Registration No. 333-[___]
As filed with the Securities and Exchange Commission on June 21, 1999
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FIRSTENERGY CORP.
(Exact name of registrant as specified in charter)
OHIO 34-1843785
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
76 South Main Street, Akron, Ohio 44308
(330) 384-5100
(Address, including zip code, of Principal Executive Offices)
FirstEnergy Corp. Executive Deferred Compensation Plan
and
Amended FirstEnergy Corp. Deferred Compensation Plan For Directors
(Full title of the plan)
Nancy C. Ashcom
Corporate Secretary
FirstEnergy Corp.
76 South Main Street,
Akron, Ohio 44308
Tel. No. (330) 384-5504
(Name, address, and telephone number, including area code, of agent
for service)
Copies to:
John H. Byington, Esq.
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
Tel. No. (212) 858-1102
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share Aggregate Offering Price Registration Fee 6/
- -------------------- ---------------- ------------------------ ----------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, par 525,000 shares/3 $31.66/4 $16,621,500.00 $0
value $.10 per share/1
Deferred Compensation
Obligations/2 $14,000,000 100% $14,000,000 5/ $3,892.00
</FN>
1. Includes rights to purchase shares of common stock under the Company's Rights Agreement.
2. The Deferred Compensation Obligations are unsecured obligations of FirstEnergy Corp. to pay deferred compensation in
the future in accordance with the terms of the FirstEnergy Corp. Executive Deferred Compensation Plan and the Amended
FirstEnergy Corp. Deferred Compensation Plan For Directors.
3 This Registration Statement shall be deemed to cover additional securities to be issued in connection with, or as the
result of, stock splits, stock dividends or similar transactions.
4. Pursuant to Rule 457(h) and Rule 457(c) under the Securities Act of 1933, the proposed maximum offering price per
share is based on the reported average of the high and low prices for FirstEnergy Corp Common Stock on the New York Stock
Exchange on June 16, 1999.
5. Estimated solely for purposes of determining the registration fee.
6. Pursuant to Rule 457(i), the registration fee is calculated solely on the basis of the proposed offering price of the
Deferred Compensation Obligations, which may convert to FirstEnergy Corp. Common Stock at distribution.
</TABLE>
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have heretofore been filed by the
Company with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act") are incorporated by reference herein and shall be deemed to be a
part hereof:
1. Annual Report on Form 10-K for the year ended December 31,
1998.
2. Quarterly Report on Form 10-Q for quarter ended March 31,
1999.
All documents, filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act prior to the
filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and made a
part hereof from their respective dates of filing (such documents, and
the documents enumerated above, being hereinafter referred to as
"Incorporated Documents"); provided, however, that the documents
enumerated above or subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act in each year during
which the offering made by this Registration Statement is in effect
prior to the filing with the Commission of the Company's Annual Report
on Form 10-K covering such year shall not be Incorporated Documents or
be incorporated by reference in this Registration Statement or be a
part hereof from and after the filing of such Annual Report on Form
10-K.
Any statement contained in an Incorporated Document shall be
deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any
other subsequently filed Incorporated Document modifies or supersedes
such statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities.
The securities being registered under this registration statement
consist of (1) 525,000 shares of common stock, par value $.10 per
share, of the Company ("Common Stock"), including the right to
purchase shares of Common Stock under the Company's Rights Agreement
and (2) up to $14,000,000 in principle amount of obligations of the
Company to pay compensation deferred by eligible employees (the
"Deferred Compensation Obligations") under the terms of the
FirstEnergy Corp. Executive Deferred Compensation Plan and the Amended
First Energy Corp. Deferred Compensation Plan For Directors. At
distribution, certain of the Deferred Compensation Obligations will be
paid in the shares of Common Stock covered by this registration
statement. A description of the Common Stock and Deferred Compensation
Obligations follows.
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DESCRIPTION OF FIRSTENERGY CAPITAL STOCK
We are authorized to issue up to 300,000,000 shares of common
stock, par value $.10 per share, and up to 5,000,000 shares of
preferred stock, par value $100 per share.
Certain provisions of our Amended Articles of Incorporation and
Amended Code of Regulations are summarized or referred to below. The
following description of our capital stock does not purport to be
complete and may not contain all the information you should consider
before investing in the common stock. You should read carefully our
Amended Articles of Incorporation and Amended Code of Regulations.
FirstEnergy Common Stock
Voting Rights. The holders of record of our common stock will be
entitled to one vote on each matter submitted to a vote at a meeting
of shareholders for each share of common stock held as of the record
date for the meeting. Under our Amended Articles of Incorporation, the
voting rights, if any, of preferred stock may differ from the voting
rights of the common stock. The holders of common stock are not
entitled to cumulate their votes for the election of directors. Our
Amended Articles of Incorporation state that our Board of Directors
must be divided into three classes with the term of office of the
respective classes to expire in successive years.
In order to amend, repeal or adopt any provision inconsistent
with the provisions of our Amended Articles of Incorporation dealing
with:
. the right of our Board of Directors to establish the terms of
unissued shares or to authorize us to acquire any of our
outstanding shares of common stock;
. the absence of cumulative voting and preemptive rights; or
. the requirement that 80% of the voting power of our
outstanding common stock must approve the foregoing,
then 80% of the voting power of our outstanding shares of common stock
must vote in favor of that amendment or repeal.
In addition, the approval of 80% of the voting power of our
outstanding common stock must be obtained to amend or repeal the
provisions of our 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 those meetings;
. the number, election and terms of directors, the manner of
filling vacancies on our Board of Directors, the removal of
directors or manner in which directors are nominated; or
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. the indemnification of officers or directors.
Amendment of the provision of the Amended Code of Regulations that
requires the approval of 80% of the voting power of our outstanding
shares in the instances enumerated above requires the same level of
approval.
Adoption of a plan of merger, consolidation or reorganization, as
well as adoption of certain amendments to the Amended Articles of
Incorporation (other than those requiring 80% approval as specified
above), authorization of a sale or other disposition of all or
substantially all of our assets not made in the usual and regular
course of our business, or adoption of a resolution resulting in our
dissolution, and any other matter which would otherwise require a two-
thirds approving vote, require authorization by the holders of two-
thirds of the voting power of our outstanding shares of common stock,
unless our Board of Directors provides otherwise by resolution, in
which case authorization will be by a majority of the voting power of
our outstanding common stock and the approval of a majority of the
voting power of any shares entitled to vote as a class, to the extent
not inconsistent with the Amended Articles of Incorporation or the
Amended Code of Regulations.
Dividends. Subject to prior rights and preferences of any issued
and outstanding shares of our preferred stock, the holders of common
stock will be entitled to receive dividends when, as and if declared
by our Board of Directors out of our funds legally available. Our
ability to pay dividends depends primarily upon the ability of our
subsidiaries to pay dividends or otherwise transfer funds to us. The
articles of incorporation, certain mortgages and other agreements, as
supplemented, of Ohio Edison Company, Pennsylvania Power Company, The
Cleveland Electric Illuminating Company and The Toledo Edison Company,
our direct and indirect electric utility subsidiaries, contain
provisions which, under certain conditions, restrict the ability of
these subsidiaries to transfer funds to us in the form of cash
dividends. There can be no assurance that funds will be legally
available to pay dividends at any given time or that, if funds are
available, our Board of Directors will declare a dividend.
Liquidation Rights. If we are liquidated, dissolved or wound up,
the holders of our common stock will be entitled to share ratably,
after the rights of the holders of any issued and outstanding shares
of our preferred stock have been satisfied, in any assets remaining
after payment in full of all of our liabilities.
No Preemptive, Redemption or Conversion Rights. The holders of
common stock will have no preemptive rights to acquire or subscribe to
any shares, or securities convertible into shares, of common stock.
The holders of common stock will have no redemption or conversion
rights.
Listing. Our common stock is 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 FirstEnergy Securities Transfer Company, which
is one of our wholly owned subsidiaries.
FirstEnergy Preferred Stock
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According to Article IV of our Amended Articles of Incorporation,
our Board of Directors has the authority to issue preferred stock from
time to time in one or more classes or series. According to Article V
of our Amended Articles of Incorporation, our Board of Directors is
authorized to adopt amendments to our Amended Articles of
Incorporation to fix or change the express terms of any unissued or
treasury shares of any class, including preferred stock. Presently, we
do not have any shares of our preferred stock outstanding.
RIGHTS PLAN
On November 18, 1997, we authorized assignment of one share
purchase right (a "Right") for each outstanding share of common stock.
Each Right entitles the registered holder to purchase from us one
share of our common stock at a purchase price of $70 per share, when
the Rights become exercisable. The description and terms of the Rights
are found in a Rights Agreement between us and The Bank of New York,
as our rights agent. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by reference
to the Rights Agreement.
Rights Initially not Separable From Common Stock
The Rights will be represented by the common stock certificates
until the earlier of:
. 10 days following a public announcement that a person or group
of affiliated or associated persons (an "Acquiring Person")
has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding common stock (the
date of the public announcement being called the "Share
Acquisition Date") or
. 10 days following the commencement or announcement of an
intention to make a tender offer or exchange offer by a person
other than by us if, upon completion of the offer, that
person, together with persons affiliated or associated with
it, would be the beneficial owner of 25% or more of the
outstanding common stock (the earlier of those days being
called the "Distribution Date").
The Rights Agreement provides that, until the Distribution Date,
the Rights will be transferred with and only with the common stock.
Until the Distribution Date (or earlier redemption, termination or
expiration of the Rights), new common stock certificates issued upon
transfer or new issuance of common stock will contain a notation
incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption, termination or expiration of
the Rights), the surrender for transfer of any certificates of common
stock will also constitute the transfer of the Rights associated with
the common stock represented by the certificate.
Separation of Rights from Common Stock
As soon as possible following the Distribution Date, separate
certificates representing the Rights will be mailed to holders of
record of the common stock as of the close of business on the
Distribution Date and only those separate certificates will, from that
point forward, represent the Rights.
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Exercise of Rights
The Rights are not exercisable until the Distribution Date. The
Rights will expire November 28, 2007, unless that date is extended or
unless the Rights are earlier redeemed by us or exchanged for shares
of common stock, as described below.
