As filed with the Securities and Exchange Commission on August 9, 1999
Registration No. 333-83767
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1 to
Form S-3
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 of (I.R.S. Employer
incorporation or organization) Identification No.)
1001 North 19th Street
Arlington, Virginia 22209
(703) 522-1315
(Address and telephone number of registrant's principal executive offices)
Barry J. Sharp
1001 North 19th Street
Arlington, Virginia 22209
(703) 522-1315
(Name, address and telephone number of agent for service) Copies to:
Richard D. Truesdell, Jr.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]__________
If this Form is a post-effective amendment filed pursuant to rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration number for the same
offering. [ ]__________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed Proposed
Amount Maximum Maximum Amount of
to be Aggregate Price Aggregate Registration
Title of Shares to be Registered Registered Per Unit Offering Price(1) Fee
- ----------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value per share.............. 863,628 shares $54.82 $47,344,087 $13,066
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) based on per share price of $54.82, the average of the
high and low price of $55.50 and $54.13 of the Company's Common Stock
on July 22, 1999.
</TABLE>
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The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
DATED AUGUST 9, 1999
PROSPECTUS
863,628 Shares
The AES Corporation
Common Stock
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This prospectus relates to the sale of up to 863,628 shares of common
stock, par value $.01 per share, of The AES Corporation by certain
stockholders of The AES Corporation. All of the shares were originally issued
by The AES Corporation in connection with its acquisition of New Energy
Ventures, Inc.
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Our common stock trades on the New York Stock Exchange under the symbol
"AES." On July 22, 1999, the last sale price of the common stock was $54.31 per
share.
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Investing in our common stock involves certain risks. See "Risk
Factors" beginning on Page 3.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or determined if
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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TABLE OF CONTENTS
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Page
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WHERE YOU CAN FIND MORE INFORMATION...........................................1
INCORPORATION OF DOCUMENTS BY REFERENCE.......................................1
SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS....................................1
RISK FACTORS..................................................................3
THE COMPANY...................................................................7
USE OF PROCEEDS...............................................................8
PRICE RANGE OF AES COMMON STOCK AND COMMON STOCK DIVIDENDS....................8
DESCRIPTION OF CAPITAL STOCK.................................................10
SELLING STOCKHOLDERS.........................................................15
PLAN OF DISTRIBUTION.........................................................15
LEGAL MATTERS................................................................17
EXPERTS......................................................................17
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document that we file at the
public reference rooms of the SEC at 450 Fifth Street, N.W., Washington, D.C.
20549; 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World
Trade Center, Suite 1300, New York, New York 10048. You may obtain information
on the operation of the public reference rooms by calling the SEC at
1-800-SEC-0330. The SEC also maintains an Internet site at http://www.sec.gov,
from where you can access our filings. Our Internet address is
http://www.aesc.com.
This prospectus constitutes part of a Registration Statement on Form S-3
filed with the Commission under the Securities Act of 1933 (the "Securities
Act"). It omits some of the information contained in the Registration Statement,
and reference is made to the Registration Statement for further information on
our company and the securities offered hereby. Any statement contained in this
prospectus concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission is not necessarily
complete, and in each instance reference is made to the copy of the document
filed.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until we sell all of the securities:
(a) Annual Report on Form 10-K for the year
ended December 31, 1998;
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999
and June 30, 1999;
(c) Current Reports on Form 8-K filed on March 18, 1999, April 12, 1999,
April 20, 1999, June 8, 1999 and June 11, 1999.
You may request a copy of these filings at no cost, by writing or
telephoning the office of William R. Luraschi, General Counsel and Secretary ,
The AES Corporation, 1001 North 19th Street, Arlington, Virginia, telephone
number (703) 522-1315.
SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements. We have based these
forward-looking statements on our current expectations and projections about
future events. These forward-looking statements are subject to risks,
uncertainties, and assumptions about AES, including, among other things:
o changes in company-wide operation and plan availability compared to our
historical performance; changes in our historical operating cost
structure, including changes in various costs and expenses;
o political and economic considerations in certain non-U.S. countries
where we are conducting or seeking to conduct business;
o restrictions on foreign currency convertibility and remittance abroad,
exchange rate fluctuations and developing legal systems;
o regulation and restrictions;
o legislation intended to promote competition in U.S. and non-U.S.
electricity markets;
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o tariffs;
o governmental approval processes;
o environmental matters;
o construction, operating and fuel risks;
o load growth, dispatch and transmission constraints;
o impact of the Year 2000 issue; o conflict of interest of contacting
parties; and
o adherence to our principles.
We undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise. In light of these risks, uncertainties and assumptions, the
forward-looking events discussed in this prospectus might not occur.
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RISK FACTORS
You should carefully consider each of the following risks and all of the
other information set forth in this prospectus before deciding to invest in our
common stock. Some of the following risks relate principally to our business in
general and the industry in which we operate. Other risks relate principally to
the securities markets and ownership of our securities. The risks and
uncertainties described below are not the only ones facing our company.
Additional risks and uncertainties not presently known to us or that we
currently believe to be immaterial may also adversely affect our business.
If any of the following risks and uncertainties develop into actual
events, our business, financial condition or results of operations could be
materially adversely affected. In such case, the trading price of our common
stock could decline, and you may lose all or part of your investment.
This prospectus contains forward-looking statements that involve risks and
uncertainties. Our actual results could differ materially from those anticipated
in these forward-looking statements as a result of certain factors, including
the risks faced by us described below and elsewhere in this prospectus.
We are highly leveraged. We had approximately $6,800 million of
outstanding indebtedness at March 31, 1999. As a result, we might be
significantly limited in our ability to meet our debt service obligations, to
finance the acquisition and development of additional projects, to compete
effectively or to operate successfully under adverse economic conditions. As of
March 31, 1999, we had a consolidated ratio of total debt to total book
capitalization (including current debt) of approximately 74%.
We do a significant amount of our business outside the United States which
presents significant risks. Our involvement in the development of new projects
and the acquisition of existing plants in locations outside the United States is
increasing and most of our current development and acquisition activities are
for projects and plants outside the United States. We have ownership interests
in 104 power plants in operation or under construction, 87 of these are outside
of the United States.
