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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A/A
AMENDMENT NO. 2
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE AES CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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DELAWARE 54-1163725
(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
1001 NORTH 19TH STREET
ARLINGTON, VA 22209
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration of a class of If this form relates to the registration of a class of
securities pursuant to Section 12(b) of the Exchange Act securities pursuant to Section 12(g) of the Exchange Act
and is effective pursuant to General Instruction A.(c), and is effective pursuant to General Instruction A.(d),
please check the following box. / / please check the following box. / /
Securities Act registration statement file number to which this form relates:
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(If applicable)
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Securities to be registered pursuant to Section 12(b) of the Act:
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Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Common Stock, par value $.01 per share New York Stock Exchange
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Securities to be registered pursuant to Section 12(g) of the Act:
(Title of Class)
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As the Registrant has increased the number of authorized shares of capital
stock in its Sixth Restated Certificate of Incorporation (attached hereto as
Exhibit 1), the Registrant hereby amends the following items, financial
statements, exhibits or other portions of its Registration Statement on Form 8-A
as set forth below:
ITEM 1: DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
DESCRIPTION OF CAPITAL STOCK
Under its certificate of incorporation (the "Certificate of
Incorporation"), the Registrant is authorized to issue 1,200,000,000 shares of
common stock, par value $.01 per share, and 50,000,000 shares of preferred
stock, no par value.
COMMON STOCK
As of May 1, 2000, there were 207,770,572 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
the Registrant's board of directors out of funds legally available to pay
dividends. If the Registrant liquidates its business, the holders of common
stock are entitled to share ratably in all assets after it pays its 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.
The transfer agent for the common stock is EquiServe.
PREFERRED STOCK
As of May 1, 2000, there were no shares of Preferred Stock outstanding.
The Registrant's 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.
DESCRIPTION OF CERTAIN PROVISIONS OF THE CERTIFICATE OF INCORPORATION AND
BY-LAWS
The Registrant's Certificate of Incorporation and By-Laws contain several
provisions that may make the acquisition of control of the Registrant 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. The 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. The 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 of the intent to make a
nomination. The notice must be given, with respect to an
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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
- the date on which notice of such special meeting is first given to
stockholders and
- the date on which a public announcement of such meeting is first made.
Each notice must include:
- 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;
- 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;
- 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
- 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 the board of
directors to the Registrant or its stockholders for monetary damages resulting
from breaches of their fiduciary duties as directors. Directors remain liable
for breaches of their duty of loyalty to the Registrant or its 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 the By-Laws, and in accordance with Section 145 of the GCL, the
Registrant 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 the Registrant, or is
or was serving in that capacity or as an agent at the request of the Registrant
for another entity. This 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 the Registrant's best interests and, with respect to any criminal
action or proceeding, had no reasonable cause to believe was unlawful. The
Registrant 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 the Registrant or in its right to
procure a judgment in its favor. Agents of the Registrant 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.
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Pursuant to the By-Laws, a person eligible for indemnification may have the
expenses incurred in connection with any matter described above paid in advance
of a final disposition by the Registrant. 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 the By-Laws, the Registrant may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Registrant or of another corporation against any liability arising
out of the person's status as such director, officer, employee or agent whether
or not the Registrant would have the power to indemnify such person against such
liability under the provisions of the By-Laws. The Registrant maintains
directors' and officers' insurance.
ITEM 2: EXHIBITS
The following exhibits have been filed with the Securities and Exchange
Commission:
1. Form of Common Stock Certificate (incorporated by reference to Exhibit
4.1 to the Registration Statement on Form S-1 (File No. 333-95046)).
2. Sixth Restated Certificate of Incorporation of the Registrant.
3. By-laws of the Registrant (incorporated by reference to the
Registration Statement on Form S-1 (File No. 333-95046)).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
The AES Corporation
By: /s/ WILLIAM LURASCHI
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Name: William Luraschi
Title: Vice President and General Counsel
Date:May 12, 2000
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Index to Exhibits
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Exhibit No. Description Sequentially
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Numbered Page
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1 Sixth Restated Certificate of Incorporation of the Registrant 7
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Exhibit 1
SIXTH RESTATED
CERTIFICATE OF INCORPORATION
OF
THE AES CORPORATION
PURSUANT TO SECTION 245 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
Article I. The name of the corporation is The AES Corporation (the
"Corporation").
Article II. The address of the Corporation's registered office in the
State of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is Corporation Service
Company.
Article III. The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, as amended from time to time.
