As filed with the Securities and Exchange Commission on March 20,
2002
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MIRANT CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 1155 Perimeter Center West Atlanta, 58-2056305
(State or Other Georgia 30338-4780 (I.R.S. Employer
Jurisdiction of (Address of Principal Identification No.)
Incorporation or Executive Offices
Organization) Including Zip Code)
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MIRANT SERVICES EMPLOYEE SAVINGS PLAN
(Full Title of the Plan)
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Raymond D. Hill Copies to:
Chief Financial Officer Brian J. Lane, Esq.
Mirant Corporation Gibson, Dunn & Crutcher LLP
1155 Perimeter Center West 1050 Connecticut Avenue, N.W.
Atlanta, Georgia 30338-4780 Washington, D.C. 20036
(Name and Address of Agent For Service)
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(678) 579-5000
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered(1) Offering Price Aggregate Registration Fee
Per Share Offering Price(2)
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Common Stock, $0.01 par 1,200,000 shares $12.38 $14,856,000 $2,971.20
value per share to be
issued under the Mirant
Services Employee Savings
Plan
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933 (the "Securities
Act"), this includes additional shares that may be offered and issued to
prevent dilution resulting from stock splits, stock dividends or similar
transactions. In addition, pursuant to Rule 416(c), this Statement also
covers an indeterminate amount of plan interests to be offered or sold
pursuant to the plans described herein.
(2) Offering price is estimated solely for the purpose of calculating the
registration fee. The registration fee has been calculated in accordance
with Rule 457(h) under the Securities Act on the basis of the average of
the high and low prices of Mirant Corporation common stock on the New York
Stock Exchange on March, 15, 2002, which was $12.38.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information requested in Part I of this Registration Statement is
included in the prospectus for the Mirant Services Employee Savings Plan, which
the Registrant has excluded from this Registration Statement in accordance with
the instructions to Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference into this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, filed on March 11, 2002, as amended by Form 10-K/A, also
filed on March 11, 2002.
(b) The Registrant's Form 8-K filed on March 20, 2002.
(c) The description of the common stock contained in the Registrant's
registration statement on Form 8-A, filed on September 7, 2000, which in
turn incorporates by reference the Registrant's registration statement on
Form S-1 (Document No. 333-35390), filed on April 21, 2000, and any
amendment or report filed for the purpose of updating this description.
All reports and other documents that the Registrant subsequently files with
the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment
indicating that the Registrant has sold all of the securities offered under this
Registration Statement or that deregisters the distribution of all such
securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement from the date that the Registrant
files such reports or documents. Any statement contained in this Registration
Statement or any report or document incorporated into this Registration
Statement by reference shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained in a
subsequently dated report or document that is also considered part of this
Registration Statement, or in any amendment to this Registration Statement, is
inconsistent with such prior statement. The Registrant's file number with the
Commission is 001-16107.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL") generally
provides that all directors and officers (as well as other employees and agents)
may be indemnified against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred in
connection with certain specified actions, suits or proceedings, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation - a "derivative action"), if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, if they had no reasonable cause to believe that their conduct was
unlawful. A similar standard of care applies in derivative actions, except that
indemnification extends only to expenses (including attorneys' fees) actually
and reasonably incurred in connection with defense or settlement of an action,
and the DGCL requires court approval before there can be any indemnification if
the person seeking indemnification has been found liable to the corporation.
Section 145 further states that to the extent that a present or former
director or officer has been successful on the merits or otherwise in defense of
any specified action, suit or proceeding, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred in connection therewith.
Section 145 also authorizes a corporation to purchase and maintain insurance on
behalf of directors, officers, employees and agents against any liability
asserted against them and incurred by them in any such capacity, whether or not
the corporation otherwise would have the power to indemnify them under Section
145. Finally, Section 145 provides that the rights conferred thereby are not
exclusive of any other right that any person may be entitled to under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, and
permits a corporation to advance expenses to or on behalf of a person to be
indemnified upon receipt of an undertaking to repay the amounts advanced if it
is determined that the person is not entitled to be indemnified.
Article Nine of the Registrant's Certificate of Incorporation provides that
a director of the Registrant shall not be liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent that such exemption from liability or limitation thereof is
not permitted under the DGCL as currently in effect or as may hereafter be
amended. No amendment, modification or repeal of Article Nine shall adversely
affect any right or protection of a director with respect to events occurring
prior to such amendment, modification or repeal.
Section 6.4 of the Registrant's Bylaws provides that the Registrant (for
purposes of this paragraph, the "Corporation") shall indemnify to the full
extent permitted by law any person made or threatened to be made a party to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person or such person's testator
or intestate is or was a director or officer of the Corporation or serves or
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served at the request of the Corporation any other enterprise as a director or
officer. Expenses (including attorneys' fees) incurred by any such person in
defending any such action, suit or proceeding shall be paid or reimbursed by the
Corporation promptly upon receipt by it of an undertaking of or on behalf of
such person to repay such amounts if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation. The rights provided
to any person by Section 6.4 shall be enforceable against the Corporation by
such person, who shall be presumed to have relied upon it in serving or
continuing to serve as a director or officer as provided above. No amendment of
Section 6.4 shall impair the rights of any person arising at any time with
respect to events occurring prior to such amendment. For purposes of Section 6.4
and this paragraph: (1) the term "Corporation" includes any predecessor of the
Corporation and any constituent corporation (including any constituent of a
constituent) absorbed by the Corporation in a consolidation or merger; (2) the
term "other enterprise" shall include any corporation, partnership, joint
venture, trust or employee benefit plan; (3) service "at the request of the
Corporation" shall include service as a director, officer or employee of the
Corporation that imposes duties on, or involves services by, such director,
officer or employee with respect to an employee benefit plan, its participants
or beneficiaries; (4) any excise taxes assessed on a person with respect to an
employee benefit plan shall be deemed to be indemnifiable expenses; and (5)
action by a person with respect to an employee benefit plan which such person
reasonably believes to be in the interest of the participants and beneficiaries
of such plan shall be deemed to be action not opposed to the best interests of
the Corporation.
