SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: March 14, 2003
(Date of earliest event reported)
Commission Registrant; State of Incorporation; I.R.S. Employer
File Number Address; and Telephone Number Identification No.
1-3525 AMERICAN ELECTRIC POWER COMPANY, INC. 13-4922640
(A New York Corporation)
1 Riverside Plaza
Columbus, Ohio 43215
Telephone (614) 223-1000
Item 5. Other Events and Regulation FD Disclosure.
On March 11, 2003, American Electric Power Company, Inc. (the "Company")
entered into an Underwriting Agreement with Barclays Capital Inc. and UBS
Warburg LLC, as representatives of the several underwriters named therein,
relating to the offering and sale by the Company of $500,000,000 of its 5.375%
Senior Notes, Series C, due 2010 (the "Notes").
Item 7. Financial Statements and Exhibits
(c) Exhibits
1(a) Underwriting Agreement, dated March 11, 2003, between the Company and
Barclays Capital Inc. and UBS Warburg LLC, as representatives of the
several underwriters named in Exhibit 1 thereto, in connection with
the sale of the Notes.
4(a) Company Order and Officers' Certificate, dated March 14, 2002,
establishing the terms of the Notes.
4(b) Form of the Notes (included in Exhibit 4(a) hereto).
5(a) Opinion of Simpson Thacher & Bartlett regarding the legality of the
Notes.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
AMERICAN ELECTRIC POWER COMPANY, INC.
By:_/s/ Thomas G. Berkemeyer_
Name: Thomas G. Berkemeyer
Title: Assistant Secretary
March 14, 2003
Exhibit 1(a)
AMERICAN ELECTRIC POWER COMPANY, INC.
Underwriting Agreement
Dated March 11, 2003
AGREEMENT made between AMERICAN ELECTRIC POWER COMPANY, INC., a
corporation organized and existing under the laws of the State of New York (the
Company), and the several persons, firms and corporations (the Underwriters)
named in Exhibit 1 hereto.
WITNESSETH:
WHEREAS, the Company proposes to issue and sell $500,000,000 principal
amount of its 5.375% Senior Notes, Series C, due 2010 (the Senior Notes) to be
issued pursuant to the Indenture dated as of May 1, 2001, between the Company
and The Bank of New York, as trustee (the Trustee), as heretofore supplemented
and amended and as to be further supplemented and amended (said Indenture as so
supplemented being hereafter referred to as the Indenture); and
WHEREAS, the Underwriters have designated the persons signing this
Agreement (collectively the Representative) to execute this Agreement on behalf
of the respective Underwriters and to act for the respective Underwriters in the
manner provided in this Agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933 (the Act), with the Securities and
Exchange Commission (the Commission), a registration statement (File No.
333-86050) and a prospectus relating to $3,000,000,000 principal amount of,
among other securities, its Senior Notes and such registration statement has
become effective; and
WHEREAS, such registration statement, including the financial statements,
the documents incorporated or deemed incorporated therein by reference, the
exhibits thereto, being herein called the Registration Statement, and the
prospectus, including the documents incorporated or deemed incorporated therein
by reference, constituting a part of such Registration Statement, as it may be
last amended or supplemented prior to the effectiveness of this Agreement, but
excluding any amendment or supplement relating solely to securities other than
the Senior Notes, being herein called the Basic Prospectus, and the Basic
Prospectus, as supplemented by a preliminary prospectus supplement and a final
prospectus supplement (the Prospectus Supplement) to include information
relating to the Senior Notes, including the names of the Underwriters, the price
and terms of the offering, the interest rate, maturity date and certain other
information relating to the Senior Notes, which will be filed with the
Commission pursuant to Rule 424(b) of the Commission's General Rules and
Regulations under the Act (the Rules), including all documents then incorporated
or deemed to have been incorporated therein by reference, being herein called
the Prospectus.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and representations
and on the terms and subject to the conditions herein set forth, the Company
agrees to sell to the respective Underwriters named in Exhibit 1 hereto,
severally and not jointly, and the respective Underwriters, severally and not
jointly, agree to purchase from the Company, the respective principal amounts of
the Senior Notes set opposite their names in Exhibit 1 hereto, together
aggregating all of the Senior Notes, at a price equal to 98.949% of the
principal amount thereof.
2. Payment and Delivery: Payment for the Senior Notes shall be made to the
Company in immediately available funds or in such other manner as the Company
and the Representative shall mutually agree upon in writing, upon the delivery
of the Senior Notes to the Representative for the respective accounts of the
Underwriters against receipt therefor signed by the Representative on behalf of
itself and for the other Underwriters. Such delivery shall be made at 10:00
A.M., New York Time, on March 14, 2003 (or on such later business day, not more
than five business days subsequent to such day, as may be mutually agreed upon
by the Company and the Underwriters), unless postponed in accordance with the
provisions of Section 8 hereof, at the office of Simpson Thacher & Bartlett, 425
Lexington Avenue, New York, New York 10017, or at such other place as the
Company and the Representative shall mutually agree in writing. The time at
which payment and delivery are to be made is herein called the Time of Purchase.
The delivery of the Senior Notes shall be made in fully registered form,
registered in the name of CEDE & CO., to the offices of The Depository Trust
Company in New York, New York and the Underwriters shall agree, subject to the
terms and conditions of this Agreement, to accept such delivery.
3. Conditions of Underwriters' Obligations: The several obligations of the
Underwriters hereunder are subject to the accuracy of the warranties and
representations on the part of the Company on the date hereof and at the Time of
Purchase and to the following other conditions:
(a) That all legal proceedings to be taken and all legal opinions to be
rendered in connection with the issue and sale of the Senior Notes shall be
satisfactory in form and substance to Dewey Ballantine LLP, counsel to the
Underwriters.
