PROSPECTUS
$3,000,000,000
AMERICAN
ELECTRIC POWER COMPANY, INC.
1
RIVERSIDE PLAZA
COLUMBUS,
OHIO 43215
(614)
716-1000
SENIOR
NOTES
COMMON
STOCK
JUNIOR
SUBORDINATED DEBENTURES
STOCK
PURCHASE CONTRACTS
STOCK
PURCHASE UNITS
AEP
CAPITAL TRUST I
AEP
CAPITAL TRUST II
AEP
CAPITAL TRUST III
TRUST
PREFERRED SECURITIES
Guaranteed
as described herein by
AMERICAN
ELECTRIC POWER COMPANY, INC.
TERMS
OF
SALE
This
prospectus contains summaries of the general terms of the securities. You
will
find the specific terms of these securities, and the manner in which they
are
being offered, in supplements to this prospectus. You should read this
prospectus and the available prospectus supplement carefully before you
invest.
The
common stock of American Electric Power Company, Inc. is listed on the New
York
Stock Exchange under the symbol “AEP”. The last reported sale of the common
stock on the New York Stock Exchange on June 3, 2005 was $35.80 per
share.
In
this
prospectus, unless the context indicates otherwise, the words “we”, “ours” and
“us” refer to American Electric Power Company, Inc. and its consolidated
subsidiaries. “Trusts” refer to AEP Capital Trust I, AEP Capital Trust II and
AEP Capital Trust III.
INVESTING
IN THESE SECURITIES INVOLVES RISKS. SEE THE SECTION ENTITLED “RISK FACTORS”
BEGINNING ON PAGE 1 FOR MORE INFORMATION.
The
Securities have not been approved or disapproved by the Securities and Exchange
Commission (“SEC”) or any state securities commission, nor have these
organizations determined that this prospectus is accurate or complete. Any
representation to the contrary is a criminal offense.
The
date
of this prospectus is June 9, 2005.
THE
COMPANY
We
are a
public utility holding company that owns, directly or indirectly, all of
the
outstanding common stock of our domestic electric utility subsidiaries and
varying degrees of other subsidiaries. Substantially all of our operating
revenues derive from the furnishing of electric service. We were incorporated
under the laws of New York in 1906 and reorganized in 1925. Our principal
executive offices are located at 1 Riverside Plaza, Columbus, Ohio 43215,
and
our telephone number is (614) 716-1000.
We
own,
directly or indirectly, all the outstanding common stock of the following
operating public utility companies: AEP Texas Central Company (“TCC”), AEP Texas
North Company (“TNC”), Appalachian Power Company (“APCo”), Columbus Southern
Power Company (“CSP”), Indiana Michigan Power Company (“I&M”), Kentucky
Power Company, Kingsport Power Company, Ohio Power Company (“OPCo”), Public
Service Company of Oklahoma (“PSO”), Southwestern Electric Power Company
(“SWEPCo”) and Wheeling Power Company. These operating public utility companies
supply electric service in portions of Arkansas, Indiana, Kentucky, Louisiana,
Michigan, Ohio, Oklahoma, Tennessee, Texas, Virginia and West Virginia. We
also
own all of the outstanding common stock of American Electric Power Service
Corporation, which provides accounting, administrative, information systems,
engineering, financial, legal, maintenance and other services to us and our
subsidiaries.
PROSPECTUS
SUPPLEMENTS
We
will
provide information to you about the securities in up to three separate
documents that progressively provide more detail: (a) this prospectus provides
general information some of which may not apply to your securities, (b) the
accompanying prospectus supplement provides more specific terms of your
securities, and (c) the pricing supplement, if any, provides the final terms
of
your securities. It is important for you to consider the information contained
in this prospectus, the prospectus supplement, and the pricing supplement,
if
any, in making your investment decision.
RISK
FACTORS
Investing
in our securities involves risk. Please see the risk factors described in
our
Annual Report on Form 10-K, as amended by Form 10-K/A, for the fiscal year
ended
December 31, 2004, along with disclosure related to the risk factors contained
in our Quarterly Report on Form 10-Q for the quarter ended March 31, 2005,
which
are incorporated by reference in this prospectus. Before making an investment
decision, you should carefully consider these risks as well as other information
contained or incorporated by reference in this prospectus. The risks and
uncertainties described are those presently known to us. Additional risks
and
uncertainties not presently known to us or that we currently deem immaterial
may
also impair our business operations, our financial results and the value
of our
securities.
RATIO
OF EARNINGS TO FIXED CHARGES
The
Ratio
of Earnings to Fixed Charges for each of the periods indicated is as
follows:
|
Twelve
Months Period Ended
|
|
Ratio
|
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|
|
|
December
31, 2000
|
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1.56
|
|
December
31, 2001
|
|
2.31
|
|
December
31, 2002
|
|
1.72
|
|
December
31, 2003
|
|
1.80
|
|
December
31, 2004
|
|
2.63
|
|
March
31, 2005
|
|
2.75
|
For
current information on the Ratio of Earnings to Fixed Charges, please see
our
most recent Form 10-K and 10-Q. See Where
You Can Find More Information.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus is part of a registration statement we and the trusts filed with
the
SEC. We also file annual, quarterly and special reports and other information
with the SEC. You may read and copy any document we file at the SEC’s Public
Reference Room at 450 Fifth Street, N. W., Washington, D.C. 20549. Please
call
the SEC at 1-800-SEC-0330 for further information on the public reference
rooms.
You may also examine our SEC filings through the SEC’s web site at http://www.sec.gov
or at
the offices of the New York Stock Exchange, 20 Broad Street, New York, New
York
10005.
