sv8
As filed with the Securities and
Exchange Commission on February 25, 2011
Registration
No. 333-
UNITED STATES
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 charter)
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OHIO
(State or other jurisdiction
of incorporation or organization)
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34-1843785
(I.R.S. Employer
Identification No.) |
76 South Main Street
Akron, Ohio 44308
(Address, including zip code, of Principal Executive Offices)
Allegheny Energy, Inc. 2008 Long-Term Incentive Plan
Allegheny Energy, Inc. 1998 Long-Term Incentive Plan
(Full title of the plans)
Rhonda S. Ferguson
Vice President and Corporate Secretary
FirstEnergy Corp.
76 South Main Street,
Akron, Ohio 44308
Tel. No. (330) 384-5620
(Name, address, and telephone number,
including area code, of agent for service)
Copies to:
Lucas F. Torres, Esq.
Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, NY 10036
(212) 872-1000
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
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Title for each class of |
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Proposed |
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Proposed maximum |
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securities to be |
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Amount to be |
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maximum offering |
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aggregate offering |
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Amount of |
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registered |
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registered(1) (2) |
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price per share(3) |
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price(3) |
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registration fee |
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Common Stock, par value $0.10 per share
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466,409
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$41.76
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$19,477,239.84
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$2,261.31 |
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The number of shares registered is based on an estimate of the maximum number of shares
of common stock, par value $0.10 per share (“Common Stock”), of FirstEnergy Corp. (“FirstEnergy”) issuable
under existing stock options granted
under the Allegheny Energy, Inc. 2008 Long-Term Incentive Plan
and Allegheny Energy, Inc. 1998 Long-Term Incentive Plan. |
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities
Act”), the number of shares of Common Stock to be registered hereunder includes such indeterminate number of
additional shares of Common Stock as may be offered or issued under the plans to prevent
dilution by reason of any stock dividend, stock split, or similar transactions. |
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Estimated in accordance with Section (h) of Rule 457 under the Securities Act
solely for the purpose of calculating the registration fee and based
upon the weighted average exercise price of the outstanding options. |
EXPLANATORY NOTE
FirstEnergy Corp., an Ohio corporation (the “Company” or the “Registrant”) has prepared
and filed this Registration Statement pursuant to and in accordance with the requirements of
General Instruction A to Form S-8 for the purpose of effecting the registration under the
Securities Act of shares of the Company Common Stock (as defined below) issuable upon the exercise
of options granted pursuant to terms of the Allegheny Energy, Inc. 2008 Long-Term
Incentive Plan and Allegheny Energy,
Inc. 1998 Long-Term Incentive Plan (collectively, the “Allegheny Energy Plans”).
On
February 25, 2011, the Company and Allegheny Energy, Inc., a Maryland corporation
(“Allegheny Energy”), consummated the merger (the “Merger”) of Element Merger Sub, Inc., a Maryland
corporation and wholly owned subsidiary of the Company (“Merger Sub”) with and into Allegheny
Energy, with Allegheny Energy surviving the Merger as provided by the Agreement and Plan of Merger
dated as of February 10, 2010, as amended on June 4, 2010 (the “Merger Agreement”) by and among the
Company, Allegheny Energy and Merger Sub. Allegheny Energy’s
common stock, par value $1.25 per
share (the “Allegheny Energy Common Stock”), is no longer outstanding, and shares of Allegheny
Energy Common Stock only represent the right to receive the consideration described in the Merger
Agreement consisting of shares of the Company’s common stock, par value $0.10 per share (“Company
Common Stock”), and cash in lieu of fractional shares.
At the effective time of the Merger, each outstanding option
held by a continuing employee of Allegheny
Energy (each
such option an “Allegheny Energy Award”) issued pursuant to any of the Allegheny
Energy Plans, whether vested or unvested, converted into corresponding options with respect to the Company’s Common Stock.
This Registration Statement has been filed for the purpose of registering 466,409 shares
of Company Common Stock issuable upon the exercise of the Allegheny Energy Awards.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given to participants
in the plans pursuant to Rule 428(b)(1) under the Securities Act.
Upon written or oral request, any of the documents incorporated by reference in Item 3 of Part
II of this Registration Statement (which documents are incorporated by reference in the Section
10(a) prospectus), other documents required to be delivered to eligible employees pursuant to Rule
428(b) of the Securities Act or additional information about the plans are available without charge
to participants of the plans by contacting the Corporate Secretary, FirstEnergy Corp., 76 South
Main Street, Akron, Ohio 44308 (1-800-631-8945).
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission (the
“Commission”) by the Company pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and the Securities Act are incorporated by reference in this Registration
Statement:
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(a) |
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The Company’s Annual Report on Form 10-K for the year ended December 31, 2010; |
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(b) |
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The Company’s Current Report on Form 8-K filed February 25, 2011; and |
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(c) |
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The description of the Company’s Common Stock to be offered hereby contained in
the Registrant’s Registration Statement on Form S-4 originally filed with the Commission
on March 23, 2010 (No. 333-165640), and as amended, including any amendments or reports
filed for the purpose of updating such description. |
In addition, all documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act (other than Current Reports on Form 8-K furnished pursuant
to items 2.02 or 7.01 of such form), prior to the filing of a post-effective amendment to this
Registration Statement, which indicates that all securities offered herein have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such documents with the Commission.