(b) That, at the Time of Purchase, the Representative shall be furnished
with the following opinions, dated the day of the Time of Purchase, with
conformed copies or signed counterparts thereof for the other Underwriters, with
such changes therein as may be agreed upon by the Company and the Representative
with the approval of Dewey Ballantine LLP, counsel to the Underwriters:
(1) Opinion of Simpson Thacher & Bartlett and either of Thomas G.
Berkemeyer, Esq. or William E. Johnson, Esq., counsel to the Company,
substantially in the forms heretofore previously provided to the
Underwriters;
(2) Opinion of Dewey Ballantine LLP, counsel to the Underwriters,
substantially in the form heretofore previously provided to the
Underwriters.
(c) That the Representative shall have received a letter from Deloitte &
Touche LLP in form and substance satisfactory to the Representative, dated as of
the day of the Time of Purchase, (i) confirming that they are independent
certified public accountants within the meaning of the Act and the applicable
published rules and regulations of the Commission thereunder, (ii) stating that
in their opinion the financial statements audited by them and included or
incorporated by reference in the Registration Statement complied as to form in
all material respects with the then applicable accounting requirements of the
Commission, including the applicable published rules and regulations of the
Commission and (iii) covering as of a date not more than five business days
prior to the day of the Time of Purchase such other matters as the
Representative reasonably requests.
(d) That no amendment to the Registration Statement and that no prospectus
or prospectus supplement of the Company (other than the prospectus or
amendments, prospectuses or prospectus supplements relating solely to securities
other than the Senior Notes) relating to the Senior Notes and no document which
would be deemed incorporated in the Prospectus by reference filed subsequent to
the date hereof and prior to the Time of Purchase shall contain material
information substantially different from that contained in the Registration
Statement which is unsatisfactory in substance to the Representative or
unsatisfactory in form to Dewey Ballantine LLP, counsel to the Underwriters.
(e) That, at the Time of Purchase, an appropriate order of the Commission
under the Public Utility Holding Company Act of 1935, as amended (the 1935 Act),
necessary to permit the sale of the Senior Notes to the Underwriters, shall be
in effect; and that, prior to the Time of Purchase, no stop order with respect
to the effectiveness of the Registration Statement shall have been issued under
the Act by the Commission or proceedings therefor initiated.
(f) That, from the date hereof to the Time of Purchase, there shall not
have been any material adverse change in the business, properties or financial
condition of the Company from that set forth in the Prospectus (other than
changes referred to in or contemplated by the Prospectus), and that the Company
shall, at the Time of Purchase, have delivered to the Representative a
certificate of an executive officer of the Company to the effect that, to the
best of his knowledge, information and belief, there has been no such change.
(g) That the Company shall have performed such of its obligations under
this Agreement as are to be performed at or before the Time of Purchase by the
terms hereof.
In case any of the conditions specified in this Section 3 shall not have
been fulfilled, this Agreement may be terminated by the Underwriters at any time
at or prior to the Time of Purchase upon written notice thereof to the Company.
Any such termination shall be without liability of any party to any other party
except as otherwise provided in Section 4(f), Section 4(g) and Section 4(h)
hereof and except for any liability under Section 7 hereof.
4. Certain Covenants of the Company: In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) As soon as practicable, and in any event within the time prescribed by
Rule 424 under the Act, to file the Prospectus with the Commission; as soon as
the Company is advised thereof, to advise the Representative and confirm the
advice in writing of any request made by the Commission for amendments to the
Registration Statement or Prospectus or for additional information with respect
thereto or of the entry of a stop order suspending the effectiveness of the
Registration Statement or of the initiation or threat of any proceedings for
that purpose and, if such a stop order should be entered by the Commission, to
make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable
(and in any event within 24 hours after the date hereof), and from time to time
thereafter during such period of time (not exceeding nine months) after the date
hereof as they are required by law to deliver a prospectus, as many copies of
the Prospectus (as supplemented or amended if the Company shall have made any
supplements or amendments thereto, other than supplements or amendments relating
solely to securities other than the Senior Notes) as the Representative may
reasonably request; and in case any Underwriter is required to deliver a
prospectus after the expiration of nine months after the date hereof, to furnish
to any Underwriter, upon request, at the expense of such Underwriter, a
reasonable quantity of a supplemental prospectus or of supplements to the
Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representative a copy, certified by the Secretary or
an Assistant Secretary of the Company, of the Registration Statement as
initially filed with the Commission and of all amendments thereto (exclusive of
exhibits), other than amendments relating solely to securities other than the
Senior Notes and, upon request, to furnish to the Representative sufficient
plain copies thereof (exclusive of exhibits) for distribution to the other
Underwriters.
(d) For such period of time (not exceeding nine months) after the date
hereof as they are required by law to deliver a prospectus, if any event shall
have occurred as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not contain any
untrue statement of a material fact or not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, forthwith to prepare and furnish, at its own expense, to
the Underwriters and to dealers (whose names and addresses are furnished to the
Company by the Representative) to whom principal amounts of the Senior Notes may
have been sold by the Representative for the accounts of the Underwriters and,
upon request, to any other dealers making such request, copies of such
amendments to the Prospectus or supplements to the Prospectus.
