Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3 Registration Statement for Securities Offered 26 117K
Pursuant to a Transaction
2: EX-4.A Instrument Defining the Rights of Security Holders 69 336K
3: EX-4.B Instrument Defining the Rights of Security Holders 8 30K
4: EX-5.A Opinion re: Legality 2 14K
5: EX-5.B Opinion re: Legality 2 13K
6: EX-12 Statement re: Computation of Ratios 1 10K
7: EX-15 Letter re: Unaudited Interim Financial Information 1 8K
8: EX-23.(B) Consent of Experts or Counsel 1 7K
9: EX-25 Statement re: Eligibility of Trustee 26 94K
S-3 — Registration Statement for Securities Offered Pursuant to a Transaction
Document Table of Contents
As filed with the Securities and Exchange Commission on September 21, 2001.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FIRSTENERGY CORP.
(EXACT NAME OF THE REGISTRANT AS SPECIFIED IN ITS CHARTER)
OHIO 34-1843785
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
76 SOUTH MAIN STREET
AKRON, OHIO 44308-1890
(330) 384-5100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
LEILA L. VESPOLI, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
FIRSTENERGY CORP.
76 SOUTH MAIN STREET
AKRON, OHIO 44308-1890
(330) 384-5800
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
WITH COPIES TO:
JOHN H. BYINGTON, JR., ESQ. DOUGLAS E. DAVIDSON, ESQ.
PILLSBURY WINTHROP LLP THELEN REID & PRIEST LLP
ONE BATTERY PARK PLAZA 40 WEST 57TH STREET
NEW YORK, NY 10004-1490 NEW YORK, NY 10019-4097
(212) 858-1000 (212) 603-2000
FAX: (212) 858-1500 FAX: (212) 603-2001
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.
/_/
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. /X/
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. /_/
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. /_/
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /_/
CALCULATION OF REGISTRATION FEE
[Enlarge/Download Table]
============================================================================================================
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF OFFERING PRICE OFFERING PRICE REGISTRATION
SECURITIES TO BE REGISTERED AMOUNT TO BE REGISTERED PER UNIT (1) (1)(2) FEE
------------------------------------------------------------------------------------------------------------
Debt Securities.................. $4,000,000,000 100% $4,000,000,000 $1,000,000
============================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Exclusive of accrued interest, if any.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
PROSPECTUS SUBJECT TO COMPLETION DATED SEPTEMBER 21, 2001
$4,000,000,000
FIRSTENERGY CORP.
DEBT SECURITIES
---------------------
By this prospectus, we may from time to time offer our senior unsecured debt
securities in one or more series with the same or different terms.
This prospectus provides a general description of our debt securities. The
specific terms of each series of debt securities will be determined at the time
they are sold and will be included in a prospectus supplement. This prospectus
may not be used to sell debt securities unless accompanied by a prospectus
supplement that describes those debt securities.
Before you invest, you should carefully read this prospectus, any applicable
prospectus supplement and any information under the heading "Where You Can Find
More Information."
---------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of 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 [ ], 2001.
[red herring language appears here to be inserted on left hand side legend on
the cover page]
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PRELIMINARY PROSPECTUS IS
NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
TABLE OF CONTENTS
PAGE
----
ABOUT THIS PROSPECTUS.........................................................3
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS..........................3
FIRSTENERGY CORP..............................................................4
RECENT DEVELOPMENTS...........................................................4
USE OF PROCEEDS...............................................................5
RATIO OF EARNINGS TO FIXED CHARGES............................................5
DESCRIPTION OF THE DEBT SECURITIES............................................5
PLAN OF DISTRIBUTION.........................................................16
LEGAL MATTERS................................................................17
EXPERTS......................................................................17
WHERE YOU CAN FIND MORE INFORMATION..........................................18
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf process, we may sell any combination of our debt securities
described in this prospectus in one or more offerings up to a total offering
price of $4,000,000,000. This prospectus provides you with a general description
of the debt securities we may offer. Each time we offer to sell debt securities,
we will provide a prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may also add, update
or change information contained in this prospectus. You should read this
prospectus, the applicable prospectus supplement and the additional information
described below under the heading "Where You Can Find More Information."
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
We caution you that this prospectus and the periodic reports and other
documents that are incorporated by reference in this prospectus contain
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934. They are
statements about future performance or results (such as statements including,
but not limited to, the terms "potential," "estimate," "believe," "expect" and
"anticipate" and similar words) when we discuss our financial condition, results
of operations and business. Forward-looking statements involve certain risks,
assumptions and uncertainties. They are not guarantees of future performance.
Factors may cause actual results to differ materially from those expressed in
these forward-looking statements. These factors include:
- changes in national and regional economic conditions;
- changes in markets for energy services;
- changing commodity market prices;
- the availability and cost of capital;
- inability to accomplish or realize anticipated benefits of
strategic goals (including our pending merger with GPU, Inc.
(see "Recent Developments" below));
- legislative and regulatory changes (including revised
environmental requirements);
- economic or weather conditions affecting future sales and
margins;
- the speed and nature of increased competition and deregulation
in the electric utility industry; and
- outcomes of legal proceedings.
We believe that the expectations reflected in our forward-looking
statements are reasonable. However, we cannot assure you that these expectations
will prove to be correct. You should consider the factors we have noted above as
you read the forward-looking statements in this prospectus.
All subsequent written and oral forward-looking statements attributable
to FirstEnergy or any person acting on our behalf are expressly qualified in
their entirety by the cautionary statements contained
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or referred to in this section. We undertake no obligation to release publicly
any revisions to such forward-looking statements to reflect events or
circumstances after the date of this document or to reflect the occurrence of
unanticipated events.
