(As filed with the Securities and Exchange Commission on March 26, 2004)
File No. 70-10205
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM U-1/A
Amendment No. 1
to
APPLICATION OR DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
FIRSTENERGY CORP.
76 South Main Street
Akron, Ohio 44308
(Name of company filing this statement
and address of principal executive office)
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FIRSTENERGY CORP.
(Name of top registered holding company parent of applicant)
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Leila L. Vespoli, Senior Vice President Douglas E. Davidson, Esq.
and General Counsel Thelen Reid & Priest LLP
FirstEnergy Corp. 875 Third Avenue
76 South Main Street New York, New York 10022
Akron, Ohio 44308
(Names and addresses of agents for service)
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The Application-Declaration filed in this proceeding on February 23, 2004,
is hereby amended and restated in its entirety to read as follows:
ITEM 1. DESCRIPTION OF PROPOSED TRANSACTION.
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1.1 Introduction. FirstEnergy Corp. ("FirstEnergy"), a registered holding
company under the Public Utility Holding Company Act of 1935, as amended (the
"Act"), hereby files this Application/Declaration pursuant to Sections 6(a)(2),
7, and 12(e) of the Act and Rules 62 - 65 thereunder (a) for approval of certain
amendments to its Amended Articles of Incorporation ("Articles") and Amended
Code of Regulations ("Regulations," and together with the Articles, the
"Governing Documents"), as described below, (b) for authority to solicit proxies
(the "Solicitation") from its common stockholders for use at its Annual Meeting
scheduled for May 18, 2004, and at any adjournment or adjournments thereof, in
connection with such amendments and for shareholder approval for certain
executive compensation plans (and related amendments thereto) providing for the
issuance of shares of FirstEnergy common stock heretofore approved by the
Commission under the Act, and (c) to terminate FirstEnergy's Rights Agreement as
heretofore approved by the Commission.
FirstEnergy directly or indirectly owns all of the outstanding common stock
of ten electric utility subsidiaries, Ohio Edison Company, The Cleveland
Electric Illuminating Company, The Toledo Edison Company, American Transmission
Systems, Incorporated, Jersey Central Power & Light Company, Pennsylvania
Electric Company, Metropolitan Edison Company, Pennsylvania Power Company, York
Haven Power Company, and The Waverly Electric Power & Light Company, which
together provide service to approximately 4.3 million retail and wholesale
electric customers in a 36,100 square-mile area in Ohio, New Jersey, New York
and Pennsylvania. As of March 15, 2004, FirstEnergy had issued and outstanding
329,836,276 shares of common stock, par value $0.10 per share. FirstEnergy's
shares are listed for trading on the New York Stock Exchange ("NYSE").
1.2 Amendments to Governing Documents. FirstEnergy proposes to amend its
Governing Documents, and to solicit proxies in connection therewith, in order to
eliminate or modify certain so-called "anti-takeover" type provisions that were
originally intended, at least in part, to force persons seeking to take control
of the company to initiate arm's length discussions with the Board of Directors.
(a) Declassification of Board of Directors. FirstEnergy's Regulations
(Exhibit A-2 hereto) currently provide that the Board of Directors of the
company is to be divided into three (3) classes with members of each class
serving three-year terms. The Board of Directors currently consists of fifteen
(15) members divided into three (3) classes. The Board of Directors has
unanimously adopted resolutions, subject to shareholder and regulatory
approvals, amending the Regulations to eliminate the classification of Board
members. The proposal, if approved by shareholders, would allow for the annual
election of directors beginning with the director slate to be voted upon at
FirstEnergy's 2005 Annual Meeting. Directors who have been previously elected
for three-year terms expiring beyond the 2005 Annual Meeting would serve out the
balance of their terms so that no director previously elected to a multi-year
term would have his or her term shortened. Consequently, under the proposed
amendments, the first class of directors to be elected to one-year terms would
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be in 2005. Directors standing for election in 2006 and 2007 would likewise be
elected to one-year terms so that upon the conclusion of the Annual Meeting in
2007, the declassification of the Board would be complete and all directors
would be subject to annual election.