Article IV. 1. The total number of shares of all classes of capital
stock that the Corporation is authorized to issue is one billion, two hundred
fifty million (1,250,000,000), of which one billion, two hundred million
(1,200,000,000) shall be Common Stock, par value one cent ($0.01) per share, and
fifty million (50,000,000) shall be Preferred Stock, without par value. The
designations and the powers, preferences and rights of the Common Stock and the
Preferred Stock, and the qualifications, limitation or restrictions thereof, are
as provided in or pursuant to this Article IV.
2. (a) The rights of holders of Common Stock to receive dividends
or to share in the distribution of assets in the event of liquidation,
dissolution or winding up of the affairs of the Corporation shall be subject to
the preferences and other rights of the Preferred Stock as may be fixed in this
Certificate of Incorporation or in the resolution or resolutions of the Board of
Directors providing for the issuance of such Preferred Stock.
(b) The holders of Common Stock shall be entitled to one vote
for each share of Common Stock held by them of record at the time for
determining the holders thereof entitled to vote.
3. Authority is hereby vested in the Board of Directors to issue
from time to time the Preferred Stock in one or more classes or series and to
fix by the resolution or resolutions providing for the issuance of shares of any
such class or series the voting powers, designations, preferences and relative,
participating, optional or other special
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rights, and the qualifications, limitations or restrictions thereof, of such
class or series to the full extent permitted by this Certificate of
Incorporation and the General Corporation Law of the State of Delaware. The
authority of the Board of Directors with respect to each such series shall
include, but not be limited to, determination of the following:
(i) The number of shares to constitute such class or series, and
the distinctive designation thereof;
(ii) The voting powers, full or limited, if any, of such class or
series;
(iii) The rate of dividends payable on shares of such class or
series, the conditions on which and the times when such dividends are payable,
the preference to, or the relations to, the payment of the dividends payable on
any other class or series of stock, whether cumulative or noncumulative, and, if
cumulative, the date from which dividends on shares of such class or series
shall be cumulative;
(iv) The right, if any, of the Corporation to redeem shares of
such class or series and the terms and conditions of such redemption
(v) The requirement of any sinking fund or funds to be applied to
the purchase or redemption of shares of such class or series and, if so, the
amount of such fund or funds and the manner of application;
(vi) The rights of shares of such class or series upon the
liquidation, dissolution or winding up of, or upon any distribution of the
assets of, the Corporation;
(vii) The rights, if any, of the holders of shares of such class
or series to convert such shares into, or to exchange such shares for, shares of
any other class or series of stock and the price or prices or rate or rates of
exchange at which such shares shall be convertible or exchangeable and any
adjustments thereto, and any other terms and conditions of such conversion or
exchange; and
(viii) Any other preferences and relative, participating, optional
or other special rights of shares of such class or series, and qualifications,
limitations or restrictions including, without limitation, any restriction on an
increase in the number of shares of any class or series theretofore authorized
and any qualifications, limitations or restrictions of rights or powers to which
shares of any future class or series shall be subject.
4. The number of authorized shares of any class or classes of stock of
the Corporation may be increased or decreased by the affirmative vote of the
holders of a majority of the stock of the Corporation that is entitled to vote,
without a separate class vote of any class or classes of stock of the
Corporation, except as may be otherwise provided in this Certificate of
Incorporation or in the resolution or resolutions fixing the voting rights of
any class or series of the Preferred Stock.
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5. No holder of Common Stock or Preferred Stock, as such, shall have or
be entitled to any preemptive right whatsoever.
Article V. The Corporation is to have perpetual existence.
Article VI. The Board of Directors is expressly authorized to adopt,
alter or repeal the By-Laws of the Corporation, except for any By-Law that by
its terms states that it may be amended or repealed only by action of the
stockholders.
Article VII. Meetings of stockholders may be held at such place, either
within or without the state of Delaware, as the By-Laws may provide. Elections
of directors need not be by written ballot unless the By-Laws of the Corporation
shall so provide.
Article VIII. The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation in
the manner now or hereafter prescribed by General Corporation Law of the State
of Delaware, and all rights conferred upon stockholders herein are granted
subject to this reservation.
Article IX. The number of directors of the Corporation shall be fixed
from time to time pursuant to the By-Laws of the Corporation.
Article X. No director of this Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (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) under Section 174 of the General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. Neither the amendment nor repeal of this Article
X, nor the adoption of any provision of this Certificate of Incorporation
inconsistent with this Article X, shall be effective with respect to any cause
of action, suit, claim or other matter that, but for this Article X, would
accrue or arise prior to such amendment, repeal or adoption of an inconsistent
provision.