FIRSTENERGY CORP.
FirstEnergy Corp. was organized under the laws of the State of Ohio in
1996 and became a holding company on November 8, 1997 in connection with the
merger of Ohio Edison Company and Centerior Energy Corporation. Our principal
business is the holding, directly or indirectly, of all of the outstanding
common stock of our principal electric utility operating subsidiaries, Ohio
Edison, The Cleveland Electric Illuminating Company, Pennsylvania Power Company
and The Toledo Edison Company. On September 1, 2000, these utility subsidiaries
transferred their transmission assets to our wholly-owned subsidiary, American
Transmission Systems, Incorporated, which we refer to as ATSI. ATSI owns and
operates our major high-voltage transmission facilities and has interconnections
with other regional utilities.
Pursuant to our corporate separation plan implemented under Ohio
utility restructuring legislation, we transferred operational control of the
non-nuclear generation assets of our electric utility operating subsidiaries to
FirstEnergy Generation Corp. as of January 1, 2001. We expect that the transfer
of ownership of those assets to FirstEnergy Generation will be completed by
December 31, 2005, the end of the legislation's market development period.
Our consolidated revenues are primarily derived from electric service
provided by our utility operating subsidiaries, including ATSI, and the revenues
of our other principal subsidiaries: FirstEnergy Solutions Corp., FirstEnergy
Facilities Services Group, LLC and MARBEL Energy Corporation. In addition, we
hold all of the outstanding common stock of four other direct subsidiaries:
FirstEnergy Properties, Inc., FirstEnergy Ventures Corp., FirstEnergy Nuclear
Operating Company and FirstEnergy Securities Transfer Company.
The combined service areas of our electric utility operating
subsidiaries encompass approximately 13,200 square miles in central and northern
Ohio and western Pennsylvania. The areas they serve have combined populations of
approximately 5.8 million.
Our principal executive office is located at 76 South Main Street,
Akron, Ohio 44308-1890. Our telephone number is (330) 384-5100.
RECENT DEVELOPMENTS
On August 8, 2000, we entered into a merger agreement with GPU, Inc.
pursuant to which GPU will merge with and into us with our continuing as the
surviving corporation. Under the merger agreement, we would acquire all of the
outstanding shares of GPU's common stock for approximately $4.5 billion in cash
and FirstEnergy common stock. Following the merger, our principal electric
utility operating companies would include Ohio Edison, Cleveland Electric,
Toledo Edison, Penn Power and ATSI, as well as GPU's electric utility operating
companies: Jersey Central Power & Light Company, Metropolitan Edison Company and
Pennsylvania Electric Company, which together serve customers in New Jersey and
Pennsylvania. In total, our and GPU's energy companies will serve approximately
4.3 million customers within 37,200 square miles in Ohio, Pennsylvania and New
Jersey.
The merger was approved by our shareholders and GPU's shareholders on
November 21, 2000. Necessary regulatory approvals have been received from the
Federal Energy Regulatory Commission, the
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Nuclear Regulatory Commission, the New York State Public Service Commission, the
Pennsylvania Public Utility Commission and the Federal Communications
Commission. Remaining approvals are required from the New Jersey Board of Public
Utilities and from the SEC pursuant to the Public Utility Holding Company Act of
1935 and are expected early in the fourth quarter of 2001. The merger is
expected to close promptly after all of the conditions to the consummation of
the merger, including the receipt of the remaining regulatory approvals, are
fulfilled or waived.
GPU files annual, quarterly and other reports and information with the
SEC. You can read and copy any information filed by GPU with the SEC at the
SEC's Public Reference Room at 450 Fifth Street, N.W. Washington, D.C. 20549 or
from the Internet site maintained by the SEC (http://www.sec.gov). GPU also
maintains an Internet site (http://www.gpu.com). Unless otherwise indicated in a
prospectus supplement, information filed by GPU with the SEC or contained on its
Internet site does not constitute part of this prospectus.
USE OF PROCEEDS
Unless otherwise specified in any prospectus supplement that
accompanies this prospectus, we intend to use the net proceeds from the sale of
the debt securities offered by this prospectus to refinance short-term debt
incurred in connection with the consummation of the GPU merger. We may also use
any remaining net proceeds for general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our consolidated ratio of earnings to fixed
charges for the periods indicated.
[Download Table]
Year Ended December 31, Twelve months
------------------------------------- ended
1996 1997 1998 1999 2000 June 30, 2001
---- ---- ---- ---- ---- -------------
Ratio of Earnings to
Fixed Charges..... 2.38 2.18 1.77 2.01 2.10 2.10
"Earnings" for purposes of the calculation of Ratio of Earnings to Fixed Charges
have been computed by adding to "income before extraordinary item and cumulative
effect of change in accounting principle" all taxes based on income or profits,
total interest charges and the estimated interest element of rentals charged to
income. "Fixed charges" include total interest charges and the estimated
interest element of rentals.
DESCRIPTION OF THE DEBT SECURITIES
The following description sets forth the general terms and provisions
of the debt securities that we may offer by this prospectus. The debt securities
are senior unsecured debt securities and will rank equally with all of our other
unsecured and unsubordinated debt. The debt securities will be issued under an
indenture between us and Bank One Trust Company, N.A., as trustee. The indenture
gives us broad authority to set the particular terms of each series of debt
securities, including the right to modify certain of the terms contained in the
indenture. The particular terms of a series of debt securities and the extent,
if any, to which the particular terms of the issue modify the terms of the
indenture will be described in the prospectus supplement relating to those debt
securities.