The
SEC
allows us to “incorporate by reference” the information we file with them, which
means that we can disclose important information to you by referring you
to
those documents. The information incorporated by reference is considered
to be
part of this prospectus, and later information that we file with the SEC
will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings made with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until
we sell all the securities registered herein.
Annual
Report on Form 10-K for the year ended December 31, 2004, as amended by the
Annual Report on Form 10-K/A filed May 6, 2005;
Quarterly
Report on Form 10-Q for the quarter ended March 31, 2005;
Current
Report on Form 8-K filed April 28, 2005;
Current
Report on Form 8-K filed April 4, 2005;
Current
Report on Form 8-K filed March 9, 2005;
Current
Report on Form 8-K filed February 28, 2005;
Current
Report on Form 8-K filed February 25, 2005;
Current
Report on Form 8-K filed January 31, 2005;
Current
Report on Form 8-K filed January 21, 2005; and
Current
Report on Form 8-K filed January 11, 2005
You
may
request a copy of these filings, at no cost, by writing or telephoning us
at the
following address:
Ms.
R.
Buonavolonte
American
Electric Power Service Corporation
1
Riverside Plaza
Columbus,
Ohio 43215
614-716-1000
You
should rely only on the information incorporated by reference or provided
in
this prospectus or any supplement. We have not authorized anyone else to
provide
you with different information. We are not making an offer of these securities
in any state where the offer is not permitted. You should not assume that
the
information in this prospectus or any supplement is accurate as of any date
other than the date on the front of those documents.
USE
OF PROCEEDS
The
net
proceeds from the sale of any of the offered securities will be used for
general
corporate purposes relating to our business. Unless stated otherwise in a
prospectus supplement, these purposes include redeeming or repurchasing
outstanding debt, replenishing working capital, financing our subsidiaries’
ongoing construction and maintenance programs. If we do not use the net proceeds
immediately, we temporarily invest them in short-term, interest-bearing
obligations.
The
prospectus supplement of a particular offering of securities will identify
the
use of proceeds for the offering. The proceeds from the sale of Trust Preferred
Securities by a trust will be invested in Debt Securities issued by us. Except
as we may otherwise describe in the related prospectus supplement, we expect
to
use the net proceeds of the sale of such Debt Securities to the applicable
trust
for the above purposes.
THE
TRUSTS
AEP
Capital Trust I, AEP Capital Trust II and AEP Capital Trust III (each a “trust”)
are statutory business trusts created under the Delaware Business Trust Act
pursuant to amended and restated declarations of trust, among AEP, Wilmington
Trust Company, as the Property Trustee and Delaware Trustee and two employees
of
AEP as Administrative Trustees. In this prospectus, we refer to these
declarations as the trust agreements.
Each
trust exists solely to:
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issue
and sell its Trust Preferred Securities and Trust Common Securities
(the
“Trust Securities”);
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use
the proceeds from the sale of its Trust Securities to purchase
and hold a
series of our Debt Securities;
|
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maintain
its status as a grantor trust for federal income tax purposes;
and
|
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engage in other activities that are necessary or incidental
to
these purposes. |
We
will
purchase all of the Trust Common Securities. The Trust Common Securities
will
represent an aggregate liquidation amount equal to at least 3% of the total
capital of the trust. Payments will be made on the Trust Common Securities
pro
rata
with the
Trust Preferred Securities, except that the Trust Common Securities’ right to
payment will be subordinated to the rights of the Trust Preferred Securities
if
there is a default under the trust agreement resulting from an event of default
under the applicable indenture.
We
will
guarantee the Trust Preferred Securities as described later in this
prospectus.
Each
trust’s business and affairs will be conducted by its Administrative Trustees,
as set forth in the trust agreement. The office of the Delaware Trustee in
the
State of Delaware is 1100 North Market Street, Wilmington, Delaware 19890.
The
trust’s offices are located at 1 Riverside Plaza, Columbus, Ohio 43215; the
telephone number is (614) 716-1000.
ACCOUNTING
TREATMENT OF TRUSTS
For
financial reporting purposes, the trusts will be treated as our subsidiaries
and, accordingly, the accounts of the trusts will be included in our
consolidated financial statements. The Trust Preferred Securities will be
presented as a separate line item in our consolidated balance sheet, and
appropriate disclosures concerning the Trust Preferred Securities, the
Guarantees, the Senior Notes and the junior subordinated debentures will
be
included in the notes to the consolidated financial statements. For financial
reporting purposes, we will record distributions payable on the Trust Preferred
Securities as an expense.
DESCRIPTION
OF THE SENIOR NOTES
General
We
will
issue the Senior Notes directly to the public, to a trust or as part of a
Stock
Purchase Unit, under an Indenture dated May 1, 2001 between us and the Trustee,
The Bank of New York. This prospectus briefly outlines some provisions of
the
Indenture. If you would like more information on these provisions, you should
review the Indenture and any supplemental indentures or company orders that
we
have filed or will file with the SEC. See Where
You Can Find More Information
on how
to locate these documents. You may also review these documents at the Trustee’s
offices at 101 Barclay Street, New York, New York.
The
Indenture does not limit the amount of Senior Notes that may be issued. The
Indenture permits us to issue Senior Notes in one or more series or tranches
upon the approval of our board of directors and as described in one or more
company orders or supplemental indentures. Each series of Senior Notes may
differ as to their terms. The Indenture also gives us the ability to reopen
a
previous issue of a series of Senior Notes and issue additional Senior Notes
of
such series.
Because
we are a holding company, the claims of creditors of our subsidiaries will
have
a priority over our equity rights and the rights of our creditors (including
the
holders of the Senior Notes) to participate in the assets of the subsidiary
upon
the subsidiary’s liquidation.