The purchase price payable, and the number of shares of common
stock or other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent
dilution:
. in the event of a stock dividend on, or a subdivision,
combination or reclassification of, the common stock,
. upon the grant to holders of the common stock of certain
rights or warrants to subscribe for or purchase common stock
at a price, or securities convertible into common stock with a
conversion price, less than the then current market price of
the common stock, or
. upon the distribution to holders of the common stock of
evidences of indebtedness or assets (excluding regular
periodic cash dividends paid out of earnings or retained
earnings or dividends payable in shares of common stock) or of
subscription rights or warrants (other than those referred to
above).
In the event that:
. we merge with or are involved in another business combination
transaction with an Acquiring Person,
. 50% or more of our consolidated assets or earning power are
sold to an Acquiring Person,
. an Acquiring Person acquires 25% or more of our outstanding
common stock, or
. an Acquiring Person engages in one or more self-dealing
transactions with us,
then, proper provision will be made so that each holder of a Right
will thereafter have the ability to receive, upon the exercise thereof
at the then current purchase price of the Right, that number of shares
of our common stock or of the acquiring company, as the case may be,
which at the time of that transaction will have a value double the
amount of the purchase price.
Any Rights that are or were beneficially owned at any time on or
after the Distribution Date by an Acquiring Person will become null
and void upon the occurrence of any event described in the preceding
paragraph and no holder of such Rights will have any right with
respect to those Rights from and after the occurrence of any of those
events.
With certain exceptions, no adjustment in the purchase price will
be required until cumulative adjustments reach at least 1% of the
purchase price. No fractional shares of common stock will be issued
and instead, an adjustment in cash will be made based on the market
price of the common stock on the last trading day prior to the date of
exercise.
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Redemption of Rights
At any time prior to the 10th day following the Share Acquisition
Date (unless we extend the date), our Board of Directors may redeem
the Rights in whole, but not in part, at a price of $.001 per Right.
In that connection, the amount payable to any holder of the Rights
will be rounded up to the nearest $.01. Payments of less than $1.00
will be sent to holders of the Rights only if the particular holder
entitled to the payment specifically requests that the payment be
sent. Immediately upon our ordering the redemption of the Rights, the
right to exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the redemption price. In the
event an Acquiring Person, after triggering the ten day limitation on
our redemption option (unless we decide to extend that date), reduces
its shareholdings to less than 15% then our Board of Directors' full
redemption rights are reinstated.
Exchange of Rights
After the Distribution Date and prior to the time an Acquiring
Person has acquired 50% or more of the then outstanding shares of
common stock, we may require that some or all of the Rights be
exchanged on a one for one basis (subject to adjustment for stock
splits, stock dividends and other similar transactions) for shares of
common stock. To the extent that Rights are required to be exchanged
for common stock, the right to exercise those Rights will terminate
and the only right of the holder will be to exchange those Rights for
shares of common stock.
Amendments
We may amend the terms of the Rights without the consent of the
holders of the Rights, including an amendment to extend the period
during which the rights may be redeemed, except that after the
Distribution Date no amendment may adversely affect the interests of
the holders of the Rights.
No Rights as a Shareholder
Until a Right is exercised, the holder thereof will have no
rights as one of our shareholders, including, without limitation, the
right to vote or to receive dividends.
Effect of Rights
The Rights will not prevent us from being taken over. The Rights,
however, may cause substantial dilution to a person or group that
acquires 15% or more of our common stock unless the Rights are first
redeemed by our Board of Directors. Nevertheless, the Rights should
not interfere with a transaction that is in our and our shareholders'
best interests because the Rights can be redeemed as herein described
before the consummation of that transaction.
DESCRIPTION OF DEFERRED COMPENSATION OBLIGATIONS
The Deferred Compensation Obligations are unsecured general
obligations of the Company to make future payments of compensation
that certain employees and directors have elected to defer under the
terms of the FirstEnergy Corp. Executive Deferred Compensation Plan
and the Amended FirstEnergy Corp. Deferred Compensation Plan For
Directors, which are filed as Exhibits 4(e) and 4(f), respectively, to
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this registration statement. These Exhibits describe the terms and
conditions of the Deferred Compensation Obligations in detail, and are
incorporated herein by reference in their entirety in response to this
Item 4, pursuant to Rule 411(b)(3) under the Securities Act of 1933.
The Deferred Compensation Obligations rank pari passu with any of
our other unsecured and unsubordinated indebtedness that may be
outstanding from time to time. Except for the portion of those
Deferred Compensation Obligations that are payable at distribution in
shares of Common Stock under the terms of the applicable plan, the
Deferred Compensation Obligations are not convertible into any of our
other securities. No sinking fund has or will be established with
respect to the Deferred Compensation Obligations.
We reserve the right to amend or terminate the plans at any time,
except that no such amendment or termination can adversely affect a
participant's rights with respect to amounts deferred prior to the
amendment or termination. A participant's rights to and under the
Deferred Compensation Obligations are not assignable or transferable,
except by way of transfer to a participant's beneficiary or estate
upon the participant's death. Except as otherwise stated in the
applicable plan, the Deferred Compensation Obligations do not enjoy
the benefit of any affirmative or negative pledges or covenants by the
Company.
All payments of Deferred Compensation Obligations will be made
from our general assets. However, we may establish one or more grantor
trusts to fund the payment of the Deferred Compensation Obligations.
But, if we do established such trusts, we retain discretion to
determine the amount and timing of any contributions to the trusts. No
participant will have any preferred claim to, or beneficial interest
in, any assets of the trusts, and the assets of the trusts will remain
subject to the claims of our creditors. Our establishment of a trust
or trusts to fund payment of the Deferred Compensation Obligations
will not effect the status of the Deferred Compensation Obligations as
general, unsecured obligations of the Company.
Item 5. Interests of Named Experts and Counsel.
The validity of our common stock and the deferred compensation
obligations will be verified by Michael R. Beiting, our Associate
General Counsel. As of June 16, 1999, Mr. Beiting owned 2,147 shares
of our common stock. Mr. Beiting is also eligible to participate in
the FirstEnergy Corp. Executive Deferred Compensation Plan, pursuant
to which some of the deferred compensation obligations will be issued.
Item 6. Indemnification of Directors and Officers.
Section 1701.13(E) of Title 17 of Page's Ohio Revised Code
Annotated gives a corporation incorporated under the laws of Ohio
power to indemnify any person who is or has been a director, officer
or employee of that corporation, or of another corporation at the
request of that corporation, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with any threatened, pending or completed action, suit or
proceeding, criminal or civil, to which he is or may be made a party
because of being or having been such director, officer or employee,
provided that in connection therewith, such person is determined to
have acted in good faith in what he reasonably believed to be in or
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not opposed to the best interest of the corporation of which he is a
director, officer or employee, and without reasonable cause, in the
case of a criminal matter, to believe that his conduct was unlawful.
The determination as to the conditions precedent to the permitted
indemnification of such person is made by the directors of the
indemnifying corporation acting at a meeting at which, for the
purpose, any director who is a party to or threatened with any such
action, suit or proceeding may not be counted in determining the
existence of a quorum and may not vote. If, because of the foregoing
limitations, the directors are unable to act in this regard, such
determination may be made by the majority vote of the corporation's
voting shareholders (or without a meeting upon two-thirds written
consent of such shareholders), by judicial proceeding or by written
opinion of legal counsel not retained by the corporation or any person
to be indemnified during the five years preceding the date of
determination.
Regulation 31 of the Company's Amended Code of Regulations
provides as follows:
"The Company shall indemnify, to the full extent then
permitted by law, any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or
she is or was a member of the Board of Directors or an officer,
employee or agent of the Company, or is or was serving at the
request of the Company as a director, trustee, officer, employee
or agent of another corporation, partnership, joint venture,
trust or other enterprise. The Company shall pay, to the full
extent then required by law, expenses, including attorney's fees,
incurred by a member of the Board of Directors in defending any
such action, suit or proceeding as they are incurred, in advance
of the final disposition thereof, and may pay, in the same manner
and to the full extent then permitted by law, such expenses
incurred by any other person. The indemnification and payment of
expenses provided hereby shall not be exclusive of, and shall be
in addition to, any other rights granted to those seeking
indemnification under any law, the Amended Articles of
Incorporation, any agreement, vote of shareholders or
disinterested members of the Board of Directors, or otherwise,
both as to action in official capacities and as to action in
another capacity while he or she is a member of the Board of
Directors, or an officer, employee or agent of the Company, and
shall continue as to a person who has ceased to be a member of
the Board of Directors, trustee, officer, employee or agent and
shall inure to the benefit of the heirs, executors and
administrators of such a person."
Section 1701.13(E) of Title 17 of Page's Ohio Revised Code
Annotated provides that the indemnification thereby permitted shall
not be exclusive of any other rights that directors, officers or
employees may have, including rights under insurance purchased by the
corporation.
Regulation 32 of the Company's Amended Code of Regulations
provides as follows:
"The Corporation may, to the full extent then permitted by law
and authorized by the Board of Directors, purchase and maintain
insurance or furnish similar protection, including but not limited to
trust funds, letters of credit or self-insurance, on behalf of or for
any persons described in Regulation 31 against any liability asserted
against and incurred by any such person in any such capacity, or
arising out of his status as such, whether or not the Corporation
would have the power to indemnify such person against such liability.
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Insurance may be purchased from or maintained with a person in which
the Corporation has a financial interest."
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
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4(a) Amended Articles of Incorporation of FirstEnergy Corp.
(physically filed and designated in Registration No. 333-
21011 as Exhibit (3)-1).
4(b) Amended Code of Regulations of FirstEnergy Corp.
(physically filed and designated in Registration No. 333-
21011 as Exhibit (3)-2).
4(c) Form of Common Stock Certificate (physically filed and
designated in Registration No. 333-40063 as Exhibit 4(c)).
4(d) Rights Agreement dated as of November 18, 1997, between
FirstEnergy Corp. and The Bank of New York and form of
Right Certificate (physically filed and designated in
Current Report on Form 8-K dated November 18, 1997, as
Exhibit 4.1).
4(e) FirstEnergy Corp. Executive Deferred Compensation Plan
4(f) Amended FirstEnergy Corp. Deferred Compensation Plan For
Directors
5 Opinion of Michael R. Beiting, Esq., Associate General
Counsel for the Company as to the securities being
registered.
