As filed with the Securities and Exchange Commission on March 8, 2002
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------
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)
----------
THE AES CORPORATION
2001 NON-OFFICER STOCK OPTION PLAN
(Full title of the plan)
----------
BARRY J. SHARP
CHIEF OPERATING OFFICER AND CHIEF FINANCIAL OFFICER
THE AES CORPORATION
1001 NORTH 19th Street
Arlington, Virginia 22209
(703) 522-1315
(Name, address and telephone number,
including area code, of agent for service)
----------
CALCULATION OF REGISTRATION FEE
===============================================================================================
Amount Proposed Maximum Proposed Amount of
Title of Securities to be Offering Price Maximum Aggregate Registration
to be Registered Registered Per Share($)(2) Offering Price($)(2) Fee($)(2)
--------------------- ------------- ---------------- -------------------- ------------
Common Stock (par
value $.01 per 12,000,000(1) $5.05 $60,600,000 $5,575.20
share)
===============================================================================================
(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 Non-Officer Stock Option Plan 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
March 1, 2002.
================================================================================
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" or the "Company") 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 Non-Officer Stock Option Plan (the "Non-Officer Plan").
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the 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
Company's Registration Statement on Form 8-A (Registration No. 0-12291 filed on
October 9, 1996), as amended by Amendment No. 1 on Form 8-A/A to the Company's
Registration Statement on Form 8-A (filed on October 10, 1996), Amendment No. 1
to the Company's Registration Statement on Form S-3 (Registration No. 333-
46564) filed on November 29, 2000, and 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.
2
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, filed as of May 15, 2001).*
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, filed as of May 15,
2001).*
5.01.................. Opinion of Davis Polk & Wardwell.
23.01................. Consent of Independent Public Accountants - Deloitte &
Touche LLP.
3
23.02................. Consent of Independent Public Accountants - Porta,
Cachafeiro, Laria 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 Non-Officer Stock Option Plan.
----------
* 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 Non-Officer 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 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 1933 Act, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the city of
Arlington, Commonwealth of Virginia, on this 8th day of March, 2002.
THE AES CORPORATION
By /s/ William R. Luraschi
-----------------------------------
William R. Luraschi
Senior 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 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 1933 Act, this Registration Statement
has been signed this 8th day of March, 2002 by the following persons in the
following capacities:
SIGNATURE TITLE
--------- -----
/s/ Roger W. Sant Chairman of the Board and Director
-------------------------------
Roger W. Sant
/s/ Dennis W. Bakke President, Chief Executive Officer and
------------------------------- Director (Principal Executive Officer)
Dennis W. Bakke
/s/ Dr. Alice F. Emerson Director
-------------------------------
Dr. Alice F. Emerson
/s/ Robert F. Hemphill, Jr. Director
-------------------------------
Robert F. Hemphill, Jr.
/s/ Frank Jungers Director
-------------------------------
Frank Jungers
/s/ Philip Lader Director
-------------------------------
Philip Lader
/s/ John H. McArthur Director
-------------------------------
John H. McArthur
/s/ Hazel O'Leary Director
-------------------------------
Hazel O'Leary
/s/ Thomas I. Unterberg Director
-------------------------------
Thomas I. Unterberg
/s/ Robert H. Waterman, Jr. Director
-------------------------------
Robert H. Waterman, Jr.
/s/ Barry J. Sharp Chief Operating Officer and
------------------------------- Chief Financial Officer
Barry J. Sharp
INDEX TO 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, filed as of May 15, 2001).*
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, filed
as of May 15, 2001).*
5.01 Opinion of Davis Polk & Wardwell.
23.01 Consent of Independent Public Accountants - Deloitte & Touche LLP.
23.02 Consent of Independent Public Accountants - Porta, Cachafeiro,
Laria 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 Non-Officer Stock Option Plan.
----------
* Incorporated by reference.