(e) As soon as practicable, the Company will make generally available to
its security holders and to the Underwriters an earnings statement or statement
of the Company and its subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Senior Notes for offer and sale
under the securities or "blue sky" laws of such jurisdictions as the
Representative may designate within six months after the date hereof and itself
to pay, or to reimburse the Underwriters and their counsel for, reasonable
filing fees and expenses in connection therewith in an amount not exceeding
$3,500 in the aggregate (including filing fees and expenses paid and incurred
prior to the effective date hereof), provided, however, that the Company shall
not be required to qualify as a foreign corporation or to file a consent to
service of process or to file annual reports or to comply with any other
requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on
resales of the Senior Notes by the respective Underwriters) in connection with
the issuance and delivery of the Senior Notes, provided that the Company shall
be required to pay the fees and disbursements (other than disbursements referred
to in paragraph (f) of this Section 4) of Dewey Ballantine LLP, counsel to the
Underwriters, only in the events provided in paragraph (h) of this Section 4 and
paragraph (a) of Section 7, the Underwriters hereby agreeing to pay such fees
and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Senior Notes due
to the failure of the Company to comply with any of the conditions specified in
Section 3 hereof, or, if this Agreement shall be terminated in accordance with
the provisions of Section 8 or 9 hereof, to pay the fees and disbursements of
Dewey Ballantine LLP, counsel to the Underwriters, and, if the Underwriters
shall not take up and pay for the Senior Notes due to the failure of the Company
to comply with any of the conditions specified in Section 3 hereof, to reimburse
the Underwriters for their reasonable out-of-pocket expenses, in an aggregate
amount not exceeding a total of $10,000, incurred in connection with the
financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including
the earlier of (i) the date which is after the Time of Purchase on which the
distribution of the Senior Notes ceases, as determined by the Representative in
its sole discretion, and (ii) the date which is 30 days after the Time of
Purchase, the Company agrees not to offer, sell, contract to sell or otherwise
dispose of any Senior Notes of the Company or any substantially similar
securities of the Company without the consent of the Representative.
5. Warranties of the Company: The Company represents and warrants to you
as set forth below:
(a) the Registration Statement on its effective date complied with the
applicable provisions of the Act and the rules and regulations of the Commission
and the Registration Statement at its effective date did not, and at the Time of
Purchase will not, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Basic Prospectus on the date of this
Agreement and the Prospectus when first filed in accordance with Rule 424(b)
complies, and at the Time of Purchase the Prospectus will comply, with the
applicable provisions of the Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission, the Basic Prospectus
on the date of this Agreement and the Prospectus when first filed in accordance
with Rule 424(b) under the Act do not, and the Prospectus at the Time of
Purchase will not, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to any statements or omissions
made in the Registration Statement, the Basic Prospectus or the Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by, or through the Representative on behalf of, any Underwriter
expressly for use in the Registration Statement, the Basic Prospectus or
Prospectus, or to any statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of Eligibility under
the Trust Indenture Act of 1939 of any indenture trustee under an indenture of
the Company.
(b) As of the Time of Purchase, the Indenture will have been duly
authorized by the Company and duly qualified under the Trust Indenture Act of
1939, as amended, and, when executed and delivered by the Trustee and the
Company, will constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms and such Senior Notes will have
been duly authorized, executed, authenticated and, when paid for by the
purchasers thereof, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture, except as the enforceability
thereof may be limited by bankruptcy, insolvency, or other similar laws
affecting the enforcement of creditors' rights in general, and except as the
availability of the remedy of specific performance is subject to general
principles of equity (regardless of whether such remedy is sought in a
proceeding in equity or at law), and by an implied covenant of good faith and
fair dealing.
(c) The documents incorporated by reference in the Registration Statement
or Prospectus, when they were filed with the Commission, complied in all
material respects with the applicable provisions of the 1934 Act and the rules
and regulations of the Commission thereunder, and as of such time of filing,
when read together with the Prospectus, none of such documents contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise referred to or
contemplated therein, there has been no material adverse change in the business,
properties or financial condition of the Company.
(e) This Agreement has been duly authorized, executed and delivered by the
Company.
(f) The consummation by the Company of the transactions contemplated
herein is not in violation of its charter or bylaws, will not result in the
violation of any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court having
jurisdiction over the Company or its properties, and will not conflict with, or
result in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company under any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company is a party or by which it may be bound or to
which any of its properties may be subject (except for conflicts, breaches or
defaults which would not, individually or in the aggregate, be materially
adverse to the Company or materially adverse to the transactions contemplated by
this Agreement.)
(g) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the issuance
and sale by the Company of the Senior Notes or the transactions by the Company
contemplated in this Agreement, except (A) such as may be required under the
1933 Act or the rules and regulations thereunder; (B) such as may be required
under the 1935 Act; (C) the qualification of the Indenture under the 1939 Act;
and (D) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws.
(h) The Company and each "significant subsidiary" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X promulgated under the Act) has
been duly organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation.
(i) The consolidated financial statements of the Company and its
consolidated subsidiaries together with the notes thereto, included or
incorporated by reference in the Prospectus present fairly the financial
position of the Company at the dates or for the periods indicated; said
consolidated financial statements have been prepared in accordance with United
States generally accepted accounting principles applied, apart from
reclassifications disclosed therein, on a consistent basis throughout the
periods involved; and the selected consolidated financial information of the
Company included in the Prospectus present fairly the information shown therein
and have been compiled, apart from reclassifications disclosed therein, on a
basis consistent with that of the audited financial statements of the Company
included or incorporated by reference in the Prospectus.
(j) There is no pending action, suit, investigation, litigation or
proceeding, including, without limitation, any environmental action, affecting
the Company before any court, governmental agency or arbitration that is
reasonably likely to have a material adverse effect on the business, properties,
financial condition or results of operations of the Company, except as disclosed
in the Prospectus
The Company's covenants, warranties and representations contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of any person, and shall survive the delivery of and
payment for the Senior Notes hereunder.