The financing, development and operation of projects outside the United
States entail significant political and financial uncertainties (including,
without limitation, uncertainties associated with first-time privatization
efforts in the countries involved, currency exchange rate fluctuations, currency
repatriation restrictions, currency inconvertibility, political instability,
civil unrest, and expropriation) and other credit quality, liquidity or
structuring issues that have the potential to cause substantial delays in
respect of or material impairment of the value of the project being developed or
operated, which we may not be capable of fully insuring or hedging against. The
ability to obtain financing on a commercially acceptable non-recourse basis in
developing nations may also require us to make higher investments than
historically have been the case. In addition, financing in countries with less
than investment grade sovereign credit ratings may also require substantial
participation by multilateral financing agencies. There can be no assurance that
such financing can be obtained when needed.
The uncertainty of the legal environment in certain countries in which we
are or in the future may be developing, constructing or operating could make it
more difficult for us to enforce our respective rights under agreements relating
to such projects. In addition, the laws and regulations of certain countries may
limit our ability to hold a majority interest in some of the projects that we
may develop or acquire. International projects we own may, in certain cases, be
expropriated by applicable governments. Although we may have legal recourse in
enforcing our rights under agreements and recovering damages for breaches
thereof, there can be no assurance that any such legal proceedings will be
successful.
Global competition is increasing and could adversely affect us. The global
power production market is characterized by numerous strong and capable
competitors, many of whom may have extensive and diversified developmental or
operating experience (including both domestic and international experience) and
financial resources similar to or greater than ours. Further, in recent years,
the power production industry has been characterized by strong and increasing
competition with respect to both obtaining power sales agreements and acquiring
existing power generation assets. In certain markets, these factors have caused
reductions in prices
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contained in new power sales agreements and, in many cases, have caused higher
acquisition prices for existing assets through competitive bidding practices.
The evolution of competitive electricity markets and the development of highly
efficient gas-fired power plants have also caused, or are anticipated to cause,
price pressure in certain power markets where we sell or intend to sell power.
There can be no assurance that the foregoing competitive factors will not have a
material adverse effect on us.
Development Uncertainties. The majority of the projects that we develop
are large and complex and the completion of any such project is subject to
substantial risks. Development can require us to expend significant sums for
preliminary engineering, permitting, legal and other expenses in preparation for
competitive bids which we may not win or before it can be determined whether a
project is feasible, economically attractive or capable of being financed.
Successful development and construction is contingent upon, among other things,
negotiation of satisfactory engineering, construction, fuel supply and power
sales contracts with other project participants, receipt of required
governmental permits and consents and timely implementation and satisfactory
completion of construction. There can be no assurance that we will be able to
obtain new power sales contracts, overcome local opposition, if any, obtain the
necessary site agreements, fuel supply and ash disposal agreements, construction
contracts, steam sales contracts, licenses and certifications, environmental and
other permits and financing commitments necessary for the successful development
of its projects. There can be no assurance that development efforts on any
particular project, or our efforts generally, will be successful. If these
development efforts are not successful, we may abandon a project under
development. At the time of abandonment, we would expense all capitalized
development costs incurred in connection therewith and could incur additional
losses associated with any related contingent liabilities. Our future growth is
dependent, in part, upon the demand for significant amounts of additional
electrical generating capacity and our ability to obtain contracts to supply
portions of this capacity. Any material unremedied delay in, or unsatisfactory
completion of, construction of our projects could, under certain circumstances,
have an adverse effect on our ability to meet our obligations. We may also be
faced with certain development uncertainties arising out of doing business
outside of the United States. See "--We do a significant amount of our business
outside the United States which presents significant risks. "
Our acquisitions may not perform as expected. We have achieved a majority
of our growth through acquisitions and expect that we will continue to grow, in
part, through acquisitions. Although each of the acquired businesses had a
significant operating history at the time we acquired them, we have a limited
history of owning and operating many of these businesses. In addition, most of
these businesses were government owned and some were operated as part of a
larger integrated utility prior to their acquisition. There can be no assurances
that we will be successful in transitioning these to private ownership, that
such businesses will perform as expected or that the returns from such
businesses will support the indebtedness incurred to acquire them or the capital
expenditures needed to develop them.
We may not be able to raise sufficient capital to fund future acquisitions
and projects. Each of our projects under development and those independent power
facilities we may seek to acquire may require substantial capital investment.
Continued access to capital with acceptable terms is necessary to assure the
success of future projects and acquisitions. We have utilized project financing
loans to fund the capital expenditures associated with constructing and
acquiring our electric power plants and related assets to the extent possible.
Project financing borrowings have been substantially non-recourse to our other
subsidiaries and affiliates and to us as the parent company and are generally
secured by the capital stock, physical assets, contracts and cash flow of the
related project subsidiary or affiliate. We intend to continue to seek, where
possible, such non-recourse project financing. However, depending on market
conditions and the unique characteristics of individual projects, such financing
may not be available or our traditional providers of project financing,
particularly multinational commercial banks, may seek higher borrowing spreads
and increased equity contributions.
Furthermore, because of the reluctance of commercial lending institutions
to provide non-recourse project financing (including financial guarantees) in
certain less developed economies, we have sought and will continue to seek, in
such locations, direct or indirect (through credit support or guarantees)
project financing from a limited number of multilateral or bilateral
international financial
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institutions or agencies. As a precondition to making such project financing
available, these institutions may also require governmental guarantees of
certain project and sovereign related risks. Depending on the policies of
specific governments, such guarantees may not be offered and as a result, we may
determine that sufficient financing will ultimately not be available to fund the
related project.
In addition to the project financing loans, if available, we provide a
portion, or in certain instances all, of the remaining long-term financing
required to fund development, construction, or acquisition. These investments
have generally taken the form of equity investments or loans, which are
subordinated to the project financing loans. The funds for these investments
have been provided by cash flows from operations and by the proceeds from
borrowings under our short-term credit facilities and issuances of senior
subordinated notes, convertible debentures and common stock.
Our ability to arrange for financing on either a fully recourse or a
substantially non-recourse basis and the costs of such capital are dependent on
numerous factors, including general economic and capital market conditions, the
availability of bank credit, investor confidence, the continued success of
current projects and provisions of tax and securities laws which are conducive
to raising capital in this manner. Should future access to capital not be
available, we may decide not to build new plants or acquire existing facilities.
While a decision not to build new plants or acquire existing facilities would
not affect the results of operations of our currently operating facilities or
facilities under construction, such a decision would affect our future growth.