15 Letter re: Unaudited Interim Financial Information.
23(a) Consent of Michael R. Beiting, Esq. (contained in Exhibit
No. 5)
23(b) Consent of Independent Public Accountants, Arthur Andersen
LLP
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
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(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "1933 Act");
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of a prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that clauses (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed with or furnished
to the Securities and Exchange Commission by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
1933 Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4) That, for purposes of determining any liability under the
1933 Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 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 1933
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 Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 1933 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
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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 1933 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 and State
of Ohio, on the 15th day of June, 1999.
FIRSTENERGY CORP.
By /s/Willard R. Holland
----------------------
Willard R. Holland
Chairman of the Board
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POWER OF ATTORNEY
Each of the undersigned directors and officers of the Registrant,
individually as such director and/or officer, hereby makes,
constitutes and appoints H. Peter Burg and Nancy C. Ashcom, 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.
NAME TITLE DATE
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/s/ Willard R. Holland Chairman of the Board June 15, 1999
- ------------------------
(Willard R. Holland)
/s/ H. Peter Burg President, Chief Executive June 12, 1999
- ------------------------ Officer and Director
(H. Peter Burg) (Principal Executive Officer)
/s/ Richard H. Marsh Vice President and Chief June 15, 1999
- ------------------------ Financial Officer
(Richard H. Marsh) (Principal Financial Officer)
/s/ Harvey L. Wagner Controller June 15, 1999
- ------------------------ (Principal Accounting Officer)
(Harvey L. Wagner)
/s/ Dr. Carol A. Cartwright Director June 11, 1999
- --------------------------
(Dr. Carol A. Cartwright)
/s/ William F. Conway Director June 15, 1999
- ------------------------
(William F. Conway)
/s/ Robert L. Loughhead Director June 15, 1999
- ------------------------
(Robert L. Loughhead)
/s/ Robert B. Heisler, Jr. Director June 15, 1999
- ------------------------
(Robert B. Heisler, Jr.)
- 13 -
<PAGE>
NAME TITLE DATE
- ---- ----- ----
/s/ Russell W. Maier Director June 15, 1999
- ------------------------
(Russell W. Maier)
/s/ Glenn H. Meadows Director June 15, 1999
- ------------------------
(Glenn H. Meadows)
/s/ Paul J. Powers Director June 15, 1999
- ------------------------
(Paul J. Powers)
/s/ Robert C. Savage Director June 12, 1999
- ------------------------
(Robert C. Savage)
/s/ George M. Smart Director June 11, 1999
- ------------------------
(George M. Smart)
/s/ Jesse T. Williams, Sr. Director June 15, 1999
- -------------------------
(Jesse T. Williams, Sr.)
- 14 -
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
- ------- -----------
4(a)* Amended Articles of Incorporation of FirstEnergy Corp.
(physically filed and designated in Registration Statement
No. 333-21011 as Exhibit (3)-1).
4(b)* Amended Code of Regulations of FirstEnergy Corp.
(physically filed and designated in Registration Statement
No. 333-21011 as Exhibit (3)-2).
4(c)* Form of Common Stock Certificate (physically filed and
designated in Registration Statement No. 333-40063 as
Exhibit 4(c).
4(d)* Rights Agreement dated as of November 18, 1997, between
FirstEnergy Corp. and The Bank of New York and form of
Right Certificate (physically filed and designated in
Current Report on Form 8-K dated November 18, 1997, as
Exhibit 4.1).
4(e) FirstEnergy Corp. Executive Deferred Compensation Plan.
4(f) Amended FirstEnergy Corp. Deferred Compensation Plan For
Directors.
5 Opinion of Michael R. Beiting, Esq., Associate General
Counsel for the Company, as to the securities being
registered.
15 Letter re: Unaudited Interim Financial Information.
23(a) Consent of Michael R. Beiting, Esq. (contained in Exhibit
No. 5).
23(b) Consent of Independent Public Accountants, Arthur Andersen
LLP.
_________________________
* Incorporated by reference as noted therein.
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<PAGE>
EXHIBIT 4(E)
FIRSTENERGY CORP.
EXECUTIVE DEFERRED COMPENSATION PLAN
Effective September 28, 1985
Amended and Restated as of January 1, 1999
- 16 -
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I - PURPOSE, EFFECTIVE DATE, AND COMPANY 1
1.1 Purpose 1
1.2 Effective Date 1
1.3 Company 1
1.4 Designation of Participating Companies 1
1.5 Withdrawal From Plan of Participating Employer 1
1.6 Delegation of Authority 2
1.7 Committee 2
ARTICLE II - PARTICIPATION AND DEFERRAL COMMITMENTS 2
2.1 Eligibility and Participation 2
2.2 Form of Deferral; Minimum Deferral 2
2.3 Modification of Deferral Commitment 3
2.4 Vesting of Retirement Account 3
ARTICLE III - DEFERRED COMPENSATION ACCOUNTS 3
3.1 Elective Deferred Compensation 4
3.2 Type of Account 4
3.3 Retirement Account Interest 4
3.4 FirstEnergy Stock Account Earnings 5
3.5 Determination of Accounts 6
3.6 Statement of Accounts 6
ARTICLE IV - SUPPLEMENTAL PENSION BENEFIT 6
4.1 Eligibility 6
4.2 Purpose 6
4.3 Supplemental Pension Benefit 7
4.4 Payment of Supplemental Pension Benefit 7
ARTICLE V - PLAN BENEFITS 8
5.1 Separation of Employment Benefit 8
5.2 Death Benefit 8
5.3 Form of Benefit Payment 8
5.4 Withholding; Payroll Taxes 10
5.5 Commencement of Payments 10
5.6 Full Payment of Benefits 10
5.7 Payment to Guardian 10
(i)
- 17 -
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE VI - BENEFICIARY DESIGNATION 10
6.1 Beneficiary Designation 10
6.2 Amendments 11
6.3 No Beneficiary Designation or Death of Beneficiary 11
6.4 Effect of Payment 11
ARTICLE VII - ADMINISTRATION 11
7.1 Committee; Duties 11
7.2 Agents 13
7.3 Indemnity of Committees 13
ARTICLE VIII- CLAIMS PROCEDURE 13
8.1 Claim 13
8.2 Denial of Claim 13
8.3 Review of Claim 14
8.4 Final Decision 14
ARTICLE IX - AMENDMENT AND TERMINATION OF PLAN 14
9.1 Right to Amend 14
9.2 Right to Terminate 14
ARTICLE X - MISCELLANEOUS 15
10.1 Unfunded Plan 15
10.2 Unsecured General Creditor 15
10.3 Obligations to Company 15
10.4 Nonassignability 15
10.5 Not a Contract of Employment 16
10.6 Protective Provisions 16
10.7 Captions 16
10.8 Governing Law 16
10.9 Validity 16
10.10 Notice 16
10.11 Successors 17
APPENDIX A
APPENDIX B
Change in Control
(ii)
- 18 -
<PAGE>
FIRSTENERGY CORP.
EXECUTIVE DEFERRED COMPENSATION PLAN
ARTICLE I-PURPOSE, EFFECTIVE DATE, AND COMPANY
1.1 Purpose
The purpose of this Executive Deferred Compensation Plan (the
"Plan") is to provide current tax planning opportunities as well as
supplemental funds for retirement, death, disability or other
separation of employment for key executives of FirstEnergy Corp. (the
"Company"). The Plan is part of an integrated executive compensation
program that is intended to attract, retain, and motivate certain key
executives who are in positions to make significant contributions to
the operation and profitability of the Company for the benefit of
stockholders and customers.
1.2 Effective Date
The Plan shall be effective the pay period beginning September
28, 1985.
1.3 Company
The Plan is adopted for the benefit of selected employees of the
Company. Actions by the Company with respect to the Plan shall be
taken by the Chief Executive Officer of FirstEnergy Corp. (the "Chief
Executive Officer") or other designated person(s) appointed by the
Chief Executive Officer to approve or take such action.
1.4 Designation of Participating Companies
The Compensation Committee of the Board of Directors of
FirstEnergy Corp. (the "Compensation Committee") or the Chief
Executive Officer may allow other corporations or other entities
affiliated with or subsidiary to the Company to participate in the
Plan without approval or ratification by the Company's Board of
Directors. Such companies ("Participating Companies") and their
adoption dates shall be added to Appendix A, which is attached hereto
and incorporated herein by reference.
1.5 Withdrawal From Plan of Participating Employer
Any Participating Company may at any time, by resolution of its
Board of Directors (with notice thereof to the Company's Board of
Directors if the terminating company is not FirstEnergy Corp.),
terminate its participation in the Plan. Participating Companies which
cease to be Participating Companies shall be shown in Appendix A
together with their adoption dates and termination dates.
1.6 Delegation of Authority
The Company is hereby fully empowered to act on behalf of itself
and the other Participating Companies as it may deem appropriate in
maintaining the Plan. Furthermore, the adoption by the Company of any
amendment to the Plan or the termination thereof will constitute and
represent, without any further action on the part of any Participating
Company, the approval, adoption, ratification or confirmation by each
Participating Company of any such amendment or termination. In
addition, the appointment of or removal by the Company of any
Committee member or other person under the Plan shall constitute and
represent, without any further action on the part of any Participating
Company, the appointment or removal by each Participating Company of
such person.
1.7 Committee
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<PAGE>
"Committee" means the Administrative Committee that shall
administer this Plan as provided in Article VII. The Committee shall
consist of three (3) or more individuals appointed by the Chief
Executive Officer.
ARTICLE II-PARTICIPATION AND DEFERRAL COMMITMENTS
2.1 Eligibility and Participation
(a) Eligibility. The Chief Executive Officer may designate
any key executive as eligible to participate in the Plan.
(b) Participation. An individual who becomes eligible to
participate in the Plan during a Deferral Period may elect to
participate in the Plan by filing with the Committee a
Participation Agreement in a form prescribed by the Committee by
December 31 of the calendar year preceding the next following
Deferral Period.
(c) Deferral Period. "Deferral Period" means a single
calendar year inclusive of all pay periods paid in such calendar
year for which a Participant has made a Salary or Annual
Incentive Award Deferral Commitment.
(d) Participant. "Participant" means any eligible
individual who has elected to make deferrals under this Plan.