The
Senior Notes are unsecured and will rank equally with all our unsecured
unsubordinated debt. For current information on our debt outstanding see
our
most recent Form 10-K and 10-Q. See Where
You Can Find More Information.
A
prospectus supplement or pricing supplement will include the final terms
for
each Senior Note. If we decide to list upon issuance any Senior Note or Senior
Notes on a securities exchange, a prospectus supplement or pricing supplement
will identify the exchange and state when we expect trading could begin.
The
following terms of the Senior Notes that we may sell at one or more times
will
be established in the applicable pricing or prospectus supplement:
- Maturity
- Fixed
or
floating interest rate
- Remarketing
features
- Certificate
or book-entry form
- Redemption
- Not
convertible, amortized or subject to a sinking fund
- Interest
paid on fixed rate Senior Notes quarterly or semi-annually
- Interest
paid on floating rate Senior Notes monthly, quarterly, semi-annually, or
annually
- Issued
in
multiples of a minimum denomination
- Ability
to defer payment of interest
- Any
other
terms not inconsistent with the Indenture
- Issued
with Original Issue Discount
The
Senior Notes will be denominated in U.S. dollars and we will pay principal
and
interest in U.S. dollars. Unless an applicable pricing or prospectus supplement
states otherwise, the Senior Notes will not be subject to any conversion,
amortization, or sinking fund. We expect that the Senior Notes issued to
the
public will be “book-entry,” represented by a permanent global Senior Note
registered in the name of The Depository Trust Company, or its nominee. We
reserve the right, however, to issue Senior Note certificates registered
in the
name of the Senior Noteholders.
The
interest rate and interest and other payment dates of each series of Senior
Notes issued to a trust will correspond to the rate at which distributions
will
be paid and the distribution and other payment dates of the Trust Preferred
Securities.
In
the
discussion that follows, whenever we talk about paying principal on the Senior
Notes, we mean at maturity or redemption. Also, in discussing the time for
notices and how the different interest rates are calculated, all times are
New
York City time and all references to New York mean the City of New York,
unless
otherwise noted.
The
Indenture does not protect holders of the Senior Notes if we engage in a
highly
leveraged transaction.
The
following terms may apply to each Senior Note as specified in the applicable
pricing or prospectus supplement and the Senior Note:
Redemptions
If
we
issue redeemable Senior Notes, we may redeem such Senior Notes at our option
unless an applicable pricing or prospectus supplement states otherwise. The
pricing or prospectus supplement will state the terms of redemption. We may
redeem Senior Notes in whole or in part by delivering written notice to the
Senior Noteholders no more than 60, and not less than 30, days prior to
redemption. If we do not redeem all the Senior Notes of a series at one time,
the Trustee selects the Senior Notes to be redeemed in a manner it determines
to
be fair.
Remarketed
Notes
If
we
issue Senior Notes with remarketing features, an applicable pricing or
prospectus supplement will describe the terms for the Senior Notes including:
interest rate, remarketing provisions, our right to purchase or redeem Senior
Notes, the holders’ right to tender Senior Notes, and any other
provisions.
Note
Certificates-Registration, Transfer, and Payment of Interest and
Principal
Unless
otherwise indicated in the applicable prospectus supplement, each series
of
Senior Notes issued to the public will be issued initially in the form of
one or
more global notes, in registered form, without coupons, as described under
Book-Entry
System.
However, if we issue Senior Note certificates, they will be registered in
the
name of the Senior Noteholder. The Senior Notes may be transferred or exchanged,
pursuant to administrative procedures in the Indenture, without the payment
of
any service charge (other than any tax or other governmental charge) by
contacting the paying agent. Payments to public holders of Senior Note
certificates will be made by check.
Original
Issue Discount
We
may
issue the Senior Notes at an original issue discount, bearing no interest
or
bearing interest at a rate that, at the time of issuance, is below market
rate,
to be sold at a substantial discount below their stated principal amount.
Generally speaking, if the Senior Notes are issued at an original issue discount
and there is an event of default or acceleration of their maturity, holders
will
receive an amount less than their principal amount. Tax and other special
considerations applicable to original issue discount debt will be described
in
the prospectus supplement in which we offer those Senior Notes.
Interest
Rate
The
interest rate on the Senior Notes will either be fixed or floating. The interest
paid will include interest accrued to, but excluding, the date of maturity
or
redemption. Interest is generally payable to the person in whose name the
Senior
Note is registered at the close of business on the record date before each
interest payment date. Interest payable at maturity or redemption, however,
will
be payable to the person to whom principal is payable.
If
we
issue a Senior Note after a record date but on or prior to the related interest
payment date, we will pay the first interest payment on the interest payment
date after the next record date. We will pay interest payments by check or
wire
transfer, at our option.
For
a
discussion of our ability to defer interest payments on the Senior Notes,
see
Description
of Trust Preferred Securities -
Option to Extend Interest Payment Period.
Fixed
Rate Senior Notes
A
pricing
or prospectus supplement will designate the record dates, payment dates,
our
ability to defer interest payments and the fixed rate of interest payable
on a
Senior Note. We will pay interest quarterly or semi-annually, and upon maturity
or redemption. Unless an applicable pricing or prospectus supplement states
otherwise, if any payment date falls on a day that is not a business day,
we
will pay interest on the next business day and no additional interest will
be
paid. Interest payments will be the amount of interest accrued to, but
excluding, each payment date. Interest will be computed using a 360-day year
of
twelve 30-day months.