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Any statement contained in a document incorporated or deemed to be incorporated by
reference in this Registration Statement shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained in this Registration
Statement, or in any other subsequently filed document that also is or is deemed to be incorporated
by reference in this Registration Statement, modifies or supersedes such prior statement. Any
statement contained in this Registration Statement shall be deemed to be modified or superseded to
the extent that a statement contained in a subsequently filed document that is or is deemed to be
incorporated by reference in this Registration Statement modifies or supersedes such prior
statement. Any statement so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the Common Stock offered pursuant to this Registration Statement is passed on
for the Company by Robert P. Reffner, Esq., Vice President, Legal, of the Company’s subsidiary
FirstEnergy Service Company. As of December 31, 2010, Mr. Reffner beneficially owned approximately 28,090
shares of the Company’s common stock, which includes 11,855 shares of restricted stock and 9,658
shares of unvested restricted stock units.
Item 6. Indemnification of Directors and Officers.
Section 1701.13(E) of the OGCL provides that an Ohio corporation may indemnify any person who
was or is a party, or is threatened to be made a party, to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of
the fact that he is or was a director, officer, employee or agent of that corporation, or is or was
serving at the request of the corporation as a director, trustee, officer, employee, member,
manager, or agent of another entity against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding, if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and with respect to any criminal matter, if he
had no reasonable cause to believe his conduct was unlawful. In addition, no indemnification shall
be made in respect of a claim against such person by or in the right of the corporation, if the
person is adjudged to be liable for negligence or misconduct in the performance of his duty to the
corporation except to the extent provided in the court order. Indemnification may be made if
ordered by a court or authorized in each specific case 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 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. Alternatively, such determination may be made by the
corporation’s shareholders.
Section 1701.13(E) of the OGCL 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 FirstEnergy’s 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 proceeding, whether civil, criminal, administrative or investigative, by reason of the fact
that he 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
attorney’s fees, incurred by a member of the Board of Directors in defending any such action, suit
or proceeding as they are incurred, in advance of the final disposition thereof, and may pay, in
the same manner and to the full extent then permitted by law, such expenses incurred by any other
person. The indemnification and payment of expenses provided hereby shall not be exclusive of, and
shall be in addition to, any other rights granted to those seeking indemnification under any law,
the Articles of Incorporation, any agreement, vote of shareholders or disinterested members of the
Board of Directors, or otherwise, both as to action in official capacities and as to action in
another capacity while he or she is a member of the Board of Directors, or an officer, employee or
agent of the 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 FirstEnergy’s 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 it (with certain exclusions) against any liability to directors and officers it
may incur under the above indemnity provisions and insuring each of its directors and officers
(with certain exclusions) against liability and expense, including legal fees, which he or she may
incur by reason of his or her relationship to it.
Indemnification Agreements. The Registrant has entered into indemnification agreements with
its directors, the forms of which are incorporated by reference to Exhibits 10.1 and 10.2 of
FirstEnergy’s Form 10-Q for the quarter ended March 31, 2009. Each
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indemnification agreement provides, among other things, that the Registrant will, subject to
the agreement terms, indemnify a director if, by reason of the individual’s status as a director,
the person incurs losses, liabilities, judgments, fines, penalties, or amounts paid in settlement
in connection with any threatened, pending, or completed proceeding, whether of a civil, criminal,
administrative, or investigative nature. In addition, each indemnification agreement provides for
the advancement of expenses incurred by a director, subject to certain exceptions, in connection
with proceedings covered by the indemnification agreement. As a director and officer, Mr.
Alexander’s agreement addresses indemnity in both roles.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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| Exhibit Number |
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Description |
| 3-1 |
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Amended Articles of Incorporation of FirstEnergy Corp. (incorporated by reference to
FirstEnergy’s Form 10-K filed February 19, 2010, Exhibit 3-1, File No. 333-21011) |
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| 3-2 |
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Amendment to the Amended Articles of Incorporation of
FirstEnergy Corp. dated as of February 25, 2011 (incorporated by reference to FirstEnergy’s Form 8-K filed
February 25, 2011, Exhibit 3.1, File No. 333-21011) |
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| 3-3 |
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FirstEnergy Corp. Amended Code of Regulations (incorporated by reference to
FirstEnergy’s Form 10-K filed February 25, 2009, Exhibit 3-2 File No. 333-21011) |
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| 5-1*
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Opinion
of Robert P. Reffner, Esq., Vice President, Legal, of FirstEnergy Service Company
as to the validity of the Company’s Common Stock being registered |
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| 10-1 |
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Allegheny Energy, Inc. 1998 Long-Term Incentive Plan
(incorporated by reference to FirstEnergy’s Form 8-K filed
February 25,
2011, Exhibit 10.2, File No. 333-21011) |
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| 10-2 |
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Allegheny Energy, Inc. 2008 Long-Term Incentive Plan
(incorporated by reference to FirstEnergy’s Form 8-K filed
February 25, 2011,
Exhibit 10.3, File No. 333-21011) |
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| 23-1*
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Consent of Robert P. Reffner, Esq. (included in Exhibit 5-1) |
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| 23-2*
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Consent of Independent Registered Public Accounting Firm, PricewaterhouseCoopers LLP |
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| 24-1*
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Power of Attorney (included on the signature page to this Registration Statement) |
Item 9. Undertakings.