6. Warranties of Underwriters: Each Underwriter warrants and represents
that the information furnished in writing to the Company through the
Representative for use in the Registration Statement, in the Basic Prospectus,
in the Prospectus, or in the Prospectus as amended or supplemented is correct as
to such Underwriter. The warranties and representations of such Underwriter
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or other person, and shall
survive the delivery of and payment for the Senior Notes hereunder
7. Indemnification and Contribution:
(a) To the extent permitted by law, the Company agrees to indemnify and
hold you harmless, your officers and directors and each person, if any, who
controls you within the meaning of Section 15 of the Act, against any and all
losses, claims, damages or liabilities, joint or several, to which you, they or
any of you or them may become subject under the Act or otherwise, and to
reimburse you and such controlling person or persons, if any, for any legal or
other expenses incurred by you or them in connection with defending any action,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any alleged untrue statement or untrue statement of a material
fact contained in the Registration Statement, in the Basic Prospectus (if used
prior to the effective date of this Agreement), or in the Prospectus, or if the
Company shall furnish or cause to be furnished to you any amendments or any
supplements to the Prospectus, in the Prospectus as so amended or supplemented
except to the extent that such amendments or supplements relate solely to
securities other than the Senior Notes (provided that if such Prospectus or such
Prospectus, as amended or supplemented, is used after the period of time
referred to in Section 4(b) hereof, it shall contain such amendments or
supplements as the Company deems necessary to comply with Section 10(a) of the
Act), or arise out of or are based upon any alleged omission or omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any such alleged
untrue statement or omission, or untrue statement or omission which was made in
the Registration Statement, in the Basic Prospectus or in the Prospectus, or in
the Prospectus as so amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by or through the
Representative expressly for use therein or with any statements in or omissions
from that part of the Registration Statement that shall constitute the Statement
of Eligibility under the Trust Indenture Act of any indenture trustee under an
indenture of the Company, and except that this indemnity shall not inure to your
benefit (or of any person controlling you) on account of any losses, claims,
damages, liabilities or actions arising from the sale of the Senior Notes to any
person if such loss arises from the fact that a copy of the Prospectus, as the
same may then be supplemented or amended to the extent such Prospectus was
provided to you by the Company (excluding, however, any document then
incorporated or deemed incorporated therein by reference), was not sent or given
by you to such person with or prior to the written confirmation of the sale
involved and the alleged omission or alleged untrue statement or omission or
untrue statement was corrected in the Prospectus as supplemented or amended at
the time of such confirmation, and such Prospectus, as amended or supplemented,
was timely delivered to you by the Company. You agree promptly after the receipt
by you of written notice of the commencement of any action in respect to which
indemnity from the Company on account of its agreement contained in this Section
7(a) may be sought by you, or by any person controlling you, to notify the
Company in writing of the commencement thereof, but your omission so to notify
the Company of any such action shall not release the Company from any liability
which it may have to you or to such controlling person otherwise than on account
of the indemnity agreement contained in this Section 7(a). In case any such
action shall be brought against you or any such person controlling you and you
shall notify the Company of the commencement thereof, as above provided, the
Company shall be entitled to participate in, and, to the extent that it shall
wish, including the selection of counsel (such counsel to be reasonably
acceptable to the indemnified party), to direct the defense thereof at its own
expense. In case the Company elects to direct such defense and select such
counsel (hereinafter, Company's counsel), you or any controlling person shall
have the right to employ your own counsel, but, in any such case, the fees and
expenses of such counsel shall be at your expense unless (i) the Company has
agreed in writing to pay such fees and expenses or (ii) the named parties to any
such action (including any impleaded parties) include both you or any
controlling person and the Company and you or any controlling person shall have
been advised by your counsel that a conflict of interest between the Company and
you or any controlling person may arise (and the Company's counsel shall have
concurred in good faith with such advice) and for this reason it is not
desirable for the Company's counsel to represent both the indemnifying party and
the indemnified party (it being understood, however, that the Company shall not,
in connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys for you or any controlling person (plus
any local counsel retained by you or any controlling person in their reasonable
judgment), which firm (or firms) shall be designated in writing by you or any
controlling person).
(b) Each Underwriter agrees, to the extent permitted by law, severally and
not jointly, to indemnify, hold harmless and reimburse the Company, its
directors and such of its officers as shall have signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Act, to the same extent and upon the same terms as the
indemnity agreement of the Company set forth in Section 7(a) hereof, but only
with respect to untrue statements or alleged untrue statements or omissions or
alleged omissions made in the Registration Statement, or in the Basic
Prospectus, or in the Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity with information furnished in
writing to the Company by the Representative on behalf of such Underwriter
expressly for use therein. The Company agrees promptly after the receipt by it
of written notice of the commencement of any action in respect to which
indemnity from you on account of your agreement contained in this Section 7(b)
may be sought by the Company, or by any person controlling the Company, to
notify you in writing of the commencement thereof, but the Company's omission so
to notify you of any such action shall not release you from any liability which
you may have to the Company or to such controlling person otherwise than on
account of the indemnity agreement contained in this Section 7(b).
(c) If recovery is not available or insufficient under Section 7(a) or
7(b) hereof for any reason other than as specified therein, the indemnified
party shall be entitled to contribution for any and all losses, claims, damages,
liabilities and expenses for which such indemnification is so unavailable or
insufficient under this Section 7(c). In determining the amount of contribution
to which such indemnified party is entitled, there shall be considered the
portion of the proceeds of the offering of the Senior Notes realized, the
relative knowledge and access to information concerning the matter with respect
to which the claim was asserted, the opportunity to correct and prevent any
statement or omission, and any equitable considerations appropriate under the
circumstances. The Company and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Underwriters were treated as one entity for such
purpose) without reference to the considerations called for in the previous
sentence. No Underwriter or any person controlling such Underwriter shall be
obligated to contribute any amount or amounts hereunder which in the aggregate
exceeds the total price of the Senior Notes purchased by such Underwriter under
this Agreement, less the aggregate amount of any damages which such Underwriter
and its controlling persons have otherwise been required to pay in respect of
the same claim or any substantially similar claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. An Underwriter's obligation to contribute under
this Section 7 is in proportion to its purchase obligation and not joint with
any other Underwriter.
