-----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, UgRkWflfGh6/XE6bKRqAtOqsYEXfN3JUcgNbDl7pq0cEgPbWxw9loXniwQAVquu2 Xib7foBdF4fKJq3uxyBZxA== 0000950172-01-000368.txt : 20010328 0000950172-01-000368.hdr.sgml : 20010328 ACCESSION NUMBER: 0000950172-01-000368 CONFORMED SUBMISSION TYPE: POS EX PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010327 EFFECTIVENESS DATE: 20010327 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: POS EX SEC ACT: SEC FILE NUMBER: 333-43908 FILM NUMBER: 1580583 BUSINESS ADDRESS: STREET 1: 1001 N 19TH ST STREET 2: STE 2000 CITY: ARLINGTON STATE: VA ZIP: 22209 BUSINESS PHONE: 7035221315 POS EX 1 0001.txt AMENDMENT NO. 2 TO FORM S-4 As filed with the Securities and Exchange Commission on March 27, 2001, Registration No. 333-43908 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- POST EFFECTIVE AMENDMENT NO. 2 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- The AES Corporation (Exact name of registrant as specified in its charter) DELAWARE 4991 54-1163725 (State or other (Primary Standard (I.R.S. Employer jurisdiction of Industrial Classification Identification No.) incorporation Code Number) or organization) --------------------- 1001 NORTH 19TH STREET ARLINGTON, VIRGINIA 22209 (703) 522-1315 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) --------------------- 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, including zip code, and telephone number, including area code, of agent for service) --------------------- COPIES TO: RONALD C. BARUSCH, ESQ. RICHARD HALL, ESQ. PANKAJ K. SINHA, ESQ. CRAVATH, SWAINE & MOORE SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 825 EIGHTH AVENUE 1440 NEW YORK AVENUE, N.W. NEW YORK, NEW YORK 10019 WASHINGTON, D.C. 20005 (202) 371-7000 --------------------- APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF THE SECURITIES TO THE PUBLIC: As soon as practicable following the effectiveness of this Registration Statement and after all other conditions under the share exchange agreement are satisfied or waived. If the securities being registered on this form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. / / If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Securities Act"), check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. /X/ Registration No. 333-43908 ================================================================================ EXPLANATORY NOTE This Post-Effective Amendment No. 2 (the "Amendment") to the Registration Statement on Form S-4 (File No. 333-43908) of The AES Corporation (the "Registration Statement") is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended, for the sole purpose of filing two additional exhibits to the Registration Statement and, accordingly, shall become effective immediately upon filing with the Securities and Exchange Commission (the "Commission"). After giving effect to this Amendment, the Registration Statement consists of the Registration Statement as filed with the Commission at the time it became effective on September 7, 2000, as supplemented by the Post-Effective Amendment No.1, filed September 14, 2000, as further supplemented by this Amendment. ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES EXHIBIT NUMBER DESCRIPTION - ------- ----------- 2.1 Agreement and Plan of Share Exchange dated as of July 15, 2000, between The AES Corporation and IPALCO Enterprises, Inc. (included as Annex A to the proxy statement/prospectus). 2.2 Opinion of UBS Warburg LLC (included as Annex B to the proxy statement/prospectus). 3.1 Sixth Amended and Restated Certificate of Incorporation of The AES Corporation (incorporated by reference to Exhibit 3.1 to The AES Corporation Quarterly Report on Form 10-Q filed May 15, 2000). 3.2 The AES Corporation By-laws, as amended (incorporated by reference to Exhibit 3.2 to The AES Corporation Quarterly Report on Form 10-Q filed August 14, 1998). 5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding the legality of the securities. 8.1* Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding tax matters. 8.2* Opinion of Cravath, Swaine & Moore regarding tax matters. 23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (set forth in Exhibit 5.1). 23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (set forth in Exhibit 8.1). 23.3 Consent of Cravath, Swaine & Moore (set forth in Exhibit 8.2). 23.4 Consent of Deloitte & Touche LLP (AES). 23.5 Consent of Deloitte & Touche LLP (IPALCO). 23.6 Consent of UBS Warburg LLC. 24.1 Powers of Attorney. 99.1 Form of IPALCO Enterprises, Inc. Proxy. - --------------- * Filed herewith SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Post-Effective Amendment No. 2 to the Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in Arlington, Virginia, on the 27th day of March, 2001. 