Floating
Rate Notes
Each
floating rate Senior Note will have an interest rate formula. The applicable
prospectus supplement or pricing supplement will state the initial interest
rate
or interest rate formula on each Senior Note effective until the first interest
reset date. The applicable pricing or prospectus supplement will state the
method and dates on which the interest rate will be determined, reset and
paid.
Events
of Default
The
following are events of default under the Indenture with respect to any series
of Senior Notes, unless we state otherwise in the applicable prospectus
supplement:
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failure
to pay for three business days the principal of (or premium, if
any, on)
any Senior Note of a series when due and
payable;
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failure
to pay for 30 days any interest on any Senior Note of any series
when due
and payable;
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failure
to perform any other requirements in such Senior Notes, or in the
Indenture in regard to such Senior Notes, for 90 days after notice;
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certain
events of our bankruptcy or insolvency; or
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any
other event of default specified in a series of Senior
Notes.
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An
event
of default for a particular series of Senior Notes does not necessarily mean
that an event of default has occurred for any other series of Senior Notes
issued under the Indenture. If an event of default occurs and continues,
the
Trustee or the holders of at least 33% of the principal amount of the Senior
Notes of the series affected may require us to repay the entire principal
of the
Senior Notes of such series immediately (“Repayment Acceleration”). In most
instances, the holders of at least a majority in aggregate principal amount
of
the Senior Notes of the affected series may rescind a previously triggered
Repayment Acceleration. However, if we cause an event of default because
we have
failed to pay (unaccelerated) principal, premium, if any, or interest, Repayment
Acceleration may be rescinded only if we have first cured our default by
depositing with the Trustee enough money to pay all (unaccelerated) past
due
amounts and penalties, if any. For a discussion of remedies in the event
Senior
Notes are issued to a trust, see Description
of Trust Preferred Securities -
Enforcement of Certain Rights of Holders of Trust Preferred
Securities.
The
Trustee must within 90 days after a default occurs, notify the holders of
the
Senior Notes of the series of default unless such default has been cured
or
waived. We are required to file an annual certificate with the Trustee, signed
by an officer, concerning any default by us under any provisions of the
Indenture.
Subject
to the provisions of the Indenture relating to its duties in case of default,
the Trustee shall be under no obligation to exercise any of its rights or
powers
under the Indenture at the request, order or direction of any holders unless
such holders offer the Trustee reasonable indemnity. Subject to the provisions
for indemnification, the holders of a majority in principal amount of the
Senior
Notes of any series may direct the time, method and place of conducting any
proceedings for any remedy available to, or exercising any trust or power
conferred on, the Trustee with respect to such Senior Notes.
Modification
of Indenture
Under
the
Indenture, our rights and obligations and the rights of the holders of any
Senior Notes may be changed. Any change affecting the rights of the holders
of
any series of Senior Notes requires the consent of the holders of not less
than
a majority in aggregate principal amount of the outstanding Senior Notes
of all
series affected by the change, voting as one class. However, we cannot change
the terms of payment of principal or interest, or a reduction in the percentage
required for changes or a waiver of default, unless the holder consents.
We may
issue additional series of Senior Notes and take other action that does not
affect the rights of holders of any series by executing supplemental indentures
without the consent of any Senior Noteholders.
Consolidation,
Merger or Sale
We
may
merge or consolidate with any entity or sell substantially all of our assets
as
an entirety as long as the successor or purchaser (i) is organized and existing
under the laws of the United States, any state thereof or the District of
Columbia and (ii) expressly assumes the payment of principal, premium, if
any,
and interest on the Senior Notes.
Legal
Defeasance
We
will
be discharged from our obligations on the Senior Notes of any series at any
time
if:
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we
deposit with the Trustee sufficient cash or government securities
to pay
the principal, interest, any premium and any other sums due to
the stated
maturity date or a redemption date of the Senior Note of the series,
and
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we
deliver to the Trustee an opinion of counsel stating that the federal
income tax obligations of Senior Noteholders of that series will
not
change as a result of our performing the action described
above.
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If
this
happens, the Senior Noteholders of the series will not be entitled to the
benefits of the Indenture except for registration of transfer and exchange
of
Senior Notes and replacement of lost, stolen or mutilated Senior
Notes.
Covenant
Defeasance
We
will
be discharged from our obligations under any restrictive covenant applicable
to
the Senior Notes of a particular series if we perform both actions described
above. See Legal
Defeasance.
If this
happens, any later breach of that particular restrictive covenant will not
result in Repayment Acceleration. If we cause an event of default apart from
breaching that restrictive covenant, there may not be sufficient money or
government obligations on deposit with the Trustee to pay all amounts due
on the
Senior Notes of that series. In that instance, we would remain liable for
such
amounts.
Governing
Law
The
Indenture and Senior Notes of all series will be governed by the laws of
the
State of New York.
Concerning
the Trustee
We
and
our affiliates use or will use some of the banking services of the Trustee
in
the normal course of business. The Trustee is also the Subordinated Indenture
Trustee under the Subordinated Indenture relating to the Junior Subordinated
Debentures.
DESCRIPTION
OF COMMON STOCK
Our
authorized capital stock currently consists of 600,000,000 shares of common
stock, par value $6.50 per share. 383,933,498 shares of our common stock
were
issued and outstanding as of March 31, 2005. Our common stock, including
the
common stock offered in this prospectus once issued, is listed on the New
York
Stock Exchange. EquiServe Trust Company, N.A., P.O. Box 43069, Providence,
RI
02940-3069 is the transfer agent and registrar for our common
stock.
Dividend
Rights
The
holders of our common stock are entitled to receive the dividends declared
by
our board of directors provided funds are legally available for such dividends.
