-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E03BdOyCHyX/mHX8qWRFR6pqwCKAZ18+m55KJunIHPIwxVg85eQQCvvV3pU9aVmf ButaYzcR1AKf5a09umkH3Q== 0000930661-02-000607.txt : 20020415 0000930661-02-000607.hdr.sgml : 20020415 ACCESSION NUMBER: 0000930661-02-000607 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20020228 EFFECTIVENESS DATE: 20020228 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AES CORPORATION CENTRAL INDEX KEY: 0000874761 STANDARD INDUSTRIAL CLASSIFICATION: COGENERATION SERVICES & SMALL POWER PRODUCERS [4991] IRS NUMBER: 541163725 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-83574 FILM NUMBER: 02563527 BUSINESS ADDRESS: STREET 1: 1001 N 19TH ST STREET 2: STE 2000 CITY: ARLINGTON STATE: VA ZIP: 22209 BUSINESS PHONE: 7035221315 S-8 1 ds8.txt FORM S-8 As filed with the Securities and Exchange Commission on February 28, 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 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) AES Puerto Rico LP Retirement Plan (Full title of the plan) Barry J. Sharp Executive Vice President and Chief Financial Officer The AES Corporation 1001 North 19th Street Arlington, Virginia 22209 (703) 552-1315 (Name and address, including zip code, and telephone number of agent for service) Copy to: John McGrady III, Esquire Buchanan Ingersoll Professional Corporation One Oxford Centre, 301 Grant Street 20th Floor Pittsburgh, Pennsylvania 15219-1410 (412) 562-8800 ______________________ CALCULATION OF REGISTRATION FEE
Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of to be Registered Registered Price Per Share (1) Offering Price Registration Fee - ----------------------------------------------------------------------------------------------------------------------------------- Common Stock, par value $0.01 1,000,000(2)(3) $3.85 $3,850,000 $354.20 ===================================================================================================================================
(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 February 22, 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 Puerto Rico LP Retirement 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. ===================================================================== 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, 2000, filed pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (b) All other reports filed by the Company pursuant to Section 13 (a) or 15(d) of the Exchange Act since December 31, 2000; and (c) 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 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 2 superseded, to constitute a part of this Registration Statement. -1- 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 would have the power or the obligation to indemnify such person against such liability under the provisions of the Company's By-Laws. -2- 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. 5.2 Puerto Rico Treasury Department determination letter that Filed herewith. the Plan is qualified under Section 1165(e) of the Puerto Rico International Revenue Code. 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.
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 -3- 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 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. -4- 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 28th day of February, 2002. THE AES CORPORATION By: /s/ William R. Luraschi ----------------------------- William R. Luraschi, Vice President and Secretary 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 28th day of February, 2002.
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/ 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.
-5- /s/ Philip Lader Director - ------------------------------------------------------- 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 ---------------------- 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 28th day of February, 2002. AES PUERTO RICO LP RETIREMENT PLAN By: AES Puerto Rico, LP, its Plan Administrator By: /s/ Annette Rodriquez --------------------- Annette Rodriguez -6- EXHIBIT INDEX
Exhibit No. Description Method of Filing - ---------------------- -------------------------------------------------------- ------------------------------------------ 5.1 Opinion of Buchanan Ingersoll Professional Corporation Filed herewith. regarding legality of the securities being registered. 5.2 Puerto Rico Treasury Department determination letter that Filed herewith. the Plan is qualified under Section 1165(e) of the Puerto Rico International Revenue Code. 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.
-7- EX-5.1 3 dex51.txt OPINION OF BUCHANAN INGERSOLL PC Exhibit 5.1 [BUCHANAN INGERSOLL PROFESSIONAL CORPORATION LETTERHEAD] February 28, 2002 Board of Directors The AES Corporation 1001 North 19th Street Arlington, Virginia 22209 Ladies and Gentlemen: We have acted as counsel to The AES Corporation, a Delaware corporation (the "Corporation"), in connection with the proposed issuance by the Corporation of up to 1,000,000 shares of the Corporation's common stock (the "Common Stock"), pursuant to the terms of the AES Puerto Rico LP Retirement Plan (the "Plan"). In connection with such proposed issuance, we have examined the Plan, the Certificate of Incorporation of the Corporation, as amended and restated, the By-laws of the Corporation, as amended, the relevant corporate proceedings of the Corporation, the Registration Statement on Form S-8 covering the issuance of the Common Stock, and such other documents, records, certificates of public officials, statutes and decisions as we consider necessary to express the opinions contained herein. In the examination of such documents, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to those original documents of all documents submitted to us as certified or photostatic copies. Based on the foregoing, we are of the opinion that when the Registration Statement shall have been declared effective by order of the Securities and Exchange Commission and when the Common Stock has been duly issued and delivered pursuant to the terms of the Plan, such shares of Common Stock will be validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, BUCHANAN