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 Post-Effective Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities and on the dates indicated. SIGNATURE TITLE DATE --------- ----- ---- */s/ Roger W. Sant Chairman of the Board March 27, 2001 - ----------------------------- Roger W. Sant */s/ Dennis W. Bakke President, Chief Executive March 27, 2001 - ----------------------------- Officer (principal Dennis W. Bakke executive officer and Director */s/ Alice F. Emerson Director March 27, 2001 - ----------------------------- Dr. Alice F. Emerson */s/ Robert F. Hemphill, Jr. Director March 27, 2001 - ----------------------------- Robert F. Hemphill, Jr. */s/ Frank Jungers Director March 27, 2001 - ----------------------------- Frank Jungers */s/ Hazel R. O'Leary Director March 27, 2001 - ----------------------------- Hazel R. O'Leary */s/ Thomas I. Unterberg Director March 27, 2001 - ----------------------------- Thomas I. Unterberg */s/ Robert H. Waterman, Jr. Director March 27, 2001 - ----------------------------- Robert H. Waterman, Jr. */s/ Barry J. Sharp Senior Vice President and March 27, 2001 - ----------------------------- Chief Financial Officer Barry J. Sharp (principal financial and accounting officer) *By:/s/ William R. Luraschi - ----------------------------- William R. Luraschi Attorney-in-fact EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION - ------ ----------- 2.1 Agreement and Plan of Share Exchange dated as of July 15, 2000, between The AES Corporation and IPALCO Enterprises, Inc. (included as Annex A to the proxy statement/prospectus). 2.2 Opinion of UBS Warburg LLC (included as Annex B to the proxy statement/prospectus). 3.1 Sixth Amended and Restated Certificate of Incorporation of The AES Corporation (incorporated by reference to Exhibit 3.1 to The AES Corporation Quarterly Report on Form 10-Q filed May 15, 2000). 3.2 The AES Corporation By-laws, as amended (incorporated by reference to Exhibit 3.2 to The AES Corporation Quarterly Report on Form 10-Q filed August 14, 1998). 5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding the legality of the securities. 8.1* Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding tax matters. 8.2* Opinion of Cravath, Swaine & Moore regarding tax matters. 23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (set forth in Exhibit 5.1). 23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (set forth in Exhibit 8.1). 23.3 Consent of Cravath, Swaine & Moore (set forth in Exhibit 8.2). 23.4 Consent of Deloitte & Touche LLP (AES). 23.5 Consent of Deloitte & Touche LLP (IPALCO). 23.6 Consent of UBS Warburg LLC. 24.1 Powers of Attorney. 99.1 Form of IPALCO Enterprises, Inc. Proxy. - -------------- * Filed herewith EX-8.1 2 0002.txt OPINION OF SASMF EXHIBIT 8.1 [LETTERHEAD OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP] March 27, 2001 The AES Corporation 1001 North 19th Street Arlington, VA 22209 Re: Tax Opinion ----------- Ladies and Gentlemen: We have acted as counsel to The AES Corporation, a Delaware corporation ("Parent"), in connection with (i) the Exchange, as defined and described in the Agreement and Plan of Share Exchange (the "Exchange Agreement"), dated as of July 15, 2000, among Parent and IPALCO Enterprises, Inc., an Indiana corporation (the "Company") and (ii) the preparation and filing of the Registration Statement (the "Registration Statement") with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), which includes the Proxy Statement and Prospectus of the Company and Parent, dated September 8, 2000 (the "Proxy Statement/Prospectus"). This opinion is being furnished to you, at your request, in connection with the provisions of Sections 7.2(j) and 7.3(d) of the Exchange Agreement. Unless otherwise indicated, each capitalized term used herein has the meaning ascribed to it in the Exchange Agreement. In connection with this opinion, we have examined the Exchange Agreement, the Proxy Statement/Prospectus and such other documents and corporate records as we have deemed necessary or appropriate in order to enable us to render the opinion below. We have relied upon statements, representations and covenants made by Parent and the Company, including representations and covenants set forth in letters from Parent and the Company dated the date hereof, and we have assumed that such statements and representations are true without regard to any qualifications as to knowledge or belief. For purposes of this opinion, we have assumed: (i) the validity and accuracy of the documents and corporate records that we have examined and the facts and representations concerning the Exchange that have come to our attention during our engagement; (ii) the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such documents; and (iii) that the Exchange will be carried out in accordance with the terms of the Exchange Agreement and as described in the Registration Statement and that none of the terms and conditions contained therein will have been waived or modified in any respect prior to the Effective Time. Our opinion is conditioned upon, among other things, the initial and continuing accuracy and completeness of the items described above on which we are relying. In rendering our opinion, we have considered the applicable provisions of the Code, Treasury Department regulations promulgated thereunder, pertinent judicial authorities, interpretive rulings of the Internal Revenue Service (the "Service") and such other authorities as we have considered relevant. It should be noted that statutes, regulations, judicial decisions and administrative interpretations are subject to change at any time, possibly with retroactive effect. A change in the authorities or the accuracy or completeness of any of the facts, information, documents, corporate records, covenants, statements, representations or assumptions on which our opinion is based could affect our conclusions. Based on and subject to the foregoing, and subject to the assumptions and qualifications set forth in the discussion in the Proxy Statement/Prospectus under the heading "THE SHARE EXCHANGE - Certain United States Federal Income Tax Consequences of the Share Exchange," it is our opinion that the Exchange will qualify as a "reorganization" within the meaning of Section 368(a) of the Code. This opinion is limited to the