(d) No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which contribution could be sought under this Section 7
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of such indemnified party.
(e) In no event shall any indemnifying party have any liability or
responsibility in respect of the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
effected without its prior written consent.
The agreements contained in this Section 7 hereof shall remain in full
force and effect regardless of any investigation made by or on behalf of any
person, and shall survive the delivery of and payment for the Senior Notes
hereunder.
8. Default of Underwriters: If any Underwriter under this Agreement shall
fail or refuse (otherwise than for some reason sufficient to justify, in
accordance with the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal amount of Senior
Notes which it has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Senior Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of the Senior Notes, the other Underwriters
shall be obligated severally in the proportions which the amounts of Senior
Notes set forth opposite their names in Exhibit 1 hereto bear to the aggregate
principal amount of Senior Notes set forth opposite the names of all such
non-defaulting Underwriters, to purchase the Senior Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on the
terms set forth herein; provided that in no event shall the principal amount of
Senior Notes which any Underwriter has agreed to purchase pursuant to Section 1
hereof be increased pursuant to this Section 8 by an amount in excess of
one-ninth of such principal amount of Senior Notes without the written consent
of such Underwriter. If any Underwriter or Underwriters shall fail or refuse to
purchase Senior Notes and the aggregate principal amount of Senior Notes with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of the Senior Notes then this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter; provided, however, that
the non-defaulting Underwriters may agree, in their sole discretion, to purchase
the Senior Notes which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on the terms set forth herein. In the event of any
such termination, the Company shall not be under any liability to any
Underwriter (except to the extent, if any, provided in Section 4(h) hereof), nor
shall any Underwriter (other than an Underwriter who shall have failed or
refused to purchase the Senior Notes without some reason sufficient to justify,
in accordance with the terms hereof, its termination of its obligations
hereunder) be under any liability to the Company or any other Underwriter.
Nothing herein contained shall release any defaulting Underwriter from its
liability to the Company or any non-defaulting Underwriter for damages
occasioned by its default hereunder.
9. Termination of Agreement by the Underwriters: This Agreement may be
terminated at any time prior to the Time of Purchase by the Representative if,
after the execution and delivery of this Agreement and prior to the Time of
Purchase, in the Representative's reasonable judgment, the Underwriters' ability
to market the Senior Notes shall have been materially adversely affected
because:
(i) trading in securities on the New York Stock Exchange shall have
been generally suspended by the Commission or by the New York Stock
Exchange or trading in the securities of the Company shall have been
suspended by the New York Stock Exchange, or
(ii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or
war or other national or international calamity or crisis, or
(iii)a general banking moratorium shall have been declared by Federal
or New York State authorities, or
(iv) there shall have been any decrease in the ratings of the
Company's debt securities by Moody's Investors Services, Inc. (Moody's) or
Standard & Poor's Ratings Group (S&P) or either Moody's or S&P shall
publicly announce that it has such debt securities under consideration for
possible downgrade.
If the Representative elects to terminate this Agreement, as provided in
this Section 9, the Representative will promptly notify the Company by telephone
or by telex or facsimile transmission, confirmed in writing. If this Agreement
shall not be carried out by any Underwriter for any reason permitted hereunder,
or if the sale of the Senior Notes to the Underwriters as herein contemplated
shall not be carried out because the Company is not able to comply with the
terms hereof, the Company shall not be under any obligation under this Agreement
and shall not be liable to any Underwriter or to any member of any selling group
for the loss of anticipated profits from the transactions contemplated by this
Agreement (except that the Company shall remain liable to the extent provided in
Section 4(h) hereof) and the Underwriters shall be under no liability to the
Company nor be under any liability under this Agreement to one another.
10. Notices: All notices hereunder shall, unless otherwise expressly
provided, be in writing and be delivered at or mailed to the following addresses
or by telex or facsimile transmission confirmed in writing to the following
addresses: if to the Underwriters, to the Representative at Barclays Capital
Inc., 200 Park Avenue, New York, New York 10166, Attention: Transaction
Management (fax 212/412-7680), and at UBS Warburg LLC, 299 Park Avenue, New
York, New York 10171, Attention: David Mikulka (fax 212/821-2467) and, if to the
Company, to American Electric Power Company, Inc., c/o American Electric Power
Service Corporation, 1 Riverside Plaza, Columbus, Ohio 43215, Attention: A. A.
Pena, Treasurer, (fax 614/716-2807).
11. Parties in Interest: The agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company (including the
directors thereof and such of the officers thereof as shall have signed the
Registration Statement), the controlling persons, if any, referred to in Section
7 hereof, and their respective successors, assigns, executors and
administrators, and, except as expressly otherwise provided in Section 8 hereof,
no other person shall acquire or have any right under or by the virtue of this
Agreement.
12. Definition of Certain Terms: If there be two or more persons, firms or
corporations named in Exhibit 1 hereto, the term "Underwriters", as used herein,
shall be deemed to mean the several persons, firms or corporations, so named
(including the Representative herein mentioned, if so named) and any party or
parties substituted pursuant to Section 8 hereof, and the term "Representative",
as used herein, shall be deemed to mean the representative or representatives
designated by, or in the manner authorized by, the Underwriters. All obligations
of the Underwriters hereunder are several and not joint. If there shall be only
one person, firm or corporation named in Exhibit 1 hereto, the term
"Underwriters" and the term "Representative", as used herein, shall mean such
person, firm or corporation. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the Senior Notes
from any of the respective Underwriters.
13. Conditions of the Company's Obligations: The obligations of the
Company hereunder are subject to the Underwriters' performance of their
obligations hereunder, and the further condition that at the Time of Purchase
the Commission shall have issued an appropriate order under the 1935 Act, and
such order shall remain in full force and effect, authorizing the transactions
contemplated hereby. In case these conditions shall not have been fulfilled,
this Agreement may be terminated by the Company upon notice thereof to the
Underwriters. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4(g) and 7 hereof.
