As filed with the Securities and Exchange Commission on August 6, 2001
Registration No. 333-
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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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THE AES CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 54-1163725
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1001 North 19th Street
Arlington, Virginia 22209
(Address of principal executive offices)
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THE AES CORPORATION
2001 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
(Full title of the plan)
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Barry J. Sharp
Executive Vice President and Chief Financial Officer
The AES Corporation
1001 North 19th Street
Arlington, Virginia 22209
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (703) 522-1315
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum Amount of
Title Of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share($)(2) Price($)(2) Fee($)(2)
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Common Stock (par value $.01 per share) 750,000 (1) $36.75 $27,562,500 $6,890.63
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(1) Plus an indeterminate number of additional shares which may be offered or
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
(2) Estimated solely for purposes of calculating the registration fee under
Rules 457(h) and 457(c). The proposed maximum offering price per share
with respect to shares issuable under the 2001 Stock Option Plan for
Outside Directors as of the filing date hereof is based upon the average
of the high and low prices of the Registrant's Common Stock on the New
York Stock Exchange on July 30, 2001.
This Registration Statement Includes a Total of 7 Pages.
Exhibit Index on Page 7.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Not required to be included in this Registration Statement pursuant to the
introductory note to Part I on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The AES Corporation (the "Registrant") hereby files this Registration
Statement on Form S-8 with the Securities and Exchange Commission (the
"Commission") to register shares of the Registrant's Common Stock, par value
$.01 per share ("Common Stock"), for issuance pursuant to The AES Corporation
2001 Stock Option Plan for Outside Directors (the "Directors' Plan").
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Registrant with the Commission pursuant
to the Securities and Exchange Act of 1934, as amended (the "1934 Act"), are
incorporated by reference herein:
(1) Registrant's Annual Report on Form 10-K, as amended, for the fiscal
year ended December 31, 2000.
(2) All other reports filed by the Company pursuant to Sections 13(a) or
15(d) of the 1934 Act since December 31, 2000.
(3) All other reports filed with the Commission by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent to the date
hereof (and prior to the filing of a post-effective amendment which indicates
that all securities offered herein have been sold or which deregisters all
securities then remaining unsold).
(4) The description of the Registrant's Common Stock contained in the
following document: Amendment No. 1 to the Registrant's Registration Statement
on Form S-3 (Registration No. 333-46564) filed on November 29, 2000, including
any amendment thereto or report filed for the purpose of updating such
description.
Any statement contained herein or made in a document incorporated or
deemed to be incorporated by reference herein 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 document which is
also incorporated or deemed to be incorporated by reference herein 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
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its certificate of
incorporation to eliminate or limit the personal liability of a director for
violations of the director's fiduciary duty, except (i) for breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) pursuant to Section 174 of the DGCL
(providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions) or (iv) for any transaction from which
a director derived an improper personal benefit. The Registrant's certificate
of incorporation contains a provision that eliminates the liability of
directors to the fullest extent permitted by Delaware law. It further provides
that if said provision is amended or repealed, or, an inconsistent provision is
adopted, such amendment, repeal or adoption will not be effective with respect
to any cause of action, suit, claim or other matter that, but for the liability
provision, would accrue or arise prior to such amendment, repeal or adoption.
Reference is made to Section 145 of the DGCL, which provides that a
corporation may indemnify directors and officers as well as other employees and
agents against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation (a "derivative action"))
if they act in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorney's fees) incurred in connection with defense or settlement of such
action, and the statute requires court approval before there can be
indemnification that may be granted by a corporation's charter, bylaws,
disinterested director vote, stockholder vote, agreement or otherwise. The
Registrant's bylaws provide for indemnification of its directors, officers and
employees to the fullest extent permitted by Delaware law. The Registrant's
bylaws further provide for indemnification of persons serving as directors,
officers, employees or agents at the request of the Registrant for another
entity to the fullest extent permitted by Delaware law. Agents of the
Registrant may be similarly indemnified, at the discretion of the Registrant's
board of directors.
The Registrant's bylaws provide that the indemnification expressly
provided by statute in a specific case shall not be deemed exclusive of any
other rights to which any person indemnified may be entitled under any lawful
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in his or her official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such person.
In addition, the Registrant has purchased and maintains directors' and
officers' insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER EXHIBIT
4.01................ Sixth Restated Certificate of Incorporation of the
Registrant (incorporated herein by reference to Exhibit
99.1 to the Quarterly Report on Form 10-Q for the three
months ended March 31, 2001, Commission File No.
001-12291).*
4.02................ Amended Bylaws of the Registrant (incorporated herein by
reference to Exhibit 99.2 to the Quarterly Report on Form
10-Q for the three months ended March 31, 2001,
Commission File No. 001-12291).*
3
5.01................ Opinion of Davis Polk & Wardwell.