Our performance is dependent to a large degree on certain of our larger
projects and their utility customers. The nature of most of our power projects
is such that each facility generally relies on one power sales contract with a
single customer for the majority, if not all, of its revenues over the life of
the power sales contract. The prolonged failure of any one utility customer to
fulfill its contractual obligations could have a substantial negative impact on
our primary source of revenues. We have sought to reduce this risk in part by
entering into power sales contracts with utilities or other customers of strong
credit quality and by locating its plants in different geographic areas in order
to mitigate the effects of regional economic downturns.
We are subject to significant government regulation. Our cogeneration
operations in the United States are subject to the provisions of various laws
and regulations, including the Public Utility Regulatory Policies Act of 1978,
as amended ("PURPA") and the Public Utility Holding Company Act, as amended
("PUHCA"). PURPA provides to qualifying facilities ("QFs") certain exemptions
from substantial federal and state legislation, including regulation as public
utilities. PUHCA regulates public utility holding companies and their
subsidiaries. We are not and will not be subject to regulation as a holding
company under PUHCA as long as the domestic power plants we own are QFs under
PURPA. QF status is conditioned on meeting certain criteria, and would be
jeopardized, for example, by the loss of a steam customer. We believe that, upon
the occurrence of an event that would threaten the QF status of one of our
domestic plants, we would be able to react in a manner that would avoid the loss
of QF status (such as by replacing the steam customer). In the event we were
unable to avoid the loss of such status for one of our plants, to avoid public
utility holding company status, we could apply to the Federal Energy Regulatory
Commission ("FERC") to obtain status as an Exempt Wholesale Generator ("EWG"),
or could restructure the ownership of the project subsidiary. EWGs, however, are
subject to broader regulation by FERC and may be subject to state public utility
commissions regulation regarding non-rate matters. In addition, any
restructuring of a project subsidiary could result in, among other things, a
reduced financial interest in such subsidiary, which could result in a gain or
loss on the sale of the interest in such subsidiary, the removal of such
subsidiary from our consolidated income tax group or our consolidated financial
statements, or an increase or decrease in our results of operations.
The United States Congress is considering proposed legislation which would
repeal PURPA entirely, or at least repeal the obligation of utilities to
purchase from QFs. There is strong support for grandfathering existing QF
contracts if such legislation is passed, and also support for requiring
utilities to conduct competitive bidding for new electric generation if the
PURPA purchase obligation is eliminated. Various bills have also proposed repeal
of PUHCA. Repeal of PUHCA would allow both independent power producers and
vertically integrated utilities to acquire retail utilities in the United States
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that are geographically widespread, as opposed to the current limitations of
PUHCA which require that retail electric systems be capable of physical
integration. In addition, registered holding companies would be free to acquire
non-utility businesses, which they may not do now, with certain limited
exceptions. In the event of a PUHCA repeal, competition for independent power
generators from vertically integrated utilities would likely increase. Repeal of
PURPA and/or PUHCA may or may not be part of comprehensive legislation to
restructure the electric utility industry, allow retail competition, and
deregulate most electric rates. The effect of any such repeal cannot be
predicted, although any such repeal could have a material adverse effect on us.
Pending electric utility industry restructuring proposals could have an
adverse effect on us. The FERC and many state utility commissions are currently
studying a number of proposals to restructure the electric utility industry in
the United States. Such restructuring would permit utility customers to choose
their utility supplier in a competitive electric energy market. The FERC issued
a final rule in April 1996 which requires utilities to offer wholesale customers
and suppliers open access on utility transmission lines, on a comparable basis
to the utilities' own use of the lines. The final rule is subject to rehearing
and may become the subject of court litigation. Many utilities have already
filed "open access" tariffs. The utilities contend that they should recover from
departing customers their fixed costs that will be "stranded" by the ability of
their wholesale customers (and perhaps eventually, their retail customers) to
choose new electric power suppliers. The FERC final rule endorses the recovery
of legitimate and verifiable "stranded costs." These may include the costs
utilities are required to pay under many QF contracts which the utilities view
as excessive when compared with current market prices. Many utilities are
therefore seeking ways to lower these contract prices or rescind the contracts
altogether, out of concern that their shareholders will be required to bear all
or part of such "stranded" costs. Some utilities have engaged in litigation
against QFs to achieve these ends.
In addition, future United States electric rates may be deregulated in a
restructured United States electric utility industry and increased competition
may result in lower rates and less profit for United States electricity sellers.
Falling electricity prices and uncertainty as to the future structure of the
industry is inhibiting United States utilities from entering into long-term
power purchase contracts. The effect on us of any such restructuring cannot be
predicted, although any such restructuring could have a material adverse effect
on us.
From time to time we are subject to material litigation and regulatory
proceedings. From time to time, we and our affiliates are parties to litigation
and regulatory proceedings. Investors should review the descriptions of such
matters contained in our Annual, Quarterly and Current Reports filed with the
Commission and incorporated by reference herein. There can be no assurances that
the outcome of such matters will not have a material adverse effect on our
consolidated financial position.
Our business is subject to stringent environmental regulations. Our
activities are subject to stringent environmental regulation by federal, state,
local and foreign governmental authorities. For example, the Clean Air Act
Amendments of 1990 impose more stringent standards than those previously in
effect, and require states to impose permit fees on certain emissions. Congress
and other foreign governmental authorities also may consider proposals to
restrict or tax certain emissions. These proposals, if adopted, could impose
additional costs on the operation of our power plants. There can be no assurance
that we would be able to recover all or any increased costs from its customers
or that its business, financial condition or results of operations would not be
materially and adversely affected by future changes in domestic or foreign
environmental laws and regulations. We have made and will continue to make
capital and other expenditures to comply with environmental laws and
regulations. There can be no assurance that such expenditures will not have a
material adverse effect on our financial condition or results of operations.
Our directors and officers have significant ownership interests in us and
can exert significant influence or control over matters requiring stockholder
approval. As of February 2, 1999, our two founders, Roger W. Sant and Dennis W.
Bakke, and their immediate families together owned beneficially approximately
21.7% of our outstanding common stock. As a result of their ownership interests,
Messrs. Sant and Bakke may be able to significantly influence or exert control
over our affairs, including the election of our directors. As of February 2,
1999, all of our officers and directors and their immediate families
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together owned beneficially approximately 29.1% of our outstanding common stock.
To the extent that they decide to vote together, these stockholders would be
able to significantly influence or control the election of our directors, our
management and policies and any action requiring stockholder approval, including
significant corporate transactions.
