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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
Under the Securities Act of 1933
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 Number)
1001 North 19th Street
Arlington, Virginia 22209
(703) 522-1315
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Barry J. Sharp
1001 North 19th Street
Arlington, Virginia 22209
(703) 522-1315
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copies to:
Richard Sonkin, Esq.
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, New York 10112
(212) 408-5100
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][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. [ ]
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Shares Amount to be Proposed Maximum Proposed MaximumAggregate Price per Aggregate Offering Amount of
to be registered Registered Aggregate Price per Aggregate OfferingUnit(1) Price(1) Registration Fee
Unit(1) Price(1)
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Common stock, par value $0.01 per share 1,051,7911,051,402 62.655 $65,899,965.11 $17,397.6065,875,592.31 17,391.16
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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 $62.655, the average of the high
and low price of $63.75 and $61.56 of the Company's Common Stock on
September 21, 2000.
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 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to 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 offers to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION DATED SEPTEMBER 25,NOVEMBER 29, 2000
PROSPECTUS
1,051,7911,051,402 Shares
The AES Corporation
Common Stock
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This prospectus relates to the sale of up to 1,051,7911,051,402 shares of common
stock, par value $.01 per share, of The AES Corporation (the "Company" or "AES")
by certain stockholders of AES. All of the shares were issued by The AES
Corporation in connection with its acquisition of KMR Power Corporation ("KMR").
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Our common stock trades on the New York Stock Exchange under the symbol
"AES." On September 21, 2000, the last sale price of the common stock was $62.00
per share.
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Investing in our common stock involves certain risks. See "Risk
Factors" beginning on Page 4.
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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.
The date of this prospectus is ,November 29, 2000.
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TABLE OF CONTENTS
Page
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WHERE YOU CAN FIND MORE INFORMATION...........................................1INFORMATION..........................................1
INCORPORATION OF DOCUMENTS BY REFERENCE.......................................1REFERENCE......................................1
SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS....................................2STATEMENTS...................................2
THE COMPANY...................................................................3COMPANY..................................................................3
RISK FACTORS..................................................................4FACTORS.................................................................4
USE OF PROCEEDS...............................................................10PROCEEDS..............................................................9
DESCRIPTION OF CAPITAL STOCK..................................................10STOCK.................................................9
SELLING STOCKHOLDERS..........................................................17STOCKHOLDERS........................................................16
PLAN OF DISTRIBUTION..........................................................19DISTRIBUTION........................................................17
LEGAL MATTERS.................................................................21
EXPERTS.......................................................................21
iiiMATTERS...............................................................19
EXPERTS.....................................................................19
i
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. The information on our website is not intended to be part
of this prospectus.
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
AES 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 and Amended Annual Report on Form 10-K for the year
ended December 31, 1999;
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31,
2000, June 30, 2000 and JuneSeptember 30, 2000; and
(c) Current Reports on Form 8-K filed on February 11, 2000, May 8,
2000, May 12, 2000, June 21, 2000, July 27, 2000, July 28, 2000, August 18,
2000, and September 1, 2000, October 31, 2000 and November 8, 2000.
You may request a copy of these filings at no cost, by writing or
telephoning the office of William R. Luraschi, Vice President, General Counsel
and Secretary, The AES Corporation, 1001 North 19th Street, Arlington, Virginia
22209, 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 those set forth under "Risk
Factors" in this prospectus and those set forth under the caption "Cautionary
Statements and Risk Factors" in our annual report on Form 10-K, which is
incorporated by reference in this prospectus.
We undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise. Furthermore, our actual results could differ materially
from those anticipated in the forward looking statements. In light of these
risks, uncertainties and assumptions, the forward-looking events discussed in
this prospectus might not occur.
2
THE COMPANY
We are a global power company committed to serving the world's needs
for electricity in a socially responsible way. Our electricity "generation"
business consists of sales to wholesale customers (generally electric utilities,
regional electric companies or wholesale commodity markets known as "power
pools") for further resale to end-users. We also sell electricity directly to
end-users such as commercial, industrial, governmental and residential customers
through our "distribution" business.