2.2 Form of Deferral; Minimum Deferral
A Participant may elect in the Participation Agreement the
following Deferral Commitment:
(a) Salary Deferral Commitment. A Participant may elect to
defer a percentage of base salary for the Deferral Period. The
amount to be deferred must not be less than one percent (1%) nor
more than twenty-five percent (25%) of base salary. The
commitment must be in increments of at least one percent (1%) of
base salary.
(b) FirstEnergy Corp. Plan Exception. In addition to the
deferral permitted under (a) above, any Participant that is
eligible to participate in the FirstEnergy Corp. Savings Plan
(the "Savings Plan") may elect to defer under this Plan that
portion of base salary which could be deferred under the terms of
the Savings Plan but for limits of the provisions of Sections
401(a)(17), 401(k)(3), 402(g)(1) and (5) of the Internal Revenue
Code of 1986, as amended, which preclude such deferral under the
Savings Plan.
(c) Deferral Commitment for Annual Incentive Award and/or
Long-Term Incentive Award From Executive Incentive Compensation
Plan. A Participant may elect to defer a percentage of his or her
Annual Incentive Award and/or Long-Term Incentive Award payable
the following calendar year. The amount to be deferred must not
be less than one percent (1%) nor more than one hundred percent
(100%) of such award, less any taxes required to be withheld and
applicable deductions. The commitment must be in increments of at
least one percent (1%).
(d) Period of the Commitment. Once a Participant has made
a Deferral Commitment, that Commitment shall remain in effect for
that Deferral Period. It shall also remain in effect unless
revoked or amended in writing by the Participant and delivered to
the Committee by December 31 of the year preceding a subsequent
Deferral Period.
2.3 Modification of Deferral Commitment
A Deferral Commitment shall be irrevocable, except that the
Committee may permit a Participant to reduce or waive the remainder of
the Deferral Commitment for a calendar year upon a finding, based upon
uniform standards established by the Committee, that the Participant
has suffered an unforeseen and sudden financial emergency. If the
Committee grants a waiver in the Deferral Commitment, the Participant
may not make any further deferrals under the Plan unless the
Participant files a new Deferral Commitment in writing and delivers it
to the Committee by December 31 to be effective for the following
calendar year. Notwithstanding the foregoing, if a Participant, who is
required to file reports under Section 16 of the Securities Act of
1934, requests a waiver of Deferral Commitment with respect to a Stock
Account, the request must be approved by the Compensation Committee of
the Board.
- 20 -
<PAGE>
2.4 Vesting of Retirement Account
A Participant shall be one hundred percent (100%) vested in all
amounts credited to such Participant's Retirement Account. For the
FirstEnergy Stock Account, a Participant shall be one hundred percent
(100%) vested in the Account balance attributable to the Participant's
deferrals. Vesting for amounts attributable to the company-provided
premium is determined in Section 3.4(e).
ARTICLE III-DEFERRED COMPENSATION ACCOUNTS
3.1 Elective Deferred Compensation
The amount of salary and/or Annual Incentive Award that a
Participant elects to defer shall be withheld and credited to the
Participant's Retirement Account. A Participant may elect some portion
of that Annual Incentive Award and/or Long-Term Incentive Award
deferral to be credited to the FirstEnergy Stock Account. Any
withholding of taxes or other amounts with respect to deferred
compensation which is required by state, federal or local law shall be
withheld to the extent possible from the Participant's nondeferred
compensation, if any.
3.2 Type of Account
A Retirement Account shall be maintained for a Participant
solely for recordkeeping purposes. For Participants in the active
employ of the Company on or after January 1, 1999, a FirstEnergy Stock
Account shall also be maintained solely for recordkeeping purposes.
The deferred salary and deferred Annual Incentive and/or Long-Term
Incentive Award shall be credited to such Accounts as elected by the
Participant. For any participant who separated employment from the
Company prior to January 1, 1996, with a vested "Separation Account"
(as that term was defined under the Plan in effect at the time of such
separation ("Prior Plan")) such Prior Plan and any references in this
Plan to "Retirement Account" shall, for such Participants, mean
"Separation Account." As of January 1, 1999, former Participants of
the Centerior Deferred Compensation Plan who have an account balance
under such Plan and who are active employees of FirstEnergy Corp. as
of January 1, 1999, shall have such account balance transferred into a
Retirement Account under this Plan.
3.3 Retirement Account Interest
The Retirement Account shall be credited with Interest as
follows:
(a) Retirement Account Interest. The interest rate
credited to a Retirement Account shall be the annual equivalent
of the average of the Moody's Average Corporate Bond Yield Index
for the twelve (12) months of November through October preceding
the Deferral Period ("Moody's") as published by Moody's Investors
Service, Inc. (or any successor thereto), or, if such index is no
longer published, a substantially similar index selected by the
Committee, plus three (3) percentage points. The maximum Moody's
rate to be used in this calculation shall be twelve percent
(12%).
(b) Senior Management Retirees. Members of Senior
Management who retired before July 1, 1998 will continue to
receive interest credited at the greater of:
(i) The annual equivalent of the average of the
Moody's Average Corporate Bond Yield Index for the twelve
(12) months of November through October preceding the
Deferral Period ("Moody's") as published by Moody's
Investors Service, Inc. (or any successor thereto), or, if
such index is no longer published, a substantially similar
index selected by the Committee, plus four (4) percentage
points, or
(ii) The annual equivalent of a twelve percent (12%)
annual yield.
3.4 FirstEnergy Stock Account Earnings
The FirstEnergy Stock Account balance shall be determined as
follows:
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<PAGE>
(a) FirstEnergy Stock Account Earnings Rate. This Account
shall be a phantom investment fund which shall be credited with
earnings (whether a gain or loss) at the same rate as FirstEnergy
Stock.
(b) Stock Account Premium. Each deferral into the Stock
Account shall be credited by the Company with a twenty percent
(20%) premium as of the date the deferral is made.
(c) Determination of Stock Units. Amounts deferred into
the Stock Account shall be converted into stock units. The number
of stock units credited to the Stock Account shall be determined
by dividing the amount deferred into the Stock Account, plus the
Company-provided premium, by the average daily closing price of
FirstEnergy common Stock during February of the year in which the
deferral is made.
(d) Dividends. Additional stock units shall be credited to
the Stock Account when dividend payments are made to FirstEnergy
shareholders. The number of additional units credited shall be
based on the number of units in the Stock Account and the market
price of FirstEnergy stock at the close of that business day.
(e) Three (3) Year Premium Restriction. The Company-
provided premium, and any earnings (whether a gain or loss) on
that premium, shall be one hundred percent (100%) vested at the
end of three (3) years from the date of the deferral for which
such premium was credited to the Participant's Stock Account. In
order to vest and receive payment of the Stock Account Premium
and any earnings thereon (whether a gain or a loss) at the end of
the three (3) year restriction period, the Participant must still
be employed by the Company or have retired at or after age sixty-
two (62) with a FirstEnergy Stock Account deferral election in
place. The three (3) year premium restriction shall continue to
apply beyond retirement at or after age sixty-two (62). A
Company-provided premium, and any earnings thereon, shall be
fully vested in less than three (3) years if a Participant's
termination of employment occurs due to the following events:
(i) Death;
(ii) Disability;
(iii) Involuntary termination under conditions where
the Participant becomes eligible for and elects to accept a
FirstEnergy severance benefit.
(f) Change in Control. A Participant will be fully vested
in the Company-provided premium if a Change in Control, as
defined in Appendix B, which is attached hereto and incorporated
herein by reference, results in FirstEnergy not being the
controlling company.
(g) Premium Forfeiture. The premium, and any appreciation
on that premium, will be forfeited during the three-year
restriction period if the Participant retires from employment
prior to age sixty-two (62) or if termination occurs for any
reason other than those stated in Section 3.4(e) and (f) above.
3.5 Determination of Accounts
Determination Dates shall be specified by the Committee. Each
Participant's Retirement Account as of each Determination Date shall
consist of the balance as of the immediately preceding Determination
Date, plus the Participant's elective deferred compensation and
interest credited, minus the amount of any distributions made, since
the immediately preceding Determination Date. Interest credited shall
be calculated as of each Determination Date based upon the average
daily balance of the account since the preceding Determination Date.
Each Participant's Stock Account as of each Determination Date shall
consist of the value of the stock units in the Stock Account on that
date.
3.6 Statement of Accounts
The Committee shall submit to each Participant, after the close
of each calendar year and at such other times as determined by the
Committee, a statement setting forth the balance to the credit of the
Accounts maintained for a Participant.
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<PAGE>
ARTICLE IV-SUPPLEMENTAL PENSION BENEFIT
4.1 Eligibility
A Participant means any employee who is eligible to participate
in this Plan according to Section 2.1(a), irrespective of whether or
not such employee has elected to participate in this Plan in
accordance with Section 2.1(b).
4.2 Purpose
The Company maintains a tax-qualified defined benefit pension
plan known as the FirstEnergy Corp. Pension Plan ("Pension Plan").
Benefits under the Pension Plan are based on certain employee
earnings and are subject to limitations imposed by the Internal
Revenue Code ("the Code") and the Pension Plan calculation formulas.
It is intended that the benefit provided by this Article IV supplement
a Participant's (or his or her Surviving Spouse or Provisional Payee
as designated under the Pension Plan) reduction in his or her
retirement income or vested pension benefit, as appropriate, from the
Pension Plan as a result of:
(a) Electing deferrals under this Plan; or
(b) Limitations imposed by Sections 401(a)(17) and Section
415 of the Code on Pension Plan earnings; or
(c) The exclusion of Annual Incentive Awards from Pension
Plan benefit calculation under certain of the pension
formulas that only consider employee base earnings.
4.3 Supplemental Pension Benefit
At the time a Participant separates employment for any reason and
is entitled to a benefit under the Pension Plan, the Company shall pay
to the Participant, his or her Surviving Spouse or Provisional Payee
as designated by the Participant under the Pension Plan, a
supplemental pension benefit from its general assets equal to the
amount of the benefit that would have been payable under the Pension
Plan, calculated without regard to the Participant's deferrals under
the Plan, the limitations imposed by Sections 401(a)(17) and Section
415 of the Code on the Participant's Pension Plan earnings after
January 1, 1996, or the exclusion of Annual Incentive Awards after
January 1, 1996, from the Participant's Pension Plan earnings, less
the benefit actually payable under the Pension Plan. Such supplemental
pension benefit shall be nonforfeitable upon the date the Participant
separates employment.
