As filed with the Securities and Exchange Commission on August 6, 2002
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 Registrant as specified in its charter)
Delaware 54-1163725
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1001 North 19th Street
Arlington, Virginia 22209
(Address of Principal Executive Offices)
The AES Corporation
Profit Sharing and Stock Ownership Plan
(Full title of the plan)
Copy to:
Barry J. Sharp John McGrady III, Esquire
Executive Vice President and Buchanan Ingersoll
Chief Financial Officer Professional Corporation
The AES Corporation One Oxford Centre
1001 North 19th Street 301 Grant Street, 20th Floor
Arlington, Virginia 22209 Pittsburgh, Pennsylvania 15219-1410
(703) 552-1315 (412) 562-8800
(Name and address, including zip
code, and telephone number
of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share (1) Price Fee
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Common Stock, par value $0.01 7,500,000(2)(3) $2.05 $15,375,000 $1,414.50
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(1) Pursuant to Rule 457(h) of the Securities Act of 1933, and solely for the
purpose of calculating the registration fee, the proposed maximum offering price
per share is based on the average of the high and low sales prices of the Common
Stock on the New York Stock Exchange on July 31, 2002.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to The AES Corporation Profit Sharing
and Stock Ownership Plan (the "Plan").
(3) If, as a result of stock splits, stock dividends or similar transactions,
the number of securities purported to be registered by this Registration
Statement changes, the provisions of Rule 416 under the Securities Act shall
apply to this Registration Statement, and this Registration Statement shall be
deemed to cover the additional securities resulting from the split of, or the
dividend on, the securities covered by this Registration Statement.
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The Exhibit Index for this Registration Statement is at page 7.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended (the "Securities Act"), and the Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed with the Commission by The AES
Corporation, a Delaware corporation (the "Company"), and are incorporated herein
by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, the Company's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 2002, the Company's Current Report on Form 8-K for the
event dated April 25, 2002, and the Company's Current Report on Form 8-K for the
event dated July 25, 2002;
(b) The Plan's Annual Report on Form 11-K for the fiscal year ended
December 31, 2001, each filed pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act");
(c) All other reports filed by the Company and the Plan pursuant to
Section 13 (a) or 15(d) of the Exchange Act since December 31, 2001; and
(d) The description of the Company's Common Stock, par value $.01 per
share, contained in the Company's Registration Statement on Form 8-A
(Registration No. 0-19281 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), including any amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Company and the Plan pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment that indicates that all securities offered
pursuant to this Registration Statement have been sold or that deregisters all
securities then remaining unsold, shall also be deemed to be incorporated by
reference herein and to be a part hereof from the dates of filing of such
documents.
Any statement contained 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
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Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under the Company's By-Laws, and in accordance with Section 145 of the
Delaware General Corporation Law (the "GCL"), the Company shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than any action or suit by or
in the right of the Company to procure a judgment in its favor, which is
hereinafter referred to as a "derivative action") by reason of the fact that
such person is or was a director, officer or employee of the Company, or is or
was serving in such capacity or as agent at the request of the Company for
another entity, to the full extent authorized by Delaware law, against expenses
(including, but not limited to, attorneys' fees), judgments, fines and amounts
actually and reasonably incurred in connection with the defense or settlement of
such action, suit or proceeding if such person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe was unlawful. Agents of the
Company may be similarly indemnified, at the discretion of the Board of
Directors.
Under Section 145 of the GCL, a similar standard of care is applicable
in the case of derivative actions, except that indemnification only extends to
expenses (including attorneys' fees) incurred in connection with the defense or
settlement of such an action and then, where the person is adjudged to be liable
to the Company, only if and to the extent that the Court of Chancery of the
State of Delaware or the court in which such action was brought determines that
such person is fairly and reasonably entitled to such indemnity and only for
such expenses as the court shall deem proper.
Pursuant to the Company's By-Laws, a person eligible for
indemnification may have the expenses incurred in connection with any matter
described above paid in advance of a final disposition by the Company. However,
such advances will only be made upon the delivery of an undertaking by or on
behalf of the indemnified person to repay all amounts so advanced if it is
ultimately determined that such person is not entitled to indemnification.
In addition, under the Company's By-Laws, the Company may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Company or of another corporation against any liability
asserted against and incurred by such person in such capacity, or arising out of
the person's status as such whether or not the Company
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would have the power or the obligation to indemnify such person against such
liability under the provisions of the Company's By-Laws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of exhibits filed as part of this Registration
Statement.
Exhibit No. Description Method of Filing
----------- ----------- ----------------
5.1 Opinion of Buchanan Ingersoll Professional Corporation Filed herewith.
regarding legality of the securities being registered
23.1 Independent Auditors' Consent Filed herewith.
23.2 Independent Auditors' Consent Filed herewith.
23.3 Consent of Buchanan Ingersoll Professional Corporation (included in its opinion filed
as Exhibit 5.1 hereto)
24.1 Power of Attorney Filed herewith.
The Company hereby undertakes that it will submit or has submitted the
Plan and any amendments thereto to the Internal Revenue Service ("IRS") in a
timely manner and has made or will make all changes required by the IRS in order
to qualify the Plan.
Item 9. Undertakings.
The Company hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement; and
(iii) 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; provided, however,
that
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paragraphs (i) and (ii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
registrant with or furnished to the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) That, for purposes of determining any liability under the Securities Act,
each filing of the Company's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange 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 Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act, the
Company 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, 2002.
THE AES CORPORATION
By: /s/ William R. Luraschi
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William R. Luraschi,
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on this 5th day of August, 2002.
SIGNATURE TITLE
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* Chairman of the Board and Director
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Roger W. Sant
* President, Chief Executive Officer and Director
------------------------- (Principal Executive Officer)
Paul T. Hanrahan
* Director
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Dennis W. Bakke
* Director
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Richard Darman
* Director
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Dr. Alice F. Emerson
* Director
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Robert F. Hemphill, Jr.
* Director
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Frances Jungers
* Director
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Philip Lader
* Director
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John H. McArthur
* Director
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Hazel R. O'Leary
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* Director
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Thomas I Unterberg
* Director
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Robert H. Waterman, Jr.
* Director
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Philip Lader
/s/ Barry J. Sharp Vice President and Chief Financial Officer
------------------------- (Principal Financial and Accounting Officer)
Barry J. Sharp
*By: /s/ Barry J. Sharp
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Barry J. Sharp
Attorney-in-fact
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the Plan) have duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, on this 5th day of August, 2002.
THE AES CORPORATION PROFIT SHARING
AND STOCK OWNERSHIP PLAN
By: /s/ Barry J. Sharp
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on behalf of the
Plan Administrator
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EXHIBIT INDEX
Exhibit No. Description Method of Filing
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5.1 Opinion of Buchanan Ingersoll Professional Corporation Filed herewith.
regarding legality of the securities being registered
23.1 Independent Auditors' Consent Filed herewith.
23.2 Independent Auditors' Consent Filed herewith.
23.3 Consent of Buchanan Ingersoll Professional Corporation (included in its opinion filed
as Exhibit 5.1 hereto)
24.1 Power of Attorney Filed herewith.
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