Sales within our generation business are made under long-term contracts
from power plants owned by our subsidiaries and affiliates, as well as directly
into power pools. We own new plants constructed for such purposes, which we
refer to in this prospectus as greenfield plants, as well as older power plants
acquired through competitively bid privatization initiatives or negotiated
acquisitions.
Electricity sales by our distribution businesses, including affiliates,
are generally made pursuant to the provisions of long-term electricity sale
concessions granted by the appropriate governmental authorities. In certain
cases, these distribution companies are "integrated","integrated," in that they also own
electric power plants for the purpose of generating a portion of the electricity
they sell.
3
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. Our high degree of leverage could affect our ability to fulfill our obligations under our securities.financial flexibility. We
had approximately $15,720$19,728 million of outstanding indebtedness (including trade
payables and other liabilities) as of JuneSeptember 30, 2000. As of September 30,
2000, we had a consolidated ratio of total debt to total book capitalization
(including current debt) of approximately 74%. As a result of our leverage, we
might be significantly limited in our ability to meet our debt service
obligations, to finance the acquisition, development or completion of additional
projects, to compete effectively or to operate successfully under adverse
economic conditions. As of June 30, 2000, we had a consolidated ratio of
total debt to total book capitalization (including current debt) of
approximately 69%.
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 a large portion of our current development and
acquisition activities are for projects and plants outside 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, regulation of the electricity business, currency
inconvertibility, tax law, 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
has become more difficult. Even when such non-recourse financing is available,
lenders may require us to make higher equity 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.
Legal Uncertainties. 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 businesses. In addition, the
laws and regulations of certain countries may limit our ability to hold a
majority interest in some of the businesses that we may develop or acquire.
International businesses 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 4
proceedings will be successful.
4
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 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 our 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 greenfield projects. Each of our projects under development and
those independent power facilities we have committed to acquire or may seek to
acquire may require substantial capital investment. Continued access to capital
5
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
5
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 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, we are
frequently required to provide more sponsor equity for projects that sell
electricity into the merchant market than for projects that sell their
electricity under long term contracts.
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, convertible trust preferred
securities 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, rating agency ratings, 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.
The performance of our generation business is dependent to a large
degree on certain of our larger projects and their customers. The nature of most
of our generation plants (based on revenues) 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 significant customer to fulfill its contractual
obligations could have a substantial negative impact on these 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 our plants
in different geographic areas in order to mitigate the effects of regional
economic downturns.
Our revenues are becoming less predictable. Our business primarily
consists of businesses with long-term contracts or retail concessions, and we
expect the contract-based portfolio to be an effective 6
hedge against future
energy and electricity market price risks. However, an increasing proportion of
our current and expected future revenues are derived from businesses without
significant long-term revenue contracts. Our increasing reliance on non-contract
businesses could cause our results of operations to become more volatile.
6
Our distribution businesses are subject to greater regulatory scrutiny
than our generation business. Our distribution businesses face increased
regulatory and political scrutiny in the normal conduct of their operations.
This scrutiny may adversely impact our results of operations, to the extent that
such scrutiny or pressure prevents us from reducing losses as quickly as we
planned or denies us a rate increase called for by our concession agreements. In
general, these businesses have lower margins and are more dependent on
regulation to ensure expected annual rate increases for inflation and increased
power costs, among other things. There can be no assurance that these rate
reviews will be granted, or occur in a timely manner.
