-----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, GofaJGXhrf/0PO15OqDRtzherTCaNo9+laAJ+J8/yx+JOBbkmOBsXZdlrmpu82px t1MQcvsMtfJlnxJzSTX4wA== /in/edgar/work/0000950136-00-001558/0000950136-00-001558.txt : 20001110 0000950136-00-001558.hdr.sgml : 20001110 ACCESSION NUMBER: 0000950136-00-001558 CONFORMED SUBMISSION TYPE: SC TO-T PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20001109 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GENER S A CENTRAL INDEX KEY: 0000926075 STANDARD INDUSTRIAL CLASSIFICATION: [4931 ] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T SEC ACT: SEC FILE NUMBER: 005-55455 FILM NUMBER: 757569 BUSINESS ADDRESS: STREET 1: MIRAFLORES 222 STREET 2: 4TH FL CITY: SANTIAGO CHILE STATE: F3 BUSINESS PHONE: 5626322909 FORMER COMPANY: FORMER CONFORMED NAME: CHILGENER INC DATE OF NAME CHANGE: 19940628 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: AES CORPORATION CENTRAL INDEX KEY: 0000874761 STANDARD INDUSTRIAL CLASSIFICATION: [4991 ] IRS NUMBER: 541163725 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T BUSINESS ADDRESS: STREET 1: 1001 N 19TH ST STREET 2: STE 2000 CITY: ARLINGTON STATE: VA ZIP: 22209 BUSINESS PHONE: 7035221315 SC TO-T 1 0001.txt SCHEDULE TO-T - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------- SCHEDULE TO (RULE 14d-100) TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 ----------------------- GENER S.A. (Name of Subject Company (Issuer)) ----------------------- THE AES CORPORATION MERCURY CAYMAN CO. III, LTD. (Name of Filing Persons (Offerors)) ----------------------- AMERICAN DEPOSITARY SHARES (EACH REPRESENTING 68 SHARES OF COMMON STOCK, NO PAR VALUE) (Title of Class of Securities) ----------------------- 368731105 (CUSIP Number of Class of Securities) ----------------------- BARRY J. SHARP SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER THE AES CORPORATION 1001 NORTH 19TH STREET ARLINGTON, VIRGINIA 22209 (703) 522-1315 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons) ----------------------- Copies to: Michael E. Gizang, Esq. Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, New York 10036 Telephone: (212) 735-3000 ----------------------- CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE** $181,634,952.00 $36,327.00
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- * Estimated for purposes of calculating the amount of the filing fee only in accordance with Rules 0-11(d) and 0-11(a)(4) under the Securities Exchange Act of 1934, based upon (a) $12.25, the average of the high and low price per Gener American Depositary Share on November 2, 2000, as reported on the New York Stock Exchange Composite Transaction Tape, multiplied by (b) 14,827,343, representing the aggregate number of Gener American Depositary Shares outstanding on September 30, 2000. ** One-fiftieth of 1% of the value of the transaction. [X] Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Registration Statement on Form S-4 filed with the Securities and Exchange Commission (the "SEC") on November 9, 2000. [ ] Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: [X] third-party tender offer subject to Rule 14d-1. [ ] issuer tender offer subject to Rule 13e-4. [ ] going-private transaction subject to Rule 13e-3. [ ] amendment to Schedule 13D under Rule 13d-2. Check the following box if the filing is a final amendment reporting the results of the tender offer: [ ] This Tender Offer Statement on Schedule TO relates to the offer by Mercury Cayman Co. III, Ltd., a limited company organized under the laws of the Cayman Islands (the "Purchaser") and a wholly owned subsidiary of The AES Corporation, a Delaware corporation ("AES"), to exchange each issued and outstanding American Depositary Share (each, an "ADS" and collectively, "ADSs") of Gener S.A. ("Gener"), each representing 68 shares of Gener common stock, no par value (the "Shares"), for a fraction of a share of common stock, par value $ 0.01 per share, of AES (the "AES Shares"), on the terms and subject to the conditions described in the preliminary prospectus referenced below, and the related ADS Letter of Transmittal (collectively referred to as the "Offer"). AES has filed a Registration Statement on Form S-4 relating to the AES Shares to be issued to holders of Gener ADSs in the Offer (the "Registration Statement"). The terms and conditions of the Offer are set forth in the preliminary prospectus which is a part of the Registration Statement (the "Prospectus"), and the related ADS Letter of Transmittal, which are attached as Exhibits (a)(1) and (a)(2) hereto, respectively. All of the information in the Prospectus and the related ADS Letter of Transmittal, and any prospectus supplement or other supplement or amendment thereto related to the Offer hereafter filed with the Securities and Exchange Commission by AES, is hereby incorporated by reference in answer to Items 2 through 11 of this Schedule TO. ITEM 1. SUMMARY TERM SHEET. Information is disclosed to security holders in a prospectus meeting the requirements of Rule 421(d) of the Securities Act of 1933. ITEM 2. SUBJECT COMPANY INFORMATION. (a) The name of the subject company is Gener S.A., a corporation organized under the laws of the Republic of Chile. The address of Gener's principal executive offices is Miraflores 222, 4th Floor, Santiago, Chile. Its telephone number is (562) 686-8000. (b) The class of equity securities to which this Schedule relates is the American Depositary Shares of Gener, each representing 68 Shares. The number of ADSs and Shares outstanding as of September 30, 2000 were 1,008,259,324 and 5,630,562,756, respectively. (c) Information concerning the principal market in which the ADSs are traded and certain high and low sales prices for the ADSs in such principal market for each quarter during the past two years is set forth in the section of the Prospectus captioned, "MARKET PRICES AND DIVIDENDS" and is incorporated herein by reference. ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON. (a) (b) This Schedule TO is being filed by the Purchaser and AES. The information set forth in the Prospectus in the section captioned, "THE COMPANIES" and in Schedule I to the Prospectus is incorporated herein by reference. (c)(1), (2) The information set forth in Schedule I to the Prospectus is incorporated herein by reference. (c)(3) During the last five years, none of AES, the Purchaser, or to the best of their knowledge, any of the persons listed on Schedule I to the Prospectus has (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining such person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal or state securities laws. ITEM 4. TERMS OF THE TRANSACTION. (a)(1) (i)-(viii), (x), (xi), (xii) The information set forth in the Prospectus sections captioned, "SUMMARY", "THE PROPOSED TRANSACTION; THE OFFERS", "BACKGROUND AND REASONS FOR OUR OFFER" and "OUR OFFER" is incorporated herein by reference. 3 (a) (1) (ix) Not applicable. ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS. The information set forth in the prospectus in the sections captioned, "SUMMARY", "BACKGROUND AND REASONS FOR OUR OFFER", "OUR OFFER--Purpose of the Offers; Plans for Gener", and "OUR OFFER--Relationships with Gener" is incorporated herein by reference. ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS. (a), (c) The information set forth in the Prospectus in the sections captioned, "SUMMARY", "THE PROPOSED TRANSACTION; THE OFFERS", "OUR OFFER--Purpose of the Offers; Plans for Gener" and "BACKGROUND AND REASONS FOR OUR OFFER" is incorporated herein by reference. ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. (a), (b), (d) The information set forth in the Prospectus in the section captioned, "OUR OFFER--Source and Amount of Funds" is incorporated herein by reference. ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY. The information set forth in the Prospectus in the section captioned, "OUR OFFER--Relationships with Gener" and Schedule II in the Prospectus is incorporated herein by reference. ITEM 9. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED. The information set forth in the Prospectus in the section captioned, "OUR OFFER--Fees and Expenses" is incorporated herein by reference. ITEM 10. FINANCIAL STATEMENTS The financial statements contained in AES's Annual Report on Form 10-K for the fiscal year ended December 31, 2000, and in AES's Quarterly Reports on Form 10-Q for the periods ended March 31, 2000 and June 30, 2000 are incorporated herein by reference. AES files annual, quarterly and special reports, proxy statements and other information with the SEC. Such reports may be read and copied at the public reference room of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549, or at the SEC's public reference rooms in New York, New York and Chicago, Illinois. The SEC may be reached at 1-800-SEC-0330 for further information on the public reference rooms. SEC filings are also available to the public from commercial document retrieval services and at the Internet world wide web site maintained by the SEC at www.sec.gov. In