4.4 Payment of Supplemental Pension Benefit
The supplemental pension benefit provided for in Section 4.3
shall be paid in the same form and manner over the same period as
payments under the Pension Plan.
ARTICLE V-PLAN BENEFITS
5.1 Separation of Employment Benefit
The Company shall pay a Plan benefit equal to the amount of the
Participant's Retirement Account to each Participant who separates
employment for any reason other than death.
5.2 Death Benefit
Upon the death of a Participant, either before or after
separation of employment, the Company shall pay to the Participant's
Beneficiary an amount equal to the Participant's Retirement Account
balance.
5.3 Form of Benefit Payment
(a) Retirement Benefit-Retirement Account. For a
Participant who at the time of separation of employment is age
fifty-five (55) or over and is entitled to a benefit under the
Pension Plan, the Retirement Account balance shall be paid as
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<PAGE>
elected by the Participant in the Participation Agreement.
However, the Participant may amend such election up to ninety
(90) days prior to the date of Retirement. Forms of benefit
payment shall be:
(i) A lump-sum payment; and/or
(ii) Monthly installments of principal and interest
over a period of up to one hundred eighty (180) months. The
amount of the installment shall be redetermined January 1 of
each year based upon the then current rate of Interest on
Retirement Accounts, the remaining Retirement Account
balance, and the remaining number of payment periods.
(iii) A Participant may irrevocably elect at least
ninety (90) days prior to the date of Retirement to defer
commencement of payment of the Retirement Account to a later
date. Payments from the Retirement Account must commence,
however, no later than the first day of the month following
the Participant's seventieth (70th) birthday.
(b) Disability Benefit-Retirement Account. If a
Participant separates employment at any age by reason of
disability, the Retirement Account balance shall be paid as
elected by the Participant in the Participation Agreement.
"Disabled" means a disability such that a Participant would be
entitled to receive a monthly disability pension payment under
the Pension Plan. For the purposes of this provision, such a
Participant need not have completed ten (10) years of Eligibility
Service, as defined by the Pension Plan, with the Company.
However, the Participant may amend such election any time prior
to Disability. Forms of benefit payments shall be the same as in
Section 5.3(a)(i) and/or (ii).
(c) Separation of Employment Benefit for Reasons Other Than
Retirement, Disability or Death-Retirement Account. For a
Participant who at the time of separation from employment is
under age fifty-five (55) or who is not entitled to a benefit
under the Pension Plan, the Retirement Account balance shall be
paid in a lump sum following separation from employment.
(d) Death Benefits-Retirement Account
(i) If a Participant dies prior to separation of
employment, the Retirement Account balance shall be paid to
the Beneficiary as elected by the Participant in the
Participation Agreement or Form of Benefit Payout, whichever
is on file and controlling. The Participant may amend such
election any time prior to death. Form of benefit payments
shall be the same as in Section 5.3(a)(i) and/or (ii).
(ii) If a Participant dies after separation of
employment due to Retirement or Disability, the Retirement
Account balance shall continue to be paid to the Beneficiary
in the form and manner elected by the Participant in the
Participation Agreement or Form of Benefit Payout, whichever
is on file and controlling. However, if the Participant
elected to defer commencement of retirement benefits to a
later date (pursuant to Section 5.3(a)(iii)) and dies prior
to commencement of retirement benefit payments, the election
to defer commencement of retirement benefit payments will
become null and void and payments will commence immediately
to the Beneficiary in the form and manner elected by the
Participant.
(e) Stock Account. The Stock Account shall be paid in a
lump sum, less applicable taxes, in the form of FirstEnergy
stock.
(f) Participant Call Provision. Notwithstanding Section
5.3(a), (b), (c) and (d) above, a Participant (or the
Participant's Beneficiary in case of the death of the
Participant) at any time may request an accelerated distribution
of his or her Retirement Account, subject to a ten percent (10%)
penalty. Notwithstanding Section 5.3(e) above, a Participant may
request an accelerated distribution of the Stock Account subject
to the loss of the twenty percent (20%) premium and associated
earnings and a ten percent (10%) penalty on the balance. The
distribution will be paid in Company Stock. Such request must be
made in writing in a form and manner specified by the Committee.
The Company will distribute to the Participant or Beneficiary the
remaining balance of his or her Retirement Account and/or Stock
Account as a lump sum within sixty-three (63) days after the end
of the month the Committee receives the request. Such
distribution shall completely discharge the Committee and the
Company from all liability with respect to the Participant's or
Beneficiary's Accounts. Further, if the Participant is in the
active employ of the Company, the Participant may not resume any
further deferrals into the Plan until January 1 of the second
calendar year following the calendar year in which the
Participant receives such distribution. Notwithstanding the
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<PAGE>
foregoing, if a Participant, who is required to file reports
under Section 16 of the Securities Act of 1934, requests an
accelerated distribution of his Stock Account, the request must
be approved by the Compensation Committee of the Board.
(g) Inservice Withdrawal Provision. Notwithstanding the
foregoing in Section 5.3(a), (b), (c) and (d) above, a
Participant who is in the active employ of the Company and has
been a Plan Participant for at least five (5) years may request
to withdraw a portion of his or her Retirement Account. Such
request may be made once per year and must be made in writing in
a form and manner specified by the Committee and must specify the
amount to be withdrawn and the future date or dates to be paid
which must be the first of a month in the second calendar year
following the calendar year in which the request is made. The
request will be irrevocable after December 31, of the calendar
year in which it is made unless, prior to payment, the
Participant separates employment or dies at which time the
request will become null and void and the Participant's
Retirement Account balance shall be paid as elected by the
Participant in the Participation Agreement pursuant to Section
5.3(a), (b), (c) or (d).
5.4 Withholding; Payroll Taxes
The Company shall withhold from payments made hereunder to the
Participant or any Beneficiary, any amounts required by applicable law
to be withheld. Company may withhold from either deferred or
nondeferred compensation any amounts required to be withheld by the
Federal Insurance Contributions Act (FICA) and/or the Federal
Unemployment Tax Act (FUTA), as amended from time to time. All Plan
administration expenses incurred by the Company or Committee shall be
borne by the Company.
5.5 Commencement of Payments
Payment shall commence at the discretion of the Committee, but
not later than sixty-three (63) days after the end of the month in
which the Participant retires (or the later date if the Participant
elects to defer commencement of payment under Section 5.3(a) (iii)),
dies, becomes disabled or otherwise separates employment with the
Company. All payments shall be made as of the first day of the month.
5.6 Full Payment of Benefits
Notwithstanding any other provision of this Plan, all benefits
shall be paid no later than one hundred eighty (180) months following
the date the Participant reaches age seventy (70) or termination of
service, whichever is later.
5.7 Payment to Guardian
If a Plan benefit is payable to a minor or a person declared
incompetent or to a person incapable of handling the disposition of
property, the Committee may direct payment of such Plan benefit to the
guardian, legal representative or person having the care and custody
of such minor or incompetent person. The Committee may require proof
of incompetency, minority, incapacity or guardianship as it may deem
appropriate prior to distribution of the Plan benefit. Such
distribution shall completely discharge the Committee and the Company
from all liability with respect to such benefit.
ARTICLE VI-BENEFICIARY DESIGNATION
6.1 Beneficiary Designation
Each Participant shall have the right, at any time, to designate
one (1) or more persons as the Participant's primary or contingent
Beneficiary(ies) to whom benefits under this Plan, except benefits
payable pursuant to Article IV, shall be paid in the event of the
Participant's death prior to complete distribution to the Participant
of the benefits due under the Plan. Unless stated otherwise in writing
in the form provided by the Committee, the payments hereunder shall be
paid in equal shares to surviving beneficiaries if more than one (1)
Beneficiary has been chosen. Each Beneficiary designation shall be in
a written form prescribed by the Committee and will be effective only
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<PAGE>
when filed with the Committee during the Participant's lifetime. If a
Participant's compensation is community property, any Beneficiary
designation shall be valid or effective only as permitted under
applicable law.
6.2 Amendments
Any Beneficiary designation may be changed by a Participant
without the consent of any designated Beneficiary by the filing of a
new Beneficiary designation with the Committee.
6.3 No Beneficiary Designation or Death of Beneficiary
In the absence of an effective Beneficiary designation, or if all
designated Beneficiaries predecease the Participant, the Participant's
designated Beneficiary shall be the person in the first of the
following classes in which there is a survivor:
(a) The surviving spouse;
(b) The Participant's estate;
In the event of the death of a Beneficiary after payments
commence but prior to the Beneficiary receiving all benefit payments
hereunder, the remaining balance of the Beneficiary's portion of the
Retirement Account shall be paid in a lump sum to the estate of the
Beneficiary.
6.4 Effect of Payment
Payment to the Beneficiary (or to the Beneficiary's estate) shall
completely discharge the Company's obligations under this Plan.
ARTICLE VII-ADMINISTRATION
7.1 Committee; Duties
This Plan shall be administered by the Committee appointed in
Section 1.7. Members of the Committee may be Participants in this
Plan. However, no member of the Committee may participate in a review
of his or her own claim under Article VIII. The Committee shall
administer the Plan and shall have the power and the duty to take all
action and to make all decisions necessary or proper to carry out the
Plan. The determination of the Committee as to any question involving
the general administration and interpretation of the Plan shall be
final, conclusive, and binding except as otherwise provided in Article
VIII. A majority vote of the Committee members shall control any
decision. Any discretionary actions to be taken under the Plan by the
Committee with respect to the classification of Employees,
Participants, contributions or benefits shall be uniform in nature and
applicable to all persons similarly situated. Without limiting the
generality of the foregoing, the Committee shall have the following
discretionary authority, powers and duties:
(a) To require any person to furnish such information as it
may request for the purpose of the proper administration of the
Plan as a condition to receiving any benefit under the Plan;
(b) To make and enforce such rules and regulations and
prescribe the use of such forms as it deems necessary for the
efficient administration of the Plan;
(c) To interpret the Plan and to resolve ambiguities,
inconsistencies and omissions;
(d) To decide all questions concerning the Plan and any
questions concerning the eligibility of any Employee to
participate in the Plan; and
(e) To determine the amount of benefits which will be
payable to any person in accordance with the provisions of the
Plan.
