As filed with the Securities and Exchange Commission on September 25, 2013.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FirstEnergy Corp.
(Exact name of registrant as specified in its charter)
Ohio | 34-1843785 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
76 South Main Street, Akron, Ohio 44308-1890
(800) 736-3402
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Rhonda S. Ferguson
Vice President and Corporate Secretary
FirstEnergy Corp.
76 South Main Street
Akron, Ohio 44308-1890
(330) 384-5620
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
Lucas F. Torres, Esq.
Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036
(212) 872-1000
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 this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
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:
Large accelerated filer | x | Accelerated filer | ¨ | |||
Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Offering Price per Share(2) |
Proposed Maximum Aggregate Offering Price(2) |
Amount of Registration Fee(3) | ||||
Common Stock, $0.10 par value per share |
4,000,000 |
$37.065 | $148,260,000 | $20,222.67 | ||||
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(1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement registers such indeterminate number of additional shares of Common Stock as may be issued in connection with share splits, share dividends or similar transactions in accordance with the provisions of the FirstEnergy Corp. Stock Investment Plan. |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act. The proposed maximum offering price per share is based upon the average of the high and low prices per share of the Common Stock as quoted on the New York Stock Exchange on September 23, 2013. |
(3) | Pursuant to Rule 457(p), a registration fee of $4,306.37 was previously paid in connection with 1,664,080 shares of common stock that were registered by the Registrant under expired Registration Statement No. 333-169532 on Form S-3ASR (the Prior Registration Statement) filed with the Commission on September 22, 2010, but that were unsold. Accordingly, the registration fee previously paid with respect to such unsold securities is being carried forward for application in connection with the offerings under this Registration Statement. The filing fee of $15,916.30 being paid herewith relates to the 4,000,000 newly registered shares of common stock, offset by the registration fee of $4,306.37 previously paid in connection with the unsold securities under the Prior Registration Statement. |
Prospectus
Stock Investment Plan
4,000,000 Shares
Common Stock
The FirstEnergy Corp. Stock Investment Plan, which we refer to as the Plan, provides a way for registered shareholders and employees of FirstEnergy Corp., which we refer to as FirstEnergy, and its subsidiaries, to purchase shares of FirstEnergys common stock. (See Question 4). This Plan amends and restates in its entirety the previous stock investment plan. Registered shareholders or employees who opt to participate in the Plan may:
| Reinvest all or a portion of cash dividends paid on stock of FirstEnergy that is registered in their names, as well as any common stock credited to their Plan accounts, to purchase shares of FirstEnergy common stock. |
| Make an investment in FirstEnergy common stock with optional cash investments, subject to the terms of the Plan, of at least $25 per payment or $10 per pay period for employees who elect to use payroll deductions to make cash investments. Cash investments are limited to a maximum of $100,000 per calendar year per account. |
| Receive certificates for whole shares of common stock credited to their Plan accounts upon request. |
| Deposit certificates representing FirstEnergy common stock into the Plan for safekeeping. |
| Sell shares of common stock credited to their Plan accounts through the Plan. |
Cash dividends on common stock and cash investments under the Plan will be used to purchase shares of FirstEnergy common stock which, at our option, either will be newly issued or treasury shares purchased by AST from us or will be purchased on behalf of Plan participants in the open market or in privately negotiated transactions by an independent agent, which we refer to as the Independent Agent, appointed by American Stock Transfer & Trust Company, LLC, which we refer to as AST or the Administrator of the Plan. (See Questions 2 and 13). The price of newly issued or treasury shares acquired under the Plan will be the average of the high and low prices of FirstEnergy common stock as reported on the report of New York Stock Exchange Composite Transactions for the investment date. The price of shares purchased in the open market or in privately negotiated transactions under the Plan will be the weighted average price paid by AST for the shares over the purchase period. (See Question 13). In such cases, the purchase price will include a transaction fee to cover the administrative costs and, if shares are purchased in the open market or in privately negotiated transactions, the fees of AST for its services in executing those purchases. Currently shares to be purchased for participants under the Plan will be newly issued or, if available, treasury shares, and the transaction fee is not to exceed $0.09 per share, but we may change the source of shares at any time without notice to you, subject to legal restrictions on how often we change the source of shares. (See Question 13).
Before you invest, you should read this Prospectus carefully and the information referred to under the heading Where You Can Find More Information. Also, because investing in our common stock involves risks, you should carefully read and evaluate the risk factors included in our reports and other information that we file with the Securities and Exchange Commission. See Risk Factors beginning on page 3.
Fees payable by a Plan participant will be added to the purchase price for shares purchased, and deducted from the selling price for shares sold, under the Plan. (See Questions 15 and 23).
This Prospectus describes the provisions of the Plan and should be retained by participants for future reference. Shares of FirstEnergy common stock are traded on the New York Stock Exchange under the symbol FE. The closing price per share of FirstEnergys common stock on the New York Stock Exchange on September 24, 2013 was $37.41.
This Prospectus is not an offer to sell securities, nor is it a solicitation of an offer to buy securities, in any state or country where the offer or sale is not permitted.
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 September 25, 2013.
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This Prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission, which we refer to as the SEC, relating to the shares of our common stock to be offered and sold pursuant to the Plan. This Prospectus, which does not include all of the information in the registration statement, provides you with a general description of the Plan and the securities offered under the Plan. The registration statement containing this Prospectus, including exhibits to the registration statement, provides additional information about us, the Plan, and the securities offered. The registration statement can be read at the SEC web site or at the SEC offices set forth under the heading Where You Can Find More Information.
No person is authorized to give any information or make any representation not contained, or incorporated by reference, in this Prospectus; and, if given or made, such information or representation must not be relied upon as having been authorized by FirstEnergy Corp. This Prospectus is not an offer to sell or a solicitation of an offer to buy any of the securities offered hereby in any jurisdiction to any person to whom it is unlawful to make such offer in such jurisdiction. Neither the delivery of this Prospectus nor any sale made hereunder shall, under any circumstances, create any implication that there has been no change in the affairs of FirstEnergy Corp. since the date of this Prospectus.
Unless the context requires otherwise, references to we, us, our and FirstEnergy refer specifically to FirstEnergy Corp. and its subsidiaries.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Forward-Looking Statements: This Prospectus, the registration statement in which it is contained and the information incorporated by reference herein and therein include forward-looking statements based on information currently available to management. Such statements are subject to certain risks and uncertainties. These statements include declarations regarding managements intents, beliefs and current expectations. These statements typically contain, but are not limited to, the terms anticipate, potential, expect, believe, estimate and similar words. Forward-looking statements involve estimates, assumptions, known and unknown risks, uncertainties and other factors that may cause actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements.
Actual results may differ materially due to:
| The speed and nature of increased competition in the electric utility industry, in general, and the retail sales market in particular. |
| The impact of the regulatory process on the pending matters before the Federal Energy Regulatory Commission and in the various states in which we do business including, but not limited to, matters related to rates and pending rate cases. |
| The uncertainties of various cost recovery and cost allocation issues resulting from American Transmission Systems, Incorporateds realignment into PJM Interconnection LLC. |
| Economic or weather conditions affecting future sales and margins. |
| Regulatory outcomes associated with storms, including but not limited to Hurricane Sandy, Hurricane Irene and the October snowstorm of 2011. |
| Changing energy, capacity and commodity market prices including, but not limited to, coal, natural gas and oil, and availability and their impact on retail margins. |
| The continued ability of our regulated utilities to recover their costs. |
| Costs being higher than anticipated and the success of our policies to control costs and to mitigate low energy, capacity and market prices. |
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| Other legislative and regulatory changes, and revised environmental requirements, including possible greenhouse gas emission, water discharge, water intake and coal combustion residual regulations, the potential impacts of the Cross-State Air Pollution Rule, the Clean Air Interstate Rule, which we refer to as CAIR, and/or any laws, rules or regulations that ultimately replace CAIR, and the effects of the Environmental Protection Agencys Mercury and Air Toxics Standards rules including our estimated costs of compliance. |
| The uncertainty of the timing and amounts of the capital expenditures that may arise in connection with any litigation, including New Source Review litigation or potential regulatory initiatives or rulemakings (including that such expenditures could result in our decision to deactivate or idle certain generating units). |
| The uncertainties associated with the deactivation of certain older regulated and competitive fossil units including the decision to deactivate the Hatfields Ferry and Mitchell Power Stations, the impact on vendor commitments, and the timing thereof as they relate to, among other things, Reliability Must-Run arrangements and the reliability of the transmission grid. |
| Adverse regulatory or legal decisions and outcomes with respect to our nuclear operations (including, but not limited to the revocation or non-renewal of necessary licenses, approvals or operating permits by the Nuclear Regulatory Commission or as a result of the incident at Japans Fukushima Daiichi Nuclear Plant). |
| Issues arising from the indications of cracking in the shield building at Davis-Besse. |
| Adverse legal decisions and outcomes related to Metropolitan Edison Companys and Pennsylvania Electric Companys ability to recover certain transmission costs through their Transmission Service Charge riders. |
| The impact of future changes to the operational status or availability of our generating units. |
| The risks and uncertainties associated with litigation, arbitration, mediation and like proceedings, including, but not limited to, any such proceedings related to vendor commitments. |
| Replacement power costs being higher than anticipated or inadequately hedged. |
| The ability to comply with applicable state and federal reliability standards and energy efficiency and peak demand reduction mandates. |
| Changes in customers demand for power, including but not limited to, changes resulting from the implementation of state and federal energy efficiency and peak demand reduction mandates. |
| The ability to accomplish or realize anticipated benefits from strategic and financial goals including, but not limited to, the ability to reduce costs and to successfully complete our announced financial plans designed to improve our credit metrics and strengthen our balance sheet, including but not limited to, proposed capital raising and debt reduction initiatives, the proposed West Virginia asset transfer and potential sale of non-core hydro assets. |
| Our ability to improve electric commodity margins and the impact of, among other factors, the increased cost of fuel and fuel transportation on such margins. |
| The ability to experience growth in the Regulated Distribution segment and to continue to successfully implement our direct retail sales strategy in the Competitive Energy Services segment. |
| Changing market conditions that could affect the measurement of liabilities and the value of assets held in our Nuclear Decommissioning Trusts, pension trusts and other trust funds, and cause us and our subsidiaries to make additional contributions sooner, or in amounts that are larger than currently anticipated. |
| The impact of changes to material accounting policies. |
| The ability to access the public securities and other capital and credit markets in accordance with our announced financial plan, the cost of such capital and overall condition of the capital and credit markets affecting us and our subsidiaries. |
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| Actions that may be taken by credit rating agencies that could negatively affect us and our subsidiaries access to financing, increase the costs thereof, and increase requirements to post additional collateral to support outstanding commodity positions, letters of credit and other financial guarantees. |
| Changes in national and regional economic conditions affecting us, our subsidiaries and our major industrial and commercial customers, and other counterparties including fuel suppliers, with which we do business. |
| Issues concerning the stability of domestic and foreign financial institutions and counterparties with which we do business. |
| The risks and other factors discussed from time to time in our SEC filings, and other similar factors. |
Dividends declared from time to time on our common stock during any period may in the aggregate vary from prior periods due to circumstances considered by our Board of Directors at the time of the actual declarations. A security rating is not a recommendation to buy or hold securities and is subject to revision or withdrawal at any time by the assigning rating agency. Each rating should be evaluated independently of any other rating.
The foregoing review of factors should not be construed as exhaustive. New factors emerge from time to time, and it is not possible for management to predict all such factors, nor assess the impact of any such factor on FirstEnergys business or the extent to which any factor, or combination of factors, may cause results to differ materially from those contained in any forward-looking statements. FirstEnergy expressly disclaims any current intention to update, except as required by law, any forward-looking statements contained herein as a result of new information, future events or otherwise.
Investing in our common stock involves risks. Please see the risk factors described in our most recent Annual Report on Form 10-K and, to the extent applicable, our subsequent Quarterly Reports on Form 10-Q, filed with the SEC, which are incorporated by reference in this Prospectus, and in any of our annual or quarterly reports for subsequent fiscal years or quarters or current reports that are incorporated by reference herein. Before making an investment decision, you should carefully consider these risks as well as other information contained or incorporated by reference in this Prospectus. Any of these risks, as well as other risks and uncertainties, could materially harm our business, financial condition, results of operations or cash flows. In that case, the value or trading price of our common stock could decline, and you could lose part or all of your investment.
FirstEnergy is a diversified energy company dedicated to safety, reliability and operational excellence. Our 10 electric distribution companies comprise one of the nations largest investor-owned electric systems. Our diverse generating fleet features non-emitting nuclear, scrubbed baseload coal, natural gas, and pumped-storage hydro and other renewables and has a total generating capacity of approximately 20,000 megawatts.
We are an Ohio corporation, and our principal executive offices are located at 76 South Main Street, Akron, Ohio 44308. Our telephone number is (800) 736-3402 and our Internet website is www.firstenergycorp.com. Information contained on our website shall not be incorporated into, or be a part of, this Prospectus.
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Davis-Besse Inspections
Inspections of the concrete shield building at the FirstEnergy Nuclear Operating Companys, which we refer to as FENOC, Davis-Besse Nuclear Power Station conducted to date confirm that the building continues to maintain its structural integrity and ability to safely perform its functions. These inspections were conducted as a result of FENOCs identification of previously-disclosed sub-surface laminar cracks near the outer rebar mat of the shield building during a scheduled outage in October 2011. The 2½ -foot thick reinforced concrete shield building provides biological shielding and protection from natural phenomena including wind and tornados. The building surrounds a 1½-inch carbon steel vessel containing the reactor and other reactor support systems. These inspections include examinations of a series of inspection ports or core bores within the shield buildings concrete walls. In 2013, Davis-Besse engineers began employing a new camera that provides greater clarity and mobility than those previously available for these inspections.
Through September 24, 2013, 61 of the shield buildings 82 core bores have been examined, with the remaining examinations expected to be complete in the next several weeks. The improved camera has identified four very tight cracks in the building that evidence suggests were pre-existing cracks not visible with previous inspection technology. These inspections also have found that in three locations, cracks initially identified in 2011 appear to have propagated a small amount.
FENOCs preliminary analysis of all inspection results to date confirms its 2011 conclusion that the shield buildings structural integrity is not impacted by the presence of these tight cracks and that the shield building continues to function safely and reliably.
Proposed Sale of Hydroelectric Power Stations
On September 4, 2013, certain FirstEnergy subsidiaries applied for authorization from the Federal Energy Regulatory Commission, which we refer to as FERC, to sell eleven hydroelectric power stations in Pennsylvania, Virginia and West Virginia to Harbor Hydro Holdings, LLC, a subsidiary of LS Power Equity Partners II, LP, for $400 million. The facilities being sold produce 527 megawatts of electricity. The sales agreement was entered into on August 23, 2013 and, if approved, the proposed transaction is expected to close in the fourth quarter of 2013. The sales agreement is subject to customary and other closing conditions, including, without limitation, receipt of approvals by FERC and the Commonwealth of Virginias State Corporation Commission and the expiration of the Hart-Scott-Rodino waiting period.
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The following questions and answers describe the terms and conditions of the Plan. We suggest that you keep this Prospectus for future reference.
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Beneficial Owners (how to become a registered shareholder) If you are the beneficial owner of shares of our common stock that are held in record name by a broker or nominee and you wish to participate in the Plan, you must become a shareholder of record by having at least one share of our common stock transferred to your name. Neither we nor the Plan Administrator is responsible for any fees that may be charged by any broker or bank as a result of becoming a registered shareholder.
You may change your method of participation at any time by completing and signing another Stock Investment Plan Enrollment Form. In the case of an employee who is using payroll deductions to invest in the Plan, the amount of the deduction can be changed or canceled by completing and signing another Stock Investment Plan Payroll Deduction Authorization and Stock Investment Plan Enrollment Form. | ||||
6. | Q. | What dividend payment options are provided under the Plan? | ||
A. | The Plan provides complete flexibility in regard to how dividends are paid. You are asked to provide payment instructions by completing both Parts (A) and (B) of the Dividend Reinvestment and Payment Instructions Section of the Stock Investment Plan Enrollment Form. Part (A) contains payment instructions for shares that are held by you in certificate form. Part (B) contains payment instructions for shares that are held by AST in an account for you. Dividend payment options are as follows:
Reinvest dividends on all shares All dividends are reinvested to purchase shares of FirstEnergy common stock.
Pay cash dividends on all shares All dividends are paid in cash.
Pay cash dividends on portion of shares You may elect to have a portion of dividends paid in cash and reinvest the remaining dividends to purchase shares of FirstEnergy common stock by selecting the number of shares, the percent, or the dollar amount of dividends to be paid in cash. If you choose this option, under the Economic Emergency Stabilization Act, which became law in 2008, you must reinvest at least 10% of your dividend distribution each dividend period.
If you elect to receive all or a portion of your dividends in cash, your cash dividends may be deposited directly into your checking, savings, or credit union account at any financial institution that accepts electronic direct deposits. Receiving your payments by direct deposit ensures that the funds will be deposited into your bank account on the payment date. If you are interested in direct deposit of dividends, you should complete the appropriate section on the Stock Investment Plan Enrollment Form or call AST, or visit AST online at www.amstock.com for a Direct Dividend Deposit Authorization Agreement. | |||
7. | Q. | When must my Stock Investment Plan Enrollment Form be received by AST? | ||
A. | For dividends to be reinvested, your Stock Investment Plan Enrollment Form must be received by AST on or before the record date for the dividend payment; otherwise, reinvestment of dividends will start with the next succeeding dividend payment. The dividend record and payment dates for common stock dividends, which must be declared by our board of directors, are expected to be as follows:
Record Dates Fifth business day of February, May, August, November
Payment Dates March 1, June 1, September 1, December 1
For initial cash investments, a properly completed Stock Investment Plan Enrollment Form and the initial cash payment must be received by AST prior to a cash investment date, which is expected to be the 1st day of each month. Otherwise, the investment will be made on the next succeeding cash investment date. See Question 11 for additional information. |
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applicable securities law that cannot be waived. FirstEnergy and AST will not be liable for any claims(s) made more than 30 days after any instruction to purchase or sell shares was given. | ||||
31. | Q. | Who bears the risk of market price fluctuations affecting the value of Plan shares? | ||
A. | Each individual participant in the Plan bears the risk of market price changes affecting the value of the stock. We cannot assure you of a profit or protect you against a loss on any shares you hold, purchase, or sell under the Plan. Additionally, our share price may fluctuate between the time the purchase and/ or sale request is received and the time the purchase or sale is completed. The Plan Administrator will not be liable for any claim arising out of failure to purchase or sell on a certain date or at a specific price. Neither FirstEnergy, AST nor any of their affiliates will provide any investment recommendations or investment advice with respect to transactions made through the Plan. This risk should be evaluated by the participant and is a risk that is borne solely by the participant. | |||
32. | Q. | What happens if my account balance falls below a full share? | ||
A. | FirstEnergy reserves the right to close any account if the share balance falls below one full share. You will receive a check for the sale of the fractional share less a service fee which is not to exceed $0.09 per share as of the date of this Prospectus. | |||
33. | Q. | Can FirstEnergy terminate my participation in the Plan? | ||
A. | Yes. After mailing written notice to you, we may terminate your participation in the Plan for any reason, including if your ownership interest is less than one full share. If your participation has been terminated, you will receive (1) a certificate for any or all of the whole shares of common stock credited to your account, (2) any uninvested dividend or cash investment credited to your account and (3) a check for the cash value of any fraction of a share of common stock credited to your account. Any fraction of a share will be sold, and the cash value for such fraction of a share will be the weighted average price of the aggregated fractions of shares sold by the Independent Agent or designated broker less a transaction fee not to exceed $0.09 per share. | |||
34. | Q. | May the Plan be changed, suspended, or discontinued? | ||
A. | We reserve the right, for any reason, to modify, suspend, or terminate any provision of the Plan, or the Plan as a whole, at any time. All participants will receive notice of any such modification, suspension, or termination. Typically, notice will be provided prior to the effectiveness of the applicable modification, suspension, or termination. However, notices of suspension or termination caused by the inability to purchase or inadvisability of purchasing shares may be given after the fact. If the Plan is suspended, similarly we may, for any reason, reinstate the Plan at any time. Again, notice will be given to participants of the reinstatement, and such notice may be given before or after the fact.
Upon any termination of the Plan by us, you will receive (1) a certificate for all of the whole shares of common stock credited to your account, (2) any uninvested dividend or cash investment credited to your account, and (3) a check for the cash value of any fraction of a share of common stock credited to your account. The price of the shares sold will be the weighted average price of the aggregated shares sold by the Independent Agent or designated broker less a transaction fee, which is not to exceed $0.09 per share as of the date of this Prospectus. |
If you have questions concerning the Plan or FirstEnergy, please call AST at 1-800-736-3402.
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We will receive proceeds from the sale of our common stock pursuant to the Plan only to the extent that those sales are of newly issued or treasury shares of our common stock purchased by AST from us, excluding any transaction fees, and not from open market purchases or purchases in privately negotiated transactions. As of the date of this Prospectus, shares of common stock purchased for participants under the Plan will be newly issued or, if available, treasury shares purchased by AST from us. The proceeds from the sale to the Plan of any newly issued or treasury stock will be used to meet working capital and capital expenditure requirements and for other corporate purposes. We are unable to estimate the amount of proceeds at this time.
DESCRIPTION OF COMMON AND PREFERRED STOCK
Certain provisions of our Amended Articles of Incorporation, as amended, and Amended Code of Regulations, as amended, are summarized or referred to below. The summaries are merely an outline, do not purport to be complete, do not relate to or give effect to the provisions of statutory or common law, and are qualified in their entirety by express reference to our Amended Articles of Incorporation and Amended Code of Regulations.
We are authorized by our Amended Articles of Incorporation to issue 490,000,000 shares of common stock, par value $0.10 per share, of which 418,216,437 shares were issued and outstanding as of September 24, 2013. The common stock currently outstanding is, and the common stock offered pursuant to this Prospectus will be, fully paid and non-assessable.
We are also authorized by our Amended Articles of Incorporation to issue 5,000,000 shares of preferred stock, par value $100 per share, of which none are currently issued and outstanding. Our Amended Articles of Incorporation give our board of directors authority to issue preferred stock from time to time in one or more classes or series and to fix the designations, powers, preferences, limitations and relative rights of any series of preferred stock that we choose to issue, including dividend rates, conversion rights, voting rights, terms of redemption and liquidation preferences and the number of shares constituting each such series. Such preferred stock could be issued with terms that could delay, defer or prevent a change of control of FirstEnergy. Prior to the issuance of a new series of preferred stock, we will amend our Amended Articles of Incorporation, designating the stock of that series and the terms of that series. We will describe the terms of the preferred stock in the prospectus supplement for such offering and will file a copy of the charter amendment establishing the terms of the preferred stock with the SEC.
Dividend Rights
Subject only to any prior rights and preferences of any shares of our preferred stock that may in the future be issued and outstanding, the holders of the common stock are entitled to receive dividends when, as and if declared by our board of directors out of legally available funds. There can be no assurance that funds will be legally available to pay dividends at any given time or that, if funds are available, the board of directors will declare a dividend.
Liquidation Rights
In the event of our dissolution or liquidation, the holders of our common stock will be entitled to receive, pro rata, after the prior rights of the holders of any issued and outstanding shares of our preferred stock have been satisfied, all of our assets that remain available for distribution after payment in full of all of our liabilities.
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Voting Rights
The holders of our common stock are entitled to one vote on each matter submitted for their vote at any meeting of our shareholders for each share of common stock held as of the record date for the meeting. The holders of our common stock are not entitled to cumulate their votes for the election of directors.
At least 80% of the voting power of the outstanding shares must approve any amendment, repeal or adoption of any provision inconsistent with, the provisions of the Amended Articles of Incorporation dealing with:
| the right of the board of directors to fix or change the terms of unissued or treasury shares, or to authorize our acquisition of our outstanding shares; |
| the absence of cumulative voting and preemptive rights; or |
| the requirement that at least 80% of the voting power of the outstanding shares must approve the foregoing. |
In addition, the approval of at least 80% of the voting power of the outstanding shares must be obtained to amend or repeal the provisions of the Amended Code of Regulations dealing with:
| the time and place of shareholders meetings, the manner in which special meetings of shareholders are called or the way business is conducted at such meetings; |
| the number, election and terms of directors, the manner of filling vacancies on the board of directors, the removal of directors or the manner in which directors are nominated; or |
| the indemnification of officers, directors, employees or agents. |
Amendment of the provision of the Amended Code of Regulations that requires the approval of 80% of the voting power of the outstanding shares in the instances enumerated above requires the same level of approval.
Adoption of amendments to our Amended Articles of Incorporation (other than those requiring 80% approval as specified above), adoption of a plan of merger or consolidation, authorization of a sale or other disposition of all or substantially all of the assets not made in the usual and regular course of its business or adoption of a resolution of dissolution, and any other matter that would otherwise require a two-thirds approving vote, require the approval of two-thirds of the voting power of the outstanding shares, unless the board of directors provides otherwise by resolution, in which case these matters will require the approval of a majority of the voting power of the outstanding shares and the approval of a majority of the voting power of any shares entitled to vote as a class on such proposal.
Ohio Law Anti-takeover Provisions
Chapter 1704 of the Ohio General Corporation Law applies to a broad range of business combinations between an Ohio corporation and an interested shareholder. The Ohio law definition of business combination includes mergers, consolidations, combinations or majority share acquisitions. An interested shareholder is defined as a shareholder who, directly or indirectly, exercises or directs the exercise of 10% or more of the voting power of the corporation in the election of directors.
Chapter 1704 restricts corporations from engaging in business combinations with interested shareholders, unless the articles of incorporation provide otherwise, for a period of three years following the date on which the shareholder became an interested shareholder, unless the directors of the corporation have approved the business combination or the interested shareholders acquisition of shares of the corporation prior to the date the shareholder became an interested shareholder. After the initial three-year moratorium, Chapter 1704 prohibits such transactions absent approval by the directors of the interested shareholders acquisition of shares of the corporation prior to the date that the shareholder became an interested shareholder, approval by disinterested shareholders of the corporation or the transaction meeting certain statutorily defined fair price provisions.
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Under Section 1701.831 of the Ohio General Corporation Law, unless the articles of incorporation, the regulations adopted by the shareholders, or the regulations adopted by the directors pursuant to division (A)(1) of Section 1701.10 of the Ohio General Corporation Law provide otherwise, any control share acquisition of a corporation can only be made with the prior approval of the corporations disinterested shareholders. A control share acquisition is defined as the acquisition, directly or indirectly, by any person of shares of a corporation that, when added to all other shares of that corporation in respect of which the person may exercise or direct the exercise of voting power, would enable that person, immediately after the acquisition, directly or indirectly, alone or with others, to exercise levels of voting power of the corporation in the election of directors in any of the following ranges: at least 20% but less than 33 1/3%; at least 33 1/3% but no more than 50%; or more than 50%.
We have not opted out of the application of either Chapter 1704 or Section 1701.831.
Anti-takeover Effects
Some of the supermajority provisions of our Amended Articles of Incorporation and Amended Code of Regulations and the rights or the provisions of Ohio law described above, individually or collectively, may discourage, deter, delay or impede a tender offer or other attempt to acquire control of FirstEnergy even if the transaction would result in the shareholders receiving a premium for their shares over current market prices or if the shareholders otherwise believe the transaction would be in their best interests.
In addition, our Amended Code of Regulations contains certain advance notice provisions for which shareholders must comply in order to bring business before an annual meeting of shareholders or nominate candidates for our board of directors.
Shareholders must provide us advance notice of the introduction by them of business at annual meetings of our shareholders. For a shareholder to properly bring a proposal before an annual meeting, the shareholder must follow the advance notice procedures described in our Amended Code of Regulations. In general, the shareholder must deliver a written notice to our Corporate Secretary describing the proposal and the shareholders interest in the proposal not less than 30 nor more than 60 calendar days prior to the annual meeting. However, in the event public announcement of the date of the annual meeting is not made at least 70 calendar days prior to the date of the annual meeting, notice by the shareholder to be timely must be so received not later than the close of business on the 10th calendar day following the day on which public announcement is first made of the date of the annual meeting.
Shareholders can nominate candidates for our board of directors. However, a shareholder must follow the advance notice procedures described in Regulation 14(c) of our Amended Code of Regulations. In general, a shareholder must submit a written notice of the nomination that includes the information required by our Amended Code of Regulations to our Corporate Secretary not less than 30 nor more than 60 calendar days prior to the annual meeting of shareholders. However, in the event public announcement of the date of the annual meeting is not made at least 70 calendar days prior to the date of the annual meeting, notice by the shareholder to be timely must be so received not later than the close of business on the 10th calendar day following the day on which public announcement is first made of the date of the annual meeting.
No Preemptive or Conversion Rights
Holders of our common stock have no preemptive or conversion rights and are not subject to further calls or assessments by us. There are no redemption or sinking fund provisions applicable to our common stock.
Listing
Shares of our common stock are traded on the New York Stock Exchange under the symbol FE.
Transfer Agent and Registrar
The Transfer Agent and Registrar for our common stock is American Stock Transfer & Trust Company, LLC.
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Dividend Information
Cash dividends, per share of our common stock, declared in 2013 through the date of this Prospectus include three quarterly payments of $0.55 per share in 2013. Cash dividends, per share of our common stock, declared in 2012, 2011, 2010, 2009 and 2008 include four quarterly payments of $0.55 per share. Future dividends will depend on our future earnings and the ability of our subsidiaries to pay cash dividends to us which, in the case of our regulated subsidiaries, may be subject to regulatory limitations and to charter and indenture limitations that may, in general, restrict the amount of retained earnings available for the payment to us of dividends. These limitations, however, do not currently materially restrict payment of these dividends.
Persons who acquire shares of our common stock through the Plan and resell them shortly after acquiring them, including coverage of short positions, under certain circumstances, may be participating in a distribution of securities that would require compliance with Regulation M under the Securities Exchange Act of 1934, as amended, which we refer to as the Exchange Act, and may be considered to be underwriters within the meaning of the Securities Act of 1933, as amended, which we refer to as the Securities Act. We will not extend to any such person any rights or privileges other than those to which it would be entitled as a participant, nor will we enter into any agreement with any such person regarding the resale or distribution by any such person of the shares of our common stock so purchased. We have no arrangements or understandings, formal or informal, with any person relating to the sale of shares of our common stock to be received under the Plan. We reserve the right to modify, suspend or terminate participation in the Plan by otherwise eligible persons in order to eliminate practices which are inconsistent with the purpose of the Plan.
The maximum amount of cash investments is $100,000 per calendar year per account.
Reinvested dividends and cash investments will be used to purchase shares of FirstEnergy common stock which, at the option of FirstEnergy, will be either newly issued or treasury shares purchased by AST from us or will be purchased on behalf of Plan participants in the open market or in privately negotiated transactions by AST through the Independent Agent. The determination of the source of shares of common stock to be used for purchases under the Plan will be made at the discretion of FirstEnergy. We may change the source of the shares of common stock to be used for purchases under the Plan at any time without notice to you. We will not change more than once in any three-month period the source of the purchase of the shares.
When shares to be purchased are satisfied by newly issued or treasury shares purchased by AST from us, the price will be the average of the high and low prices of FirstEnergys common stock, as reported in the New York Stock Exchange Composite Transactions for the investment date (or the next preceding day on which FirstEnergy common stock is traded on the New York Stock Exchange, if it is not traded on the investment date), plus a transaction fee not to exceed $0.09 per share.
When shares are purchased in the open market or in privately negotiated transactions, the purchase price per share will be the weighted average price of the aggregated shares purchased by AST during the purchase period plus a transaction fee not to exceed $0.09 per share.
For open market purchases, if shares cannot be purchased with respect to an investment date due to the inability to purchase shares during the purchase period, or if such purchase is deemed to be otherwise inadvisable by AST, FirstEnergy and/or the Independent Agent, the dividends and cash investments which otherwise would have been invested will be paid or returned, as the case may be, by AST issuing checks to the affected participants without interest.
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Participants requests to sell Plan shares will be aggregated and sold as often as daily but at least weekly, depending on the volume. The price of the shares sold will be the weighted average price of the aggregated shares sold by the Independent Agent or designated broker less a transaction fee not to exceed $0.09 per share. A check for sale of the shares, less the transaction fee, generally will be mailed to the participant three business days after the shares are sold.
As described above, participants will pay a transaction fee for each share purchased or sold to cover any applicable brokerage commissions and administrative costs of the Plan. This transaction fee is not to exceed $0.09 per share; however, there is currently no maximum amount set for the Plans fees. Although not anticipated, Plan participants will receive advance written notice if there is a need to charge a transaction fee of greater than $0.09 per share due to increased administrative costs or broker commissions.
Shares of our common stock may not be available under the Plan in all states. We are not making an offer to sell our common stock in any state where the offer or sale is not permitted.
The legality of our common stock offered pursuant to this Registration Statement is passed on for us by Robert P. Reffner, Vice President, Legal, of our subsidiary FirstEnergy Service Company. As of June 30, 2013, Mr. Reffner beneficially owned approximately 37,906 shares of our common stock, which includes approximately 12,306 unrestricted directly-owned shares, approximately 5,394 shares owned through the FirstEnergy Savings Plan, 6,741 shares of restricted stock and 13,465 shares of unvested restricted stock units.
The consolidated financial statements and managements assessment of the effectiveness of internal control over financial reporting (which is included in Managements Report on Internal Control over Financial Reporting), of FirstEnergy Corp. incorporated in this Prospectus by reference to FirstEnergys Annual Report on Form 10-K for the year ended December 31, 2012, have been so incorporated in reliance on the reports of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We are required by the Exchange Act to file annual, quarterly and current reports and other information with the SEC. These reports and other information can be inspected and copied at the Public Reference Room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. You may also read and copy these SEC filings by visiting the SECs Website at http://www.sec.gov or our Website at http://www.firstenergycorp.com. Information contained on our Website does not constitute part of this Prospectus and is not incorporated by reference herein.
We have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities offered by this Prospectus. This Prospectus does not contain all of the information included in the registration statement. For further information, you should refer to the registration statement.
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The SEC allows us to incorporate by reference in this Prospectus the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this Prospectus. The information included in this Prospectus is not complete, and should be read together with the information incorporated by reference. We incorporate by reference in this Prospectus the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, until the termination of this offering; information we file in the future with the SEC will automatically update and supersede this information:
| FirstEnergys Annual Report on Form 10-K for the year ended December 31, 2012; |
| FirstEnergys Quarterly Reports on Form 10-Q for the quarters ended March 31, 2013 and June 30, 2013; and |
| FirstEnergys Current Reports on Form 8-K filed on February 20, 2013, February 28, 2013, March 5, 2013, May 13, 2013, May 23, 2013, July 9, 2013, August 21, 2013, September 4, 2013, September 17, 2013 and September 20, 2013. |
You also may request additional copies of these reports or copies of our other SEC filings at no cost by writing or telephoning us at the following address:
FirstEnergy Corp.
Attention: Corporate Department
76 South Main Street
Akron, Ohio 44308-1890
(800) 736-3402
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Stock Investment Plan
4,000,000 Shares
Common Stock,
Par Value $0.10 Per Share
PROSPECTUS
September 25, 2013
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Registration fee |
$ | 20,223 | ||
Costs of printing and engraving* |
$ | 30,000 | ||
Legal fees and expenses* |
$ | 45,000 | ||
Accounting fees and expenses* |
$ | 22,000 | ||
Miscellaneous expenses* |
$ | 7,777 | ||
|
|
|||
Total |
$ | 125,000 |
* | Estimated |
Item 15. Indemnification of Directors and Officers
Section 1701.13(E) of the Ohio General Corporation Law, or 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 the person 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 the person in connection with such action, suit or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal matter, if the person had no reasonable cause to believe the persons 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 the persons 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 corporations 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. Further, a right to indemnification or to advancement of expenses arising under a provision of the articles or the regulations of a corporation may not be eliminated or impaired by an amendment to that provision after the occurrence of the act or omission that becomes the subject of the civil, criminal, administrative, or investigative action, suit, or proceeding for which the indemnification or advancement of expenses is sought, unless the provision in effect at the time of that act or omission explicitly authorizes that elimination or impairment after the act or omission has occurred.
Regulation 31 of FirstEnergys amended code of regulations provides as follows:
The Corporation shall indemnify, to the full extent then permitted by law, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or 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,
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trust or other enterprise. The Corporation shall pay, to the full extent then required by law, expenses, including attorneys fees, incurred by a member of the Board of Directors in defending any such action, suit or proceeding as they are incurred, in advance of the final disposition thereof, and may pay, in the same manner and to the full extent then permitted by law, such expenses incurred by any other person. The indemnification and payment of expenses provided hereby shall not be exclusive of, and shall be in addition to, any other rights granted to those seeking indemnification under any law, the Articles of Incorporation, any agreement, vote of shareholders or disinterested members of the Board of Directors, or otherwise, both as to action in official capacities and as to action in another capacity while he or she is a member of the Board of Directors, or an officer, employee or agent of the Corporation, and shall continue as to a person who has ceased to be a member of the Board of Directors, trustee, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
Regulation 32 of FirstEnergys amended code of regulations provides as follows:
The Corporation may, to the full extent then permitted by law and authorized by the Board of Directors, purchase and maintain insurance or furnish similar protection, including but not limited to trust funds, letters of credit or self-insurance, on behalf of or for any persons described in Regulation 31 against any liability asserted against and incurred by any such person in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify such person against such liability. Insurance may be purchased from or maintained with a person in which the Corporation has a financial interest.
Directors and Officers Liability Insurance. The Registrant maintains and pays the premium on contracts insuring 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 and officers, the forms of which are incorporated by reference to Exhibits 10.1 and 10.2 of FirstEnergys Form 10-Q for the quarter ended March 31, 2009, and Exhibit 10.1 of FirstEnergys Form 8-K filed July 23, 2012. Each indemnification agreement provides, among other things, that the Registrant will, subject to the agreement terms, indemnify a director or officer, as applicable, if, by reason of the individuals status as a director or officer, 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 or officer, as applicable, subject to certain exceptions, in connection with proceedings covered by the indemnification agreement. As a director and officer, Mr. Alexanders agreement addresses indemnity in both roles.
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 | |||||||
4 | (a)* | Amended Articles of Incorporation of FirstEnergy Corp. (incorporated by reference to Exhibit 3.1 to FirstEnergys Form 10-K filed February 19, 2010, File No. 333-21011). | ||||||
4 | (b)* | Amendment to the Amended Articles of Incorporation of FirstEnergy Corp. (incorporated by reference to Exhibit 3.1 to FirstEnergys Form 8-K filed February 25, 2011, File No. 333-21011). | ||||||
4 | (c)* | FirstEnergy Corp. Amended Code of Regulations (incorporated by reference to Exhibit 3.1 to FirstEnergys Form 10-K filed February 25, 2009, File No. 333-21011). |
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4 | (d)* | Amendment to the FirstEnergy Corp. Amended Code of Regulations (incorporated by reference to FirstEnergys Definitive Proxy Statement filed April 1, 2011, Appendix 1, File No. 333-21011). | ||||||
4 | (e)* | Form of Common Stock Certificate (incorporated by reference to Exhibit 4(c) to the Registration Statement on Form S-3/A filed by the Registrant on November 24, 1997, File No. 333-40063). | ||||||
5 | ** | Opinion of Robert P. Reffner, Vice President, Legal, FirstEnergy Service Company, as to the validity of the Common Stock being registered. | ||||||
23 | (a)** | Consent of PricewaterhouseCoopers LLP. | ||||||
23 | (b)** | Consent of Robert P. Reffner (contained in Exhibit 5). | ||||||
24 | ** | Power of Attorney (included on signature pages). |
* | Incorporated by reference. |
** | Filed herewith. |
Item 17. 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;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of the securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for
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indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Akron, State of Ohio, on the 25th day of September, 2013.
FIRSTENERGY CORP. | ||
By: | /s/ Anthony J. Alexander | |
Name: | Anthony J. Alexander | |
Title: | President and Chief Executive Officer |
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, James F. Pearson, Leila L. Vespoli, Rhonda S. 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.
Signature |
Title |
Date | ||
/s/ Anthony J. Alexander Anthony J. Alexander |
President and Chief Executive Officer (Principal Executive Officer) and Director |
September 25, 2013 | ||
/s/ James F. Pearson James F. Pearson |
Senior Vice President and Chief Financial Officer (Principal Financial Officer) |
September 25, 2013 | ||
/s/ K. Jon Taylor K. Jon Taylor |
Vice President, Controller and Chief Accounting Officer (Principal Accounting Officer) |
September 25, 2013 |
Signature |
Title |
Date | ||
/s/ George M. Smart George M. Smart |
Chairman of the Board |
September 25, 2013 | ||
/s/ Paul T. Addison Paul T. Addison |
Director |
September 25, 2013 |
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/s/ Michael J. Anderson Michael J. Anderson |
Director |
September 25, 2013 | ||
/s/ Dr. Carol A. Cartwright Dr. Carol A. Cartwright |
Director |
September 25, 2013 | ||
/s/ William T. Cottle William T. Cottle |
Director |
September 25, 2013 | ||
/s/ Robert B. Heisler, Jr. Robert B. Heisler, Jr. |
Director |
September 25, 2013 | ||
/s/ Julia L. Johnson Julia L. Johnson |
Director |
September 25, 2013 | ||
/s/ Ted J. Kleisner Ted J. Kleisner |
Director |
September 25, 2013 | ||
/s/ Donald T. Misheff Donald T. Misheff |
Director |
September 25, 2013 | ||
/s/ Ernest J. Novak, Jr. Ernest J. Novak, Jr. |
Director |
September 25, 2013 | ||
/s/ Christopher D. Pappas Christopher D. Pappas |
Director |
September 25, 2013 | ||
/s/ Catherine A. Rein Catherine A. Rein |
Director |
September 25, 2013 | ||
Luis A. Reyes |
Director |
|||
/s/ Wes M. Taylor Wes M. Taylor |
Director |
September 25, 2013 |
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INDEX TO EXHIBITS
Exhibit No. | Description | |||||
4 | (a)* | Amended Articles of Incorporation of FirstEnergy Corp. (incorporated by reference to Exhibit 3-1 to FirstEnergys Form 10-K filed February 19, 2010, File No. 333-21011). | ||||
4 | (b)* | Amendment to the Amended Articles of Incorporation of FirstEnergy Corp. (incorporated by reference to Exhibit 3.1 to FirstEnergys Form 8-K filed February 25, 2011, File No. 333-21011). | ||||
4 | (c)* | FirstEnergy Corp. Amended Code of Regulations (incorporated by reference to Exhibit 3.1 to FirstEnergys Form 10-K filed February 25, 2009, File No. 333-21011). | ||||
4 | (d)* | Amendment to the FirstEnergy Corp. Amended Code of Regulations (incorporated by reference to FirstEnergys Definitive Proxy Statement filed April 1, 2011, Appendix 1, File No. 333-21011). | ||||
4 | (e)* | Form of Common Stock Certificate (incorporated by reference to Exhibit 4(c) to the Registration Statement on Form S-3/A filed by the Registrant on November 24, 1997, File No. 333-40063). | ||||
5 | ** | Opinion of Robert P. Reffner, Vice President, Legal, FirstEnergy Service Company, as to the validity of the Common Stock being registered. | ||||
23 | (a)** | Consent of PricewaterhouseCoopers LLP. | ||||
23 | (b)** | Consent of Robert P. Reffner (contained in Exhibit 5). | ||||
24 | ** | Power of Attorney (included on signature pages). |
* | Incorporated by reference. |
** | Filed herewith. |
Exhibit 5
[LETTERHEAD OF FIRSTENERGY CORP.]
September 25, 2013
FirstEnergy Corp.
76 South Main Street
Akron, Ohio 44308
Re: Registration Statement on Form S-3ASR
Ladies and Gentlemen:
I am Vice President, Legal, of FirstEnergy Service Company, and have acted as counsel to its affiliate, FirstEnergy Corp., an Ohio corporation (the Company), in connection with the preparation and filing by the Company with the Securities and Exchange Commission (the SEC) of the above-captioned registration statement on Form S-3ASR (the Registration Statement), pursuant to the Securities Act of 1933, as amended (the Act). The Registration Statement relates to the registration of the offering and sale by the Company of up to 4,000,000 shares of the Companys common stock, $0.10 par value per share (the Shares). The Shares are to be offered and sold by the Company pursuant to the FirstEnergy Corp. Stock Investment Plan (the Plan), or any successor plans thereto, as such Plan or successor plans may be amended from time to time.
In connection with this letter, I or persons under my supervision or control have reviewed originals or copies, certified or otherwise identified to my satisfaction, of the Registration Statement, the Companys Amended Articles of Incorporation, the Companys Amended Code of Regulations, the Plan and the resolutions of the Board of Directors of the Company adopted on September 17, 2013, relating to the authorization and proposed issuance and sale of the Shares pursuant to the Plan. In addition, I or persons under my supervision or control have reviewed originals, or copies certified or otherwise identified to my satisfaction, of such other instruments, certificates, records and documents and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have reviewed such questions of law, as I have deemed necessary or appropriate for purposes of this letter. In such review, I have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to me as originals, the conformity to the original documents of all documents submitted as copies and the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and limitations stated herein, I am of the opinion that, when (i) the Registration Statement shall have become effective under the Act, (ii) the Shares shall have been issued in accordance with the terms of the Plan as described in the Registration Statement and in accordance with the applicable resolutions of the Board of Directors of the Company, and (iii) the Shares shall have been delivered to the purchasers thereof against payment of the agreed consideration thereof determined in accordance with the terms of the Plan, the Shares will be validly issued, fully paid and non-assessable.
In connection with this letter, I have assumed that the authorization of the Shares will not have been modified or rescinded by the Board of Directors of the Company and there will not have occurred any change in law affecting the validity of such Shares prior to their issuance.
This letter is limited to the matters expressly stated herein and no opinion is to be inferred or implied beyond the opinions expressly set forth herein. I undertake no, and hereby disclaim any, obligation to make any inquiry after the date hereof or to advise you of any changes in any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Company or any other person or any other circumstance.
I consent to the filing of this letter as an exhibit to the Registration Statement and I further consent to the use of my name under the caption Legal Matters in the Registration Statement. In giving such consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Act.
I am a member of the Bar of the State of Ohio, and I do not express any opinion herein concerning any law other than the law of the State of Ohio.
Very Truly Yours,
/s/ Robert P. Reffner
Robert P. Reffner
Vice President, Legal of
FirstEnergy Service Company
Exhibit 23(a)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated February 25, 2013 relating to the financial statements, financial statement schedule, and the effectiveness of internal control over financial reporting, which appears in FirstEnergy Corp.s Annual Report on Form 10-K for the year ended December 31, 2012. We also consent to the reference to us under the heading Experts in such Registration Statement.
/S/ PricewaterhouseCoopers LLP
Cleveland, Ohio
September 25, 2013