We are subject to significant government regulation. Our generation
business in the United States is subject to the provisions of various laws and
regulations, including the Public Utility Regulatory Policies Act of 1978, as
amended, commonly referred to as PURPA, and the Public Utility Holding Company
Act, as amended, commonly referred to as PUHCA. PURPA provides to qualifying
facilities, commonly referred to as QFs, certain exemptions from substantial
federal and state legislation, including regulation as public utilities. PUHCA
regulates public utility holding companies and their subsidiaries. It is
necessary for us to obtain approval under PUHCA in order to maintain majority
ownership in our domestic power plants that are QFs. Currently a material
portion of our domestic revenues are received from QFs. Moreover, all of our
domestic non-QF plants are Exempt Wholesale Generators, commonly referred to as
EWGs. An EWG is a facility that has been authorized by the U.S. Federal Energy
Regulatory Commission, commonly referred to as the FERC, to sell wholesale power
at market-based rates. We enjoy exemptions under PUHCA related to our foreign
utility acquisitions and holdings. We cannot ensure that we will be able to
maintain appropriate PUHCA exemptions for all of our businesses. If we decide to
acquire another U.S. utility or utility assets, we may be required to divest
either all or part of CILCORP or take other steps resulting in a loss of control
or as may be required by the Securities and Exchange Commission. 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 FERC to obtain
status as an 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.
Pending electric utility industry restructuring proposals could have an
adverse effect on us. Several states have passed legislation that allows
electricity customers to choose their electricity supplier in a competitive
electricity market (so-called "retailed access" or "customer choice" laws), and
all but two of the remaining states are considering such legislation. In
addition to state restructuring legislation, some members of Congress have
proposed new Federal legislation to encourage customer choice and recovery of
stranded assets. Several bills have been submitted to Congress on electricity
restructuring. In anticipation of restructuring legislation, many U.S. utilities
are seeking ways to lower their costs in order to become more competitive. These
include the costs that utilities are required to pay under QF contracts. Many
utilities are therefore seeking ways to lower these contract prices by
renegotiating the 7
contracts, or in some cases by litigation. In 1999, we
renegotiated contracts for two of our QFs--Thames (a partial prepayment) and
Placerita (a complete buyout). The Thames transaction has been approved by the
Connecticut Department of Public Utilities Commission.
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
7
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 margin for United States electricity
sellers. Falling electricity prices, the introduction of commodity markets for
electricity and uncertainty as to the future structure of the industry has
rendered the long-term power purchase contracts obsolete. As a result, in the
generation business we are increasingly dependent upon prices for electricity
determined in electricity spot markets. Such prices can be very volatile and the
effect on us of this volatility cannot be predicted.
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 power generators and vertically integrated
utilities to acquire retail utilities in the United States that are
geographically widespread, as opposed to the current limitations of PUHCA which
require that retail electric systems be capable of physical interconnection. 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 that PUHCA is repealed, competition 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.
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. These regulations generally involve
effluents into the water emissions into the air, the use of water, wetlands
8
preservation, waste disposal, endangered species, and noise regulation, among
others. 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
our customers or that our 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.
8
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 4, 2000, our two founders, Roger W. Sant
and Dennis W. Bakke, and their immediate families together owned beneficially
approximately 18.4% 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 4, 2000, all of our officers and directors and their
immediate families together owned beneficially approximately 24.9% 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.
9
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares being
offered hereby.
DESCRIPTION OF CAPITAL STOCK
Under our certificate of incorporation (the "Certificate of
Incorporation"), we are 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.
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 July 31,September 30, 2000, there were 456,774,338457,742,582 shares of common stock
outstanding.
9
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.
Price Range of AES Common Stock and Common Stock Dividends
Our common stock is traded on the New York Stock Exchange 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 April 2000, we announced a stock split, in the form of a
stock dividend, for holders of record on May 1, 2000 of our common stock, par
value $0.1 per share, which was paid on June 1, 2000. The prices set forth below
have been adjusted for such stock split.
10
High Low
1998
First Quarter............................................ $27.16 $19.69
Second Quarter........................................... 29.00 22.82
Third Quarter............................................ 27.69 11.50
Fourth Quarter........................................... 23.69 16.00
1999
First Quarter............................................ $24.63 $16.41
Second Quarter........................................... 29.88 18.38
Third Quarter............................................ 33.35 26.53
Fourth Quarter........................................... 38.19 25.22
2000
First Quarter............................................ $44.72 $34.25
Second Quarter........................................... 49.63 35.56
Third Quarter............................................ 70.25 45.13
Fourth Quarter (through September 21,November 24, 2000)............... 70.25 45.1372.81 49.00
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.