14. Applicable Law: This Agreement will be governed and construed in
accordance with the laws of the State of New York.
15. Execution of Counterparts: This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, on the date
first above written.
AMERICAN ELECTRIC POWER COMPANY, INC.
By:_/s/ Henry W. Fayne_________
Henry W. Fayne
Vice President
BARCLAYS CAPITAL INC.
By:_/s/ Pamela Kendall_________
Name: Pamela Kendall
Title: Director
UBS Warburg LLC
By:_/s/ Scott D. Whitney_______
Name: Scott D. Whitney
Title: Director
as Representatives and on behalf of
the Underwriters named in Exhibit 1 hereto
EXHIBIT 1
Name Principal Amount
Barclays Capital Inc................................. $175,000,000
UBS Warburg LLC ..................................... 175,000,000
Banc of America Securities LLC....................... 30,000,000
Credit Suisse First BostonCorporation................ 30,000,000
ABN AMRO Incorporated................................ 15,000,000
Banc One Capital Markets, Inc........................ 15,000,000
BNY Capital Markets, Inc............................. 15,000,000
Credit Lyonnais Securities (USA) Inc................. 15,000,000
The Royal Bank of Scotland plc....................... 15,000,000
Utendahl Capital Partners, L.P....................... 15,000,000
Total ........................................... $500,000,000
Exhibit 4(a)
March 14, 2003
Company Order and Officers' Certificate
5.375% Senior Notes, Series C, due 2010
The Bank of New York, as Trustee
101 Barclay St. - 8W
New York, New York 10286
Ladies and Gentlemen:
Pursuant to Article Two of the Indenture, dated as of May 1, 2001 (as it may be
amended or supplemented, the "Indenture"), from American Electric Power Company,
Inc. (the "Company") to The Bank of New York, as trustee (the "Trustee"), and
the Board Resolutions dated April 23, 2002, a copy of which certified by the
Secretary or an Assistant Secretary of the Company is being delivered herewith
under Section 2.01 of the Indenture, and unless otherwise provided in a
subsequent Company Order pursuant to Section 2.04 of the Indenture,
1. The Company's 5.375% Senior Notes, Series C, due 2010 (the "Notes") are
hereby established. The Notes shall be in substantially the form attached hereto
as Exhibit 1.
2. The terms and characteristics of the Notes shall be as follows (the
numbered clauses set forth below corresponding to the numbered subsections of
Section 2.01 of the Indenture, with terms used and not defined herein having the
meanings specified in the Indenture):
(i) the aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture shall be limited to
$500,000,000, except as contemplated in Section 2.01 of the Indenture;
(ii) the date on which the principal of the Notes shall be payable
shall be March 15, 2010;
(iii)interest shall accrue from the date of authentication of the
Notes; the Interest Payment Dates on which such interest will be payable
shall be March 15 and September 15, and the Regular Record Date for the
determination of holders to whom interest is payable on any such Interest
Payment Date shall be the last day of the month preceding the relevant
Interest Payment Date; provided that the first Interest Payment Date shall
be September 15, 2003 and interest payable on the Stated Maturity Date or
any Redemption Date shall be paid to the Person to whom principal shall be
paid;
(iv) the interest rate at which the Notes shall bear interest shall
be 5.375% per annum;
(v) the Notes shall be redeemable at the option of the Company, in
whole at any time or in part from time to time, upon not less than thirty
but not more than sixty days' previous notice given by mail to the
registered owners of the Notes at a redemption price equal to the greater
of (i) 100% of the principal amount of the Notes being redeemed and (ii)
the sum of the present values of the remaining scheduled payments of
principal and interest on the Notes being redeemed (excluding the portion
of any such interest accrued to the date of redemption) discounted (for
purposes of determining present value) to the redemption date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate (as defined below) plus 30 basis points,
plus, in each case, accrued interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes that would be utilized, at
the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity
to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on
the third Business Day preceding such redemption date, as set forth in the
daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U. S. Government Securities" or (ii) if such release (or
any successor release) is not published or does not contain such prices on
such third Business Day, the Reference Treasury Dealer Quotation for such
redemption date.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Company and reasonably acceptable to the Trustee.
"Reference Treasury Dealer" means a primary U.S. government securities
dealer in New York City selected by the Company and reasonably acceptable
to the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at or before 5:00
p.m., New York City time, on the third Business Day preceding such
redemption date.
(vi) (a) the Notes shall be issued in the form of a Global Note; (b)
the Depositary for such Global Note shall be The Depository Trust Company;
and (c) the procedures with respect to transfer and exchange of Global
Notes shall be as set forth in the form of Note attached hereto;
(vii)the title of the Notes shall be "5.375% Senior Notes, Series C,
due 2010";
(viii) the form of the Notes shall be as set forth in Paragraph 1,
above;
(ix) not applicable;
(x) the Notes may be subject to a Periodic Offering;
(xi) not applicable;
(xii)not applicable;
(xiii) the Company will pay the principal of the Notes and any
premium and interest payable at redemption, if any, or at maturity in
immediately available funds at the office of The Bank of New York, 101
Barclay Street in New York, New York.
(xiv)the Notes shall be issuable in denominations of
$1,000 and any integral multiple thereof;
(xv) not applicable;
(xvi)the Notes shall not be issued as Discount
Securities;
(xvii) not applicable;
(xviii) not applicable; and
(xix)Restrictive Covenants:
Limitation upon Liens of Certain Subsidiaries
For so long as any Notes remain outstanding, the Company will not create
or incur or allow any of its subsidiaries to create or incur any pledge or
security interest on any of the capital stock of a Public Utility Subsidiary
held by the Company or one of its subsidiaries or a Significant Subsidiary.