A shareholder proposal to declassify the Board of Directors has been
received by FirstEnergy and included in its proxy materials each year since
1998. Each year, the Board of Directors has considered carefully the advantages
and disadvantages of maintaining a classified board. While the Board of
Directors still believes that there are compelling reasons to maintain a
classified board, in furtherance of its goal of ensuring sound corporate
governance policies, after further consideration of the various arguments for
and against a classified board, and in light of the amount of shareholder
support for a similar proposal at the 2003 Annual Meeting, the Board of
Directors has decided to propose declassifying the Board.
Approval of the proposal requires the affirmative vote of the holders of at
least 80% of the voting power of the company, voting as a single class.
The proposed amendments to the Regulations are set forth in Appendix C to
the Preliminary Proxy Statement (incorporated by reference as Exhibit B-1
hereto), with deletions indicated by strike-outs and additions indicated by
underlining.
(b) Elimination of Certain Supermajority Shareholder Voting
Requirements. In addition, FirstEnergy's shareholders will be asked to consider
and vote upon a proposal to amend Regulation 36 of the Regulations and to repeal
Article X of the Articles (Exhibit A-1 hereto), which relate to the voting
requirements for amending or repealing certain provisions in the Governing
Documents.
Currently, the affirmative vote of 80% of the shares entitled to vote,
voting as a single class (together, an "80% Supermajority") is required to make
certain amendments to the Governing Documents. FirstEnergy's Board of Directors
is proposing that these special 80% Supermajority voting requirements be changed
in the Governing Documents to reduce the voting requirements from 80% of the
shares entitled to vote to two-thirds, which is consistent with Ohio law.
Approval of this proposal requires the affirmative vote of 80% of the shares
entitled to vote.
Article X of the Articles establishes an 80% Supermajority requirement to
amend or repeal the following provisions: Article V--the fixing or changing of
the terms of unissued or treasury shares; Article VI--the absence of cumulative
voting rights in the election of directors; Article VII--the absence of
preemptive rights to acquire unissued shares; and, Article VIII--the ability of
the company to repurchase its shares. Similarly, Regulation 36 of the
Regulations also establishes an 80% Supermajority requirement to amend or repeal
the following provisions: Regulation 1--the time and place of shareholder
meetings; Regulation 3(a)--the calling of special shareholder meetings;
Regulation 9--the order of business at shareholder meetings; Regulation 11--the
number, election and term of directors; Regulation 12--the manner of filling
vacancies on the Board of Directors; Regulation 13--the removal of directors;
Regulation 14--the nomination of directors and elections; and, Regulation
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31--the indemnification of directors and officers. Both Article X and Regulation
36 require an 80% Supermajority vote to be amended or repealed.
In addition, the Board of Directors proposes to change the 80%
Supermajority voting requirement in Regulations 11 and 13. Currently, Regulation
11 of the Regulations enables a change in the number of Directors of the
company, and Regulation 13 provides that any Director or the entire Board of
Directors may be removed, in each case only by the affirmative vote of the
holders of at least 80% of the voting power of the company, voting together as a
single class. The Board of Directors proposes to reduce this 80% Supermajority
in both cases to two-thirds.
While these protective measures are beneficial, the FirstEnergy Board
believes there are also compelling arguments for having a lower threshold for
shareholder amendments to the Governing Documents. For example, in recent years
some investors have expressed the view that a lower threshold for shareholder
amendments in the Governing Documents may improve the corporate governance
profile of FirstEnergy in that it allows increased flexibility in responding to
unforeseen challenges and increases shareholders' ability to effectively
participate in the company's governance.
Similar amendments seeking to remove the 80% Supermajority voting
requirement from the Regulations and the Articles have been proposed by
FirstEnergy's shareholders in the past and have received support at Annual
Meetings. Given the amount of shareholder support for this proposal and
following careful assessment, the Board of Directors has decided to propose the
elimination of the 80% Supermajority voting requirement. While the Board of
Directors believes that the 80% Supermajority provision can be an important tool
for protecting shareholders, it also believes that there are compelling
arguments, at this point, to changing FirstEnergy's 80% Supermajority voting
requirement. The Board of Directors is dedicated to ensuring that FirstEnergy's
corporate governance policies provide overall benefits to its shareholders and
believes that it is in the best interest of FirstEnergy and its shareholders to
change the 80% Supermajority voting requirement.