10
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.
Preferred Stock
11
As of JulyOctober 31, 2000, there were no shares of Preferred Stock
outstanding.
The AES 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;
11
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 issued, 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
12
Our Certificate of Incorporation and By-Laws contain several provisions
that may make the acquisition of control of 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 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;
12
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
13
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
advance of a final disposition by us.
13
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.
14
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
14
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 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 15
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.
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.
1615
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
of Common Stock as of , 2000.immediately prior to the offering. 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 to Percentage of
the Offering Outstanding Shares
- --------------------------------------------------------------------------------
Number of Shares of AES Common Stock
--------------------------------------------------
Owned prior to Percentage of
the Offering Outstanding Shares
- --------------------------------------------------- ----------------------- --------------------------
George M. Kappaz 90,572 *
The George M. Kappaz Trust,
Francesco Galli-Zugaro, Trustee 29,811 *
Michael H. Kappaz 66,263 *
Joseph S. Grabias 8,130 *
Jean A. Grabias,
as Custodian for Lesley A. Grabias 452 *
Jean A. Grabias,
as Custodian for Allison J. Grabias 452 *
The Jonathan Evans Trust,
Joseph S. Grabias, Trustee 3,613 *
David J. Evans 9,937 *
Ralph W. Fairbanks III 17,016 *
Newground Holdings S.A. 48,072 *
P. Holdings, L.P. 42,630 *
Discovery Fund I-90, L.P. 81,503 *
Discovery Fund II-90, L.P. 94,469 *
Discovery Fund III-90, L.P. 20,196 *
Discovery Fund IV-90, L.P. 65,442 *
Adolfo Menendez 9,627 *
Kirit G. Parikh 1,089 *
Rodman L. Drake 42,639 *
The Philip L. Drake Trust,
Rodman L. Drake, Trustee 1,265 *
The Stephan R. Drake Trust,
Rodman L. Drake, Trustee 1,265 *
The Slavich Family Trust,
Denis M. Slavich &
Debbie T.Y Slavich (trustees) 2,710 *
Denis M. Slavich,
as Custodian for David. F. Slavich 452 *
Denis M. Slavich,
as Custodian for Destinie F. Slavich 452 *
K&M Energy Ventures, L.P. 328,650 *
16
U.S. Bank National Association,
as Custodian for GEEMF, L.P. 68,683 *
Denis M. Slavich 7,512 *
Karen K. Donatelli 2,551 *
Derek Martin 1,701 *
Timothy S. Trainum 1,701 *
Jose A. Kappaz 850 *
Douglas Schultz 170 *
Frank Staszesky 340 *
Frederick Reveiz 298 *
Kurt Reuman 298 *
Michael Adeniji 255 *
Marta Arbelaez 85 *
Candis McDonald 255 *
The George M. Kappaz Trust *
Michael H. Kappaz *
Joseph S. Grabias *
Jean A. Grabias, *
as Custodian for Leslie A. Grabias
Jean A. Grabias, *
as Custodian for Allison J. Grabias
The Jonathan Evans Trust *
David J. Evans *
Ralph W. Fairbanks III *
Newground Holdings S.A. *
P. Holdings, L.P. *
Discovery Fund I-90, L.P. *
Discovery Fund II-90, L.P. *
Discovery Fund III-90, L.P. *
Discovery Fund IV-90, L.P. *
Adolfo Menendez *
Kirit G. Parikh *
Rodman L. Drake *
The Philip L. Drake Trust *
The Stephan R. Drake Trust *
The Slavich Family Trust *
Denis M. Slavich, *
as Custodian for David. F. Slavich
Denis M. Slavich, *
as Custodian for Destinie F. Slavich
K&M Energy Ventures, L.P. *
Var & Co U.S. Bank National Association, *
as Custodian for GEEMF, L.P.