For purposes of this covenant:
(i) Public Utility Subsidiary means, at any particular time, a direct
or indirect subsidiary of the Company that, as a substantial part of its
business, distributes or transmits electric energy to retail or wholesale
customers at rates or tariffs that are regulated by either a state or
Federal regulatory authority.
(ii) Significant Subsidiary means, at any particular time, any direct
subsidiary of the Company whose consolidated gross assets or consolidated
gross revenues (having regard to the Company's direct beneficial interest
in the shares, or the like, of that subsidiary) represent at least 25% of
the Company's consolidated gross assets or consolidated gross revenues
appearing in the most recent audited financial statements of the Company
as of the date of determination.
Limitation upon Mergers, Consolidations and Sale of Assets
The provisions of Article Ten of the Indenture shall be applicable to the
Notes.
3. You are hereby requested to authenticate $500,000,000 aggregate
principal amount of 5.375% Senior Notes, Series C, due 2010, executed by the
Company and delivered to you concurrently with this Company Order and Officers'
Certificate, in the manner provided by the Indenture.
4. You are hereby requested to hold the Notes as custodian for DTC in
accordance with the Letter of Representations dated March 11, 2003, from the
Company and the Trustee to DTC.
5. Concurrently with this Company Order and Officers' Certificate, an
Opinion of Counsel under Sections 2.04 and 13.06 of the Indenture is being
delivered to you.
6. The undersigned Henry W. Fayne and Thomas G. Berkemeyer, the Vice
President and Assistant Secretary, respectively, of the Company do hereby
certify that:
(i) we have read the relevant portions of the Indenture, including
without limitation the conditions precedent provided for therein relating
to the action proposed to be taken by the Trustee as requested in this
Company Order and Officers' Certificate, and the definitions in the
Indenture relating thereto;
(ii) we have read the Board Resolutions of the Company and the
Opinion of Counsel referred to above;
(iii)we have conferred with other officers of the Company, have
examined such records of the Company and have made such other
investigation as we deemed relevant for purposes of this certificate;
(iv) in our opinion, we have made such examination or investigation
as is necessary to enable us to express an informed opinion as to whether
or not such conditions have been complied with; and
(v) on the basis of the foregoing, we are of the opinion that all
conditions precedent provided for in the Indenture relating to the action
proposed to be taken by the Trustee as requested herein have been complied
with.
Kindly acknowledge receipt of this Company Order and Officers' Certificate,
including the documents listed herein, and confirm the arrangements set forth
herein by signing and returning the copy of this document attached hereto.
Very truly yours,
AMERICAN ELECTRIC POWER COMPANY, INC.
By:_/s/ Henry W. Fayne________
Vice President
And:_/s/ Thomas G. Berkemeyer_
Assistant Secretary
Acknowledged by Trustee:
By:_/s/ Joseph A. Lloret______
Authorized Signatory
Exhibit 1
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
to be issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein. Except as otherwise provided
in Section 2.11 of the Indenture, this Security may be transferred, in whole but
not in part, only to another nominee of the Depository or to a successor
Depository or to a nominee of such successor Depository.
No. R1
AMERICAN ELECTRIC POWER COMPANY, INC.
5.375% Senior Notes, Series C, due 2010
CUSIP: __________ Original Issue
Date: March 14, 2003
Stated Maturity: March 15, 2010 Interest Rate:
5.375%
Principal Amount: $500,000,000
Redeemable: Yes [X] No [ ]
In Whole: Yes [X] No [ ]
In Part: Yes [X] No [ ]
AMERICAN ELECTRIC POWER COMPANY, INC., a corporation duly organized and
existing under the laws of the State of New York (herein referred to as the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO. or registered assigns, the Principal Amount specified above on the Stated
Maturity specified above, and to pay interest on said Principal Amount from the
Original Issue Date specified above or from the most recent interest payment
date (each such date, an "Interest Payment Date") to which interest has been
paid or duly provided for, semi-annually in arrears on March 15 and September 15
in each year, commencing on September 15, 2003, at the Interest Rate per annum
specified above, until the Principal Amount shall have been paid or duly
provided for. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date, as provided in the Indenture, as hereinafter defined,
shall be paid to the Person in whose name this Note (or one or more Predecessor
Securities) shall have been registered at the close of business on the Regular
Record Date with respect to such Interest Payment Date, which shall be the last
day of the month (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date, provided that interest payable
on the Stated Maturity or any redemption date shall be paid to the Person to
whom principal is paid. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and shall be paid as provided in said Indenture.
If any Interest Payment Date, any redemption date or Stated Maturity is
not a Business Day, then payment of the amounts due on this Note on such date
will be made on the next succeeding Business Day, and no interest shall accrue
on such amounts for the period from and after such Interest Payment Date,
redemption date or Stated Maturity, as the case may be, with the same force and
effect as if made on such date. The principal of (and premium, if any) and the
interest on this Note shall be payable at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, the City of New York,
New York, in any coin or currency of the United States of America which at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest (other than interest payable on the
Stated Maturity or any redemption date) may be made at the option of the Company
by check mailed to the registered holder at such address as shall appear in the
Security Register.
This Note is one of a duly authorized series of Notes of the Company
(herein sometimes referred to as the "Notes"), specified in the Indenture, all
issued or to be issued in one or more series under and pursuant to an Indenture
dated as of May 1, 2001 duly executed and delivered between the Company and The
Bank of New York, a corporation organized and existing under the laws of the
State of New York, as Trustee (herein referred to as the "Trustee") (such
Indenture, as originally executed and delivered and as thereafter supplemented
and amended being hereinafter referred to as the "Indenture"), to which
Indenture and all indentures supplemental thereto or Company Orders reference is
hereby made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the holders of
the Notes. By the terms of the Indenture, the Notes are issuable in series which
may vary as to amount, date of maturity, rate of interest and in other respects
as in the Indenture provided. This Note is one of the series of Notes designated
on the face hereof.