addition, these AES reports are available without charge upon request to: The AES Corporation, 1001 North 19th Street, Arlington VA 22209, (703) 522-1315. The incorporation by reference herein of the above referenced financial information does not constitute an admission that such information is material to a decision by a security holder of Gener whether to exchange, tender or hold securities being sought in the Offer. The information regarding the historical per common share information for AES set forth in "Comparative Per Share Data" in the Prospectus is incorporated herein by reference. ITEM 11. ADDITIONAL INFORMATION. The information set forth in the Prospectus in the sections captioned, "SUMMARY", "OUR OFFER--Certain Legal Matters; Regulatory Approvals", "THE COMPANIES" and "OUR OFFER--Conditions of Our Offer" is incorporated herein by reference. 4 ITEM 12. EXHIBITS. (a)(1) Prospectus relating to AES Shares to be issued in the Offer (incorporated by reference to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(2) Form of ADS Letter of Transmittal (incorporated by reference to Exhibit 99.1 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(3) Form of Notice of Guaranteed Delivery (incorporated by reference to Exhibit 99.2 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated by reference to Exhibit 99.3 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(5) Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated by reference to Exhibit 99.4 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (incorporated by reference to Exhibit 99.5 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(7) Summary Advertisement scheduled for publication in The Wall Street Journal on November 13, 2000 (incorporated by reference to Exhibit 99.6 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(8) Press Release issued by AES on November 3, 2000 (incorporated by reference to Exhibit 99.7 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (b) None. (d) Letter Agreement between AES and Compania de Petroleos de Chile S.A., dated November 3, 2000. (g) None. (h) None.
5 SIGNATURE After due inquiry and to the best of my knowledge and belief, we certify that the information set forth in this statement is true, complete and correct. MERCURY CAYMAN CO. III, LTD. By: /s/ Naveed Ismail ------------------------------------ Name: Naveed Ismail Title: President Dated: November 9, 2000 THE AES CORPORATION By: /s/ Paul T. Hanrahan ------------------------------------ Name: Paul T. Hanrahan Title: Senior Vice President Dated: November 9, 2000 6 EXHIBIT INDEX EXHIBIT NUMBER EXHIBIT NAME ------ ------------ (a)(1) Prospectus relating to AES Shares to be issued in the U.S. Offer (incorporated by reference from The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(2) Form of ADS Letter of Transmittal (incorporated by reference to Exhibit 99.1 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(3) Form of Notice of Guaranteed Delivery (incorporated by reference to Exhibit 99.2 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated by reference to Exhibit 99.3 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(5) Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated by reference to Exhibit 99.4 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (incorporated by reference to Exhibit 99.5 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(7) Summary Advertisement scheduled for publication in The Wall Street Journal on November 13, 2000 (incorporated by reference to Exhibit 99.6 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (a)(8) Press Release issued by AES on November 3, 2000 (incorporated by reference to Exhibit 99.7 to The AES Corporation Registration Statement on Form S-4 filed on November 9, 2000). (b) None. (d) Letter Agreement between AES and Compania de Petroleos de Chile S.A., dated November 3, 2000. (g) None. (h) None. 7 EX-99.