- 26 -
<PAGE>
7.2 Agents
In the administration of this Plan, the Committee may, from time
to time, employ agents and delegate to them such administrative duties
as it sees fit, and may from time to time consult with counsel, who
may be counsel to the Company.
7.3 Indemnity of Committees
The Company shall indemnify and hold harmless the members of the
Committee and the Compensation Committee against any and all claims,
loss, damage, expense or liability arising from any action or failure
to act with respect to this Plan, except in the case of intentional
misconduct.
ARTICLE VIII-CLAIMS PROCEDURE
8.1 Claim
Any person claiming a benefit, requesting an interpretation or
ruling under the Plan or requesting information under the Plan shall
present the request in writing to the Committee, which shall respond in
writing as soon as practicable, but no more than sixty-three (63) days
after the end of the month in which the request was received. Payment
of a claimed benefit shall also constitute a written response.
8.2 Denial of Claim
If the claim or request is denied, the written notice of denial
shall state:
(a) The reasons for denial, with specific reference to the
Plan provisions on which the denial is based.
(b) A description of any additional material or information
required and an explanation of why it is necessary.
(c) An explanation of the Plan's claim review procedure.
For purposes of this Section 8.2, the failure by the Committee to
deliver within the sixty-three (63) day period notice of a written
denial of claim shall constitute a written response of denial, unless
the failure to correspond was the result of clerical or administrative
error.
8.3 Review of Claim
Any person whose claim or request is denied or who has not
received a response within sixty-three (63) days after the end of the
month in which the request was received may request review by notice
given in writing to the Compensation Committee. The claim or request
shall be reviewed by the Compensation Committee who may, but shall not
be required to, grant the claimant a hearing. On review, the claimant
may have a representative examine pertinent documents and submit issues
and comments in writing.
8.4 Final Decision
The decision on review shall normally be made within sixty (60)
days. If an extension of time is required for a hearing or other
special circumstances, the claimant shall be notified and the time
limit shall be one hundred twenty (120) days. The decision shall be in
writing and shall state the reasons and the relevant Plan provisions.
All decisions on review shall be final and bind all parties concerned.
ARTICLE IX-AMENDMENT AND TERMINATION OF PLAN
9.1 Right to Amend
- 27 -
<PAGE>
The Plan may be amended any time by action of the Board or the
Compensation Committee or by a writing executed on behalf of the Board
or Compensation Committee by the Company's duly elected officers,
except that:
(a) No amendment shall be effective to decrease or restrict
any Participant's Retirement Account balance or Supplemental
Pension Benefit accrued to that date, and
(b) No amendment shall be effective to restrict the right
of a Participant to elect to receive a lump-sum form of benefit
payment of his or her Retirement Account upon retirement, death,
disability or separation of employment, and
(c) No amendment to the definition of Retirement Account
Interest in Section 3.3(a) and (c) shall decrease the interest
rate credited to the Retirement Account balance of any
Participant below the Moody's Average Corporate Bond Yield Index
less one percent (1%), or else the Retirement Account balance
will be paid to all Participants within sixty (60) days of such
amendment. Such amendment shall be effective on the first day of
the calendar year following such amendment, provided that all
Participants are notified of such amendments no later than
November 15 of the year in which such amendment occurs.
9.2 Right to Terminate
The Board or the Compensation Committee of the Board may at any
time terminate the Plan if, in its sole judgment, the tax, accounting
or other effects of the continuance of the Plan, or potential payments
thereunder, would not be in the best interests of the Company. Such
termination shall not adversely affect any Plan Participant's
Retirement Account balance or accrued Supplemental Pension Benefit. The
Company shall pay the Retirement Account balance to all Participants
within sixty (60) days after the effective date of the Plan
termination.
ARTICLE X-MISCELLANEOUS
10.1 Unfunded Plan
This Plan is intended to be an unfunded plan for federal income
tax purposes and for purposes of the Employee Retirement Income
Security Act of 1974, as amended, maintained primarily to provide
deferred compensation benefits for a select group of management
employees or highly compensated employees. This Plan is not intended to
create an investment contract, but to provide tax planning
opportunities and retirement benefits to eligible individuals who have
elected to participate in the Plan. Eligible individuals are select
members of management who, by virtue of their position with the
Company, have the ability to materially affect the Company's
profitability and operations.
10.2 Unsecured General Creditor
Participants and their Beneficiaries, heirs, successors and
assigns shall have no legal or equitable rights, interest or claims in
any property or assets of Company. Any and all Company's assets shall
be, and remain, the general, unpledged, unrestricted assets of Company.
Company's obligation under the Plan shall be merely that of an unfunded
and unsecured promise of Company to pay money in the future.
10.3 Obligations to Company
If a Participant becomes entitled to a benefit under the Plan and
the Participant has outstanding any debt, obligation, or other
liability representing an amount owing to the Company, then the Company
may offset such amount owing to it or an affiliate against the amount
of benefits otherwise distributable to the Participant or Beneficiary.
Such determination shall be made by the Committee.
10.4 Nonassignability
- 28 -
<PAGE>
Neither a Participant nor any other person shall have any right to
commute, sell, assign, transfer, pledge, anticipate, mortgage or
otherwise encumber, transfer, hypothecate or convey in advance of
actual receipt the amounts, if any, payable hereunder, or any part
thereof, which are, and all rights to which are, expressly declared to
be unassignable and nontransferable. No part of the amounts payable
shall, prior to actual payment, be subject to seizure or sequestration
for the payment of any debts, judgments, alimony or separate
maintenance owed by a Participant or any other person, nor be
transferable by operation of law in the event of a Participant's or any
other person's bankruptcy or insolvency.
10.5 Not a Contract of Employment
The terms and conditions of this Plan shall not be deemed to
constitute a contract of employment between the Company and the
Participant, and neither the Participant nor the Participant's
Beneficiary shall have any rights against the Company except as may
otherwise be specifically provided herein. Moreover, nothing in this
Plan shall be deemed to give a Participant the right to be retained in
the service of the Company or to interfere with the right of Company to
discipline or discharge him or her at any time.
10.6 Protective Provisions
A Participant will cooperate with the Company by furnishing any
and all information requested by the Company, in order to facilitate
the payment of benefits hereunder.
10.7 Captions
The captions of the articles, sections and paragraphs of this Plan
are for convenience only and shall not control or affect the meaning or
construction of any of its provisions.
10.8 Governing Law
The provisions of this Plan shall be construed, administered, and
enforced according to and governed by the laws (other than conflict of
law provisions) of the state of Ohio, except to the extent such laws
are superseded by ERISA.
10.9 Validity
In case any provision of this Plan shall be held illegal or
invalid for any reason, such illegality or invalidity shall not affect
the remaining parts hereof, but this Plan shall be construed and
enforced as if such illegal and invalid provision had never been
inserted herein.
10.10 Notice
Any notice or filing required or permitted to be given to the
Committee under the Plan shall be sufficient if in writing and hand
delivered, or sent by registered or certified mail to any member of the
Committee, or to the Statutory Agent of FirstEnergy Corp. Notice to the
Committee may be given to any member of the Committee and if mailed
shall be addressed to the principal executive offices of FirstEnergy
Corp. Notice mailed to the Participant shall be sent to the address set
out in the Participant's most recent Participation Agreement or such
other address as is given to the Committee by notice. Notices shall be
deemed given as of the date of delivery or, if delivery is made by
mail, as of the date shown on the postmark on the receipt for
registration or certification.
10.11 Successors
The provisions of this Plan shall bind and inure to the benefit of
the Company and its successors and assigns. The term successors as used
herein shall include any corporate or other business entity which
shall, whether by merger, consolidation, purchase or otherwise acquire
all or substantially all of the business and assets of the Company, and
successors of any such corporation or other business entity.
- 29 -
<PAGE>
IN WITNESS WHEREOF, and pursuant to approval of the Compensation
Committee of the Board on February 15, 1999, the Company has caused
this instrument to be executed by its duly authorized officers
effective as of January 1, 1999.
- 30 -
<PAGE>
APPENDIX A
1 2 3
Participating Company Adoption Date Termination Date
- ------------------------------------------------------------------
Ohio Edison Company January 1, 1983
Pennsylvania Power Company January 1, 1983
FirstEnergy Corp. January 1, 1998
Cleveland Electric
Illuminating Company July 1, 1998
Toledo Edison Company July 1, 1998
FirstEnergy Services January 1, 1999
FirstEnergy Nuclear Operating
Company January 1, 1999
FirstEnergy Fuel Marketing
Company
===================================================================
- 31 -
<PAGE>
APPENDIX B
Change in Control
For purposes of the Plan, a "Change in Control" means any of the
following:
1. An acquisition by any person or entity of at least fifty
percent (50%) (twenty-five percent (25%) if the acquiring person or
entity proposes any individual for election to the Board of Directors
or is represented by any member of the Board) of either the Company's
outstanding common stock ("Outstanding Common Stock" ) or the combined
voting power of the Company's outstanding voting securities
("Outstanding Voting Securities"). The following acquisitions will not
constitute a Change in Control:
(a) Any acquisition directly from the Company (excluding an
acquisition by virtue of the exercise of a conversion privilege);
(b) Any acquisition by the Company;
(c) Any acquisition by an employee benefit plan sponsored
by the Company or one of its affiliates (e.g., the FirstEnergy
Corp. Savings Plan);
(d) Any acquisition pursuant to a merger or other form of
reorganization or consolidation where the requirements of
paragraph 3 below are satisfied.
2. The current members of the Company's Board of Directors (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board. For this purpose, any individual whose election
or nomination to the Board was approved by at least a majority of the
Directors then comprising the Incumbent Board shall be considered as
though he or she were a member of the Incumbent Board, unless the
individual first assumed office as a result of an actual or threatened
proxy or election contest.
3. Approval by the Company's shareholders of a reorganization,
merger or consolidation, or of a sale or other disposition of all or
substantially all of the assets of the Company, unless after the
transaction each of the following requirements are satisfied:
(a) All or substantially all of the holders of the
Company's Outstanding Common Stock and Outstanding Voting
Securities immediately prior the transaction, continue to hold at
least seventy-five percent (75%) of the outstanding common stock
and the combined voting power of outstanding voting securities of
the corporation resulting from the reorganization, merger or
consolidation (or of the corporation that purchased the assets of
the Company, as the case may be) in the same proportions as they
held the Company's Outstanding Common Stock and Outstanding
Voting Securities immediately before the transaction.
