FEE
============================================= ================== ============== =================== ==================
Proposed Proposed
Maximum Maximum
Title of Securities Amount Offering Aggregate Amount of
To Be To Be Price Per Offering Registration
Registered(1)(2) Registered(2)(3) Share(2)(4) Price(2) Fee(2)
--------------------------------------------- ------------------ -------------- ------------------- ------------------
Common stock, par value $0.10 per share
Shares not previously registered 6,866,133 shares $33.41 $229,397,503.53 $18,558.26
Shares registered under predecessor plans 133,867 shares N/A N/A N/A
--------------------------------------------- ------------------ -------------- ------------------- ------------------
TOTAL 7,000,000 shares $33.41 $229,397,503.53 $18,558.26
============================================= ================== ============== =================== ==================
(1) Includes rights to purchase shares of common stock ("Share Purchase
Rights") under FirstEnergy Corp.'s Rights Agreement that, prior to the
occurrence of certain events, will not be exercisable or evidenced
separately from the shares of common stock. In addition, pursuant to
Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers an
indeterminate amount of interests issuable under the FirstEnergy Corp.
Savings Plan.
(2) The offer and sale of 133,867 shares registered hereby (the "Carryover
Shares") were previously registered pursuant to a registration
statement on Form S-8 (File No. 333-72764), filed and effective on
November 5, 2001 (the "2001 Registration Statement"), for offer and
sale under the GPU Plans (as defined in the Statement Regarding
Compliance with Instruction E, below). The Carryover Shares were not
sold pursuant to the GPU Plans, and the FirstEnergy Corp. Savings Plan
is the successor by merger to the GPU Plans. The Carryover Shares and
the $1,130 registration fee paid with respect to those shares are
carried over to this Registration Statement in accordance with the
principles set forth in Instruction E to Form S-8 and Interpretation 89
under Section G, "Securities Act Forms" of the Manual of Publicly
Available Telephone Interpretations of the Division of Corporation
Finance of the Securities and Exchange Commission (as supplemented)(the
"Instruction and Interpretation"). Accordingly, no additional
registration fee is payable with respect to the Carryover Shares.
(3) This Registration Statement also covers additional securities that may
be issued with respect to these shares in connection with, or as a
result of, stock splits, stock dividends or similar transactions.
(4) Estimated in accordance with Rule 457(c) and (h) under the Securities
Act solely for the purpose of calculating the registration fee and
based upon the average of the high and low prices of FirstEnergy Corp.
common stock reported on the New York Stock Exchange on November 19,
2003.
Statement Regarding Compliance with Instruction E of Form S-8
This Registration Statement is being filed by FirstEnergy Corp., an
Ohio Corporation (the "Company"), for the purpose of registering additional
securities of the same class as other securities for which a registration
statement on Form S-8 has already been filed. Accordingly, pursuant to General
Instruction E to Form S-8, the contents of the Company's Registration Statement
on Form S-8 (Commission File No. 333-48651) registering 6,000,000 shares of
common stock for issuance under the FirstEnergy Corp. Savings Plan (formerly
known as the Ohio Edison System Savings Plan) (the "FirstEnergy Savings Plan"),
are hereby incorporated by reference.
Contemporaneously with the filing of this Registration Statement, the
Company is filing with the Securities and Exchange Commission (the "Commission")
Post-Effective Amendment No. 1 to the 2001 Registration Statement pursuant to
which the Company registered, among other offers and sales of its shares of
common stock, the offer and sale of 133,867 shares of common stock pursuant to
the GPU Companies Employee Savings Plan for Nonbargaining Employees, the GPU
Companies Employee Savings Plan for Employees Represented by IBEW System Council
U-3, the GPU Companies Employee Savings Plan for Employees Represented by IBEW
Local 459 and UWUA Local 180 and the GPU Companies Employee Savings Plan for
Employees Represented by IBEW Local 777 (collectively, the "GPU Plans"). The GPU
Plans were merged into the FirstEnergy Savings Plan on January 7, 2003 and, as a
result, the FirstEnergy Savings Plan is the successor to the GPU Plans. The
Carryover Shares were not sold pursuant to the GPU Plans and, following the
filing of Post-Effective Amendment No. 1 to the 2001 Registration Statement, the
Carryover Shares are no longer available for new offers or sales under the GPU
Plans.