5
The indenture contains the full text of the matters described in this
section. Because this section is a summary, it does not describe every aspect of
the debt securities or the indenture. This summary is subject to and qualified
in its entirety by reference to all the provisions of the indenture, including
definitions of terms used in the indenture. We also include references in
parentheses to certain sections of the indenture. Whenever we refer to
particular sections or defined terms of the indenture in this prospectus or in a
prospectus supplement, these sections or defined terms are incorporated by
reference herein or in the prospectus supplement. This summary also is subject
to and qualified by reference to the description of the particular terms of the
debt securities described in the applicable prospectus supplement or
supplements.
If applicable, the prospectus supplement relating to an issue of debt
securities will describe any special United States federal income tax
considerations relevant to those debt securities.
There is no requirement under the indenture that future issues of our
debt securities be issued under the indenture. We will be free to use other
indentures or documentation, containing provisions different from those included
in the indenture or applicable to one or more issues of debt securities, in
connection with future issues of other debt securities.
GENERAL
The indenture does not limit the aggregate principal amount of debt
securities that we may issue under the indenture. The indenture provides that
the debt securities may be issued in one or more series. The debt securities may
be issued at various times and may have differing maturity dates and may bear
interest at differing rates. We need not issue all debt securities of one series
at the same time and, unless otherwise provided, we may reopen a series, without
the consent of the holders of the debt securities of that series, for issuances
of additional debt securities of that series.
Prior to the issuance of each series of debt securities, the terms of
the particular securities will be specified in a supplemental indenture, a board
resolution or in one or more officer's certificates authorized pursuant to a
board resolution. We refer you to the applicable prospectus supplement for a
description of the following terms of the series of debt securities:
o title of the debt securities;
o any limit on the aggregate principal amount of the debt
securities;
o the person to whom any interest on the debt securities shall
be payable, if other than the person in whose name the debt
securities are registered at the close of business on the
regular record date for that interest;
o the date or dates on which the principal of the debt
securities will be payable or how the date or dates will be
determined;
o the rate or rates at which the debt securities will bear
interest, if any, or how the rate or rates will be determined
and the date or dates from which interest will accrue;
o the dates on which interest will be payable;
o the record dates for payments of interest;
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o the place or places, if any, in addition to the office of the
trustee, where the principal of, and premium, if any, and
interest, if any, on the debt securities will be payable;
o the period or periods within which, the price or prices at
which, and the terms and conditions upon which, the debt
securities may be redeemed, in whole or in part, at our
option;
o any sinking fund or other provisions or options held by
holders of the debt securities that would obligate us to
purchase or redeem the debt securities;
o the percentage, if less than 100%, of the principal amount of
the debt securities that will be payable if the maturity of
the debt securities is accelerated;
o any changes or additions to the events of default under the
indenture or changes or additions to our covenants under the
indenture;
o any collateral security, assurance or guarantee for the debt
securities; and
o any other specific terms applicable to the debt securities.
Unless we otherwise indicate in the applicable prospectus supplement,
the debt securities will be denominated in United States currency in minimum
denominations of $1,000 and multiples of $1,000.
Unless we otherwise indicate in the applicable prospectus supplement,
there are no provisions in the indenture or the debt securities that require us
to redeem, or permit the holders to cause a redemption of, the debt securities
or that otherwise protect the holders in the event that we incur substantial
additional indebtedness, whether or not in connection with a change in control
of our company.
SECURITY AND RANKING
We conduct our operations primarily through our subsidiaries and
substantially all of our consolidated assets are held by our subsidiaries.
Accordingly, our cash flow and our ability to meet our obligations under the
debt securities are largely dependent upon the earnings of our subsidiaries and
the distribution or other payment of these earnings to us in the form of
dividends. Our subsidiaries are separate and distinct legal entities and have no
obligation to pay any amounts due on our debt securities or to make any funds
available for payment of amounts due on our debt securities.
Because we are a holding company, our obligations under the debt
securities will be effectively subordinated to all existing and future
liabilities of our subsidiaries. Therefore, our rights and the rights of our
creditors, including the rights of the holders of our debt securities, to
participate in the liquidation of assets of any subsidiary will be subject to
the prior claims of the subsidiary's creditors. To the extent that we may be a
creditor with recognized claims against any of our subsidiaries, our claims
would still be effectively subordinated to any security interest in, or
mortgages or other liens on, the assets of the subsidiary and would be
subordinated to any indebtedness, other liabilities, and preferred
securities, of the subsidiary, senior to that held by us. As of June 30,
2001, our subsidiaries had approximately $6.4 billion principal amount of
indebtedness and $0.9 billion stated value of preferred securities
outstanding.
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PAYMENT AND PAYING AGENTS
Unless otherwise indicated in a prospectus supplement, we will pay
interest on our debt securities on each interest payment date by wire transfer
to an account at a banking institution in the United States that is designated
in writing to the trustee by the person entitled to that payment or by check
mailed to the person in whose name the debt security is registered as of the
close of business on the regular record date relating to the interest payment
date, except that interest payable at stated maturity, upon redemption or
otherwise, will be paid to the person to whom principal is paid. However, if we
default in paying interest on a debt security, we may pay defaulted interest to
the registered owner of the debt security as of the close of business on a
special record date selected by the trustee, which will be between 10 and 15
days before the date we propose for payment of the defaulted interest, or in any
other lawful manner of payment that is consistent with the requirements of any
securities exchange on which the debt securities may be listed for trading, if
the trustee finds it practicable (See Section 307).