All of the Registrant's directors and officers are covered by insurance
policies against certain liabilities for actions taken in their capacities as
such, including liabilities under the Securities Act of 1933.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
Exhibit
No. Description
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4.1 Restated Certificate of Incorporation of the Registrant, incorporated
herein by reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-1 (Document No. 333-35390).
4.2 Restated Bylaws of the Registrant, incorporated herein by reference to
Exhibit 3.2 of the Registrant's Registration Statement on Form S-1
(Document No. 333-35390).
4.3 Specimen Stock Certificate, incorporated herein by reference to Exhibit 4.1
of the Registrant's Registration Statement on Form S-1 (Document No.
333-35390).
5.1 IRS Determination Letter.*
23.1 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on the signature page of this Registration
Statement).
----------------------------------
* On February 15, 2002, the Registrant applied for an IRS Determination
Letter with respect to the Mirant Services Employee Savings Plan. The
Registrant hereby undertakes to make all changs required by the IRS in
order to qualify the Plan as amended.
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Item 9. Undertakings.
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(1) The undersigned Registrant hereby undertakes:
(a) 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 this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement;
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
this Registration Statement;
(b) 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; and
(c) 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.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
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the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) 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 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.
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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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on this 20th day of March
2002.
MIRANT CORPORATION
By: /s/ Raymond D. Hill
--------------------------------
Raymond D. Hill
Executive Vice President and Chief
Financial Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Mirant Corporation, hereby
severally constitute and appoint S. Marce Fuller, President and Chief Executive
Officer; Raymond D. Hill, Executive Vice President and Chief Financial Officer;
Douglas L. Miller, Senior Vice President and General Counsel; and Elizabeth B.
Chandler, Vice President and Secretary, and each of them singly, as our true and
lawful attorneys with full power to them, and each of them singly, to sign for
us and in our names in the capacities indicated below, this Registration
Statement on Form S-8 and any and all pre-effective and post-effective
amendments to this Registration Statement, and generally to do all such things
in our names and on our behalf in our capacities as officers and directors to
enable Mirant Corporation to comply with the provisions of the Securities Act of
1933 and all requirements of the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Name and Signature Title Date
---------------------------- ------------------------------- ------------------
/s/ S. Marce Fuller President, Chief Executive March 20, 2002
---------------------------- Officer and Director
S. Marce Fuller (Principal Executive Officer)
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/s/ Raymond D. Hill Executive Vice President and March 20, 2002
---------------------------- Chief Financial Officer
Raymond D. Hill (Principal Financial Officer)
/s/ James A. Ward Senior Vice President, Finance March 20, 2002
---------------------------- and Accounting (Principal
James A. Ward Accounting Officer)
/s/ A. D. Correll Director March 20, 2002
----------------------------
A. D. Correll
/s/ A. W. Dahlberg Director March 20, 2002
----------------------------
A. W. Dahlberg
/s/ Stuart E. Eizenstat Director March 20, 2002
----------------------------
Stuart E. Eizenstat
/s/ Carlos Ghosn Director March 20, 2002
----------------------------
Carlos Ghosn
/s/ William J. Hjerpe Director March 20, 2002
----------------------------
William J. Hjerpe
/s/ David J. Lesar Director March 20, 2002
----------------------------
David J. Lesar
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/s/ James F. McDonald Director March 20, 2002
----------------------------
James F. McDonald
/s/ Ray M. Robinson Director March 20, 2002
----------------------------
Ray M. Robinson
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Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the employee benefit plan) have duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of Georgia, on this
20th day of March 2002.
MIRANT SERVICES EMPLOYEE SAVINGS PLAN
By: /s/ Vance N. Booker
-------------------------------
Vance N. Booker
Senior Vice President,
Administration and External Affairs
EXHIBIT INDEX
Exhibit No. Description Sequentially
Numbered Page
----------- ---------------------------------------------- ---------------
4.1 Restated Certificate of Incorporation of N/A
the Registrant, incorporated herein by
reference to Exhibit 3.1 of the
Registrant's Registration Statement on Form
S-1 (Document No. 333-35390).
4.2 Restated Bylaws of the Registrant, N/A
incorporated herein by reference to Exhibit
3.2 of the Registrant's Registration
Statement on Form S-1 (Document No.
333-35390).
4.3 Specimen Stock Certificate, incorporated N/A
herein by reference to Exhibit 4.1 of the
Registrant's Registration Statement on Form
S-1 (Document No. 333-35390).
5.1 IRS Determination Letter. N/A
23.1 Consent of Arthur Andersen LLP. N/A
24.1 Power of Attorney (included on the N/A
signature page of this Registration
Statement).
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