Our adherence to our "shared principles" could have an adverse impact on
our results of operations. A core part of our corporate culture is a commitment
to "shared principles": to act with integrity, to be fair, to have fun and to be
socially responsible. We seek to adhere to these principles not as a means to
achieve economic success, but because adherence is a worthwhile goal in and of
itself. However, if we perceive a conflict between these principles and profits,
we will try to adhere to our principles -- even though doing so might result in
diminished or foregone opportunities or financial benefits.
Shares Eligible for Future Sale. From time to time, our subsidiaries incur
indebtedness that is secured by a pledge of shares of our common stock held by
that subsidiary. The sale of a substantial number of such shares in the public
market upon any foreclosure or otherwise could have an adverse effect on the
market price of our common stock.
THE COMPANY
We help to meet the world's needs by supplying electricity to customers in
many countries in a socially responsible way.
We have been successful in growing our business and serving additional
customers by participating in competitive bidding under privatization
initiatives. We have been particularly interested in acquiring existing
businesses or assets in electricity markets that are promoting competition and
eliminating rate of return regulation. In such privatizations, sellers generally
seek to complete competitive solicitations in less than one year, much quicker
than the time periods associated with greenfield development, and usually
require payment in full on transfer. We believe that our experience in
competitive markets and our worldwide integrated group structure, with our
significant geographic coverage and presence, enable us to react quickly and
creatively in these situations. Since 1994, our total generating capacity in
megawatts or MW has grown from 2,479 MW to 24,076 MW at March 31, 1999 (an
increase of 871%), with the total number of plants in operation increasing from
9 to 89. Additionally, our total revenues have increased at a compound annual
growth rate of 46% from $533 million in 1994 to $2,398 million in 1998, while
net income has increased at a compound annual growth rate of 33% from $100
million to $311 million over the same period.
A majority of our sales of electricity are made to customers (generally
electric utilities or regional electric companies), on a wholesale basis for
further resale to end users. This is referred to as the electricity "generation"
business. Sales by these generation companies are usually made under long-term
contracts from power plants owned by our subsidiaries and affiliates, although
we do, in certain circumstances, make sales into regional electricity markets
without contracts. Our ownership portfolio of power facilities includes new
plants constructed for such purposes, so-called greenfield plants, as well as
existing power plants acquired through competitively bid privatization
initiatives and negotiated acquisitions. In the electricity generation business,
we now own and operate (entirely or in part) a diverse portfolio of electric
power plants (including those within integrated distribution companies) with a
total capacity of 24,076 MW. Of that total, 29% are fueled by coal or petroleum
coke, 24% are fueled by natural gas, 33% are hydroelectric facilities, 6% are
fueled by oil, and the remaining 8% are capable of using multiple fossil fuels.
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USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares being offered
hereby.
PRICE RANGE OF AES COMMON STOCK AND COMMON STOCK DIVIDENDS
Price Range of AES Common Stock and Common
Stock Dividends
Our common stock began trading on the New York Stock Exchange on October
16, 1996 under the symbol "AES." The following table sets forth for the periods
indicated the intra-day high and low sale prices for the common stock as
reported on the Composite Tape. In July 1997, we announced a two for one stock
split, in the form of a stock dividend, for holders of record on July 28, 1997
of our common stock, par value $.01 per share, which was paid on August 28,
1997. The prices set forth below are adjusted for such stock split.
High Low
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1997
First Quarter........................................... $ 34.13 $ 22.38
Second Quarter.......................................... 37.75 27.50
Third Quarter........................................... 45.25 34.63
Fourth Quarter ......................................... 49.63 35.00
1998
First Quarter........................................... $ 54.31 $ 39.38
Second Quarter.......................................... 58.00 45.63
Third Quarter........................................... 55.38 23.00
Fourth Quarter.......................................... 47.38 32.00
1999
First Quarter........................................... $ 49.25 $ 32.81
Second Quarter.......................................... 59.75 36.75
Third Quarter (through July 22, 1999)................... 59.25 54.13
No cash dividends have been paid on our common stock since December 22,
1993 in order to provide capital for our equity investments in projects.
Our ability to declare and pay dividends is
dependent, among other things, on
o the ability of our project subsidiaries to declare and pay dividends
and otherwise distribute cash to us;
o our ability to service our parent company debt and
o our ability to meet certain criteria for paying dividends under our
corporate credit facility and under existing indentures of our debt
securities.
The ability of our subsidiaries to declare and pay dividends and otherwise
distribute cash to us is subject to certain limitations in the project loans and
other documents entered into by our project subsidiaries. These limitations
permit the payment of dividends out of current cash flow for quarterly,
semi-annual or annual periods only at the end of these periods and only after
payment of principal and interest on project loans due at the end of these
periods.
Cash dividend payments on common stock are limited to a certain percentage
of cash flow under our corporate credit agreement. The indentures relating to
our existing senior subordinated notes preclude the payment of cash dividends
if:
o at the time of a payment of cash dividends or after giving effect
thereto an event of default occurred;
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o an event that would become an event of default occurred and is
continuing;
o certain fixed charge coverage ratios are not met or
o if the payment of dividends, together with other restricted payments,
would exceed certain limits.
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DESCRIPTION OF CAPITAL STOCK
Under our certificate of incorporation (the "Certificate of
Incorporation"), we are authorized to issue 500,000,000 shares of common stock,
par value $.01 per share, and 50,000,000 shares of preferred stock, no par
value.
The following summary contains a description of certain general terms of
the common stock and the preferred stock to which any prospectus supplement may
relate. Certain terms of any series of preferred stock offered by a prospectus
supplement will be described in the prospectus supplement relating thereto. If
indicated in the prospectus supplement, the terms of any series may differ from
the terms set forth below. The description of certain provisions of the common
stock and the preferred stock is subject to and qualified by reference to the
provisions of our certificate of incorporation, and, in the case of the
preferred stock, to the certificate of designation (the "Certificate of
Designation") relating to each particular series of preferred stock which will
be filed or incorporated by reference as an exhibit to the registration
statement of which this prospectus is a part.
Common Stock
As of April 30, 1999, there were 190,839,529 shares of common stock
outstanding.