The proposed amendments to the Articles and Regulations are set forth in
Appendix D to the Preliminary Proxy Statement (Exhibit B-1 hereto), with
deletions indicated by strike-outs and additions indicated by underlining.
(c) Certain Compensation Plan Amendments. In addition to voting on the
changes to the Governing Documents described above, FirstEnergy's shareholders
will also be asked to approve FirstEnergy's existing Executive Deferred
Compensation Plan ("Executive Plan"), which was established by the Board of
Directors in 1985, and Deferred Compensation Plan for Outside Directors
("Director Deferred Plan"), which was established by the Board of Directors in
1997. The plans have not heretofore been approved by FirstEnergy's shareholders
as such approval had not been required. These plans allow eligible employees and
outside directors, as the case may be, to defer a portion of their compensation
and retainers by choosing to have such amounts treated as though invested in
common stock of FirstEnergy. Both plans also contain a matching feature under
which an additional 20% of the amount deferred is credited to an employee's or
director's account and invested in common stock equivalents.
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The Executive Plan and Director Deferred Plan are being submitted for
shareholder approval at the Annual Meeting in order to comply with new listing
requirements of the NYSE adopted in 2003. The new listing requirements apply to
equity compensation plans that contain a matching or bonus formula that credits
additional shares of stock to an employee's or director's account based on the
amount of his or her deferrals. Under the NYSE listing standards, equity
compensation plans with such features must now be approved by shareholders.
These features are also required to contain either a fixed term of no more than
ten years or a maximum share reserve. The Board of Directors is proposing to add
the ten-year term and maximum share reserve to each plan.
The Director Deferred Plan and Executive Plan are set forth in Annex A and
Annex B, respectively, to the Preliminary Proxy Statement (Exhibit B-1 hereto).
The Commission has previously authorized FirstEnergy to issue up to 30
million shares of common stock or common stock based awards under the Executive
Plan and Director Deferred Plan and other plans maintained for the benefit of
shareholders, officers, employees and non-employee directors, as they may be
amended or renewed from time to time./1/ The proposed changes, which are
required in order to comply with NYSE listing rules, will not increase the
number of shares of common stock or common stock equivalents that FirstEnergy is
already authorized to issue.
1.3 Termination of Shareholder Rights Plan. In November 1997, the Board of
Directors of FirstEnergy authorized assignment of one share purchase right (a
"Right") for each outstanding share of FirstEnergy common stock. The Rights are
issued pursuant to a Rights Agreement dated as of November 18, 1997 between
FirstEnergy and The Bank of New York, as rights agent (incorporated by reference
as Exhibit B-2 hereto). Each Right entitles the registered holder of the
associated share of common stock to purchase from FirstEnergy one share of
common stock at a price of $70 per share (the "Purchase Price"), when the Rights
become exercisable. The Rights, which currently are to expire on November 18,
2007, are not exercisable until a triggering event involving either an
acquisition of 15% or more of the outstanding common stock of the company by any
person or group of associated persons (an "Acquiring Person") or the
commencement or announcement of an intention make a tender offer by any
Acquiring Person of at least 25% of the outstanding common stock of the company.
In the event of a merger with or other specified transactions (as described in
the Rights Agreement) between FirstEnergy and an Acquiring Person, the holder of
each Right would be entitled to receive, upon exercise of the Right, a number of
shares of common stock of FirstEnergy, or of the Acquiring Person, as the case
may be, having a value double the amount of the Purchase Price./2/
FirstEnergy's Board of Directors has elected, subject to receipt Commission
authorization, to terminate the Rights Agreement through the acceleration of the
expiration date of the Rights issued thereunder. As is the case with previous
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1. See FirstEnergy Corp., et al., Holding Co. Act Release No. 27694 (June 30,
2003). The authorization period under this order extends through December
31, 2005.
2. In its order approving FirstEnergy's acquisition of GPU, Inc., the
Commission also authorized FirstEnergy to implement the Rights Agreement in
accordance with its terms. See FirstEnergy Corp., et al., Holding Co. Act
Release No. 27459 (Oct. 29, 2001) (the "Merger Order").