Our income derives from our common stock equity in the earnings of our
subsidiaries. Various financing arrangements, charter provisions and regulating
requirements may impose certain restrictions on the ability of our subsidiaries
to transfer funds to us in the form of cash dividends, loans or
advances.
Voting
Rights
The
holders of our common stock are entitled to one vote for each share of common
stock held. The holders of our common stock are entitled to cumulate their
votes
when voting for the election of directors.
Pre-emptive
Rights
The
holders of our common stock generally do not have the right to subscribe
for or
purchase any part of any new or additional issue of our common stock. If,
however, our board of directors determines to issue and sell any common stock
solely for money and not by (1) a public offering; (2) an offering to or
through
underwriters or dealers who have agreed to promptly make a public offering;
or
(3) any other offering which the holders of a majority of our outstanding
common
stock have authorized; then such common stock must first be offered pro rata
to
our existing shareholders on terms no less favorable than those offered to
persons other than our existing shareholders.
Rights
Upon Liquidation
If
we are
liquidated, holders of our common stock will be entitled to receive pro rata
all
assets available for distribution to our shareholders after payment of our
liabilities, including liquidation expenses.
Restrictions
on Dealing with Existing Shareholders
We
are
subject to Section 513 of New York’s Business Corporation Law, which provides
that no domestic corporation may purchase or agree to purchase more than
10% of
its stock from a shareholder who has held the shares for less than two years
at
any price that is higher than the market price unless the transaction is
approved by both the corporation’s board of directors and a majority of the
votes of all outstanding shares entitled to vote thereon at a meeting of
shareholders, unless the certificate of incorporation requires a greater
percentage or the corporation offers to purchase shares from all the holders
on
the same terms. Our certificate of incorporation does not currently provide
for
a higher percentage.
DESCRIPTION
OF THE JUNIOR SUBORDINATED DEBENTURES
General
We
will
issue the Junior Subordinated Debentures directly to the public, to a trust
or
as part of a Stock Purchase Unit under the Subordinated Indenture to be entered
into by us and the Subordinated Indenture Trustee, The Bank of New York.
This
prospectus briefly outlines some provisions of the Subordinated Indenture.
If
you would like more information on these provisions, you should review the
Subordinated Indenture and any supplemental indentures or company orders
that we
will file with the SEC. See Where
You Can Find More Information
on how
to locate these documents.
The
Junior Subordinated Debentures are unsecured obligations and are junior in
right
of payment to “Senior Indebtedness”. You may find a description of the
subordination provisions of the Junior Subordinated Debentures, including
a
description of Senior Indebtedness under Subordination.
Because
we are a holding company, the claims of creditors of our subsidiaries will
have
a priority over our equity rights and the rights of our creditors (including
the
holders of the Junior Subordinated Debentures) to participate in the assets
of
the subsidiary upon the subsidiary’s liquidation.
The
Subordinated Indenture does not limit the amount of Junior Subordinated
Debentures that we may issue under it. We may issue Junior Subordinated
Debentures from time to time under the Subordinated Indenture in one or more
series by entering into supplemental indentures or by our Board of Directors
or
a duly authorized committee authorizing the issuance. The Subordinated Indenture
also gives us the ability to reopen a previous issue of a series of Junior
Subordinated Debentures and issue additional Junior Subordinated Debentures
of
such series.
A
prospectus supplement or pricing supplement will include the final terms
for
each Junior Subordinated Debenture. If we decide to list upon issuance any
Junior Subordinated Debenture or Junior Subordinated Debentures on a securities
exchange, a prospectus supplement or pricing supplement will identify the
exchange and state when we expect trading could begin. The following terms
of
the Junior Subordinated Debentures that we may sell at one or more times
will be
established in a prospectus supplement:
- Maturity
- Fixed
or
floating interest rate
- Remarketing
features
- Certificate
or book-entry form
- Redemption
- Not
convertible, amortized or subject to a sinking fund
- Interest
paid on fixed rate Junior Subordinated Debentures quarterly or
semi-annually
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Interest
paid on floating rate Junior Subordinated Debentures monthly, quarterly,
semi-annually, or annually
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- Issued
in
multiples of a minimum denomination
- Ability
to defer interest payments
- Any
other
terms not inconsistent with the Subordinated Indenture
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Issued
with Original Issue Discount
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The
interest rate and interest and other payment dates of each series of Junior
Subordinated Debentures issued to a trust will correspond to the rate at
which
distributions will be paid and the distribution and other payment dates of
the
Trust Preferred Securities.
The
Subordinated Indenture does not protect the holders of Junior Subordinated
Debentures if we engage in a highly leveraged transaction.
Redemption
Provisions
relating to the redemption of Junior Subordinated Debentures will be set
forth
in the applicable prospectus supplement. Unless we state otherwise in the
applicable prospectus supplement, we may redeem Junior Subordinated Debentures
only upon notice mailed at least 30 but not more than 60 days before the
date
fixed for redemption. If we do not redeem all the Junior Subordinated Debentures
of a series at one time, the Subordinated Indenture Trustee selects those
to be
redeemed in a manner it determines to be fair.
Junior
Subordinated Debenture Certificates-Registration, Transfer, and Payment of
Interest and Principal
Unless
otherwise indicated in the applicable prospectus supplement, each series
of
Junior Subordinated Debentures issued to the public initially will be in
the
form of one or more global Junior Subordinated Debentures, in registered
form,
without coupons, as described under Book-Entry
System.
