-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BjotA/Za4VY6gV0YQq9AcWLuYwskhqgay+K5DNe6xEazNnTZ0r8QDeOOcaNFIGPu p0wsfrD/AM0gTFT9tKPZuA== 0000912057-00-023954.txt : 20000515 0000912057-00-023954.hdr.sgml : 20000515 ACCESSION NUMBER: 0000912057-00-023954 CONFORMED SUBMISSION TYPE: 8-A12B/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20000512 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AES CORPORATION CENTRAL INDEX KEY: 0000874761 STANDARD INDUSTRIAL CLASSIFICATION: COGENERATION SERVICES & SMALL POWER PRODUCERS [4991] IRS NUMBER: 541163725 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12B/A SEC ACT: SEC FILE NUMBER: 001-12291 FILM NUMBER: 629548 BUSINESS ADDRESS: STREET 1: 1001 N 19TH ST STREET 2: STE 2000 CITY: ARLINGTON STATE: VA ZIP: 22209 BUSINESS PHONE: 7035221315 8-A12B/A 1 8-A12B/A - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------- 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)
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: ----------------- (If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which to be so Registered Each Class is to be Registered ------------------- ----------------------------------- Common Stock, par value $.01 per share New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act: (Title of Class) -------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 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 2 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. 3 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)). 4 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 ----------------------------------------- Name: William Luraschi Title: Vice President and General Counsel Date:May 12, 2000 5
Index to Exhibits ----------------- Exhibit No. Description Sequentially ----------- ----------- ------------ Numbered Page ------------- 1 Sixth Restated Certificate of Incorporation of the Registrant 7
6 EX-1 2 EXHIBIT 1 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 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. 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. -----END PRIVACY-ENHANCED MESSAGE-----