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, as amended (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; and (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)
of this section 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 Section 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each
such post-effective amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering.
(4) That for purposes of determining any liability under the Securities Act, each filing
of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act ) that is incorporated by reference in 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
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persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange 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
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 and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant
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 the 25th day of February, 2011.
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FirstEnergy Corp.
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By: |
/s/
Anthony J. Alexander |
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Name: |
Anthony J. Alexander |
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Title: |
President and Chief Executive Officer |
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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 Anthony J. Alexander, Rhonda
Ferguson 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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Date |
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| /s/ Anthony J. Alexander
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President and Chief Executive Officer (Principal Executive
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February 25, 2011 |
| Anthony J. Alexander |
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Officer) and Director |
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| /s/ Mark T. Clark |
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Executive Vice President and
Chief Financial Officer
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February 25, 2011 |
| Mark T. Clark |
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(Principal Financial Officer) |
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| /s/ Harvey L. Wagner
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Vice President, Controller
and Chief Accounting Officer
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February 25, 2011 |
| Harvey L. Wagner |
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(Principal Financial Officer) |
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| /s/ George M. Smart
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Chairman of the Board
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February 25, 2011 |
| George M. Smart |
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| /s/ Paul T. Addison
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Director
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February 25, 2011 |
| Paul T. Addison |
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| /s/ Michael J. Anderson
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Director
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February 25, 2011 |
| Michael J. Anderson |
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| /s/ Dr. Carol A. Cartwright
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Director
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February 25, 2011 |
| Dr. Carol A. Cartwright |
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| /s/ William T. Cottle
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Director
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February 25, 2011 |
| William T. Cottle |
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| /s/ Robert B. Heisler Jr.
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Director
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February 25, 2011 |
| Robert B. Heisler Jr. |
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Director |
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February 25, 2011 |
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| Julia L. Johnson |
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Director |
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February 25, 2011 |
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| Ted J. Kleisner |
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| /s/ Ernest J. Novak Jr.
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Director
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February 25, 2011 |
| Ernest J. Novak Jr. |
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| /s/ Catherine A. Rein |
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Director
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February 25, 2011 |
| Catherine A. Rein |
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| /s/ Wes M. Taylor |
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Director
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February 25, 2011 |
| Wes M. Taylor |
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/s/ Jesse T. Williams Sr. |
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Director
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February 25, 2011 |
| Jesse T. Williams Sr. |
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EXHIBIT INDEX
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| Exhibit Number |
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Description |
| 3-1 |
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Amended Articles of Incorporation of FirstEnergy Corp. (incorporated by reference to
FirstEnergy’s Form 10-K filed February 19, 2010, Exhibit 3-1, File No. 333-21011) |
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| 3-2 |
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Amendment
to the Amended Articles of Incorporation of FirstEnergy Corp. dated
as of February 25, 2011
(incorporated by reference to FirstEnergy’s Form 8-K filed
February 25, 2011, Exhibit 3.1, File No. 333-21011)
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| 3-3 |
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FirstEnergy Corp. Amended Code of Regulations (incorporated by reference to
FirstEnergy’s Form 10-K filed February 25, 2009, Exhibit 3-2, File No. 333-21011) |
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| 5-1* |
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Opinion
of Robert P. Reffner, Esq., Vice President, Legal, of FirstEnergy Service Company
as to the validity of the Company’s Common Stock being registered |
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| 10-1 |
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Allegheny Energy, Inc. 1998 Long-Term Incentive Plan
(incorporated by reference to FirstEnergy’s Form 8-K filed February 25,
2011, Exhibit 10.2, File No. 333-21011) |
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| 10-2 |
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Allegheny Energy, Inc. 2008 Long-Term Incentive Plan
(incorporated by reference to FirstEnergy’s Form 8-K filed February 25,
2011, Exhibit 10.3, File No. 333-21011) |
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| 23-1* |
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Consent of Robert P. Reffner, Esq. (included in Exhibit 5-1) |
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| 23-2* |
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Consent of Independent Registered Public Accounting Firm, PricewaterhouseCoopers LLP |
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| 24-1* |
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Power of Attorney (included on the signature page to this Registration Statement) |