However, if we issue Junior Subordinated Debenture certificates, they will
be
registered in the name of the Junior Subordinated Debentureholder. The Junior
Subordinated Debentures may be transferred or exchanged, pursuant to
administrative procedures in the Subordinated Indenture, without the payment
of
any service charge (other than any tax or other governmental charge) by
contacting the paying agent. Payments to public holders of Junior Subordinated
Debenture certificates will be made by check.
Original
Issue Discount
We
may
issue the Junior Subordinated Debentures at an original issue discount, bearing
no interest or bearing interest at a rate that, at the time of issuance,
is
below market rate, to be sold at a substantial discount below their stated
principal amount. Generally speaking, if the Junior Subordinated Debentures
are
issued at an original issue discount and there is an event of default or
acceleration of their maturity, holders will receive an amount less than
their
principal amount. Tax and other special considerations applicable to original
issue discount debt will be described in the prospectus supplement in which
we
offer those Junior Subordinated Debentures.
Interest
Rate
The
interest rate on the Junior Subordinated Debentures will either be fixed
or
floating. The interest paid will include interest accrued to, but excluding,
the
date of maturity or redemption. Interest is generally payable to the person
in
whose name the Junior Subordinated Debenture is registered at the close of
business on the record date before each interest payment date. Interest payable
at maturity or redemption, however, will be payable to the person to whom
principal is payable.
If
we
issue a Junior Subordinated Debenture after a record date but on or prior
to the
related interest payment date, we will pay the first interest payment on
the
interest payment date after the next record date. We will pay interest payments
by check or wire transfer, at our option.
For
a
discussion of our ability to defer interest payments on the Junior Subordinated
Debentures, see Description
of Trust Preferred Securities -
Option to Extend Interest Payment Period.
Fixed
Rate Junior Subordinated Debentures
A
pricing
or prospectus supplement will designate the record dates, payment dates,
our
ability to defer interest payments and the fixed rate of interest payable
on a
Junior Subordinated Debenture. We will pay interest quarterly or semi-annually,
and upon maturity or redemption. Unless an applicable pricing or prospectus
supplement states otherwise, if any payment date falls on a day that is not
a
business day, we will pay interest on the next business day and no additional
interest will be paid. Interest payments will be the amount of interest accrued
to, but excluding, each payment date. Interest will be computed using a 360-day
year of twelve 30-day months.
Floating
Rate Junior Subordinated Debentures
Each
floating rate Junior Subordinated Debenture will have an interest rate formula.
The applicable prospectus supplement or pricing supplement will state the
initial interest rate or interest rate formula on each Junior Subordinated
Debenture effective until the first interest reset date. The applicable pricing
or prospectus supplement will state the method and dates on which the interest
rate will be determined, reset and paid.
Events
of Default
The
following are events of default under the Subordinated Indenture with respect
to
any series of Junior Subordinated Debentures, unless we state otherwise in
the
applicable prospectus supplement:
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failure
to pay for three business days the principal of (or premium, if
any, on)
any Junior Subordinated Debenture of a series when due and
payable;
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failure
to pay for 30 days any interest on any Junior Subordinated Debenture
of
any series when due and payable;
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failure
to perform any other requirements in such Junior Subordinated Debentures,
or in the Subordinated Indenture, for 90 days after notice;
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certain events of our bankruptcy or insolvency; or
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any other event of default specified in a series of Junior
Subordinated Debentures. |
An
event
of default for a particular series of Junior Subordinated Debentures does
not
necessarily mean that an event of default has occurred for any other series
of
Junior Subordinated Debentures issued under the Subordinated Indenture. If
an
event of default occurs and continues, the Subordinated Indenture Trustee
or the
holders of at least 33% of the principal amount of the Junior Subordinated
Debentures of the series affected may require us to repay the entire principal
of the Junior Subordinated Debentures of such series immediately (“Repayment
Acceleration”). In most instances, the holders of at least a majority in
aggregate principal amount of the Junior Subordinated Debentures of the affected
series may rescind a previously triggered Repayment Acceleration. However,
if we
cause an event of default because we have failed to pay (unaccelerated)
principal, premium, if any, or interest, Repayment Acceleration may be rescinded
only if we have first cured our default by depositing with the Subordinated
Indenture Trustee enough money to pay all (unaccelerated) past due amounts
and
penalties, if any. For a discussion of remedies in the event Junior Subordinated
Debentures are issued to a trust, see Description
of Trust Preferred Securities -
Enforcement of Certain Rights by Holders of Trust Preferred
Securities.
The
Subordinated Indenture Trustee must within 90 days after a default occurs,
notify the holders of the Junior Subordinated Debentures of the series of
default unless such default has been cured or waived. We are required to
file an
annual certificate with the Subordinated Indenture Trustee, signed by an
officer, concerning any default by us under any provisions of the Subordinated
Indenture.
In
the
case of Junior Subordinated Debentures issued to a trust, a holder of Trust
Preferred Securities may institute a legal proceeding directly against us
without first instituting a legal proceeding against the Property Trustee
of the
trust by which those Trust Preferred Securities were issued or any other
person
or entity, for enforcement of payment to that holder of principal or interest
on
an equivalent amount of Junior Subordinated Debentures of the related series
on
or after the due dates specified in those Junior Subordinated
Debentures.
Subject
to the provisions of the Subordinated Indenture relating to its duties in
case
of default, the Subordinated Indenture Trustee shall be under no obligation
to
exercise any of its rights or powers under the Subordinated Indenture at
the
request, order or direction of any holders unless such holders offer the
Subordinated Indenture Trustee reasonable indemnity. Subject to the provisions
for indemnification, the holders of a majority in principal amount of the
Junior
Subordinated Debentures of any series may direct the time, method and place
of
conducting any proceedings for any remedy available to, or exercising any
trust
or power conferred on, the Subordinated Indenture Trustee with respect to
such
Junior Subordinated Debentures.