REDEMPTION
We will set forth any terms for the redemption of debt securities in a
prospectus supplement. Unless we indicate differently in a prospectus
supplement, and except with respect to debt securities redeemable at the option
of the registered holder, debt securities will be redeemable upon notice by mail
between 30 and 60 days prior to the redemption date. If less than all of the
debt securities of any series or any tranche of a series are to be redeemed, the
trustee will select the debt securities to be redeemed and will choose the
method of random selection it deems fair and appropriate. (See Sections 301, 403
and 404.)
Debt securities will cease to bear interest on the redemption date. We
will pay the redemption price and any accrued interest to the redemption date
once you surrender the debt security for redemption. (See Section 405.) If only
part of a debt security is redeemed, the trustee will deliver to you a new debt
security of the same series for the remaining portion without charge. (See
Section 406.)
We may make any redemption conditional upon the receipt by the paying
agent, on or prior to the date fixed for redemption, of money sufficient to pay
the redemption price. If the paying agent has not received the money by the date
fixed for redemption, we will not be required to redeem the debt securities.
(See Section 404.)
REGISTRATION, TRANSFER, EXCHANGE AND FORM
The debt securities will be issued only in fully registered form,
without interest coupons and in denominations that are even multiples of $1,000.
Debt securities of any series will be exchangeable for other debt securities of
the same series of any authorized denominations and of a like aggregate
principal amount and tenor. (See Section 305.)
Unless we otherwise indicate in the applicable prospectus supplement,
debt securities may be presented for registration of transfer, duly endorsed or
accompanied by a duly executed written instrument of transfer, at the office or
agency maintained for this purpose, without service charge except for
reimbursement of taxes and other governmental charges as described in the
indenture. (See Section 305.)
In the event of any redemption of debt securities of any series, the
trustee will not be required to exchange or register a transfer of any debt
securities of the series selected, called or being called for redemption except
the unredeemed portion of any debt security being redeemed in part. (See Section
305.)
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LIMITATION ON LIENS
The indenture provides that, except as otherwise specified with respect
to a particular series of debt securities, we will not pledge, mortgage,
hypothecate or grant a security interest in, or permit any mortgage, pledge,
security interest, or other lien upon, any capital stock of any subsidiary now
or hereafter directly owned by us, to secure any indebtedness without also
equally and ratably securing the outstanding debt securities of that series and
all other indebtedness entitled to be so secured.
This restriction does not apply to, or prevent the creation or any
extension, renewal or refunding of:
o any mortgage, pledge, security interest, lien or encumbrance
upon any capital stock created at the time we acquire it or
within one year after that time to secure the purchase price
for the capital stock;
o any mortgage, pledge, security interest, lien or encumbrance
upon any capital stock existing at the time we acquire it,
whether or not we assume the secured obligations; or
o any judgment, levy, execution, attachment or other similar
lien arising in connection with court proceedings, provided
that:
(1) the execution or enforcement of the lien is
effectively stayed within 30 days after entry of the
corresponding judgment, or the corresponding judgment
has been discharged within that 30-day period, and
the claims secured by the lien are being contested in
good faith by appropriate proceedings timely
commenced and diligently prosecuted;
(2) the payment of each lien is covered in full by
insurance and the insurance company has not denied or
contested coverage thereof; or
(3) so long as each lien is adequately bonded, any
appropriate and duly initiated legal proceedings for
the review of the corresponding judgment, decree or
order shall not have been fully terminated or the
period within which these proceedings may be
initiated shall not have expired.
Unless we otherwise specify in the prospectus supplement for a
particular series of debt securities, we may, without securing the debt
securities of that series, pledge, mortgage, hypothecate or grant a security
interest in, or permit any mortgage, pledge, security interest or other lien, in
addition to liens expressly permitted as described in the preceding paragraphs,
upon, capital stock of any subsidiary now or hereafter owned by us to secure any
indebtedness, which would otherwise be subject to the foregoing restriction, in
an aggregate amount which, together with all other such indebtedness, does not
exceed 10% of our consolidated net tangible assets. As of June 30, 2001, we had
consolidated net tangible assets of approximately $13.3 billion.
For purposes of this covenant, "consolidated net tangible assets" means
the amount shown as total assets on our consolidated balance sheet, less (i)
intangible assets including, without limitation, such items as goodwill,
trademarks, trade names, patents, and unamortized debt expense; (ii) current
liabilities; and (iii) appropriate adjustments, if any, related to minority
interests. These amounts will be determined in accordance with generally
accepted accounting principles.
9
The foregoing limitation does not limit in any manner:
o our ability to place liens on any of our assets other than the
capital stock of subsidiaries that we directly own;
o our ability to cause the transfer of our assets or those of
our subsidiaries, including the capital stock covered by the
foregoing restrictions; or
o the ability of any of our subsidiaries to place liens on any
of their assets. (See Section 608.)
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER
We have agreed not to consolidate with or merge into any other entity
or convey, sell or otherwise transfer our properties and assets substantially as
an entirety to any entity unless:
o the successor is an entity organized and existing under the
laws of the United States of America or any State or the
District of Columbia;
o the successor expressly assumes by a supplemental indenture
the due and punctual payment of the principal of, and premium,
if any, and interest, if any, on all the outstanding debt
securities under the indenture and the performance of every
covenant of the indenture that we would otherwise have to
perform or observe; and
o immediately after giving effect to the transactions, no event
of default with respect to any series of debt securities and
no event which after notice or lapse of time or both would
become an event of default with respect to any series of debt
securities, will have occurred and be continuing. (See Section
1101.)