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<PAGE>
APPENDIX B
Change in Control
(Continued)
(b) No person or entity owns twenty-five percent (25%) or
more of the outstanding common stock or the combined voting power
of outstanding voting securities of the corporation resulting
from the reorganization, merger or consolidation (or of the
corporation that purchased the assets of the Company, as the case
may be). This twenty-five percent (25%) limitation does not apply
to the Company, any employee benefit plan sponsored by the
Company or such other corporation, or any person or entity who
owned at least twenty-five percent (25%) of the Company's
Outstanding Common Stock or Outstanding Voting Securities
immediately prior to the transaction; and
(c) At least a majority of the members of the Board of
Directors of the corporation resulting from the reorganization,
merger or consolidation (or of the corporation that purchased the
assets of the Company, as the case may be), were members of the
Incumbent Board of the Company at the time of the initial
agreement providing for the reorganization, merger, consolidation
or sale or other disposition of all or substantially all of the
assets of the Company.
4. Approval by the Company's shareholders of the complete
liquidation or dissolution of the Company.
However in no event will a Change in Control be deemed to have
occurred, with respect to a Director, if the Director is part of a
purchasing group which consummates the Change in Control transaction.
The Director will be deemed "part of a purchasing group" for purposes
of the preceding sentence if the Director is an equity participant or
has agreed to become an equity participant in the purchasing company or
group (excluding passive ownership of less than five percent (5%) of
the voting securities of the purchasing company or ownership of equity
participation in the purchasing company or group which is otherwise not
deemed to be significant, as determined prior to the Change in Control
by a majority of the nonemployee, continuing members of the Board of
Directors).
- 33 -
<PAGE>
EXHIBIT 4(F)
AMENDED
FIRSTENERGY CORP.
DEFERRED COMPENSATION PLAN
FOR DIRECTORS
-------------
ARTICLE I
---------
Director Election
-----------------
Any member of the Board of Directors ("Director") of
FirstEnergy Corp. (the "Company") may elect from time to time, by
written notice to the Company given on or before December 31 of any
year, to defer receipt of all or any specified part of his or her fees
(cash or stock) for services as a Director during succeeding calendar
years, including retainer fees, fees for attending meetings of the
Board of Directors and its Committees and fees for serving as Chairman
or other official of the Board or a Committee (collectively "Director's
fees"). Any person elected to the Board who was not a Director on the
preceding December 31 may elect, by written notice to the Company given
within thirty (30) days after becoming a Director, to defer receipt of
all or any specified part of his or her Director's fees during the
balance of the calendar year following his or her becoming a Director
and succeeding calendar years.
With respect to the calendar year in which this Plan is
adopted by the Board of Directors of the Company, any Director may
elect, by written notice to the Company given within thirty (30) days
after the date on which this Plan is adopted or, if later, within
thirty (30) days after first becoming a Director, to defer receipt of
all or any specified part of his or her Director's fees during the
balance of that calendar year and succeeding calendar years. An
election to defer Director's fees shall be irrevocable and shall
continue from year to year unless the Director terminates it by written
notice to the Company on or before December 31 of the year preceding
the year to which the termination applies.
ARTICLE II
----------
Deferred Fee Account--Balances
------------------------------
Any deferred Director's fees shall be credited by the Company
to the Director's deferred fee account to be maintained by the Company
as of the date the fees would otherwise be payable. Adjustments to the
balance in the account for deemed interest or deemed investment gains
and losses shall be made from time to time, as determined by the
Compensation Committee of the Board of Directors of FirstEnergy Corp.
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<PAGE>
(the "Committee"), but at least annually. The Committee, in its sole
discretion shall determine whether adjustments to the account shall be
made based upon deemed interest or deemed investment earnings. If
deemed interest is selected by the Committee, the deemed interest rate
shall be the "prime rate" then in effect at The Chase Manhattan Bank,
N.A., of New York City, New York, or at another bank as the Committee
may from time to time designate. If the Committee elects to make
adjustments to the accounts in accordance with deemed investment gains
and losses, the Committee, in its sole discretion, shall determine the
investment vehicles to be used. In its the sole discretion, the
Committee may permit the Director to designate that the balance of his
or her account be invested in one or more investment vehicles selected
by the Committee, and adjusted accordingly. The Company shall provide
an annual statement to each Director who has elected to defer fees.
One of the investment options for stock and cash retainer
fees shall be an account whose value will be adjusted as if the
deferred fees were invested in FirstEnergy Common Stock. This account
shall be called the Deferred Stock Account (DSA). At the time cash
retainer fees are designated for investment into this account, the
initial account value shall be increased by 20 percent. If a Director
separates from the Board for any reason other than death, retirement,
or disability as defined by Section 22(e)(3) of the Internal Revenue
Code and such retainer fees are not kept in this account for a minimum
of three years from January 1 of the year of deferral, the Director
shall forfeit the 20 percent bonus on such retainer fees and any
earnings associated with it. A Director shall be immediately entitled
to the 20 percent bonus and all associated earnings if a Change in
Control occurs as defined in Article IX. Initial unit valuation for
cash deferrals into this account shall be based on the Fair Market
Value which is the average of the closing price of FirstEnergy Common
Stock for the previous 20 business days prior to when payment would
otherwise be received. Stock deferred into this account shall be
valued at the actual purchase price, including any commissions.
ARTICLE III
-----------
Payment to Director
-------------------
Amounts credited to a Director's deferred fee account,
including deemed interest and earnings shall be paid to the Director in
cash, either in a lump sum or in annual installments over a period not
to exceed 10 years. For this purpose, a designation by a Director of
the form of payment will be effective only if it is made at the time of
his or her election to defer Director's fees; provided, however, that
if a Director makes a designation, he or she may change that
designation by filing a new superseding designation with the Company
during the period beginning 120 days prior and ending on the day prior
to the day on which the Director ceases to be a Director. Payment(s)
shall be made on or commencing with the January 1 next following the
day the Director ceases to be a Director unless during the foregoing
120 day election period, the Director designates a later payment or
commencement date (not later than the January 1 next following the day
he or she attains age 72).
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<PAGE>
Payment of the balance of the DSA to the Director will be in
the form of FirstEnergy Common Stock and will be paid out when a
Director ceases to be a Director unless a separate election for the DSA
is made. The election options are the same as described in the
paragraph above. If a Director requests any change in the date of the
pay-out of his DSA, the request must be approved by the Compensation
Committee of the Board of Directors of the Company.
A Director may at any time request an accelerated
distribution of his or her account balances, subject to a 10 percent
penalty and, if applicable, forfeiture of the 20 percent bonus and
associated earnings described above if the three-year criterion is not
met. Such a request must be made in writing, in a form and manner
specified by the Committee. The Company will distribute to the
Director the balance of his or her account minus any forfeitures and
the 10 percent penalty as a lump sum within 90 days after the end of
the month in which the Committee receives the request. Such
distribution shall completely discharge the Company from all liability
with respect to the Director's account. If the Director is an active
Director, the Director may not resume any further deferrals into the
Plan until January 1 of the second calendar year following the
calendar year in which the Director receives such distribution. If a
Director requests an accelerated distribution of his DSA, the request
must be approved by the Compensation Committee of the Board of
Directors of the Company.
A Director who is an active Director and who has been a Plan
Participant for at least five calendar years may request to withdraw a
portion of his or her deferred fees and associated earnings. All
deferred cash fees must be disbursed prior to the disbursement of any
deferred stock fees. Such request must be made in writing in a form and
manner specified by the Committee and must specify the amount to be
withdrawn and the future date or dates to be paid. The date(s) must be
the first of a month in the second calendar year following the calendar
year in which the request was made. The request will be irrevocable
after December 31 of the calendar in which it is made unless, prior to
payment, the Director separates from the Board or a Change in Control
occurs as defined in Article IX. In these instances, the request will
become null and void and the account balances will be paid as elected
by the Director or as in the paragraph below.
In the instance of a Change in Control as defined in Article
IX, all cash account balances will be paid out immediately as a lump
sum and the DSA in stock as soon as practicable.
ARTICLE IV
----------
Payment to Beneficiary
----------------------
Upon the death of a Director or a former Director prior to
the distribution of the entire balance in the Director's or former
Director's deferred fee account, the balance including interest, shall
be paid to the beneficiary or beneficiaries designated by the Director
or former Director in writing filed with the Company, or in the absence
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<PAGE>
of a designation, paid to his or her estate, in a lump sum as soon as
practicable, but no later than January 1 of the year following the year
in which the death occurred.
ARTICLE V
---------
Assignment
----------
Except to the extent that a Director or former Director may
designate a beneficiary to receive any payment to be made following his
or her death and except by will or the laws of descent and
distribution, no rights under this Plan shall be assignable or
transferable, or subject to encumbrance or charge of any nature.
ARTICLE VI
----------
Administration
--------------
This Plan shall be administered by the Committee as defined
in Article II. Except as otherwise provided by action of the Board of
Directors of the Company or the terms of the Plan: (a) a majority of
the members of the Committee shall constitute a quorum for the
transaction of business, and (b) all resolutions or other actions taken
by the Committee at a meeting shall be by the vote of the majority of
the committee members present, or, without a meeting, by an instrument
in writing signed by all members of the Committee.
The powers of the Committee shall include the power to
construe, interpret, and apply this Plan, and to render
nondiscriminatory rulings or determinations. Constructions,
interpretations, and decisions of the committee shall be conclusive and
binding on all persons.
ARTICLE VII
-----------
Amendment and Termination
-------------------------
The Board of Directors of the Company may from time to time
amend, suspend, terminate or reinstate any or all of the provisions of
this Plan, except that no amendment, suspension, termination or
reinstatement shall adversely affect the deferred fee account of any
Director, former Director or beneficiary (collectively, "Eligible
Persons") as it existed immediately before the amendment, suspension,
termination or reinstatement or the manner of payments, unless the
Eligible Person shall have consented in writing.
The Board of Directors of the Company may at any time
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<PAGE>
terminate its participation in this Plan and/or transfer its
liabilities under this Plan to a similar plan established by the
Committee. Upon the termination of its participation in this Plan,
amounts credited to deferred fee accounts of Eligible Persons shall
continue to be payable to those Eligible Persons in accordance with the
terms of this Plan. Upon termination of the participation of the
Company in this Plan, if the Board of Directors of the Company should
transfer its liabilities to another plan, such transfer of liabilities
shall not adversely affect the deferred fee account of any Eligible
Person as it existed immediately prior to that transfer or the manner
of payments, unless the Eligible Person shall have consented in
writing.