Modification
of Subordinated Indenture
Under
the
Subordinated Indenture, our rights and obligations and the rights of the
holders
of any Junior Subordinated Debentures may be changed. Any change affecting
the
rights of the holders of any series of Junior Subordinated Debentures requires
the consent of the holders of not less than a majority in aggregate principal
amount of the outstanding Junior Subordinated Debentures of all series affected
by the change, voting as one class. However, we cannot change the terms of
payment of principal or interest, or a reduction in the percentage required
for
changes or a waiver of default, unless the holder consents. We may issue
additional series of Junior Subordinated Debentures and take other action
that
does not affect the rights of holders of any series by executing supplemental
indentures without the consent of any debentureholders.
Consolidation,
Merger or Sale
We
may
merge or consolidate with any entity or sell substantially all of our assets
as
an entirety as long as the successor or purchaser (i) is organized and existing
under the laws of the United States, any state thereof or the District of
Columbia and (ii) expressly assumes the payment of principal, premium, if
any,
and interest on the Junior Subordinated Debentures.
Legal
Defeasance
We
will
be discharged from our obligations on the Junior Subordinated Debentures
of any
series at any time if:
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we
deposit with the Trustee sufficient cash or government securities
to pay
the principal, interest, any premium and any other sums due to
the stated
maturity date or a redemption date of the Junior Subordinated Debenture
of
the series, and
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we
deliver to the Trustee an opinion of counsel stating that the federal
income tax obligations of debentureholders of that series will
not change
as a result of our performing the action described
above.
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If
this
happens, the debentureholders of the series will not be entitled to the benefits
of the Subordinated Indenture except for registration of transfer and exchange
of Junior Subordinated Debentures and replacement of lost, stolen or mutilated
Junior Subordinated Debentures.
Covenant
Defeasance
We
will
be discharged from our obligations under any restrictive covenant applicable
to
the Junior Subordinated Debentures of a particular series if we perform both
actions described above. See Legal
Defeasance.
If this
happens, any later breach of that particular restrictive covenant will not
result in Repayment Acceleration. If we cause an event of default apart from
breaching that restrictive covenant, there may not be sufficient money or
government obligations on deposit with the Subordinated Indenture Trustee
to pay
all amounts due on the Junior Subordinated Debentures of that series. In
that
instance, we would remain liable for such amounts.
Junior
Subordinated Debentures issued to a trust will not be subject to covenant
defeasance.
Subordination
Each
series of Junior Subordinated Debentures will be subordinate and junior in
right
of payment, to the extent set forth in the Subordinated Indenture, to all
Senior
Indebtedness as defined below. If:
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we
make a payment or distribution of any of our assets to creditors
upon our
dissolution, winding-up, liquidation or reorganization, whether
in
bankruptcy, insolvency or
otherwise;
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a
default beyond any grace period has occurred and is continuing
with
respect to the payment of principal, interest or any other monetary
amounts due and payable on any Senior Indebtedness;
or
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the
maturity of any Senior Indebtedness has been accelerated because
of a
default on that Senior
Indebtedness,
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then
the
holders of Senior Indebtedness generally will have the right to receive payment,
in the case of the first instance, of all amounts due or to become due upon
that
Senior Indebtedness, and, in the case of the second and third instances,
of all
amounts due on that Senior Indebtedness, or we will make provision for those
payments, before the holders of any Junior Subordinated Debentures have the
right to receive any payments of principal or interest on their Junior
Subordinated Debentures.
“Senior
Indebtedness” means, with respect to any series of Junior Subordinated
Debentures, the principal, premium, interest and any other payment in respect
of
any of the following:
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all
of our indebtedness that is evidenced by notes, debentures, bonds
or other
securities we sell for money or other obligations for money
borrowed;
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all
indebtedness of others of the kinds described in the preceding
category
which we have assumed or guaranteed or which we have in effect
guaranteed
through an agreement to purchase, contingent or otherwise;
and
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all
renewals, extensions or refundings of indebtedness of the kinds
described
in either of the preceding two
categories.
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Any
such
indebtedness, renewal, extension or refunding, however, will not be Senior
Indebtedness if the instrument creating or evidencing it or the assumption
or
Guarantee of it provides that it is not superior in right of payment to or
is
equal in right of payment with those Junior Subordinated Debentures. Senior
Indebtedness will be entitled to the benefits of the subordination provisions
in
the Subordinated Indenture irrespective of the amendment, modification or
waiver
of any term of the Senior Indebtedness.
The
Subordinated Indenture does not limit the amount of Senior Indebtedness that
we
may issue. As of March 31, 2005, our Senior Indebtedness totaled approximately
$2,023,600,000.
Governing
Law
The
Subordinated Indenture and Junior Subordinated Debentures of all series will
be
governed by the laws of the State of New York.
Concerning
the Trustee
We
and
our affiliates use or will use some of the banking services of the Subordinated
Indenture Trustee in the normal course of business. The Subordinated Trustee
is
also the Trustee under the Indenture relating to the Senior Notes.
DESCRIPTION
OF TRUST PREFERRED SECURITIES
Each
trust may issue Trust Preferred Securities and Trust Common Securities under
the
trust agreement, which we refer to in this prospectus as the Trust Securities.
These Trust Securities will represent undivided beneficial interests in the
assets of the trust. Selected provisions of the trust agreement are summarized
below. This summary is not complete. The form of trust agreement is filed
with
the SEC herewith and you should read the trust agreement for provisions that
may
be important to you. The trust agreement will be qualified as an indenture
under
the Trust Indenture Act. You should also refer to the Trust Indenture Act
for
provisions that apply to the Trust Preferred Securities.