This Note may be redeemed by the Company at its option, in whole at any
time or in part from time to time, upon not less than thirty but not more than
sixty days' previous notice given by mail to the registered owners of the Note
at a redemption price equal to the greater of (i) 100% of the principal amount
of the Note being redeemed and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest on the Note being
redeemed (excluding the portion of any such interest accrued to the date of
redemption) discounted (for purposes of determining present value) to the
redemption date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis
points, plus, in each case, accrued interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes that would be utilized, at
the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity
to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any redemption date,
(1) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on
the third Business Day preceding such redemption date, as set forth in the
daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (2) if such release (or any
successor release) is not published or does not contain such prices on
such third Business Day, the Reference Treasury Dealer Quotation for such
redemption date.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Company and reasonably acceptable to the Trustee.
"Reference Treasury Dealer" means a primary U. S. government securities
dealer in New York City selected by the Company and reasonably acceptable
to the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at or before 5:00
p.m., New York City time, on the third Business Day preceding such
redemption date.
The Company shall not be required to (i) issue, exchange or register the
transfer of any Notes during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of less than all
the outstanding Notes of the same series and ending at the close of business on
the day of such mailing, nor (ii) register the transfer of or exchange of any
Notes of any series or portions thereof called for redemption. This Global Note
is exchangeable for Notes in definitive registered form only under certain
limited circumstances set forth in the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes
of this series, of like tenor, for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the surrender of this Note.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Note upon compliance by the Company with certain conditions
set forth therein.
As described in the Company Order and Officers' Certificate, so long as
this Note is outstanding, the Company is subject to the restrictive covenants
described therein.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes of all series affected by such supplemental
indentures or indentures at the time outstanding voting as a class, as defined
in the Indenture, to execute supplemental indentures for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Notes; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any Notes of any
series, or reduce the principal amount thereof, or reduce the rate or extend the
time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, or reduce the amount of the principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the maturity
thereof pursuant to the Indenture, without the consent of the holder of each
Note then outstanding and affected; (ii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such supplemental
indenture, or reduce the percentage of Notes, the holders of which are required
to waive any default and its consequences, without the consent of the holder of
each Note then outstanding and affected thereby; or (iii) modify any provision
of Section 6.01(c) of the Indenture (except to increase the percentage of
principal amount of securities required to rescind and annul any declaration of
amounts due and payable under the Notes), without the consent of the holder of
each Note then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Notes of any series at the time outstanding affected thereby, on behalf of
the Holders of the Notes of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Notes of such series. Any such consent or waiver by the
registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered holder hereof on the Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company as may be designated by the
Company accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Note Registrar may deem and treat
the registered Holder hereof as the absolute owner hereof (whether or not this
Note shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Note Registrar) for the purpose of
receiving payment of or on account of the principal hereof and premium, if any,
and interest due hereon and for all other purposes, and neither the Company nor
the Trustee nor any paying agent nor any Note Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
IN WITNESS WHEREOF, the Company has caused this Instrument to be executed.
AMERICAN ELECTRIC POWER COMPANY, INC.
By:___________________________
Vice President
Attest:
By:___________________________
Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes designated in accordance
with, and referred to in, the within-mentioned Indenture.
Dated March 14, 2003
THE BANK OF NEW YORK
By:___________________________
Authorized Signatory
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
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(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
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ASSIGNEE) the within Note and all rights thereunder, hereby
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irrevocably constituting and appointing such person attorney to
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transfer such Note on the books of the Issuer, with full
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power of substitution in the premises.
Dated:________________________ _________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member of the Securities
Transfer Agents Medallion Program ("STAMP"), the Stock Exchange Medallion
Program ("SEMP") or the New York Stock Exchange, Inc. Medallion Signature
Program ("MSP").
Exhibit 5(a)
March 14, 2003
American Electric Power Company, Inc.
1 Riverside Plaza
Columbus, Ohio 43215
Ladies and Gentlemen:
We have acted as counsel to American Electric Power Company, Inc. a
New York corporation (the "Company"), in connection with the Registration
Statement on Form S-3 (Registration No. 333-86050), as amended by Amendment No.
1 thereto (the "Registration Statement") filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), relating to $500,000,000 aggregate principal
amount of 5.375% Senior Notes, Series C (the "Senior Notes").
The Senior Notes were issued under an Indenture dated as of May 1,
2001, as supplemented by a Company Order and Officers' Certificate dated March
14, 2003 relating to the Senior Notes (the "Indenture"), between the Company and
The Bank of New York, as Trustee (the "Trustee").
We have examined the Registration Statement and the Indenture, which
has been filed with the Commission as an exhibit to the Registration Statement.
We also have examined the originals, or duplicates or certified or conformed
copies, of such records, agreements, instruments and other documents and have
made such other and further investigations as we have deemed relevant and
necessary in connection with the opinions expressed herein. As to questions of
fact material to this opinion, we have relied upon certificates of public
officials and of officers and representatives of the Company.
In rendering the opinion set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies, and the authenticity of the originals of such latter
documents. We also have assumed that the Indenture is the valid and legally
binding obligation of the Trustee.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that assuming the due
authentication thereof by the Trustee, the Senior Notes constitute valid and
legally binding obligations of the Company enforceable against the Company in
accordance with their terms.
Our opinion set forth above is subject to the effects of (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the Federal law of the United States.
We hereby consent to the filing of this opinion letter as Exhibit
5(a) to the Registration Statement and to the use of our name under the caption
"Legal Opinions" in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT