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As filed with the Securities and Exchange Commission on October 22, 1997
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
(State or other jurisdiction of incorporation or organization)
54-1163725
(I.R.S. Employer Identification No.)
1001 North 19th Street, Arlington, Virginia 22209
(Address of Principal Executive Offices) (Zip Code)
THE AES CORPORATION DEFERRED COMPENSATION PLAN FOR DIRECTORS
(Full title of the plan)
BARRY J. SHARP Copy to:
Vice President and PHILIP D. BEAUMONT, ESQ.
Chief Financial Officer CHADBOURNE & PARKE LLP
THE AES CORPORATION 30 Rockefeller Plaza
1001 N. 19th Street New York, New York 10112
Arlington, Virginia 22209 (212) 408-5100
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (703) 522-1315
CALCULATION OF REGISTRATION FEE
- -------------- ----------- ----------------- ----------------- ------------
Title Of Amount Proposed Maximum Proposed Maximum Amount of
Securities To To Be Offering Price Aggregate Registration
Be Registered Registered Per Share* Offering Price** Fee
- -------------- ----------- ----------------- ----------------- ------------
Common Stock,
Par Value
$0.01 679,235 $43.9375 $29,843,887 $9044.00
per share shares
- -------------- ----------- ----------------- ----------------- ------------
* Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933 on the basis of
the average of the high and low prices of $45.25 and $42.625,
respectively, on October 17, 1997 for the Company's Common Stock on the
New York Stock Exchange Composite Transactions.
** There are also registered hereunder such indeterminate number of
additional shares as may become subject to awards under the Plan as a
result of the antidilution provision contained therein.
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In addition, pursuant to Rule 416(c) of the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
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EXPLANATORY NOTE
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by The AES Corporation ("AES" or
"Registrant") with the Securities and Exchange Commission are specifically
incorporated herein by reference and made a part hereof:
(i) Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996, filed pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(ii) all other reports filed by Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 1996; and
(iii) the description of Registrant's Common Stock contained in
Registrant's Registration Statement on Form 8-A (Registration No.
0-19281), filed with the Commission on October 9, 1996, as amended by
Amendment No. 1 on Form 8-A/A to AES's Registration Statement on Form
8-A filed with the Commission on October 10, 1996, including any
amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date 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 subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement modified or superseded
shall not be deemed, except as so modified or superseded, to constitute part of
this Registration Statement.
Item 4. Description of Securities.
This Item is not applicable as Registrant's Common Stock is registered
under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
This Item is not applicable.
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Item 6. Indemnification of Directors and Officers.
Under AES's By-Laws, and in accordance with Section 145 of the Delaware
General Corporation Law (the "GCL"), AES 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 AES 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 AES, or is or was serving in such capacity or
as agent at the request of AES 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 AES, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe was unlawful.
Agents of AES 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 AES, 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 AES'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 AES. 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 AES's By-Laws, AES may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of AES 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 AES would have the power or the obligation to
indemnify such person against such liability under the provisions of AES's
By-Laws.
Item 7. Exemption from Registration Claimed.
This Item is not applicable.
Item 8. Exhibits.
3.1 Amended and Restated Certificate of Incorporation of The AES
Corporation is incorporated herein by reference to Exhibit 3.1 to
the Registration Statement on Form S-8 of the Registrant
(Registration No. 333-26225).
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3.2 Amendment to Amended and Restated Certificate of
Incorporation of The AES Corporationis is incorporated herein
by reference to Exhibit 3.2 to the Registration Statement on
Form S-8 of the Registrant (Registration No. 333-26225).
*5.1 Opinion of Chadbourne & Parke LLP, counsel for Registrant,
covering shares of the Company's Common Stock issuable upon
distribution of account balances in The AES Corporation
Deferred Compensation Plan for Directors.
*23.1 Consent of Deloitte & Touche LLP, independent public
accountants.
*23.2 Consent of Chadbourne & Parke LLP (included in its opinion
filed as Exhibit 5a.1 hereto).
*24 Power of Attorney.
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* Filed herewith.
Item 9. Undertakings.
The undersigned Registrant 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 of 1933, as amended (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. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in theaggregate,
the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration
Fee" table in this Registration Statement; and
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(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 with or furnished to the
Commission by the Registrant 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 purpose 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant'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 herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
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 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 Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 22nd day
of October, 1997.
THE AES CORPORATION
By /s/ Dennis W. Bakke
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Dennis W. Bakke
President and Chief Executive Officer
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 22nd day of October, 1997.