MODIFICATION OF THE INDENTURE
Under the indenture or any supplemental indenture, our rights and the
rights of the holders of debt securities may be changed with the consent of the
holders representing a majority in principal amount of the outstanding debt
securities of all series affected by the change, voting as one class, provided
that the following changes may not be made without the consent of the holders of
each outstanding debt security affected thereby:
o change the fixed date upon which the principal of or the
interest on any debt security is due and payable, or reduce
the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce
the amount of the principal of an original issue discount
security that would be payable upon a declaration of
acceleration of the maturity thereof, or change any place of
payment where, or the currency in which, any debt security or
any premium, if any, or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any
payment on or after the date such payment is due or, in the
case of redemption, on or after the date fixed for such
redemption;
o reduce the stated percentage of debt securities, the consent
of the holders of which is required for any modification of
the applicable indenture or for waiver by the holders of
certain of their rights; or
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o modify certain provisions of the indenture. (See Section
1202.)
An "original issue discount security" means any security authenticated
and delivered under the indenture which provides for an amount less than the
principal amount thereof to be due and payable upon the declaration of
acceleration of the maturity thereof.
The indenture also permits us and the trustee to amend the indenture
without the consent of the holders of any debt securities for any of the
following purposes:
o to evidence the assumption by any permitted successor of our
covenants in the indenture and in the debt securities;
o to add to the covenants with which we must comply or to
surrender any of our rights or powers under the indenture;
o to add additional Events of Default;
o to change, eliminate, or add any provision to the indenture;
provided, however, if the change, elimination, or addition
will adversely affect the interests of the holders of debt
securities of any series, other than any series the terms of
which permit such change, elimination or addition, in any
material respect, the change, elimination, or addition will
become effective only:
(1) when the consent of the holders of debt securities of
the series has been obtained in accordance with the
indenture; or
(2) when no debt securities of the series remain
outstanding under the indenture;
o to provide collateral security for all of the debt securities;
o to establish the form or terms of debt securities of any other
series as permitted by the indenture;
o to provide for the authentication and delivery of bearer
securities and coupons attached thereto;
o to evidence and provide for the acceptance of appointment of a
successor trustee;
o to provide for the procedures required for use of a
noncertificated system of registration for the debt securities
of all or any series;
o to change any place where principal, premium, if any, and
interest shall be payable, debt securities may be surrendered
for registration of transfer or exchange and notices to us may
be served; or
o to cure any ambiguity or inconsistency or to make any other
provisions with respect to matters and questions arising under
the indenture; provided that such action shall not adversely
affect the interests of the holders of debt securities of any
series in any material respect. (See Section 1201.)
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EVENTS OF DEFAULT
An event of default with respect to any series of debt securities is
defined in the indenture as being any one of the following:
o failure to pay interest on the debt securities of that series
for 30 days after payment is due;
o failure to pay principal of or any premium on the debt
securities of that series when due, whether at stated maturity
or upon earlier acceleration or redemption;
o failure to perform other covenants in the indenture for 90
days after we are given written notice from the trustee or the
trustee receives written notice from the registered owners of
at least 33% in principal amount of the debt securities of
that series; however, the trustee or the trustee and the
holders of such principal amount of debt securities of that
series can agree to an extension of the 90-day period and such
an agreement to extend will be automatically deemed to occur
if we are diligently pursuing action to correct the default;
o certain events of bankruptcy, insolvency, reorganization,
receivership or liquidation relating to us; and
o any other event of default included in the supplemental
indenture or officer's certificate for that series of debt
securities. (See Section 801.)
An event of default regarding a particular series of debt securities
does not necessarily constitute an event of default for any other series of debt
securities.
We will be required to file with the trustee annually an officers'
certificate as to the absence of default in performance of certain covenants in
the indenture. (See Section 606.) The indenture provides that the trustee may
withhold notice to the holders of the debt securities of any default, except in
payment of principal of, or premium, if any, or interest on, the debt securities
or in the payment of any sinking fund installment with respect to the debt
securities, if the trustee in good faith determines that it is in the interest
of the holders of the debt securities to do so. (See Section 902.)
The indenture provides that, if an event of default with respect to the
debt securities of any series occurs and continues, either the trustee or the
holders of 33% or more in aggregate principal amount of the debt securities of
that series may declare the principal amount of all the debt securities to be
due and payable immediately. However, if the event of default is applicable to
all outstanding debt securities under the indenture, only the trustee or holders
of at least 33% in principal amount of all outstanding debt securities of all
series, voting as one class, and not the holders of any one series, may make
such a declaration of acceleration.
At any time after a declaration of acceleration with respect to the
debt securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained, the event of default giving rise to
such declaration of acceleration will be considered waived, and such declaration
and its consequences will be considered rescinded and annulled, if:
o we have paid or deposited with the trustee a sum sufficient to
pay:
(1) all overdue interest, if any, on all debt securities
of the series,
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(2) the principal of and premium, if any, on any debt
securities of the series which have otherwise become
due and interest, if any, that is currently due,
including interest on overdue interest, if any, and
(3) all amounts due to the trustee under the indenture;
and
o any other event of default with respect to the debt securities
of that series has been cured or waived as provided in the
indenture.
There is no automatic acceleration, even in the event of our
bankruptcy, insolvency or reorganization. (See Section 802.)
Subject to the provisions of the indenture relating to the duties of
the trustee, the trustee will be under no obligation to exercise any of its
rights or powers under the indenture at the request or direction of any of the
holders of the debt securities, unless the holders shall have offered to the
trustee reasonable indemnity. (See Section 903.)
Subject to the provision for indemnification, the holders of a majority
in principal amount of the debt securities of any series will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee, or exercising any trust or power conferred on the
trustee with respect to the debt securities of that series. However, if the
event of default relates to more than one series of debt securities, only the
holders of a majority in aggregate principal amount of all affected series will
have the right to give this direction. However, the trustee shall have the right
to decline to follow any direction if the trustee shall determine that the
action so directed conflicts with any law or the provisions of the indenture or
if the trustee shall determine that the action would be prejudicial to holders
not taking part in the direction. (See Section 812.)