The holders of common stock are entitled to one vote per share on all
matters to be voted upon by the stockholders. Subject to preferences that may be
applicable to any outstanding preferred stock, the holders of common stock are
entitled to receive ratably dividends as may be declared from time to time by
our board of directors out of funds legally available to pay dividends. If we
liquidate our business, the holders of common stock are entitled to share
ratably in all assets after we pay our liabilities and the liquidation
preference of any outstanding preferred stock. The common stock has no
preemptive or conversion rights or other subscription rights. There are no
redemption or sinking fund provisions applicable to the common stock. All
outstanding shares of common stock are fully paid and non-assessable, and any
shares of common stock in respect of which this prospectus is being delivered
will be fully paid and non-assessable.
The transfer agent for the common stock is EquiServe.
No cash dividends have been paid on common stock since December 22, 1993
in order to provide capital for our equity investments in projects.
Our ability to declare and pay dividends is dependent, among other things,
on
o the ability of our project subsidiaries to declare and pay dividends
and otherwise distribute cash to us;
o our ability to service our parent company debt and
o our ability to meet certain criteria for paying dividends under our
corporate credit facility and under existing indentures of our debt
securities.
The ability of our subsidiaries to declare and pay dividends and otherwise
distribute cash to us is subject to certain limitations in the project loans and
other documents entered into by our project subsidiaries. These limitations
permit the payment of dividends out of current cash flow for quarterly,
semi-annual or annual periods only at the end of these periods and only after
payment of principal and interest on project loans due at the end of these
periods.
Cash dividend payments on common stock are limited to a certain percentage
of cash flow under our corporate credit agreement. The indentures relating to
our existing senior subordinated notes preclude the payment of cash dividends
if:
o at the time of a payment of cash dividends or after giving effect
thereto an event of default occurred;
o an event that would become an event of default occurred and is
continuing;
o certain fixed charge coverage ratios are not met or
o if the payment of dividends, together with other restricted payments,
would exceed certain limits.
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Preferred Stock
As of April 30, 1999, there were no shares of Preferred Stock outstanding.
Our board of directors has the authority to issue preferred stock in one
or more classes or series and to fix the rights, preferences, privileges and
restrictions thereof, including dividend rights, dividend rates, conversion
rights, exchange rights, voting rights, terms of redemption, redemption prices,
liquidation preferences and the number of shares constituting any class or
series or the designation of such class or series, without any further action by
the stockholders. Preferred stock, if issued, will not be entitled to any
preemptive or similar rights. The prospectus supplement will describe the terms
of any preferred stock being offered, including:
o the specific designation, number of shares, seniority and purchase
price;
o any liquidation preference per share;
o any date of maturity;
o any redemption, repayment or sinking fund provisions;
o any dividend rate or rates and the dates on which any such dividends
will be payable (or the method by which such rates or dates will be
determined);
o any voting rights;
o if other than the currency of the United States, the currency or
currencies including composite currencies in which such preferred stock
is denominated and/or in which payments will or may be payable;
o the method by which amounts in respect of such preferred stock may be
calculated and any commodities, currencies or indices, or value, rate
or price, relevant to such calculation;
o whether such preferred stock is convertible or exchangeable and, if so,
the securities or rights into which such preferred stock is convertible
or exchangeable, and the terms and conditions upon which such
conversions or exchanges will be effected including conversion or
exchange prices or rates, the conversion or exchange period and any
other related provisions;
o the place or places where dividends and other payments on the preferred
stock will be payable; and
o any additional voting, dividend, liquidation, redemption and other
rights, preferences, privileges, limitations and restrictions.
All shares of preferred stock offered hereby, or issuable upon conversion,
exchange or exercise of securities, will, when issued, be fully paid and
non-assessable. Any shares of preferred stock that are issued would have
priority over the common stock with respect to dividend or liquidation rights or
both.
The transfer agent for each series of preferred stock will be described in
the applicable prospectus supplement.
Description of Certain Provisions of Our Certificate of Incorporation and
By-Laws
Our Certificate of Incorporation and By-Laws contain several provisions
that may make the acquisition of control of the AES through a tender offer, open
market purchases, a proxy fight or otherwise more difficult. Below is a
description of certain of these provisions in the Certificate of Incorporation
and By-Laws.
Special Meetings of Stockholders. Our By-Laws provide that, unless
otherwise prescribed by law, special meetings of stockholders may be called by a
resolution adopted by a majority of the entire board of directors, by the
chairman of the board of directors or by the president. Only business as
specified in the notice of stockholders of the special meeting shall be
considered.
Stockholder Nomination of Directors. Our By-Laws contain a procedure for
stockholder nomination of directors. The By-Laws provide that any record owner
of stock entitled to be voted generally in the election of directors may
nominate one or more persons for election as a director at a stockholders
meeting only if written notice is given to our secretary
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of the intent to make a nomination. The notice must be given, with respect to an
annual meeting, not later than 90 days in advance of the annual meeting. With
respect to a special meeting, the notice must be given not later than the close
of business on the seventh day following the earlier of
o the date on which notice of such special meeting is first given to
stockholders and
o the date on which a public announcement of such meeting is first made.
Each notice must include:
o the name and address of each stockholder who intends to appear in
person or by proxy to make the nomination and of the person or persons
to be nominated;
o a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming
them) pursuant to which the nomination is to be made by the
stockholder;
o other information regarding each nominee proposed as would have been
included in a proxy statement filed pursuant to Rule 14a-8 under the
Exchange Act and
o the consent of each nominee to serve if elected.
The presiding officer of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with this procedure.
The procedure for stockholder nomination of directors described above may
have the effect of precluding a nomination for election of directors at a
particular meeting if the required procedure is not followed.
Elimination of Liability; Indemnification. Except as described below, the
Certificate of Incorporation eliminates the liability of members of our board of
directors to us or our stockholders for monetary damages resulting from breaches
of their fiduciary duties as directors. Directors remain liable for breaches of
their duty of loyalty to us or our stockholders, as well as for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law and transactions from which a director derives improper
personal benefit. The Certificate of Incorporation also does not release
directors of liability under Section 174 of the Delaware General Corporation Law
(the "GCL"), which makes directors personally liable for unlawful dividends or
unlawful stock repurchases or redemptions if the unlawful conduct is willful or
results from negligence.
Under our By-Laws, and in accordance with Section 145 of the GCL, we shall
indemnify to the fullest extent permitted by the GCL 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. These include civil, criminal,
administrative or investigative proceedings by reason of the fact that the
person is or was a director or officer of or employed by us, or is or was
serving in that capacity or as an agent at the request of us for another entity.