SIGNATURE TITLE
/s/ Roger W. Sant* Chairman of the Board and Director
(Roger W. Sant)
/s/ Dennis W. Bakke* President, Chief Executive Officer and
(Dennis W. Bakke) Director (Principal Executive Officer)
/s/ Vicki-Ann Assevero* Director
(Vicki-Ann Assevero)
/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/ Dr. Henry R. Linden* Director
(Dr. Henry R. Linden)
/s/ John H. McArthur* Director
(John H. McArthur)
/s/ Hazel O'Leary* Director
(Hazel O'Leary)
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/s/ Thomas I. Unterberg* Director
(Thomas I. Unterberg)
/s/ Robert H. Waterman, Jr.* Director
(Robert H. Waterman, Jr.)
/s/ Barry J. Sharp Vice President and Chief Financial Officer
(Barry J. Sharp) (Principal Financial and Accounting Officer)
*By: Barry J. Sharp
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Attorney-in-fact
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EXHIBIT INDEX
EXHIBIT NO. DOCUMENT
5.1 Opinion of Chadbourne & Parke LLP, counsel for
Registrant, covering shares of the Registrant's
Common Stock issuable upon distribution of account
balances in The AES Corporation Deferred Compensation
Plan for Directors.
23.1 Consent of Independent Public Accountants for The AES
Corporation, Deloitte & Touche LLP.
23.2 Consent of Chadbourne & Parke, LLP (included in its
opinion filed as Exhibit 5.1 hereto).
24 Power of Attorney.
Exhibit 5.1
October 22, 1997
The AES Corporation
1001 North 19th Street
Arlington, Virginia 22209
Re: Registration Statement on Form S-8
Dear Sirs:
We have served as counsel to The AES Corporation, a Delaware corporation (the
"Company"), in connection with the filing by the Company of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission, covering up to 679,235 shares (the "Shares") of common
stock, par value $.01 per share, of the Company to be issued and sold pursuant
to the Deferred Compensation Plan for Directors (the "Plan").
In rendering this opinion, we have examined the Company's Certificate of
Incorporation and By-laws, each as amended to date, minutes of proceedings and
consents of the Board of Directors of the Company, the form of Company common
stock certificate, and originals or copies of such documents, instruments,
records, and certificates of public officials and officers of the Company as we
have deemed necessary. In connection with such examination, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as copies, and we have also made such other investigations of fact and law as
we have deemed relevant in connection with the opinion set forth below. In
rendering this opinion, we have relied upon the accuracy of the certificates,
documents, instruments, and records we have examined as to the matters of fact
covered thereby.
Based on the foregoing, we are of the opinion that the Shares, when issued and
sold in accordance with the terms of the Plan, will be duly and validly issued,
fully-paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Chadbourne & Parke 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 30, 1997, except for
the penultimate paragraph of Note 6, as to which the date is March 13, 1997, and
Note 13, as to which the date is June 30, 1997, appearing in the Current Report
on Form 8-K of The AES Corporation dated July 3, 1997.
DELOITTE & TOUCHE LLP
Washington, D.C.
October 22, 1997
Exhibit 24
POWER OF ATTORNEY
The undersigned, acting in the capacity or capacities stated opposite
their respective names below, hereby constitute and appoint DENNIS W. BAKKE,
BARRY J. SHARP and WILLIAM R. LURASCHI and each of them severally, the
attorneys-in-fact of the undersigned 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 on Form S-8 relating to shares of
Common Stock, par value $.01 per share, of The AES Corporation, a Delaware
corporation "AES", issuable or deliverable under The AES Corporation Deferred
Compensation Plan for Directors, 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 counterparts, which together
shall constitute one and the same instrument.
Signature Position with AES Date
- --------- ----------------- ----
/s/ Roger W. Sant Chairman of the October 14, 1997
- --------------------------- Board and Director
Roger W. Sant
/s/ Dennis W. Bakke President, Chief Executive October 14, 1997
- --------------------------- Officer and Director
Dennis W. Bakke (Principal Executive Officer)
/s/ Vicki-Ann Assevero Director October 14, 1997
- ---------------------------
Vicki-Ann Assevero
/s/ Dr. Alice F. Emerson Director October 14, 1997
- ---------------------------
Dr. Alice F. Emerson
/s/ Robert F. Hemphill, Jr. Director October 14, 1997
- ---------------------------
Robert F. Hemphill, Jr.
/s/ Frank Jungers Director October 14, 1997
- ---------------------------
Frank Jungers
/s/ Dr. Henry R. Linden Director October 14, 1997
- ---------------------------
Dr. Henry R. Linden
/s/ John McArthur Director October 14, 1997
- ---------------------------
John McArthur
/s/ Hazel O'Leary Director October 14, 1997
- --------------------------
Hazel O'Leary
/s/ Thomas I. Unterberg Director October 14, 1997
- ---------------------------
Thomas I. Unterberg
/s/ Robert H. Waterman, Jr. Director October 14, 1997
- ---------------------------
Robert H. Waterman, Jr.
/s/ Barry J. Sharp Vice President and Chief October 14, 1997
- --------------------------- Financial Officer
Barry J. Sharp (Principal Financial a
Accounting Officer)