SATISFACTION AND DISCHARGE
We will be discharged from our obligations on the debt securities of
any series, or any portion of the principal amount of the debt securities of any
series, if we
(1) irrevocably deposit with the Trustee sufficient cash or
eligible obligations (or a combination of both) to pay the
principal, or portion of principal, interest, any premium and
any other sums when due on the debt securities at their
maturity, stated maturity date, or redemption; and
(2) deliver to the Trustee:
(a) a company order stating that the money and eligible
obligations deposited in accordance with the
Indenture shall be held in trust and certain opinions
of counsel and of an independent public accountant;
(b) if such deposit shall have been made prior to the
maturity of the debt securities of the series, an
officer's certificate stating our intention that,
upon delivery of the officer's certificate, our
indebtedness in respect of those debt securities, or
the portions thereof, will have been satisfied and
discharged as contemplated in the Indenture; and
(c) an opinion of counsel to the effect that, as a result
of a change in law or a ruling of the United States
Internal Revenue Service, the holders of the debt
securities
13
of the series, or portions thereof, will not
recognize income, gain or loss for United States
federal income tax purposes as a result of the
satisfaction and discharge of our indebtedness and
will be subject to United States federal income tax
on the same amounts, at the same times and in the
same manner as if we had not so satisfied and
discharged our indebtedness.
For this purpose, "eligible obligations" include direct obligations of, or
obligations unconditionally guaranteed by, the United States entitled to the
benefit of the full faith and credit thereof and certificates, depositary
receipts or other instruments which evidence a direct ownership interest in such
obligations or in any specific interest or principal payments due in respect
thereof and which do not contain provisions permitting their redemption or other
prepayment at the option of the issuer thereof.
In the event that all of the conditions set forth above have been satisfied for
any series of debt securities, or portions thereof, except that, for any reason,
we have not delivered the officer's certificate and opinion described in clauses
(b) and (c) above, the holders of those debt securities will no longer be
entitled to the benefits of certain of our covenants under the indenture,
including the covenant described above in "--Limitation on Liens." Our
indebtedness in respect of those debt securities, however, will not be deemed to
have been satisfied and discharged prior to maturity, and the holders of those
debt securities may continue to look to us for payment of the indebtedness
represented thereby. (See Section 701.)
The indenture will be deemed satisfied and discharged when no debt securities
remain outstanding and when we have paid all other sums payable by us under the
indenture. (See Section 702.) All moneys we pay to the trustee or any paying
agent on debt securities which remain unclaimed at the end of two years after
payments have become due will be paid to us or upon our order. Thereafter, the
holder of those debt securities may look only to us for payment and not the
trustee or any paying agent. (See Section 603.)
RESIGNATION OR REMOVAL OF TRUSTEE
The trustee may resign at any time by giving written notice to us
specifying the day upon which the resignation is to take effect. The resignation
will take effect immediately upon the later of the appointment of a successor
trustee and the specified day. (See Section 910.)
The trustee may be removed at any time by an instrument or concurrent
instruments in writing delivered to the trustee and us and signed by the
holders, or their attorneys-in-fact, representing at least a majority in
principal amount of the then outstanding debt securities. In addition, under
certain circumstances, we may remove the trustee upon notice to the holder of
each debt security outstanding and the trustee, and appointment of a successor
trustee. (See Section 910.)
CONCERNING THE TRUSTEE
Bank One Trust Company, N.A. is the trustee under the indenture. We
maintain other banking relationships in the ordinary course of business with the
trustee and its affiliates.
GOVERNING LAW
The indenture and the debt securities will be governed by and construed
in accordance with the laws of the State of New York, except to the extent that
the law of any other jurisdiction shall be mandatorily applicable.
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BOOK-ENTRY ONLY SYSTEM
The following discussion pertains to debt securities that are issued in
book-entry only form.
One or more global notes would be issued to The Depository Trust
Company or its nominee. DTC would keep a computerized record of its participants
(for example, your broker) whose clients have purchased the debt securities. The
participant would then keep a record of its clients who purchased the debt
securities. A global note may not be transferred, except that DTC, its nominee
and their successors may transfer an entire global note to one another.
Under book-entry only, we will not issue certificates to individual
holders of the debt securities. Beneficial interests in global notes will be
shown on, and transfers of beneficial interests in global notes will be made
only through, records maintained by DTC and its participants.
DTC has advised us that it is:
o a limited-purpose trust company organized under the New York
Banking Law;
o a "banking organization" within the meaning of the New York
Banking Law;
o a member of the Federal Reserve System;
o a "clearing corporation" within the meaning of the New York
Uniform Commercial Code; and
o a "clearing agency" registered pursuant to the provisions of
Section 17A of the Securities Exchange Act of 1934.
DTC holds securities that its participants deposit with DTC. DTC also
facilitates the settlement among direct participants of securities transactions,
such as transfers and pledges, in deposited securities through computerized
records for direct participants' accounts. This eliminates the need to exchange
certificates. Direct participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
direct participant. The rules that apply to DTC and its participants are on file
with the SEC.
DTC is owned by a number of its direct participants and by The New York
Stock Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc.
We will wire principal and interest payments to DTC's nominee. We and
the trustee will treat DTC's nominee as the owner of the global notes for all
purposes. Accordingly, we and the trustee will have no direct responsibility or
liability to pay amounts due on the debt securities to owners of beneficial
interests in the global notes.