Denis M. Slavich *
Karen K. Donatelli *
Ann S. Mayfield *
Timothy S. Trainum *
Frederic Reveiz *
17
Number of Shares of AES Common Stock
-----------------------------------------
Owned prior to Percentage of
the Offering Outstanding Shares
- --------------------------------------------------------------------------------
Wendell Robinson *
Denis King *
Douglas Schultz *
Derek Martin *
Frank Staszesky *
Wanjiku Njuguna *
Kurt Reuman *
- ---------------------
* 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 issued in connection
with our acquisition of KMR Power Corporation. 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) and/or Regulation D promulgated
thereunder. The shares are being registered by us pursuant to a registration
rights agreement between us and the selling stockholders listed above, dated as
of September 19, 2000 (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.
18
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
17
discount or concessions allowed or reallowed or paid to
dealers may be changed from time to time),
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.
19
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
18
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 may limit the timing of
purchases and sales of shares of our common stock by the selling stockholders.
Selling stockholders also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act,
provided they meet the criteria and conform to the requirements of such rule and
to the volume limitations contained in the Registration Rights Agreement.
20
LEGAL MATTERS
The validity of the common stock offered hereby will be passed upon for
us by Chadbourne & Parke LLP, New York, New York.
EXPERTS
The financial statements and the related financial statement schedules
incorporated in this statement/prospectus by reference from the Company'sAES's Annual
Report on Form 10-K, for the year ended December 31, 1999and from AES's Current Report on Form 8-K/A filed February
11, 2000, relating to AES Drax, Ltd., have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report,reports, which isare incorporated
herein by reference, and hashave been so incorporated in reliance upon the reportreports
of such firm given upon their authority as experts in accounting and auditing.
2119
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 and distribution of the securities
being registered.
SEC registration fee..................................................fee.................................................$17,397.6017,391.16
New York Stock Exchange listing fee*..................................fee.................................. 3,200.00
Printing and engraving*...............................................engraving............................................... 0.00
Legal fees*...........................................................fees........................................................... 20,000.00
Accountants' fees*....................................................
Miscellaneous*........................................................__________
Total............................................................fees.................................................... 10,000.00
Miscellaneous........................................................ 5,000.00
----------
Total...........................................................$55,591.16
==========
- --------------------------
* To be added by amendment.-----------------------
Item 15. Indemnification of Directors and Officers.
Under the By-Laws of The AES Corporation (the "Company"), and in
accordance with Section 145 of the Delaware General Corporation Law ("GCL"), the
Company shall indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than any action
or suit by or in the right of the Company to procure a judgment in its favor,
which is hereinafter referred to as a "derivative action") by reason of the fact
that such person is or was a director, officer or employee of the Company, or is
or was serving in such capacity or as an agent at the request of the Company for
another entity, to the full extent authorized by Delaware law, against expenses
(including, but not limited to, attorneys' fees), judgments, fines and amounts
actually and reasonably incurred in connection with the defense or settlement of
such action, suit or proceeding if such person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe was unlawful. Agents of the
Company may be similarly indemnified, at the discretion of the Board of
Directors.
Under Section 145 of the GCL, a similar standard of care is applicable
in the case of derivative actions, except that indemnification only extends to
expenses (including attorneys' fees) incurred in connection with the defense or
settlement of such an action and then, where the person is adjudged to be liable
to the Company, only if and to the extent that the Court of Chancery of the
State of Delaware or the court in which such action was brought determines that
such person is fairly and reasonably entitled to such indemnity and only for
such expenses as the court shall deem proper.
Pursuant to the Company's By-Laws, a person eligible for
indemnification may have the expenses incurred in connection with any matter
described above paid in advance of a final disposition by the Company. However,
such advances will only be made upon the delivery of an undertaking by or on
behalf of the indemnified person to repay all amounts so advanced if it is
ultimately determined that such II-1
person is not entitled to indemnification.