23.01............... Consent of Independent Public Accountants - Deloitte &
Touche LLP.
23.02............... Consent of Independent Public Accountants - Piernavieja,
Porta, Cachafeiro y Asociados.
23.03............... Consent of Davis Polk & Wardwell (included in their
opinion filed as Exhibit 5.01).
24.01............... Powers of Attorney (included on the signature page of
this Registration Statement).
99.01............... The AES Corporation 2001 Stock Option Plan for Outside
Directors (incorporated herein by reference to Exhibit
99.3 to the Quarterly Report on Form 10-Q for the three
months ended March 31, 2001, Commission File No.
001-12291).*
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* Incorporated by reference.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change
to such information in this Registration Statement;
(2) That for the purpose of determining any liability under the
Securities Act of 1933, as amended (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; and
(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.
(b) The undersigned Registrant hereby undertakes 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 1934 Act (and
where applicable, each filing of the Directors' Plan's annual report pursuant
to Section 15(d) of the 1934 Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers or 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
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.
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Arlington, Commonwealth of Virginia, on this
6th day of August, 2001.
THE AES CORPORATION
By /s/ William R. Luraschi
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William R. Luraschi
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, constitutes and appoints Dennis W. Bakke, Barry J. Sharp and William R.
Luraschi, and each of them, our true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, to do any and all acts and
things and execute, in the name of the undersigned, any and all instruments
which said attorneys-in-fact and agents may deem necessary or advisable in
order to enable The AES Corporation to comply with the Securities Act of 1933,
as amended (the "1933 Act"), and any requirements of the Securities and
Exchange Commission in respect thereof, in connection with the filing with the
Securities and Exchange Commission of this Registration Statement on Form S-8
under the 1933 Act, including specifically but without limitation, power and
authority to sign the name of the undersigned to such Registration Statement,
and any amendments to such Registration Statement (including post-effective
amendments), and to file the same with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, to sign
any and all applications, registration statements, notices or other documents
necessary or advisable to comply with applicable state securities laws, and to
file the same, together with other documents in connection therewith with the
appropriate state securities authorities, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and to perform
each and every act and thing requisite or necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and any of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
5
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
SIGNATURE TITLE DATE
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/s/ Roger W. Sant Chairman of the Board and Director August 6, 2001
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Roger W. Sant
/s/ Dennis W. Bakke President, Chief Executive Officer August 6, 2001
---------------------------- and Director (Principal Executive
Dennis W. Bakke Officer)
/s/ Dr. Alice F. Emerson Director August 6, 2001
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Dr. Alice F. Emerson
/s/ Robert F. Hemphill, Jr. Director August 6, 2001
---------------------------
Robert F. Hemphill, Jr.
/s/ Frank Jungers Director August 6, 2001
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Frank Jungers
/s/ Philip Lader Director August 6, 2001
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Philip Lader
/s/ John H. McArthur Director August 6, 2001
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John H. McArthur
/s/ Hazel O'Leary Director August 6, 2001
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Hazel O'Leary
/s/ Thomas I. Unterberg Director August 6, 2001
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Thomas I. Unterberg
/s/ Robert H. Waterman, Jr. Director August 6, 2001
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Robert H. Waterman, Jr.
/s/ Barry J. Sharp Executive Vice President and Chief August 6, 2001
---------------------------- Financial Officer (Principal
Barry J. Sharp Financial and Accounting Officer)
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
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4.01 Sixth Restated Certificate of Incorporation of the
Registrant (incorporated herein by reference to Exhibit
99.1 to the Quarterly Report on Form 10-Q for the three
months ended March 31, 2001, Commission File No.
001-12291).*
4.02 Amended Bylaws of the Registrant (incorporated herein by
reference to Exhibit 99.2 to the Quarterly Report on Form
10-Q for the three months ended March 31, 2001,
Commission File No. 001-12291).*
5.01 Opinion of Davis Polk & Wardwell.
23.01 Consent of Independent Public Accountants - Deloitte &
Touche LLP.
23.02 Consent of Independent Public Accountants - Piernavieja,
Porta, Cachafeiro y Asociados.
23.03 Consent of Davis Polk & Wardwell (included in their
opinion filed as Exhibit 5.01).
24.01 Powers of Attorney (included on the signature page of
this Registration Statement).
99.01 The AES Corporation 2001 Stock Option Plan for Outside
Directors (incorporated herein by reference to Exhibit
99.3 to the Quarterly Report on Form 10-Q for the three
months ended March 31, 2001, Commission File No.
001-12291).*
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* Incorporated by reference.
7