It is DTC's current practice, upon receipt of any payment of principal
or interest, to credit direct participants' accounts on the payment date
according to their respective holdings of beneficial interests in the global
notes as shown on DTC's records as of the record date for such payment. In
addition, it is DTC's current practice to assign any consenting or voting rights
to direct participants whose accounts are credited with securities on a record
date, by using an omnibus proxy. Payments by participants to owners
15
of beneficial interests in the global notes, and voting by participants, will be
governed by the customary practices between the participants and owners of
beneficial interests, as is the case with securities held for the account of
customers registered in "street name." However, these payments will be the
responsibility of the participants and not of DTC, the trustee, or us.
Debt securities represented by a global note will be exchangeable for
debt securities certificates with the same terms in authorized denominations
only if:
o DTC notifies us that it is unwilling or unable to continue as
depository or if DTC ceases to be a clearing agency registered
under applicable law;
o we instruct the trustee that the global note is now
exchangeable; or
o an event of default has occurred and is continuing.
According to DTC, the foregoing information with respect to DTC has
been provided to the financial community for informational purposes only and is
not intended to serve as a representation, warranty, or contract modification of
any kind.
PLAN OF DISTRIBUTION
We may use the following methods to sell the debt securities:
o through negotiation with one or more underwriters;
o through one or more agents or dealers designated from time to
time;
o directly to purchasers; or
o through any combination of the above.
The distribution of the debt securities may be effected from time to
time in one or more transactions at a fixed price or prices which may be
changed, at market prices prevailing at the time of sale, at prices related to
prevailing market prices or at negotiated prices. A prospectus supplement or a
supplement thereto will describe the method of distribution of any series of
debt securities.
If we use any underwriters in the sale of debt securities, we will
enter into an underwriting agreement, distribution agreement or similar
agreement with the underwriters prior to the time of sale, and the names of the
underwriters used in the transaction will be set forth in the prospectus
supplement or a supplement thereto relating to the sale. If an underwriting
agreement is executed, the debt securities will be acquired by the underwriters
for their own account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of the sale. Unless we
otherwise indicate in the prospectus supplement, the underwriting or purchase
agreement will provide that the underwriter or underwriters are obligated to
purchase all of the debt securities offered in the prospectus supplement if any
are purchased.
If any debt securities are sold through agents designated by us from
time to time, the prospectus supplement or a supplement thereto will name any
agent, set forth any commissions payable by us to any agent and the obligations
of the agent with respect to the securities. Unless otherwise indicated in the
prospectus supplement or a supplement thereto, any agent will be acting on a
best efforts basis for the period of its appointment.
16
Certain persons participating in an offering of the debt securities may
engage in transactions that stabilize, maintain or otherwise affect the price of
the debt securities. Specifically, the underwriters, if any, may overallot in
connection with the offering, and may bid for, and purchase, the debt securities
in the open market.
No series of debt securities, when first issued, will have an
established trading market. Any underwriters or agents to or through whom debt
securities are sold by us for public offering and sale may make a market in the
debt securities, but underwriters and agents will not be obligated to do so and
may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of the trading market for any debt securities.
In connection with the sale of the debt securities, any purchasers,
underwriters or agents may receive compensation from us or from purchasers in
the form of concessions or commissions. The underwriters will be, and any agents
and any dealers participating in the distribution of the debt securities may be
deemed to be, underwriters within the meaning of the Securities Act of 1933. The
agreement between us and any purchasers, underwriters or agents will contain
reciprocal covenants of indemnity, and will provide for contribution by us in
respect of our indemnity obligations, between us and the purchasers,
underwriters, or agents against certain liabilities, including liabilities under
the Securities Act of 1933.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us and our affiliates in the ordinary course of business.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement,
David L. Feltner, Esq., Akron, Ohio, our counsel, and Pillsbury Winthrop LLP,
One Battery Park Plaza, New York, NY 10004-1490, our special counsel, will
render opinions to any underwriters or agents as to the legality of the debt
securities. Certain other legal matters will be passed upon by Thelen Reid &
Priest LLP, 40 West 57th Street, New York, NY 10019-4097. Thelen Reid & Priest
LLP has in the past represented FirstEnergy and GPU.
EXPERTS
The audited consolidated financial statements and related schedule
incorporated by reference or included in our Annual Report on Form 10-K/A for
the year ended December 31, 2000, incorporated by reference in this prospectus,
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports dated February 16, 2001 with respect thereto, and are
incorporated by reference in this prospectus in reliance upon the authority of
said firm as experts in accounting and auditing in giving said reports.
With respect to the unaudited interim consolidated financial
information for the quarters ended March 31, 2001 and June 30, 2001,
incorporated by reference in this prospectus, Arthur Andersen LLP has applied
limited procedures in accordance with professional standards for reviews of that
information. However, their separate reports thereon state that they did not
audit and they do not express opinions on that interim consolidated financial
information. Accordingly, the degree of reliance on their reports on that
information should be restricted in light of the limited nature of the review
procedures applied. In addition, the accountants are not subject to the
liability provisions of Section 11 of the Securities Act of 1933 for their
reports on the unaudited interim consolidated financial information because
these reports
17
are not "reports" or "parts" of the registration statement prepared or certified
by the accountants within the meaning of Sections 7 and 11 of that Act.
WHERE YOU CAN FIND MORE INFORMATION
We are required by the Securities Exchange Act of 1934 to file annual,
quarterly and special reports and other information with the SEC. These reports
and other information can be inspected and copied at the SEC's public reference
room at Room 1024, 450 Fifth Street, N.W., 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 SEC's 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 of 1933 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 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 Securities Exchange Act of 1934, until
we sell all of the debt securities described in this prospectus; information we
file in the future with the SEC will automatically update and supersede this
information:
o FirstEnergy Corp.'s Annual Report on Form 10-K/A for the year
ended December 31, 2000.
o FirstEnergy Corp.'s Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2001 and June 30, 2001.