Our indemnification covers expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with the defense or
settlement of an action, suit or proceeding if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed to our
best interests and, with respect to any criminal action or proceeding, had no
reasonable cause to believe was unlawful. We will indemnify persons in a
derivative action under the same conditions, except that no indemnification is
permitted without judicial approval if the person is adjudged to be liable to us
in the performance of his or her duty. Derivative actions are actions by us or
in the right of us to procure a judgment in our favor. Agents of ours may be
similarly indemnified at the discretion of the board of directors.
Under Section 145 of the GCL, a similar duty of care is applicable in the
case of derivative actions, except that indemnification only extends to expenses
incurred in connection with the defense or settlement of a derivative action and
then, where the person is adjudged to be liable to us, only if and to the extent
that the Court of Chancery of the State of Delaware or the court in which the
action was brought determines that the person is fairly and reasonably entitled
to the indemnity and only for those expenses as the court deems proper.
Pursuant to our By-Laws, a person eligible for indemnification may have
the expenses incurred in connection with any matter described above paid in
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advance of a final disposition by us. However, these advances will only be made
if the indemnified person undertakes to repay all advanced amounts if it is
determined that the person is not entitled to indemnification.
In addition, under our By-Laws, we may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of us
or of another corporation against any liability arising out of the person's
status as director, officer, employee or agent of us whether or not we would
have the power to indemnify such person against such liability under the
provisions of our By-Laws. We maintain directors' and officers' insurance.
Depositary Shares
General. We may, at our option, elect to offer fractional shares of
preferred stock, rather than full shares of preferred stock. If we exercise this
option, we will issue to the public receipts for depositary shares, and each of
these depositary shares will represent a fraction (to be set forth in the
application prospectus supplement) of a share of a particular series of
preferred stock.
The shares of any series of preferred stock underlying the depositary
shares will be deposited under a deposit agreement between us and a bank or
trust company selected by us. The depositary will have its principal office in
the United States and a combined capital and surplus of at least $50,000,000.
Subject to the terms of the deposit agreement, each owner of a depositary share
will be entitled, in proportion, to the applicable fraction of a share of
preferred stock underlying that depositary share, to all the rights and
preferences of the preferred stock underlying that depositary share. Those
rights include dividend, voting, redemption and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement. Depositary receipts will be distributed to
those persons purchasing the fractional shares of preferred stock underlying the
depositary shares, in accordance with the terms of the offering. Copies of the
forms of deposit agreement and depositary receipt will be filed as exhibits to
the registration statement. The following summary of the deposit agreement, the
depositary shares and the depositary receipts is not complete. You should refer
to the forms of the deposit agreement and depositary receipts that will be filed
with the SEC in connection with the offering of the specific depositary shares.
Pending the preparation of definitive engraved depositary receipts, the
depositary may, upon our written order, issue temporary depositary receipts
substantially identical to the definitive depositary receipts but not in
definitive form. These temporary depositary receipts entitle their holders to
all the rights of definitive depositary receipts which are to be prepared
without unreasonable delay. Temporary depositary receipts will then be
exchangeable for definitive depositary receipts at our expense.
Dividends and Other Distributions. The depositary will distribute all cash
dividends or other cash distributions received with respect to the preferred
stock to the record holders of depositary shares relating to the preferred stock
in proportion to the number of depositary shares owned by those holders.
If there is a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary shares
that are entitled to receive the distribution, unless the depositary determines
that it is not feasible to make the distribution. If this occurs, the depositary
may, with our approval, sell the property and distribute the net proceeds from
the sale to the applicable holders.
Redemption of Depositary Shares. If a series of preferred stock
represented by depositary shares is subject to redemption, the depositary shares
will be redeemed from the proceeds received by the depositary resulting from the
redemption, in whole or in part, of that series of preferred stock held by the
depositary. The redemption price per depositary share will be equal to the
applicable redemption fraction of the redemption price per share payable with
respect to that series of the preferred stock. Whenever we redeem shares of
preferred stock that are held by the depositary, the depositary will redeem, as
of the same redemption date, the number of depositary shares representing the
shares of preferred stock so redeemed. If fewer than all the depositary shares
are to be redeemed, the depositary shares to be redeemed will be selected by lot
or pro rata as may be determined by the depositary.
Voting the Preferred Stock. Upon receipt of notice of any meeting at
which the holders of the
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preferred stock are entitled to vote, the depositary will mail the information
contained in such notice to the record holders of the depositary shares
underlying the preferred stock. Each record holder of the depositary shares on
the record date (which will be the same date as the record date for the
preferred stock) will be entitled to instruct the depositary as to the exercise
of the voting rights pertaining to the amount of the preferred stock represented
by such holder's depositary shares. The depositary will then try, as far as
practicable, to vote the number of shares of preferred stock underlying those
depositary shares in accordance with such instructions, and we will agree to
take all actions which may be deemed necessary by the depositary to enable the
depositary to do so. The depositary will not vote the shares of preferred stock
to the extent it does not receive specific instructions from the holders of
depositary shares underlying the preferred stock.
Amendment and Termination of the Depositary Agreement. The form of
depositary receipt evidencing the depositary shares and any provision of the
deposit agreement may at any time be amended by agreement between us and the
depositary. However, any amendment which materially and adversely alters the
rights of the holders of depositary shares will not be effective unless the
amendment has been approved by the holders of at least a majority of the
depositary shares then outstanding. The deposit agreement may be terminated by
us or by the depositary only if (a) all outstanding depositary shares have been
redeemed or (b) there has been a final distribution of the underlying preferred
stock in connection with our liquidation, dissolution or winding up and the
preferred stock has been distributed to the holders of depositary receipts.
Charges of Depositary. We will pay all transfer and other taxes and
governmental charges arising solely from the existence of the depositary
arrangements. We will also pay charges of the depositary in connection with the
initial deposit of the preferred stock and any redemption of the preferred
stock. Holders of depositary receipts will pay other transfer and other taxes
and governmental charges and those other charges, including a fee for the
withdrawal of shares of preferred stock upon surrender of depositary receipts,
as are expressly provided in the deposit agreement to be for their accounts.
Miscellaneous. The depositary will forward to holders of depositary
receipts all reports and communications from us that we deliver to the
depositary and that we are required to furnish to the holders of the preferred
stock.