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shareholder proposals to declassify the Board of Directors and to eliminate 80%
Supermajority voting requirements, the Board of Directors has considered
carefully the advantages and disadvantages of the Rights Agreement. While the
Board of Directors still believes that there are compelling reasons to maintain
the Rights Agreement, in furtherance of its goal of ensuring sound corporate
governance policies, after further consideration of the various arguments for
and against rights plans in general, and in light of the amount of shareholder
support for a similar proposal at the 2003 Annual Meeting, the Board of
Directors has decided to take action to terminate the Rights Agreement.
Accordingly, the Board has taken action to accelerate the expiration date
of the outstanding Rights to March 31, 2004 or such later date as the Commission
issues an order in this docket as herein requested. No shareholder approval is
required for this proposal.
1.4 Request for Expedited Action on the Proposed Solicitation. FirstEnergy
intends to seek shareholder approval to amend its Governing Documents at its
Annual Meeting to be held on May 18, 2004. In order to maintain its schedule for
timely receipt of proxies for the Annual Meeting, FirstEnergy intends to file
the definitive proxy materials with the Commission under Section 14 of the
Securities Exchange Act of 1934, as amended, on April 2, 2004 and commence the
Solicitation immediately thereafter. Accordingly, FirstEnergy is requesting that
the Commission's notice of filing of the Application/Declaration include an
order authorizing commencement of the Solicitation
ITEM 2. FEES, COMMISSIONS AND EXPENSES.
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FirstEnergy estimates that the total amount of all fees, commissions and
expenses to be incurred in connection with the proposed transactions will not
exceed $35,000. FirstEnergy has engaged the services of Innisfree M&A
Incorporated to assist in the Solicitation and has agreed to pay Innisfree M&A
Incorporated a fee for its services not expected to exceed $12,500, plus
reimbursement of its expenses. Solicitation will also be made in person or by
telephone, mail or other electronic means, and may be made by officers and
employees of FirstEnergy.
ITEM 3. APPLICABLE STATUTORY PROVISIONS.
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3.1 General. Sections 6(a) and 7 of the Act are applicable to the proposed
amendments to the Governing Documents and termination of the Rights Agreement
and Section 12(e) and Rules 62 - 65 are applicable to the Solicitation./3/
3.2 Analysis under Rules 53 and 54. The proposed transactions are also
subject to the requirements of Rules 53 and Rule 54. Under Rule 53(a), the
Commission shall not make certain specified findings under Sections 7 and 12 in
connection with a proposal by a holding company to issue securities for the
purpose of acquiring the securities of or other interest in an "exempt wholesale
generator" ("EWG"), or to guarantee the securities of an EWG, if each of the
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3. FirstEnergy does not believe that the solicitation of shareholder approval
for the Executive Plan or the Director Deferred Plan is subject to Sections
12(e) and Rules 62 - 65 since the plans are already in existence and the
proposed changes to the plans (to add the 10-year fixed term and maximum
share reserve provisions to comply with NYSE listing rules) do not appear
to require approval under Sections 6(a) and 7 of the Act.
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conditions in paragraphs (a)(1) through (a)(4) thereof are met, provided that
none of the conditions specified in paragraphs (b)(1) through (b)(3) of Rule 53
exists. Rule 54 provides that the Commission shall not consider the effect of
the capitalization or earnings of subsidiaries of a registered holding company
that are EWGs or "foreign utility companies" ("FUCOs") in determining whether to
approve other transactions if Rule 53(a), (b) and (c) are satisfied.
FirstEnergy currently meets all of the conditions of Rule 53(a), except for
clause (1). Under the Merger Order, as modified by order dated June 30, 2003
(Holding Co. Act Release No. 27694) (the "June 2003 Order"), the Commission,
among other things, authorized FirstEnergy to invest in EWGs and FUCOs so long
as FirstEnergy's "aggregate investment," as defined in Rule 53(a)(1), in EWGs
and FUCOs does not exceed $5 billion, which $5 billion amount is greater than
the amount which would be permitted by clause (1) of Rule 53(a) which, based on
FirstEnergy's "consolidated retained earning," also as defined in Rule 53(a)(1),
of $1.6 billion as of December 31, 2003, would be $800 million. The Merger
Order, as modified by the June 2003 Order, also specifies that this $5 billion
amount may include amounts invested in EWGs and FUCOs by FirstEnergy and GPU,
Inc. ("GPU") at the time of the Merger Order ("Current Investments") and amounts
relating to possible transfers to EWGs of certain generating facilities owned by
certain of FirstEnergy's operating utilities ("GenCo Investments"). FirstEnergy
has made the commitment that through December 31, 2005, its aggregate investment
in EWGs and FUCOs other than the Current Investments and GenCo Investments
("Other Investments") will not exceed $1.5 billion (the "Modified Rule 53
Test"). Under the Merger Order and June 2003 Order, the Commission reserved
jurisdiction over Other Investments that exceed such $1.5 billion amount.