Consequently, in accordance with the Instruction and Interpretation:
(i) the Company is carrying over from the 2001 Registration Statement and
registering the offer and sale of 133,867 shares of common stock under the
FirstEnergy Savings Plan pursuant to this Registration Statement; (ii)
registration fees in the amount of $1,130 allocable to the Carryover Shares and
paid in connection with the 2001 Registration Statement are carried over to this
Registration Statement; (iii) the 2001 Registration Statement is being amended
on a post-effective basis to describe the merger of the GPU Plans into the
FirstEnergy Savings Plan; (iv) in addition to the shares being carried over
pursuant to (i) above, the Company is registering for the first time the offer
and sale of 6,866,133 shares of common stock under the FirstEnergy Savings Plan
pursuant to this Registration Statement, so that this Registration Statement
registers a total of 7,000,000
2
shares of common stock to be offered and sold under the FirstEnergy Savings
Plan; and (v) in addition to the registration fees being carried over pursuant
to (ii) above, the registration fee allocable to the newly registered shares in
the amount of $18,558.26 has been paid to the Commission in connection with this
Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by the Company or the
FirstEnergy Savings Plan with the Commission are incorporated by reference in
this Registration Statement:
(1) The Company's Annual Report on Form 10-K (as amended by the Forms
10-K/A filed on May 9, 2003, August 19, 2003 and September 11,
2003) for the year ended December 31, 2002;
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2003 (as amended by the Forms 10-Q/A filed on
August 19, 2003 and September 11, 2003), June 30, 2003 (as
amended by the Form 10-Q/A filed on September 11, 2003) and
September 30, 2003;
(3) The Company's Current Reports on Form 8-K filed January 17,
2003, January 21, 2003, March 11, 2003, March 17, 2003, March
18, 2003, April 16, 2003, April 18, 2003, May 1, 2003, May 9,
2003, May 22, 2003, June 5, 2003, June 11, 2003, June 27,
2003, July 24, 2003, July 25, 2003, August 5, 2003, August 7,
2003, August 8, 2003, September 8, 2003, September 12, 2003,
September 24, 2003, November 13, 2003 and November 21, 2003;
(4) Annual report on Form 11-K of the FirstEnergy Savings Plan for
the year ended December 30, 2002, filed with the Commission on
June 27, 2003, as amended by the Form 11-K/A filed with the
Commission on June 30, 2003;
(5) The description of the Company's common stock contained in the
Company's Registration Statement on Form S-3, Pre-Effective
Amendment No. 1 (Registration No. 333-103865), filed with the
Commission on August 27, 2003, and any amendment or report
filed for the purpose of updating such description; and
(6) The description of the Share Purchase Rights of the Company
contained in the Company's Current Report on Form 8-K, dated
November 18, 1997, and any amendment or report filed for the
purpose of updating that description.
All documents filed by the Company or the FirstEnergy Savings Plan with
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), subsequent to the filing
of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement
3
and made a part hereof from their respective dates of filing (such documents,
and the documents enumerated above, being hereinafter referred to as
"Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities being registered will be verified by
Gary D. Benz, Esq., the Company's Associate General Counsel. As of November 14,
2003, Mr. Benz owned 2,761 shares of the Company's common stock. Mr. Benz is
eligible to participate in the FirstEnergy Savings Plan, pursuant to which the
Company's common stock will be issued.
With respect to the unaudited consolidated financial information of
FirstEnergy Corp. for the three-month periods ended March 31, 2003 and 2002, for
the three-month and six-month periods ended June 30, 2003 and 2002 and for the
three-month and nine-month periods ended September 30, 2003 and 2002,
incorporated by reference in this Registration Statement, PricewaterhouseCoopers
LLP reported that they have applied limited procedures in accordance with
professional standards for a review of such information. However, their separate
reports dated May 9, 2003, except as to Note 1, which is as of August 18, 2003,
August 18, 2003, and November 13, 2003 for the quarters ended March 31, 2003,
June 30, 2003 and September 30, 2003, respectively, incorporated by reference
herein, state that they did not audit and they do not express an opinion on that
unaudited consolidated 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 consolidated 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 Act.
Item 8. Exhibits.
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
The Company hereby undertakes that it will submit or has submitted the
FirstEnergy Savings Plan and any amendments thereto to the Internal Revenue
Service in a timely manner and has made or will make all changes required by the
Internal Revenue Service in order to qualify the FirstEnergy Savings Plan under
Section 401 of the Internal Revenue Code of 1986, as amended.
Item 9. Undertakings
The Company hereby undertakes:
4
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of 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 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 a
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% 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;
provided, however, that clauses (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered that remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act,
each filing of the Company's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of the annual
report pursuant to Section 15(d) of the Exchange Act for the FirstEnergy Savings
Plan) 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 may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling
5
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
6
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, the Company certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Akron, State of Ohio, on
this 21st day of November, 2003.
FIRSTENERGY CORP.