Neither we nor the depositary will be liable if either of us is prevented
or delayed by law or any circumstance beyond our control in performing our
respective obligations under the deposit agreement. Our obligations and those of
the depositary will be limited to performance in good faith of our respective
duties under the deposit agreement. Neither we nor the will be obligated to
prosecute or defend any legal proceeding in respect of any depositary shares or
preferred stock unless satisfactory indemnity is furnished. We and the
depositary may rely upon written advice of counsel or accountants, or upon
information provided by persons presenting preferred stock for deposit, holders
of depositary receipts or other persons believed to be competent and on
documents believed to be genuine.
Resignation and Removal of Depositary. The depositary may resign at any
time by delivering notice to us of its election to resign. We may remove the
depositary at any time. Any resignation or removal will take effect upon the
appointment of a successor depositary and its acceptance of the appointment. The
successor depositary must be appointed within 60 days after delivery of the
notice of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000.
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SELLING STOCKHOLDERS
The shares offered hereby may be offered by the selling stockholders named
herein or by pledgees, donees, transferees or other successors in interest that
receive such shares as a gift, partnership distribution or other non-sale
related transfer. The table below sets forth certain information with respect to
the selling stockholders listed below and their beneficial ownership of shares
as of July 26, 1999. Except as specified in the table below, none of the
selling stockholders or their affiliates hold any positions, or offices or had
any other material relationships with us, or any of our predecessors or
affiliates, during the past three years. As used herein, "selling stockholders"
includes donees and pledgees selling shares received from a named selling
stockholder after the date of this prospectus.
Number of Shares of AES
Common Stock
-------------------------------
Owned prior Percentage of
to the Outstanding
Name Offering Shares
- -------------------------------------- ----------- -------------
MEH Corporation 487,944 *
Michael Peevey 204,706 *
Lisa Bicker 11,996 *
Jeffrey Martin 11,271 *
Gustav Beerel 10,452 *
David Hardee 13,819 *
Michael Burke 87,731 *
Nancy Day 14,480 *
Sid Pelston 14,824 *
Robert Hoffman 6,403 *
- ------------
* Less than 1% of outstanding shares.
The selling stockholders may sell all or part of the shares registered
hereunder and as a result no estimate can be given as to the number of shares
that will be held by any selling stockholder upon termination of any offering
made hereby.
All of the shares that may be sold hereunder were originally issued in
connection with our acquisition of New Energy Ventures, Inc. The shares were
issued pursuant to an exemption from the registration requirements of the
Securities Act of 1933, as amended, provided by Section 4(2) thereof. The shares
are being registered by us pursuant to a registration rights agreement between
us and the selling stockholders listed above, dated as of July 23, 1999 (the
"Registration Rights Agreement").
Pursuant to the Registration Rights Agreement, we agreed to prepare and
file with the Commission a Registration Statement providing for the sale by the
selling stockholders of shares from time to time on a delayed or continuous
basis pursuant to Rule 415 under the Act. Under the terms of the Registration
Rights Agreement, we agreed to pay the fees and expenses incurred in connection
with the registration; provided, however, that we will not pay any underwriting
fees, discounts or commissions and fees and disbursements of counsel for the
selling stockholders attributable to the sale of the shares.
PLAN OF DISTRIBUTION
Any distribution hereunder of the shares by the selling stockholders may
be effected from time to time in one or more of the following transactions:
o through brokers, acting as principal or agent, in transactions (which
may involve block transactions) on the New York Stock Exchange or
otherwise, in special offerings, in the over-the-counter market, or
otherwise, at market prices obtainable at the time of sale, at prices
related to such prevailing market prices, at negotiated prices or at
fixed prices,
o to underwriters who will acquire the shares for their own account and
resell them in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices
determined at the time of sale (any public offering price and any
discount or concessions allowed or reallowed or paid to dealers may be
changed from time to time),
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o directly or through brokers or agents in private sales at negotiated
prices,
o to lenders pledged as collateral to secure loans, credit or other
financing arrangements and any subsequent foreclosure, if any,
thereunder,
o through put or call options transactions relating to the shares,
o through short sales of shares or
o by any other legally available means.
Also, offers to purchase shares may be solicited by agents designated by
the selling stockholders from time to time. Underwriters or other agents
participating in an offering made pursuant to this prospectus (as amended or
supplemented from time to time) may receive underwriting discounts and
commissions under the Securities Act, and discounts or concessions may be
allowed or reallowed or paid to dealers, and brokers or agents participating in
such transactions may receive brokerage or agent's commissions or fees. The
selling stockholders may effect sales of shares to or through broker-dealers,
and such broker-dealers may receive compensation in the form of discounts,
concessions or commissions from the selling stockholders and/or the purchasers
of the shares for whom such broker-dealers may act as agents or to whom they
sell as principals, or both (which compensation as to a particular broker-dealer
might be in excess of customary commissions).
At the time a particular offering of any shares is made hereunder, to the
extent required by law, a prospectus supplement will be distributed which will
set forth the amount of shares being offered and the terms of the offering,
including the purchase price or public offering price, the name or names of any
underwriters, dealers or agents, the purchase price paid by any underwriter for
any shares purchased from the selling stockholders, any discounts, commissions
and other items constituting compensation from the selling stockholders and any
discounts, commissions or concessions allowed or filed or paid to dealers. The
shares may be sold from time to time in one or more transactions at a fixed
offering price, which may be changed, or at varying prices determined at the
time of sale or at negotiated prices. Such prices will be determined by selling
stockholders or by agreement between the selling stockholders and underwriters
or dealers, if any. The selling stockholders also may, from time to time,
authorize dealers, acting as selling stockholders' agents, to solicit offers to
purchase the shares upon the terms and conditions set forth in any prospectus
supplement.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold hereunder in such jurisdictions only through
registered or licensed brokers or dealers.
We have been advised that, as of the date hereof, the selling stockholders
have made no arrangements with any broker for the sale of their shares. The
selling stockholders and any underwriters, brokers or dealers involved in the
sale of the shares may be considered "underwriters" as that term is defined by
the Securities Act, although the selling stockholders disclaim such status.
Under the Registration Rights Agreement, we have agreed to indemnify the selling
stockholders against certain liabilities which may be incurred in connection
with the sale of the shares under this prospectus. In addition, the selling
stockholders have agreed to indemnify us against certain liabilities. The
Registration Rights Agreement also provides for rights of contribution if such
indemnification is not available. We have agreed to pay certain expenses
incident to the registration statement and the sale of the shares hereunder to
the public, other than commissions, fees and discounts of underwriters, agents
or dealers. We will not receive any proceeds from any sales of the shares
pursuant to this prospectus.