As of December 31, 2003, and on the same basis as set forth in the Merger
Order, FirstEnergy's "aggregate investment" in EWGs and FUCOs was approximately
$1.13 billion,/4/ an amount significantly below the $5 billion amount authorized
in the Merger Order, as modified by the June 2003 Order. Additionally, as of
December 31, 2003, "consolidated retained earnings" were $1.6 billion. By way of
comparison, FirstEnergy's consolidated retained earnings as of December 31, 2001
were $1.52 billion.
In any event, even taking into account the capitalization of and earnings
from EWGs and FUCOs in which FirstEnergy currently has an interest, there would
be no basis for the Commission to withhold approval of the transactions proposed
herein. With respect to capitalization, since the date of the Merger Order,
there has been no material adverse impact on FirstEnergy's consolidated
capitalization resulting from FirstEnergy's investments in EWGs and FUCOs. As of
December 31, 2003, FirstEnergy's consolidated capitalization consisted of 40.1%
common equity, 1.6% cumulative preferred stock, 55.8% long-term debt and 2.5%
short-term debt. As of December 31, 2001, those ratios were as follows: 30.3%
common equity, 3.1% cumulative preferred stock, 63.1% long term debt and 3.5%
short-term debt. Additionally, the proposed transactions will not have any
material impact on FirstEnergy's capitalization. Further, since the date of the
Merger Order, FirstEnergy's investments in EWGs and FUCOs have contributed
positively to its level of earnings, other than for the negative impact on
earnings due to FirstEnergy's writedowns of its investments in Avon Energy
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4. This $1.13 billion amount represents Current Investments only. As of
December 31, 2003, FirstEnergy had no GenCo Investments.
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Partners Holdings ("Avon") and GPU Empresa Distribuidora Electrica Regional S.A.
("Emdersa")./5/
Further, since the date of the Merger Order, and, after taking into account
the effects of the Merger, there has been no material change in FirstEnergy's
level of earnings from EWGs and FUCOs.
FirstEnergy's operating public-utility subsidiaries remain financially
sound companies as indicated by their investment grade ratings from the
nationally recognized rating agencies for their senior secured debt. The
following chart includes a breakdown of the senior, secured credit ratings for
those public-utility subsidiaries of FirstEnergy that have ratings:
Subsidiary Standard & Poors/6/ Moody's/7/ Fitch/8/
Ohio Edison BBB Baa1 BBB+
Cleveland Electric BBB- Baa2 BBB-
Toledo Edison BBB- Baa2 BBB-
Penn Power BBB- Baa1 BBB+
JCP&L BBB Baa1 BBB+
Met-Ed BBB Baa1 BBB+
Penelec BBB Baa1 BBB+
FirstEnergy satisfies all of the other conditions of paragraphs (a) and (b)
of Rule 53. With respect to Rule 53(a)(2), FirstEnergy maintains books and
records in conformity with, and otherwise adheres to, the requirements thereof.
With respect to Rule 53(a)(3), no more than 2% of the employees of FirstEnergy's
domestic public utility companies render services, at any one time, directly or
indirectly, to EWGs or FUCOs in which FirstEnergy directly or indirectly holds
an interest. With respect to Rule 53(a)(4), FirstEnergy will continue to provide
a copy of each application and certificate relating to EWGs and FUCOs and
relevant portions of its Form U5S to each regulator referred to therein, and
will otherwise comply with the requirements thereof concerning the furnishing of
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5. At the time of the Merger Order, FirstEnergy identified certain former GPU
EWG and FUCO investments for divestiture within one year. Among those
identified were Avon, a holding company for Midlands Electricity plc, an
electric distribution business in the United Kingdom and Emdersa and
affiliates, an electric distribution business in Argentina. In May 2002,
FirstEnergy sold 79.9% of its interest in Avon, and in the fourth quarter
of 2002, recorded a $50 million charge to reduce the carrying value of its
remaining 20.1% interest. On January 16, 2004, FirstEnergy announced that
it had completed the sale of its remaining 20.1% interest in Avon.