tax matters specifically addressed herein. We have not been asked to address, nor have we addressed, any other tax consequences of the Exchange, including, but not limited to, any other federal, state, local, foreign, transfer, sales, or use tax consequences. Further, there can be no assurances that the opinion expressed herein will be accepted by the Service or, if challenged, by a court. This opinion is expressed as of the date hereof, and we undertake no obligation to supplement or revise our opinion to reflect any changes (including changes that could have retroactive effect) in applicable law or in any fact, information, document, corporate record, covenant, statement, representation or assumption stated herein that becomes untrue or incorrect. This letter is being provided to Parent for use in connection with the Exchange, as described in the Exchange Agreement and the Proxy Statement/Prospectus, and is not to be used, circulated, quoted, or otherwise referred to for any other purpose without our express written permission. In accordance with the requirements of Item 601(b)(8) of Regulation S-K under the Securities Act, we hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the captions "THE SHARE EXCHANGE - Certain United States Federal Income Tax Consequences of the Share Exchange" and "Legal Matters" in the Proxy Statement/Prospectus. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. Very truly yours, /s/ Skadden, Arps, Slate, Meagher & Flom LLP EX-8.2 3 0003.txt OPINION OF CRAVATH, SWAINE & MOORE EXHIBIT 8.2 [LETTERHEAD OF CRAVATH, SWAINE & MOORE] March 27, 2001 Agreement and Plan of Share Exchange Dated as of July 15, 2000, By and Between The AES Corporation and IPALCO Enterprises, Inc. Dear Sirs: We have acted as counsel for IPALCO Enterprises, Inc., an Indiana corporation ("IPALCO"), in connection with the mandatory share exchange (the "Exchange") whereby all of the issued and outstanding shares of common stock, no par value, of IPALCO shall be acquired by The AES Corporation, a Delaware corporation ("AES") in exchange for shares of validly issued, fully paid and nonassessable common stock, par value $.01 per share of AES pursuant to an Agreement and Plan of Share Exchange, dated as of July 15, 2000, by and between IPALCO and AES (the "Exchange Agreement"). In that connection, you have requested our opinion regarding certain U.S. Federal income tax consequences of the Exchange. In providing our opinion, we have examined the Exchange Agreement, the registration statement on Form S-4 (the "Registration Statement"), which includes the Proxy Statement and Prospectus of IPALCO and AES (the "Proxy Statement/Prospectus"), filed with the Securities and Exchange Commission (the "SEC"), and such other documents and corporate records as we have deemed necessary or appropriate for purposes of our opinion. In addition, we have assumed that (i) the Exchange will be consummated in accordance with the provisions of the Exchange Agreement and the Registration Statement, (ii) the statements concerning the Exchange set forth in the Exchange Agreement and the Registration Statement are true, complete and correct, (iii) the representations made by IPALCO and AES, in their respective letters delivered to us for purposes of this opinion (the "Representation Letters") are true, complete and correct and will remain true, complete and correct at all times up to and including the Effective Time (as defined in the Exchange Agreement) and (iv) any representations made in the Representation Letters "to the best knowledge of" or similarly qualified are correct without such qualification. If any of the above described assumptions are untrue for any reason or if the Exchange is consummated in a manner that is different from the manner in which it is described in the Exchange Agreement or the Proxy Statement/Prospectus, our opinions as expressed below may be adversely affected and may not be relied upon. Based upon the foregoing, for U.S. Federal income tax purposes, we are of opinion that (i) the Exchange will constitute a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code") and (ii) IPALCO and AES will each be a party to such reorganization within the meaning of Section 368(b) of the Code. Our opinions are based on current provisions of the Code, Treasury Regulations promulgated thereunder, published pronouncements of the Internal Revenue Service and case law, any of which may be changed at any time with retroactive effect. Any change in applicable laws or the facts and circumstances surrounding the Exchange, or any inaccuracy in the statements, facts, assumptions or representations upon which we have relied, may affect the continuing validity of our opinions as set forth herein. We assume no responsibility to inform you of any such change or inaccuracy that may occur or come to our attention. In addition, our opinions are limited to the tax matters specifically covered hereby, and we have not been asked to address, nor have we addressed, any other tax consequences of the Exchange. This opinion is being provided solely for the benefit of IPALCO. No other person or party shall be entitled to rely upon this opinion. We consent to the filing of this opinion as an Exhibit to the Registration Statement and to the reference to our firm name therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or regulations of the SEC promulgated thereunder. Very truly yours, /s/ Cravath, Swaine & Moore IPALCO Enterprises, Inc. One Monument Circle Indianapolis, IN 46204 -----END PRIVACY-ENHANCED MESSAGE-----