INGERSOLL PROFESSIONAL CORPORATION By: /s/ Ronald Basso ---------------- Ronald Basso EX-5.2 4 dex52.txt COMPANY CONFIRMTION IN LIEU OF OPINION Exhibit 5.2 [Commonwealth of Puerto Rico -- Treasury Letterhead] Francisco Fernandez, Esq. Fernandez Collins & Rivero-Vergne PO Box 9023905 San Juan, Puerto Rico 00902-3905 Dear Mr. Fernandez: AES PUERTO RICO LP RETIREMENT PLAN (SECTION 1165(e)) In regard to your letter of September 27, 2001, you are informed that this Department has no objection to the participation of the referred pension plan in the Pension Administrators Group, Inc. Prototype Defined Contribution Retirement Plan Program (Pension Group Program) to be effective as of January 1, 2001. Such participation will not affect in any way the ruling issued on behalf of the Pension Group Program on April 24, 1998. The terms of such opinion are applicable to AES Puerto Rico LP Retirement Plan (66-0547978). The trust established thereunder will be entitled to exemption from local income taxes under the Puerto Rico Internal Revenue Code of 1994, as amended (Code). According to Article 1165-1(b)(3) of the Regulations under the Code "The law is concerned not so much with the form of any plan as it is with its effect in operation." No opinion is expressed as to the tax treatment of the above transactions under any other provision of the Code and the Regulations that may also be applicable thereto, or to the tax treatment of any condition existing at the time of the transactions, or any effect resulting therefrom, that is not specifically covered by this ruling. The opinion expressed herein shall be valid only upon the continued existence of the facts as submitted for our consideration. Cordially, /s/ Carmen Colon Calderin - -------------------------------- Carmen Colon Calderin, Chief Pension Plan Section EX-23.1 5 dex231.txt CONSENT OF DELOITTE & TOUCHE LLP Exhibit 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of The AES Corporation on Form S-8 of our report dated January 29, 2001 (May 23, 2001 as to Note 20), relating to the consolidated financial statements of The AES Corporation for the year ended December 31, 2000, appearing in the Current Report on Form 8-K of The AES Corporation dated June 5, 2001, and our report dated June 1, 2001 appearing in the Annual Report on Form 11-K of The AES Corporation Profit Sharing and Stock Ownership Plan for the year ended December 31, 2000, dated June 29, 2001. We also consent to the incorporation by reference in this Registration Statement of The AES Corporation on Form S-8 of our report dated January 25, 2001 (March 27, 2001 as to Footnote 1) relating to the consolidated financial statements of IPALCO Enterprises, Inc. for the year ended December 31, 2000, appearing in the Current Report on Form 8-K/A of The AES Corporation dated June 8, 2001. /s/ Deloitte & Touche LLP McLean, Virginia February 27, 2002 EX-23.2 6 dex232.txt CONSENT OF PORTA, CACHAFEIRO, LARIA Y ASOCIADOS Exhibit 23.2 INDEPENDENT AUDITORS' CONSENT As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement of The AES Corporation on Form S-8 of our report dated January 23, 2001, covering C.A. La Electricidad de Caracas and Corporation EDC, C.A. and their subsidiaries included in the current report filed on Form 8-K dated June 5, 2001 of The AES Corporation. Porta, Cachafeiro, Laria Y Asociados A Member Firm of Andersen /s/ Hector L. Gutierrez D. Public Accountant CPC No. 24321 Caracas, Venezuela February 26, 2002 EX-24.1 7 dex241.txt POWER OF ATTORNEY Exhibit 24.1 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below, acting in the capacity or capacities stated opposite their respective names, hereby constitute and appoint DENNIS W. BAKKE, BARRY J. SHARP and WILLIAM R. LURASCHI and each of them severally, such persons true and lawful attorneys- in-fact with full power to them and each of them to approve and sign for and in the name of the undersigned in the capacities indicated below the Registration Statement relating to the plan interests and shares of Common Stock, par value $.01 per share, of the AES Corporation, a Delaware corporation, issuable or deliverable under AES Puerto Rico LP Retirement Plan (the "Plan"), any and all exhibits, amendments and supplements thereto, and any other documents necessary, appropriate or desirable in connection therewith, and to file the same and to do and perform each and every act and thing necessary, appropriate or desirable in connection therewith. This Power of Attorney may be executed in one or more counterparts, each of which together shall constitute one and the same instrument.
SIGNATURE TITLE DATE - ---------------------------------------------- ---------------------------------------- ------------------------- /s/ Roger W. Sant Chairman of the Board and February 26, 2002 - ---------------------------------------------- Director Roger W. Sant /s/ Dennis W. Bakke President, Chief Executive Officer and February 26, 2002 - ---------------------------------------------- Director (Principal Executive Officer) Dennis W. Bakke /s/ Dr. Alice F. Emerson Director February 26, 2002 - ---------------------------------------------- Dr. Alice F. Emerson /s/ Robert F. Hemphill, Jr. Director February 26, 2002 - ---------------------------------------------- Robert F. Hemphill, Jr. /s/ Frank Jungers Director February 26, 2002 - ---------------------------------------------- Frank Jungers /s/ John H. McArthur Director February 26, 2002 - ---------------------------------------------- John H. McArthur /s/ Hazel O'Leary Director February 26, 2002 - ---------------------------------------------- Hazel O'Leary /s/ Thomas I. Unterberg Director February 26, 2002 - ---------------------------------------------- Thomas I. Unterberg /s/ Robert H. Waterman, Jr. Director February 26, 2002 - ---------------------------------------------- Robert H. Waterman, Jr.
/s/ Philip Lader Director February 26, 2002 - ---------------------------------------------- Philip Lader /s/ Barry J. Sharp Vice President and Chief Financial February 26, 2002 - ---------------------------------------------- Officer (Principal Financial and Barry J. Sharp Accounting Officer)
-----END PRIVACY-ENHANCED MESSAGE-----