You may also request additional copies of these reports or copies of
our 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
(330) 384-5100
You should rely only on the information contained in, or incorporated
by reference in, this prospectus and the applicable prospectus supplement.
Neither we nor any underwriter, agent or dealer has authorized anyone else to
provide you with different information. Neither we nor any underwriter, agent or
dealer is making an offer of these debt securities in any state where the offer
is not permitted. You should not assume that the information contained in this
prospectus is accurate as of any date other than the date on the front of the
prospectus.
18
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
[Download Table]
Registration fee............................................... $ 1,000,000
Blue Sky fees and expenses..................................... $ 5,000
Rating agency fees............................................. $ 125,000
Trustee's fees and expenses.................................... $ 15,000
Printing and engraving costs................................... $ 15,000
Legal fees and expenses........................................ $ 80,000
Accounting fees................................................ $ 70,000
Miscellaneous.................................................. $ 10,000
------------
Total Expenses............................................ $ 1,320,000
============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1701.13(E) of Title 17 of Page's 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 corporation's 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.
Regulation 31 of the Company'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 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 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
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
II-1
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."
Section 1701.13(E) of Title 17 of Page's 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 32 of the Company'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."
The Company maintains and pays the premium on contracts insuring the
Company (with certain exclusions) against any liability to directors and
officers they may incur under the above indemnity provisions and insuring each
director and officer of the Company (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 Company, even if the Company does not have the
obligation or right to indemnify him or her against such liability or expense.
ITEM 16. EXHIBITS.
The following exhibits are incorporated by reference into this
registration statement or are filed herewith and made a part hereof:
EXHIBIT NO. DESCRIPTION
----------- -----------
(1) Form of Underwriting Agreement.*
(4)(a) Form of Indenture (For Unsecured Debt Securities) between
FirstEnergy Corp. and Bank One Trust Company, N.A., as
trustee, to be used in connection with issuance of Debt
Securities.
(4)(b) Officer's Certificate.
(4)(c) Form of Unsecured Debt Securities (included in Exhibit 4(b)).
(5)(a) Opinion of David L. Feltner, Esq.
(5)(b) Opinion of Pillsbury Winthrop LLP.
II-2
(12) Statement regarding Computation of Ratios of Earnings to
Fixed Charges.
(15) Letter of Arthur Andersen LLP regarding unaudited interim
financial information.
(23)(a) Consent of Pillsbury Winthrop LLP (included in
Exhibit (5)(b)).
(23)(b) Consent of Arthur Andersen LLP.
(24) Power of Attorney (set forth on the signature pages of the
Registration Statement).
(25) Statement of Eligibility of Bank One Trust Company, N.A., as
trustee under the Indenture (For Unsecured Debt Securities).
----------
* To be filed by amendment.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers of 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; 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in 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 purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's 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 plan's annual report
II-3
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.
(5) 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 Securities and Exchange
Commission such indemnification is against public policy as
expressed in the 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 Act and will be
governed by the final adjudication of such issue.
II-4
Each of the undersigned directors and officers of FirstEnergy Corp.,
the registrant, individually as such director and/or officer, hereby makes,
constitutes and appoints H. P. Burg, N. C. Ashcom, J. H. Byington and L. F.
Torres, and each of them severally, 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 Securities and Exchange Commission, this registration statement
and any and all amendments, including post-effective amendments, to this
registration statement pursuant to the above undertaking, which amendment may
make such other changes in the registration statement as the registrant deems
appropriate.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE COMPANY
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 21ST DAY OF SEPTEMBER,
2001.
FIRSTENERGY CORP.
(Registrant)
/s/ H. Peter Burg
---------------------------------
H. Peter Burg
Chairman of the Board and
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
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/s/ H. Peter Burg Chairman of the Board and September 21, 2001
------------------------------------- Chief Executive Officer
H. Peter Burg (Principal Executive Officer)
/s/ Richard H. Marsh Vice President and September 21, 2001
------------------------------------- Chief Financial Officer
Richard H. Marsh (Principal Financial Officer)
/s/ Harvey L. Wagner Controller September 21, 2001
------------------------------------- (Principal Accounting Officer)
Harvey L. Wagner
/s/ Anthony J. Alexander President and Director September 21, 2001
-------------------------------------
Anthony J. Alexander
/s/ Carol A. Cartwright Director September 21, 2001
-------------------------------------
Carol A. Cartwright
II-5
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/s/ William F. Conway Director September 21, 2001
--------------------------------
William F. Conway
/s/ Robert B. Heisler, Jr. Director September 21, 2001
--------------------------------
Robert B. Heisler, Jr.
/s/ Robert L. Loughhead Director September 21, 2001
--------------------------------
Robert L. Loughhead
/s/ Russell W. Maier Director September 21, 2001
--------------------------------
Russell W. Maier
/s/ Paul J. Powers Director September 21, 2001
--------------------------------
Paul J. Powers
/s/ George M. Smart Director September 21, 2001
--------------------------------
George M. Smart
/s/ Robert C. Savage Director September 21, 2001
--------------------------------
Robert C. Savage
/s/ Jesse T. Williams, Sr. Director September 21, 2001
--------------------------------
Jesse T. Williams, Sr.
II-6
Dates Referenced Herein and Documents Incorporated by Reference
5 Subsequent Filings that Reference this Filing
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