Each selling stockholder will be subject to applicable provisions of the
Securities Exchange Act of 1934 and the rules and regulations thereunder,
including, without limitation, Regulation M, which provisions may limit the
timing of purchases and sales of shares of our common stock by the selling
stockholders.
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LEGAL MATTERS
The validity of the common stock offered hereby will be passed upon for us
by Davis Polk & Wardwell.
EXPERTS
The financial statements as of December 31, 1998 and 1997 and for each of
the three years in the period ended December 31, 1998, incorporated in this
prospectus by reference from The AES Corporation's Current Report on Form 8-K
dated March 18, 1999, and the related financial statement schedules incorporated
in this prospectus by reference from The AES Corporation's Annual Report on Form
10-K for the year ended December 31, 1998, have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports, which are
incorporated herein by reference, and have been so incorporated in reliance upon
the reports of such firm given upon their authority as experts in accounting and
auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Expenses.
The following is a statement of estimated expenses to be paid by the
Registrant in connection with the issuance an distribution of the securities
being registered.
SEC registration fee.................................................. $ 13,066
New York Stock Exchange listing fee................................... 3,000
Printing and engraving................................................ 0
Legal fees............................................................ 10,000
Accountants' fees..................................................... 10,000
Miscellaneous......................................................... 5,000
-------
Total............................................................ $46,066
=======
Item 15. Indemnification of Directors and Officers.
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the DGCL (providing for liability of directors for the unlawful payment
of dividends or unlawful stock purchases or redemptions) or (iv) for any
transaction from which a director derived an improper personal benefit.
Section 145 of the DGCL empowers the Company to indemnify, subject to the
standards set forth therein, any person in connection with any action, suit or
proceeding brought before or threatened by reason of the fact that the person
was a director, officer, employee or agent of such company, or is or was serving
as such with respect to another entity at the request of such company. The DGCL
also provides that the Company may purchase insurance on behalf of any such
director, officer, employee or agent.
The Company's Amended and Restated Certificate of Incorporation provides
in effect for the indemnification by the Company of each director and officer of
the Company to the fullest extent permitted by applicable law.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits (see index to exhibits at E-1)
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(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;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the 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 the
registration statement. Notwithstanding the foregoing, any increase or
decrease in the 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 the aggregate, the
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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 the effective registration statement; and (iii)
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that clauses (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the 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 of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it
was declared effective.
(2) For purposes of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of
prospectus 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.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Forms S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, hereunto duly
authorized, in the City of Arlington, State of Virginia on August 9, 1999.
THE AES CORPORATION
By: /s/ Dennis W. Bakke
-------------------------------------
Dennis W. Bakke
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the dates indicated.
<TABLE>
Signature Title Date
<S> <C> <C>
* Chairman of the Board August 9, 1999
- --------------------------------
Roger W. Sant
/s/ Dennis W. Bakke President, Chief Executive Officer and August 9, 1999
- -------------------------------- Director (Principal Executive Officer)
Dennis W. Bakke
Director
- --------------------------------
Alice F. Emerson
* Director August 9, 1999
- --------------------------------
Robert F. Hemphill, Jr.
Director
- --------------------------------
Frank Jungers
Director
- --------------------------------
John H. McArthur
Director
- --------------------------------
Hazel O'Leary
Director
- --------------------------------
Thomas I. Unterberg
II-3
<PAGE>
Signature Title Date
* Director August 9, 1999
- --------------------------------
Robert H. Waterman, Jr.
* Vice President and Chief Financial Officer August 9, 1999
- -------------------------------- (Principal Financial and Accounting Officer)
Barry J. Sharp
* By: /s/ William R. Luraschi August 9, 1999
------------------------------
William R. Luraschi
Attorney-in-Fact
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
Sequentially
Exhibit No. Description Numbered Page
- ----------- ----------- -------------
3.1 Fifth Amended and Restated Certificate of
Incorporation of The AES Corporation is incorporated
herein by reference to Exhibit 3.1 to the Quarterly
Report on Form 10-Q of the Registrant for the
quarterly period ended June 30, 1998 filed August 14,
1998.
3.2 By-Laws of the AES Corporation, as amended is
incorporated herein by reference to Exhibit 3.2 to the
Quarterly Report on Form 10-Q of the Registrant for
the quarterly period ended June 30, 1998 filed August
14, 1998.
5.1 Opinion of Davis Polk & Wardwell
23.1 Consent of Deloitte & Touche LLP
23.3 Consent of Davis Polk & Wardwell
(included in Exhibit 5.1)
E-1
Exhibit 5.1
DAVIS POLK & WARDWELL
450 Lexington Avenue
New York, N.Y. 10017
July 26, 1999
The AES Corporation
1001 North 19th Street
Arlington, Virginia 22209
Ladies and Gentlemen:
We have acted as counsel in connection with the Registration
Statement on Form S-3 (the "Registration Statement") filed by The AES
Corporation (the "Company") with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended, for the registration of
the sale by the Company of $45,983,125 aggregate principal amount of common
stock, par value $0.01 per share, (the "Common Stock") of the Company. The
Common Stock was originally sold as part of the merger consideration in
connection with the Agreement and Plan of Merger dated as of June 17, 1999
among the Company, NV Acquisition Corporation and New Energy Ventures, Inc.
(the "Merger Agreement").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as we have deemed necessary for the
purposes of rendering this opinion.
On the basis of the foregoing, we are of the opinion that:
The Common Stock, to be issued to New Energy Ventures, Inc.'s
stockholders as part of the merger consideration pursuant to the Merger
Agreement has been duly authorized and reserved and when issued and delivered in
accordance with the terms of the Merger Agreement, will have been validly issued
and will be fully paid and nonassessable.
<PAGE>
The AES Corporation 2 July 26, 1999
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
United States of America and the general corporation law of the State of
Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In addition, we consent to the reference to us under the
caption "Legal Matters" in the prospectus.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
/s/ Davis Polk & Wardwell
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of our report dated February 4, 1999, included in the Current Report of
The AES Corporation on Form 8-K, dated March 18, 1999, and of our report dated
February 4, 1999 on the related financial statement schedules included in the
Annual Report of The AES Corporation on Form 10-K for the year ended December
31, 1998, and to the reference to us under the heading "Experts" in this
prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
McLean, Virginia
July 23, 1999