All liabilities of the Ohio Edison Company Deferred
Compensation Plan for Directors shall be transferred to this Plan; and
this Plan shall be an amendment, restatement and continuation of that
Plan. If any deferred fee account is in pay status or is otherwise
payable to an Eligible Person, it shall continue to be payable to that
person under the same terms and conditions as were provided under the
Plan. The balance in any deferred fee account under that Plan
maintained with respect to an individual who is a Director of
FirstEnergy Corp. at the time of the amendment or restatement of this
Plan shall become payable under the terms and conditions of this Plan;
provided, however, that the Director's deferral elections, commencement
date elections, and beneficiary elections made under the Prior Plan
shall continue to be effective under this Plan unless amended or
changed under the terms of this Plan.
Notwithstanding any other provisions of the Plan, if the Plan
is terminated and the liabilities of this Plan are not transferred to
another plan, no subsequent Director's fees may be deferred under this
Plan, the balance in a Director's deferred account shall continue to be
credited with deemed interest or earnings in a manner similar to that
described in Article II, and the entire balance in the account
(including interest) shall become payable to the Director (or his or
her beneficiary) in accordance with the provisions of this Plan in
effect at the date of termination.
ARTICLE VIII
------------
Unfunded Plan
-------------
Deferred fee accounts maintained for purposes of this Plan
shall constitute bookkeeping records of the Company and shall not
constitute any allocation of any assets of the Company or be deemed to
create any trust or special deposit with respect to any of the assets
of the Company. The Company shall not be under any obligation to any
Director, former Director or beneficiary to acquire, segregate or
reserve any funds or other assets for purposes relating to this Plan.
No Eligible Person shall have any rights whatsoever in or with respect
to any funds or other assets owned or held by the Company; the rights
of an Eligible Person under this Plan are solely those of a general
creditor of the Company to the extent of the amount credited to his or
her deferred fee account with the Company.
- 38 -
<PAGE>
The Company may, at its discretion, establish one or more
trusts, purchase one or more insurance contracts or otherwise invest or
segregate funds for purposes relating to this Plan, but the assets of
such trusts, rights and assets of such insurance contracts or otherwise
invested or segregated funds shall at all times remain subject to the
claims of the general creditors of the Company except to the extent and
at the time any payment is made to an Eligible Person under this Plan;
and no Eligible Person shall have any rights whatsoever in or with
respect to any trust, insurance contract or other investment or fund,
or their assets.
ARTICLE IX
----------
Change In Control
-----------------
For purposes of the Plan, a "Change in Control" means any of the
following:
1. An acquisition by any person or entity of at least 50% (25% if the
acquiring person or entity proposes any individual for election to
the Board of Directors or is represented by any member of the
Board) of either the Company's outstanding common stock
("Outstanding Common Stock") or the combined voting power of the
Company's outstanding voting securities ("Outstanding Voting
Securities"). The following acquisitions will not constitute a
Change in Control:
a) any acquisition directly from the Company (excluding an
acquisition by virtue of the exercise of a conversion privilege);
b) any acquisition by the Company;
c) any acquisition by an employee benefit plan sponsored by
the Company or one of its affiliates (e.g., the FirstEnergy Corp.
Savings Plan);
d) any acquisition pursuant to a merger or other form of
reorganization or consolidation where the requirements of
paragraph 3 below are satisfied.
2. The current members of the Company's Board of Directors (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board. For this purpose, any individual whose
election or nomination to the Board was approved by at least a
majority of the Directors then comprising the Incumbent Board
shall be considered as though he or she were a member of the
Incumbent board, unless the individual first assumed office as a
result of an actual or threatened proxy or election contest.
3. Approval by the Company's shareholders of a reorganization, merger
or consolidation, or of a sale or other disposition of all or
substantially all of the assets of the Company, unless after the
- 39 -
<PAGE>
transaction each of the following requirements are satisfied:
a) all or substantially all of the holders of the Company's
Outstanding Common Stock and Outstanding Voting Securities
immediately prior the transaction, continue to hold at least 75%
of the outstanding common stock and the combined voting power of
outstanding voting securities of the corporation resulting from
the reorganization, merger or consolidation (or of the
corporation that purchased the assets of the Company, as the case
may be) in the same proportions as they held the Company's
Outstanding Common Stock and Outstanding Voting Securities
immediately before the transaction.
b) no person or entity owns 25% or more of the outstanding
common stock or the combined voting power of outstanding voting
securities of the corporation resulting from the reorganization,
merger or consolidation (or of the corporation that purchased the
assets of the Company, as the case may be). This 25% limitation
does not apply to the Company, any employee benefit plan
sponsored by the Company or such other corporation, or any person
or entity who owned at least 25% of the Company's Outstanding
Common Stock or Outstanding Voting Securities immediately prior
to the transaction; and
c) at least a majority of the members of the Board of
Directors of the corporation resulting from the reorganization,
merger or consolidation (or of the corporation that purchased the
assets of the Company, as the case may be), were members of the
Incumbent Board of the Company at the time of the initial
agreement providing for the reorganization, merger, consolidation
or sale or other disposition of all or substantially all of the
assets of the Company.
4. Approval by the Company's shareholders of the complete liquidation
or dissolution of the Company.
However in no event will a Change in Control be deemed to have
occurred, with respect to a Director, if the Director is part of a
purchasing group which consummates the Change in Control transaction.
The Director will be deemed "part of a purchasing group" for purposes
of the preceding sentence if the Director is an equity participant or
has agreed to become an equity participant in the purchasing company or
group (excluding passive ownership of less than 5% of the voting
securities of the purchasing company or ownership of equity
participation in the purchasing company or group which is otherwise not
deemed to be significant, as determined prior to the Change in Control
by a majority of the nonemployee, continuing members of the Board of
Directors).
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ARTICLE X
Miscellaneous
-------------
The invalidity or unenforceability of any particular
provision of this Plan shall not affect any other provision, and the
Plan shall be construed in all respects as if invalid or unenforceable
provisions were omitted.
This Plan shall be construed and governed in accordance with
the laws of the State of Ohio without giving effect to principles of
conflicts of laws.
* * *
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EXHIBIT 5
and 23(A)
June 18,1999
FirstEnergy Corp.
76 South Main Street
Akron, Ohio 44308
RE: Registration Statement on Form S-8 of FirstEnergy Corp.
-------------------------------------------------------
Relating to the Issuance of Shares of Common Stock and
------------------------------------------------------
Deferred Compensation Obligations Pursuant to the
-------------------------------------------------
FirstEnergy Corp. Executive Deferred Compensation Plan and
----------------------------------------------------------
the Amended FirstEnergy Corp. Deferred Compensation Plan For
------------------------------------------------------------
Directors
---------
Ladies and Gentlemen:
I have acted as counsel to FirstEnergy Corp., an Ohio corporation
(the "Company"), in connection with the preparation of a registration
statement on Form S-8 (the "Registration Statement") to be filed with
the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), relating to the
offering of up to 525,000 shares (the "Shares") of the Company's Common
Stock, par value $0.10 per share, and up to $14,000,000 in principle
amount of deferred compensation obligations (the "Obligations") to be
issued pursuant to the provisions of the FirstEnergy Corp. Executive
Deferred Compensation Plan and the Amended FirstEnergy Corp. Deferred
Compensation Plan For Directors (the "Plans").
In arriving at the opinions expressed below, I have reviewed the
Registration Statement and the Plans. In addition, I reviewed the
originals or copies certified or otherwise identified to my
satisfaction of all such corporate records of the Company and such
other instruments and other certificates of public officials, officers
and representatives of the Company and such other persons, and I have
made such investigations of law, as I have deemed appropriate as a
basis for the opinion express below.
In rendering the opinions expressed below, I have assumed the
authenticity of all documents submitted to me as originals and the
conformity to the originals of all documents submitted to me as copies.
In addition, I have assumed and have not verified the accuracy as to
factual matters of each document I have reviewed.
Based upon the foregoing, and subject to the further assumptions
and qualifications set forth below, it is my opinion that:
1. When
a. the applicable provisions of the Securities Act of 1933 shall
have been complied with;
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<PAGE>
b. the Company's Board of Directors shall have duly authorized
the issuance of the Shares; and
c. the Shares shall have been duly issued pursuant to the
provisions of the Plans and paid for in an amount not less
than par value of $.10 per share;
the Shares will be legally issued, fully paid and nonassessable; and
2. When
a. the applicable provisions of the Securities Act of 1933 shall
have been complied with; and
b. the Company's Board of Directors shall have duly authorized
the issuance of the Obligations pursuant to the provisions of
the Plans;
the Obligations will be legally issued, fully paid and nonassessable.
I hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement. In giving such opinion, I do not thereby admit
that I am acting within the category of persons whose consent is
required under Section 7 of the Act or the rules or regulations of the
Commission thereunder.
Respectfully submitted,
/s/ Michael R. Beiting
----------------------
Michael R. Beiting
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<PAGE>
EXHIBIT 15
June 21, 1998
FirstEnergy Corp.:
We are aware that FirstEnergy Corp. (the Company) has incorporated by
reference in its Registration Statement on Form S-8 relating to the
registration of 525,000 shares of Common Stock and $14,000,000 in
principle amount of Deferred Compensation Obligations, its Form 10-Q
for the quarter ended March 31, 1999, which includes our report dated
May 14, 1999 covering the unaudited interim financial information of
the Company contained therein. Pursuant to Regulation C of the
Securities Act of 1933, this report is not considered a part of the
registration statement prepared or certified by our firm or a report
prepared or certified by our firm within the meaning of Sections 7 and
11 of the Act.
Very truly yours,
Arthur Andersen LLP
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<PAGE>
EXHIBIT 23(B)
Consent of Independent Public Accountants
-----------------------------------------
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
reports dated February 12, 1999 included or incorporated by reference
in FirstEnergy Corp.'s Form 10-K for the year ended December 31, 1998
and to all references to our Firm included in this registration
statement.
Arthur Andersen LLP
Cleveland, Ohio
June 21, 1999
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