(D) 2 0002.txt LETTER AGREEMENT BETWEEN AES AND COMPANIA DE PETROLEOS DE CHILE S.A., DATED NOVEMBER 3, 2000. [GRAPHIC OF COPEC LETTERHEAD OMITTED] Santiago, November 3, 2000 Naveed Ismail The AES Corporation c/o Jose Maria Eyzaguirre Baeza Claro y Cia. Apoquindo 3721, 13th Floor Santiago, CHILE Dear Sir: You indicated that you are analyzing the possibility of effectuating (i) a public offering in Chile to acquire 75% of the shares of the capital stock of Gener S.A., as of September 30, 2000, excluding the shares represented by ADSs, at a minimum unit price of the Chilean peso equivalent of US$ 0.235294118 per share (hereinafter referred to as the "OPA"); and (ii) an offer abroad for the acquisition of all of the ADSs of Gener S.A., in exchange for shares of your parent company. In this respect, please note the following: 1. Based upon your publicly announcing the OPA in Chile within the next 2 days, Servicios de Combustibles Limitada (the owner to date of 1,110,830,547 shares of Gener S.A.) and Compania de Petroleos de Chile S.A. (owner to date of 330,085 shares of Gener S.A.) are willing to sell under the OPA a minimum of 75% of their shares as indicated herein and, should the OPA process permit, any greater percentage up to 100% of their shares, for a minimum unit price of the Chilean peso equivalent of US$ 0.235294118 per share. 2. This commitment is conditioned on the event that no other interested party makes an offer to purchase the Gener S.A. shares that the sellers in good faith, based upon the opinion of their financial advisers, determine to be more advantageous. In the event that such an offer is made, the sellers shall immediately notify the contents of the offer and the name of the party making the offer, and deliver the available documents to the attorneys of Claro y Cia., to the attention of Jose Maria Eyzaguirre Baeza or, in his absence, Jose Maria Eyzaguirre Garcia de la Huerta. In the event that this offer, as indicated above, is considered to be more advantageous and the sellers are willing to accept it, they must then advise either of the attorneys named above, within no more than 5 days from the date of becoming aware of such offer, so that your company may match or better the offer within no more than 5 days from the date of delivery of this latest communication. If your company does not respond or does not match or better the offer from the interested third party, the sellers shall be free to act as they wish, without any further engagement with you. In the event that the above-mentioned terms do not allow the purpose of this paragraph to be fulfilled, that is that the sellers may sell their shares under the most advantageous conditions and your company may match or better the last offer, said term shall be reduced as necessary in order to comply with said purpose, so that the term of 5 days for your company may be reduced to not less than 2 days. 3. The sellers are considering using the authority conferred by article 58 of the Law on Corporations to request Gener S.A. to convene a special shareholders' meeting to amend its bylaws so as to allow any one shareholder to hold more than 20% of the voting shares of Gener S.A. If you publicly announce the OPA in Chile within the next 2 days, the sellers agree to request that the Board of Directors of Gener S.A. convene a special shareholders' meeting in order to consider that the bylaws be amended so as to allow the OPA and the offering abroad to take place. In said meeting, the sellers agree to vote in favor of this proposal. Until November 15, 2000, your company may request that the sellers, enforce their right to convene a special shareholders' meeting of Gener S.A. If not so requested, the sellers may request that this meeting be convened and held when they deem appropriate. 4. The sellers agree not to directly or indirectly: (a) request, initiate or encourage any proposal related to an alternative offer, nor to (b) participate in any discussions or negotiations, nor assist any person with regard to an alternative offer. 5. If your company publicly announces the OPA in Chile within the term indicated above, you will be authorized to disclose that the sellers are willing to sell their shares in Gener S.A. under the terms and conditions indicated in this letter. 6. The commitment of the sellers indicated in this letter shall be valid for a maximum of 120 days from today, or shall terminate earlier in the event that your company states that the OPA and the offering abroad were not successful, among other reasons, because the acquisition of a majority of the voting shares of Gener S.A. was not achieved. 2 We trust that you will consider the terms of this letter in making your decision as to whether or not to proceed with the OPA and remain, Very truly yours, [signed] [signed] for: Compania de Petroleos de Chile S.A. for: Servicios de Combustibles Felipe Lamarca C. Jorge [illegible] Limitada Ricardo [illegible] Ramiro [illegible] I concur and sign a copy of this letter that shall remain in the possession of the sellers. Santiago, November 3, 2000 [signed] for: The AES Corporation -----END PRIVACY-ENHANCED MESSAGE-----