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: May 20, 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 May 15, 2003, American Electric Power Company, Inc. (the "Company")
entered into an Underwriting Agreement with Credit Suisse First Boston LLC
and UBS Warburg LLC, as representatives of the several underwriters named
therein, relating to the offering and sale by the Company of $300,000,000 of
its 5.25% Senior Notes, Series D, due 2015 (the "Notes").
Item 7. Financial Statements and Exhibits
(c) Exhibits
1(a) Underwriting Agreement, dated May 15, 2003, between the Company
and Credit Suisse First Boston LLC 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 May 20, 2003,
establishing the terms of the Notes.
4(b) Form of the Notes (included in Exhibit 4(a) hereto).
5(a)(i) 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
May 20, 2003
Exhibit 1(a)
AMERICAN ELECTRIC POWER COMPANY, INC.
Underwriting Agreement
Dated May 15, 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 $300,000,000 principal
amount of its 5.25% Senior Notes, Series D, due 2015 (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 Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933, as amended (the Act), with the
Securities and Exchange Commission (the Commission), registration statements
(File No. 333-58540 and 333-105243) and a prospectus relating to
$1,550,000,000 principal amount of, among other securities, its Senior Notes
and such registration statements have become effective; and
WHEREAS, pursuant to Rule 462(b) of the Commission's General Rules and
Regulations under the Act (the Rules), the contents of registration statement
No. 333-58540 are incorporated by reference into registration statement No.
333-105243; and
WHEREAS, such registration statements, including the financial
statements, the documents incorporated or deemed incorporated therein by
reference, the exhibits thereto, being herein called, collectively, 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 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 forth opposite their names in
Exhibit 1 hereto, together aggregating all of the Senior Notes, at a price
equal to 99.173% of the principal amount thereof.
2. Payment and Delivery: Payment for the Senior Notes shall be made
to the Company as described below, or in such other manner as the Company and
the Underwriters shall mutually agree upon in writing, upon the delivery of
the Senior Notes to UBS Warburg LLC (UBS) for the respective accounts of the
Underwriters against receipt therefor signed by UBS. Such delivery shall be
made at 10:00 A.M., New York Time, on May 20, 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 Underwriters shall mutually
agree in writing. The time at which payment and delivery are to be made is
herein called the Time of Purchase.
The Company agrees that the Underwriters' obligation to purchase and pay
for the Senior Notes pursuant to this Agreement at the purchase price
specified above shall only be satisfied in full at the Time of Purchase by
(i) the deposit by the Underwriters of $250,000,000 aggregate principal
amount of the Company's Putable Callable Notes, Series B due May 15, 2013 to
the Trustee's account at The Depository Trust Company in New York, New York
(DTC) and (ii) the electronic transfer of $10,221,500 in immediately
available funds payable by UBS (on behalf of the Underwriters) to an account
designated by the Company.
The delivery of the Senior Notes shall be made in fully registered form,
registered in the name of CEDE & CO., to the offices of DTC 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 Underwriters 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 Underwriters 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 Underwriters shall have received a letter from
Deloitte & Touche LLP in form and substance satisfactory to the Underwriters,
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 Underwriters 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
Underwriters 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
Underwriters 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
Underwriters 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 Underwriters 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 Underwriters 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
Underwriters 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 Underwriters) to whom principal amounts
of the Senior Notes may have been sold by 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
Underwriters 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
Underwriters in their 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
Underwriters.
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 (the 1939 Act), 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 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 1939 Act 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 1939 Act 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
it 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
each 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 any Underwriter 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 Underwriters
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 principal amount 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
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the Senior Notes, the other Underwriter 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 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 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 Underwriter may agree, in its sole
discretion, to purchase the Senior Notes which such defaulting Underwriter
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 Underwriters
if, after the execution and delivery of this Agreement and prior to the Time
of Purchase, in the Underwriters' 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 Underwriters elect to terminate this Agreement, as provided in
this Section 9, the Underwriters 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 Credit Suisse First Boston
LLC, Eleven Madison Avenue, New York, New York 10010, Attention: Transactions
Advisory Group (fax 212/325-8278), and UBS Warburg LLC, 299 Park Avenue, New
York, New York 10171, Attention: David Mikula (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: G. S. Chatas, 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 and any party or parties substituted pursuant to
Section 8 hereof. 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" 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/ Geoffrey S. Chatas____
Geoffrey S. Chatas
Treasurer
CREDIT SUISSE FIRST BOSTON LLC
By:_/s/ Michael Davis__________
Name: Michael Davis
Title: Director
UBS Warburg LLC
By:_/s/ Christopher Forshner____
Name: Christopher Forshner
Title: Executive Director
EXHIBIT 1
Name Principal Amount
Credit Suisse First Boston LLC $150,000,000
UBS Warburg LLC
150,000,000
Total
$300,000,000
Exhibit 4(a)
May 20, 2003
Company Order and Officers' Certificate
5.25% Senior Notes, Series D, due 2015
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 5.25% Senior Notes, Series D, due 2015 (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
$300,000,000, 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 June 1, 2015;
(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 June 1 and December 1, and the Regular Record Date for the
determination of holders to whom interest is payable on any such
Interest Payment Date shall be the May 15 or November 15 preceding the
relevant Interest Payment Date; provided that the first Interest Payment
Date shall be December 1, 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 5.25% 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 35 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 "5.25% Senior Notes, Series
D, due 2015";
(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 $300,000,000 aggregate
principal amount of 5.25% Senior Notes, Series D, due 2015, 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 May 16, 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 Geoffrey S. Chatas and Thomas G. Berkemeyer, the
Treasurer 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/ Geoffrey S. Chatas____
Treasurer
And:__/s/ Thomas G. Berkemeyer
Assistant Secretary
Acknowledged by Trustee:
By:__/s/ Cynthia Chaney_______
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.
5.25% Senior Notes, Series D, due 2015
CUSIP: 025537 AE 1 Original Issue Date: May 20, 2003
Stated Maturity: June 1, 2015 Interest Rate: 5.25%
Principal Amount: $300,000,000
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 June 1 and
December 1 in each year, commencing on December 1, 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 May 15 or November 15 (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 35 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 one
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:__________________________
Treasurer
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 May 20, 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)
_______________________________________
________________________________________________________________
________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
________________________________________________________________
ASSIGNEE) the within Note and all rights thereunder, hereby
________________________________________________________________
irrevocably constituting and appointing such person attorney to
________________________________________________________________
transfer such Note on the books of the Issuer, with full
________________________________________________________________
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)(i)
May 20, 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. 333-105243) (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 5.25% Senior Notes, Series D, due 2015
(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 May 20, 2003 (the "Senior Indenture")
between the Company and The Bank of New York, as Trustee (the
"Senior Trustee").
We have examined the Registration Statement, and the
Senior Indenture, which have been filed with the Commission as
exhibits 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 opinions 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: (1) the Senior Indenture
is the valid and legally binding obligation of the Senior Trustee
enforceable against the Senior Trustee in accordance with its
terms.
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
Senior Trustee, the Senior Notes constitute valid and legally
binding obligations of the Company enforceable against the
Company in accordance with their terms.
Our opinions set forth in paragraph 1 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)(i) 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