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Section 1: S-8 (FORM S-8)

Form S-8

As filed with the Securities and Exchange Commission on May 20, 2020

Registration No. 333-                

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM S-8

REGISTRATION STATEMENT

Under

The Securities Act of 1933

 

 

FIRSTENERGY CORP.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Ohio   34-1843785

(State or Other Jurisdiction

of Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

76 South Main Street, Akron, Ohio 44308

(Address of Principal Executive Offices Including Zip Code)

FirstEnergy Corp. 2020 Incentive Compensation Plan

(Full Title of the Plan)

Ebony L. Yeboah-Amankwah, Esq.

Vice President, Deputy General Counsel,

Corporate Secretary and Chief Ethics Officer

FirstEnergy Corp.

76 South Main Street

Akron, Ohio 44308

(800) 736-3402

(Name, Address and Telephone Number, Including Area Code, of Agent For Service)

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer      Smaller reporting company  
     Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Securities

to be Registered

 

Amount

to be

Registered (1)(2)

 

Proposed

Maximum

Offering Price

Per Share (3)

 

Proposed

Maximum

Aggregate

Offering Price (3)

 

Amount of

Registration Fee

Common Stock, par value $0.10 per share

  12,786,593   $39.135   $500,403,317.055   $64,953

 

 

(1)

Represents the number of shares of common stock, par value $0.10 per share (“Common Stock”), of FirstEnergy Corp. (the “Registrant”), deliverable pursuant to the FirstEnergy Corp. 2020 Incentive Compensation Plan (the “Plan”) being registered hereon.

(2)

Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers such additional Common Stock as may become deliverable pursuant to any anti-dilution provisions of the Plan.

(3)

Estimated solely for calculating the amount of the registration fee, pursuant to paragraphs (c) and (h) of Rule 457 of the General Rules and Regulations under the Securities Act, on the basis of the average of the high and low sale prices of such securities on the New York Stock Exchange on May 14, 2020, within five business days prior to filing.

 

 

 


PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

The Registrant is subject to the informational and reporting requirements of Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and, in accordance therewith, files reports, proxy statements and other information with the Securities and Exchange Commission (the “Commission”). The following documents have been filed by the Registrant with the Commission and are incorporated herein by reference:

 

  (a)

The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2019 (Commission File No. 333-21011), filed February 10, 2020;

 

  (b)

The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 (Commission File No. 333-21011), filed April 23, 2020;

 

  (c)

The Registrant’s Current Reports on Form 8-K (Commission File No. 333-21011) filed February  20, 2020 and May 20, 2020; and

 

  (d)

The description of the Common Stock contained in Exhibit 99 to the Registrant’s Quarterly Report on Form 10-Q (Commission File No. 333-21011), filed July 31, 2018, as amended by the description of the Common Stock contained in Exhibit 4-10 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2019 (Commission File No. 333-21011), filed February 10, 2020, and as amended by any subsequent amendment or report filed for the purpose of updating such description.

All documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement, and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, will be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained in any document incorporated or deemed to be incorporated by reference herein will be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded will not be deemed, except as modified or superseded, to constitute a part of this Registration Statement.

 

Item 4.

Description of Securities.

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel.

Not applicable.

 

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Item 6.

Indemnification of Directors and Officers.

Ohio Revised Code. Section 1701.13(E) of the Ohio Revised Code, or ORC, 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 person’s 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 person’s duty to the corporation except to the extent provided in the court order. Indemnification may be made if ordered by a court or authorized in each specific case by the directors of the indemnifying corporation acting at a meeting at which, for the purpose, any director who is a party to or threatened with any such action, suit or proceeding may not be counted in determining the existence of a quorum and may not vote. If, because of the foregoing limitations, the directors are unable to act in this regard, such determination may be made by written opinion of independent legal counsel other than an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the corporation or any person to be indemnified during the five years preceding the date of determination. Alternatively, such determination may be made by the corporation’s shareholders.

Section 1701.13(E) of the ORC 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.

Amended and Restated Code of Regulations. Regulation 31 of the Registrant’s amended and restated code of regulations provides as follows:

“The Corporation shall indemnify, to the full extent then permitted by law, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a member of the Board of Directors or an officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The Corporation shall pay, to the full extent then required by law, expenses, including attorney’s fees, incurred by a member of the Board of Directors in defending any such action, suit or proceeding as they are incurred, in advance of the final disposition thereof, and may pay, in the same manner and to the full extent then permitted by law, such expenses incurred by any other person. The indemnification and payment of expenses provided hereby shall not be exclusive of, and shall be in addition to, any other rights granted to those seeking indemnification under any law, the Articles of Incorporation, any agreement, vote of shareholders or disinterested members of the Board of Directors, or otherwise, both as to action in official capacities and

 

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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 the Registrant’s amended and restated 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 form of which is incorporated by reference to Exhibits 10.1 of the Registrant’s Current Report on Form 8-K filed with the Commission on May 16, 2018. 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 individual’s 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 of the Registrant, Charles E. Jones has an agreement that addresses indemnity in both roles.

 

Item 7.

Exemption from Registration Claimed.

Not applicable.

 

Item 8.

Exhibits.

 

Exhibit Number

  

Description

  4.1    Amended and Restated Articles of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3-1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended June 30, 2019 (Commission File No. 333-21011), filed on July 23, 2019)
  4.2    Amended and Restated Code of Regulations of the Registrant (incorporated herein by reference to Exhibit 3-2 to the Registrant’s Quarterly Report on Form 10-Q for the period ended June 30, 2019 (Commission File No. 333-21011), filed on July 23, 2019)

 

II-3


Exhibit Number

  

Description

  4.3    FirstEnergy Corp. 2020 Incentive Compensation Plan (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (Commission File No. 333-21011), filed on May 20, 2020)
  5.1    Opinion of Jones Day
23.1    Consent of Independent Registered Public Accounting Firm – PricewaterhouseCoopers LLP
23.2    Consent of Jones Day (included in Exhibit 5.1)
24.1    Power of Attorney

 

Item 9.

Undertakings.

(a) 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;

(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 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 (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 reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.

(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

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(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) Insofar as indemnification for liabilities arising under the Securities Act 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 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

II-5


SIGNATURES

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Akron, State of Ohio, on this 20th day of May, 2020.

 

FIRSTENERGY CORP.
By:  

/s/ Ebony L. Yeboah-Amankwah

  Ebony L. Yeboah-Amankwah
  Vice President, Deputy General Counsel,
  Corporate Secretary and Chief Ethics Officer

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.

 

Date: May 20, 2020    

*

    Charles E. Jones
    President and Chief Executive Officer and Director
    (Principal Executive Officer)
Date: May 20, 2020    

*

    Steven E. Strah
    Senior Vice President and Chief Financial Officer
    (Principal Financial Officer)
Date: May 20, 2020    

*

    Jason J. Lisowski
    Vice President, Controller and Chief Accounting
    Officer (Principal Accounting Officer)
Date: May 20, 2020    

*

    Donald T. Misheff
    Director
Date: May 20, 2020    

*

    Michael J. Anderson
    Director
Date: May 20, 2020    

*

    Steven J. Demetriou
    Director
Date: May 20, 2020    

*

    Julia J. Johnson
    Director


Date: May 20, 2020    

*

    Thomas N. Mitchell
    Director
Date: May 20, 2020    

*

    James F. O’Neil III
    Director
Date: May 20, 2020    

*

    Christopher D. Pappas
    Director
Date: May 20, 2020    

*

    Sandra Pianalto
    Director
Date: May 20, 2020    

*

    Luis A. Reyes
    Director
Date: May 20, 2020    

*

    Leslie M. Turner
    Director

 

*

This Registration Statement has been signed on behalf of the above officers and directors by Ebony L. Yeboah-Amankwah, as attorney-in-fact, pursuant to a power of attorney filed as Exhibit 24.1 to this Registration Statement.

 

Dated: May 20, 2020    
    By:  

/s/ Ebony L. Yeboah-Amankwah

      Ebony L. Yeboah-Amankwah
      Attorney-in-Fact
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Section 2: EX-5.1 (EX-5.1)

EX-5.1

Exhibit 5.1

 

LOGO

NORTH POINT 901 LAKESIDE AVENUE CLEVELAND, OHIO 44114.1190

TELEPHONE: +1.216.586.3939 FACSIMILE: +1.216.579.0212

May 20, 2020

FirstEnergy Corp.

76 South Main Street

Akron, Ohio 44308

Re:     Registration Statement on Form S-8 Filed by FirstEnergy Corp.

Ladies and Gentlemen:

We have acted as counsel for FirstEnergy Corp., an Ohio corporation (the “Company”), in connection with the FirstEnergy Corp. 2020 Incentive Compensation Plan (the “Plan”). In connection with the opinion expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of this opinion. Based upon the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that the 12,786,593 shares of common stock, $0.10 par value per share, of the Company (the “Shares”) that may be issued or delivered and sold pursuant to the Plan and the authorized forms of restricted stock unit or other applicable award agreements thereunder (the “Award Agreements”) will be, when issued or delivered and sold in accordance with the Plan and the Award Agreements, validly issued, fully paid and nonassessable, provided that the consideration for the Shares is at least equal to the stated par value thereof.

The opinion expressed herein is limited to the laws of the State of Ohio, as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction on the opinion expressed herein. In addition, we have assumed that the resolutions authorizing the Company to issue or deliver and sell the Shares pursuant to the Plan and the Award Agreements will be in full force and effect at all times at which the Shares are issued or delivered and sold by the Company, and that the Company will take no action inconsistent with such resolutions. In rendering the opinion above, we have assumed that each award under the Plan will be approved by the Board of Directors of the Company or an authorized committee of the Board of Directors.

We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement on Form S-8 filed by the Company to effect the registration of the Shares under the Securities Act of 1933 (the “Act”). In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

 

Very truly yours,
/s/ Jones Day

 

LOGO

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Section 3: EX-23.1 (EX-23.1)

EX-23.1

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of FirstEnergy Corp. of our report dated February 10, 2020 relating to the financial statements, financial statement schedules, 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, 2019.

/s/ PricewaterhouseCoopers LLP

PricewaterhouseCoopers LLP

Cleveland, Ohio

May 20, 2020

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Section 4: EX-24.1 (EX-24.1)

EX-24.1

EXHIBIT 24.1

FIRSTENERGY CORP.

REGISTRATION STATEMENT ON FORM S-8

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned officers and directors of FirstEnergy Corp., an Ohio corporation (the “Registrant”), hereby constitutes and appoints Charles E. Jones, Steven E. Strah, Robert P. Reffner, Ebony L. Yeboah-Amankwah and Daniel M. Dunlap, or any of them, each acting alone, as the true and lawful attorney-in-fact or agent, or attorneys-in-fact or agents, for each of the undersigned, with full power of substitution and resubstitution, and in the name, place and stead of each of the undersigned, to execute and file (1) one or more Registration Statements on Form S-8 (the “Form S-8 Registration Statement”) with respect to the registration under the Securities Act of 1933 of common stock, $0.10 par value per share, of the Registrant deliverable in connection with the FirstEnergy Corp. 2020 Incentive Compensation Plan, (2) any and all amendments, including post-effective amendments, supplements and exhibits to the Form S-8 Registration Statement and (3) any and all applications or other documents to be filed with the Securities and Exchange Commission or any state securities commission or other regulatory authority or exchange with respect to the securities covered by the Form S-8 Registration Statement, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, and each of them, may lawfully do or cause to be done by virtue hereof.

This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original with respect to the person executing it.

IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the 19th day of May 2020:

 

/s/ Charles E. Jones

   

/s/ Steven E. Strah

Charles E. Jones

    Steven E. Strah

President and Chief Executive Officer and Director

    Senior Vice President and Chief Financial Officer

/s/ Jason J. Lisowski

   

/s/ Donald T. Misheff

Jason J. Lisowski

    Donald T. Misheff

Vice President, Controller and Chief Accounting Officer

    Director

/s/ Michael J. Anderson

   

/s/ Christopher D. Pappas

Michael J. Anderson

    Christopher D. Pappas

Director

    Director

/s/ Steven J. Demetriou

   

/s/ Sandra Pianalto

Steven J. Demetriou

    Sandra Pianalto

Director

    Director

/s/ Julia L. Johnson

   

/s/ Luis A. Reyes

Julia L. Johnson

    Luis A. Reyes

Director

    Director

/s/ Thomas N. Mitchell

   

/s/ Leslie M. Turner

Thomas N. Mitchell

    Leslie M. Turner

Director

    Director

/s/ James F. O’Neil III

   

James F. O’Neil III

   

Director

   
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