Additionally, FirstEnergy did not reach a definitive agreement to sell
Emdersa as of December 31, 2002, and therefore, the Emdersa assets could no
longer be treated as "assets pending sale" on the FirstEnergy consolidated
balance sheets. In April 2003, FirstEnergy abandoned its ownership interest
in Emdersa. As a result of this divestiture, FirstEnergy recognized a
one-time, non-cash charge of $67.4 million in the second quarter of 2003.
In addition, FirstEnergy reflected the results of this business (after-tax
loss of $87.5 million) as discontinued operations in the restated
Consolidated Statement of Income for the year ended December 31, 2002.
FirstEnergy also recognized a currency translation adjustment in other
comprehensive income of $91.5 million in 2002. On February 2, 2004,
FirstEnergy announced that it had completed the sale of all of its
remaining operating FUCO assets.
6. Standard & Poor's Rating Services
7. Moody's Investors Service, Inc.
8. Fitch, Inc.
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information. With respect to Rule 53(b), none of the circumstances enumerated in
subparagraphs (1), (2) and (3) thereunder have occurred. For the reasons given
above, the requirements of Rule 53(c) are satisfied.
ITEM 4. REGULATORY APPROVALS.
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No state commission and no federal commission, other that this Commission,
has jurisdiction over the proposed transactions.
ITEM 5. PROCEDURE.
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The Commission is requested to publish a notice under Rule 23 with respect
to the filing of this Application/Declaration as soon as practicable after the
Proxy Statement has been declared effective under the Securities Exchange Act of
1934, as amended, and that such notice include an order authorizing commencement
of the Solicitation. FirstEnergy further requests that: (i) there not be a
recommended decision by an Administrative Law Judge or other responsible officer
of the Commission, (ii) the Office of Public Utility Regulation be permitted to
assist in the preparation of the Commission's decision and (iii) there be no
waiting period between the issuance of the Commission's order and the date on
which it is to become effective.
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS.
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(a) Exhibits:
A-1 Amended Articles of Incorporation of FirstEnergy.
(Incorporated by reference to Exhibit 4(a) Registration
Statement on Form S-3 filed on March 17, 2003 in File No.
333-103865)
A-2 FirstEnergy Amended Code of Regulations. (Incorporated by
reference to Exhibit 3 to Annual Report on Form 10-K/A filed
on April 16, 2001 in File No. 333-21011)
B-1 Notice of Annual Meeting and Proxy Statement of FirstEnergy.
(Incorporated by reference to Schedule 14A/Preliminary Proxy
Statement filed by FirstEnergy on February 23, 2004 in File
No. 333-21011)
B-2 Rights Agreement dated as of November 18, 1997 between
FirstEnergy Corp. and The Bank of New York, as rights agent
. (Incorporated by reference to Exhibit 4.1 to Current
Report on Form 8-K, filed by FirstEnergy on December 1,
1997, in File No. 333-21011)
C Not Applicable.
D Not Applicable.
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E Not Applicable.
F-1 Opinion of Thelen Reid & Priest LLP (to be filed by
amendment).
F-2 Opinion of Gary D. Benz, Esq. (to be file by amendment).
G Form of Federal Register Notice (previously filed).
(b) Financial Statements:
(Omitted as not relevant to the proposed transactions.)
ITEM 7. INFORMATION AS TO ENVIRONMENTAL EFFECTS.
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(a) As such, the issuance of an order by your Commission with respect
to the Solicitation is not a major Federal action significantly affecting the
quality of the human environment.
(b) No Federal agency has prepared or is preparing an environmental
impact statement with respect to the Solicitation which is the subject hereof.
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, the undersigned company has duly caused this amended statement to be
signed on its behalf by the undersigned thereunto duly authorized.
FIRSTENERGY CORP.
By: /s/ Harvey L. Wagner
--------------------------------
Name: Harvey L. Wagner
Title: Vice President and Controller
Date: March 26, 2004
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