By: /s/ David W. Whitehead
------------------------------------
David W. Whitehead
Corporate Secretary (Duly Authorized
Officer)
Each of the undersigned directors and officers of the Company,
individually as such director and/or officer, hereby makes, constitutes and
appoints H. Peter Burg and David W. Whitehead, and each of them, singly or
jointly, with full power of substitution, as his or her true and lawful
attorney-in-fact and agent to execute in his or her name, place and stead, in
any and all capacities, and to file with the Commission, any and all
post-effective amendments to this Registration Statement, which post-effective
amendment may make such changes in the Registration Statement as the Company
deems appropriate, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his, her or their substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on this 19th day of November, 2003.
Signature Title Date
--------- ----- ----
/s/H. Peter Burg
--------------------------------- Chairman of the Board and Chief
H. Peter Burg Executive Officer (Principal Executive November 19, 2003
Officer)
/s/Anthony J. Alexander
--------------------------------- President, Chief Operating Officer and November 19, 2003
Anthony J. Alexander Director
/s/Richard H. Marsh
--------------------------------- Senior Vice President and Chief
Richard H. Marsh Financial Officer (Principal Financial November 19, 2003
Officer)
/s/Harvey L. Wagner
--------------------------------- Vice President, Controller and Chief
Harvey L. Wagner Accounting Officer (Principal November 19, 2003
Accounting Officer)
7
/s/Paul T. Addison
--------------------------------- November 19, 2003
Paul T. Addison Director
/s/Carol A. Cartwright
--------------------------------- November 19, 2003
Carol A. Cartwright Director
/s/William T. Cottle
--------------------------------- November 19, 2003
William T. Cottle Director
/s/Robert B. Heisler, Jr.
--------------------------------- November 19, 2003
Robert B. Heisler, Jr. Director
/s/Robert L. Loughhead
--------------------------------- November 19, 2003
Robert L. Loughhead Director
/s/Russell W. Mainer
--------------------------------- November 19, 2003
Russell W. Maier Director
/s/John M. Pietruski
--------------------------------- November 19, 2003
John M. Pietruski Director
/s/Robert N. Pokelwaldt
--------------------------------- November 19, 2003
Robert N. Pokelwaldt Director
/s/Paul J. Powers
--------------------------------- November 19, 2003
Paul J. Powers Director
/s/Catherine A. Rein
--------------------------------- November 19, 2003
Catherine A. Rein Director
/s/Robert C. Savage
--------------------------------- November 19, 2003
Robert C. Savage Director
/s/George M. Smart
--------------------------------- November 19, 2003
George M. Smart Director
/s/Jesse T. Williams, Sr.
--------------------------------- November 19, 2003
Jesse T. Williams, Sr. Director
/s/Dr. Patricia K. Woolf
--------------------------------- November 19, 2003
Dr. Patricia K. Woolf Director
8
The Plan. Pursuant to the requirements of the Securities Act of 1933, as
amended, the trustees (or other persons who administer the employee benefit
plan) have duly caused this Registration Statement to be signed on their behalf
by the undersigned, thereunto duly authorized, in the City of Akron, State of
Ohio, on this 21st day of November, 2003.
FIRSTENERGY CORP. SAVINGS PLAN
By: FIRSTENERGY CORP., ADMINISTRATOR
/s/Richard H. Marsh
By: ---------------------------------------------
Richard H. Marsh
Senior Vice President and Chief
Financial Officer
9
EXHIBIT INDEX
Exhibit No. Description of Document
----------- -----------------------
4(a) Amended Articles of Incorporation of FirstEnergy Corp. (physically
filed and designated in the Registration Statement on Form S-3
(Registration No. 333-103865) as Exhibit 4(a)).*
4(b) Amended Code of Regulations of FirstEnergy Corp. (physically filed and
designated in the Annual Report on Form 10-K/A, filed on April 16,
2001, as Exhibit 3).*
4(c) Form of Common Stock Certificate (physically filed and designated in
the Registration Statement on Form S-3/A (Registration No. 333-40063)
as Exhibit 4(c)).*
4(d) Rights Agreement, dated as of November 18, 1997, between FirstEnergy
Corp. and The Bank of New York and form of Right Certificate
(physically filed and designated in the Current Report on Form 8-K,
dated November 18, 1997, as Exhibit 4.1).*
5 Opinion of Gary D. Benz, Esq., Associate General Counsel for the
Company, as to the validity of the Company's shares of common stock
being registered. (x)
15 Letter of PricewaterhouseCoopers LLP to the Company regarding unaudited
interim financial information. (x)
23(a) Consent of Gary D. Benz, Esq. (included in Exhibit 5).
23(b) Consent of Independent Accountants, PricewaterhouseCoopers LLP. (x)
---------------
*........Incorporated herein by reference.
(x)......Filed herewith.
E-1