In addition, under the Company's By-Laws, the Company may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Company or
II-1
of another corporation against any liability asserted and incurred by such
person in such capacity, or arising out of the person's status as such whether
or not the Company would have the power or the obligation to indemnify such
person against such liability under the provisions of the Company's By-Laws.
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
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 (a)(1)(i) and (a)(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 II-2
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
II-2
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-3
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 Form S-3 and has duly caused this Amendment
No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, hereunto duly authorized, in the City of Arlington, State of
Virginia on September 25,November 29, 2000.
THE AES CORPORATION
By: /s/ Dennis W. Bakke
-------------------------------------------------------------------------
Dennis W. Bakke
President and Chief Executive Officer
The Registrant and each person whose signature appears below
constitutes and appoints Dennis W. Bakke and William R. Luraschi and any agent
for service named in this Registration Statement and each of them, his, her or
its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his, her, or its
name, place and stead, in any and all capacities, to sign and file any and all
amendments (including post-effective amendments) to this Registration Statement,
to sign any related registration statement filed pursuant to Rule 462(b) under
the Securities Act of 1933, and to file the same with all exhibits thereto, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he, she, or it might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
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.
Signature Title Date
/s/ Roger W. Sant
- -------------------------------
Roger W. Sant Chairman of the Board September 25, 2000
/s/ Dennis W. Bakke
- -------------------------------
Dennis W. Bakke President, Chief Executive September 25, 2000
Officer and Director (Principal
Executive Officer)
/s/ Dr. Alice F. Emerson
- -------------------------------
Dr. Alice F. Emerson Director September 25, 2000
II-4
/s/ Robert F. Hemphill, Jr.
- -------------------------------
Robert F. Hemphill, Jr. Director September 25, 2000
/s/ Frank Jungers
- -------------------------------
Frank Jungers Director September 25, 2000
/s/ John H. McArthur
- -------------------------------
John H. McArthur Director September 25, 2000
/s/ Hazel O'Leary
- -------------------------------
Hazel O'Leary Director September 25, 2000
/s/
- -------------------------------
Thomas I. Unterberg Director
/s/
- -------------------------------
Robert H. Waterman, Jr. Director
/s/ Barry J. Sharp
- -------------------------------Signature Title Date
/s/ *
- -------------------------
Roger W. Sant Chairman of the Board November 29, 2000
II-3
/s/ Dennis W. Bakke
- -------------------------
Dennis W. Bakke President, Chief Executive November 29, 2000
Officer and Director
(Principal Executive Officer)
/s/ *
- -------------------------
Dr. Alice F. Emerson Director November 29, 2000
/s/ *
- -------------------------
Robert F. Hemphill, Jr. Director November 29, 2000
/s/ *
- -------------------------
Frank Jungers Director November 29, 2000
/s/ *
- -------------------------
John H. McArthur Director November 29, 2000
/s/ *
- -------------------------
Hazel O'Leary Director November 29, 2000
/s/ *
- -------------------------
Thomas I. Unterberg Director November 29, 2000
/s/ *
- -------------------------
Robert H. Waterman, Jr. Director November 29, 2000
/s/ Barry J. Sharp
- -------------------------
Barry J. Sharp Senior Vice President November 29, 2000
and Chief September 25, 2000 Financial Officer
(Principal Financial and
Accounting Officer)
II-5* By: /s/ William R. Luraschi November 29, 2000
----------------------------------
William R. Luraschi
Attorney-in-Fact
II-4
EXHIBIT INDEX
Sequentially
Exhibit No. Description Sequentially Numbered Page
3.1 Sixth 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
March 31, 2000 filed May 15, 2000.
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 Chadbourne & Parke, LLP
23.1 Consent of Deloitte & Touche LLP
23.3 Consent of Chadbourne & Parke, LLP
(included in Exhibit 5.1)
24.1 Powers of Attorney for the Company (included on
signature page hereto)
E-1