General
Each
trust will exist for the exclusive purposes of:
- issuing
and selling its Trust Preferred Securities and Trust Common
Securities;
- investing
the gross proceeds of the Trust Securities in our Debt Securities;
- maintaining
its status as a grantor trust for federal income tax purposes;
- making
distributions; and
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engaging
in only those other activities necessary, advisable or incidental
to the
purposes listed above.
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Our
Debt
Securities will be the sole assets of each trust, and our payments under
the
Debt Securities will be the sole income of each trust. No separate financial
statements of any trust will be included in this prospectus. We consider
that
these financial statements would not be material to holders of the Trust
Preferred Securities because no trust would have any independent operations
and
the only purposes of each trust are those described above. We do not expect
that
any trust will be filing annual, quarterly or special reports with the SEC.
The
principal place of business of each trust will be c/o American Electric Power
Company, Inc., 1 Riverside Plaza, Columbus, OH 43215.
Each
trust will exist until terminated as provided in its trust agreement. The
trustees of each trust will be:
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two
of our employees or officers or two employees or officers of our
affiliates as administrators (the “Administrative Trustees”);
and
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Wilmington
Trust Company, which will act as Property Trustee and as indenture
trustee
for purposes of the Trust Indenture Act (the “Property Trustee”) and for
the purpose of complying with the provisions of the Delaware Business
Trust Act, the Delaware Trustee (the “Delaware
Trustee”).
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The
trust
agreement will authorize the Administrative Trustees to issue two classes
of
Trust Securities: Trust Preferred Securities and Trust Common Securities.
We
will own all of the Trust Common Securities issued by each trust, which will
rank equally in right of payment with the Trust Preferred Securities issued
by
the respective trust. However, if an event of default occurs and is continuing
under the trust agreement, rights of the holders of the Trust Common Securities
to payment for distributions and otherwise will be subordinated to the rights
of
the holders of the Trust Preferred Securities. We will acquire Trust Common
Securities of each trust in a total liquidation amount of at least three
percent
of the total capital of the trust.
Proceeds
from the sale of both the Trust Preferred Securities and the Trust Common
Securities issued by each trust will be used to purchase our Debt Securities,
which will be held in trust by the Property Trustee for the benefit of the
holders of the Trust Securities issued by the respective trust. We will
guarantee the payments of distributions and payments of redemption or
liquidation with respect to the Trust Preferred Securities issued by each
trust,
but only to the extent the respective trust has funds legally available for
and
cash sufficient to make those payments and has not made the payments. See
Description
of Guarantees
below.
Each
Guarantee, when taken together with our obligations under the related Debt
Securities, the related indenture and the related trust agreement, will provide
a full and unconditional guarantee of amounts due on the Trust Preferred
Securities issued by the respective trust. The Trust Preferred Securities
will
have the terms, including distributions, redemption, voting, liquidation
rights
and other rights or restrictions that will be described in the related trust
agreement or made part of it by the Trust Indenture Act or the Delaware Business
Trust Act.
Provisions
of a Particular Series
Each
Trust may issue only one series of Trust Preferred Securities. The applicable
prospectus supplement will set forth the principal terms of the Trust Preferred
Securities that will be offered, including:
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the
name of the Trust Preferred
Securities;
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the
liquidation amount and number of Trust Preferred Securities
issued;
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the
annual distribution rate or rates or method of determining such
rate or
rates, the payment date or dates and the record dates used to determine
the holders who are to receive
distributions;
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whether
distributions will be cumulative and, in the case of Trust Preferred
Securities, having cumulative distribution rights, the date from
which
distributions will be cumulative;
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the
optional redemption provisions, if any, including the prices, time
periods
and other terms and conditions on which the Trust Preferred Securities
will be purchased or redeemed, in whole or in
part;
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the
terms and conditions, if any, upon which the Debt Securities and
the
related Guarantee may be distributed to holders of the Trust Preferred
Securities;
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any
securities exchange on which the Trust Preferred Securities will
be
listed;
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the
terms and conditions, if any, upon which the Trust Preferred Securities
may be converted into our securities;
and
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any
other relevant rights, covenants, preferences, privileges, limitations
or
restrictions of the Trust Preferred
Securities.
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Terms
of
the Trust Preferred Securities issued by each trust will mirror the terms
of the
Debt Securities held by the respective trust. In other words, the interest
rate
and interest and other payment dates of each series of Debt Securities issued
to
a trust will correspond to the rate at which distributions will be paid and
the
distribution and other payment dates of the Trust Preferred Securities of
that
trust. The prospectus supplement will also set forth whether the Debt Securities
to be issued to a trust will be Senior Notes or Junior Subordinated Debentures.
Distributions
The
Trust
Preferred Securities represent preferred, undivided, beneficial interests
in the
assets of the respective trust. The applicable prospectus supplement will
state
the annual rate, as a percentage of the liquidation amount, at which
distributions on each Trust Preferred Security will be payable, the liquidation
amount and the dates on which distributions will be payable.
Each
trust will use the proceeds from the issuance and sale of the Trust Preferred
Securities to purchase our Debt Securities. The income of a trust available
for
distribution to holders of the Trust Preferred Securities issued by that
trust
will be limited to payments under those Debt Securities. If we do not make
payments on the Debt Securities, a trust will not have funds available to
pay
distributions or other amounts payable on the Trust Preferred Securities
issued
by that trust. The payment of distributions and other amounts payable on
the
Trust Preferred Securities issued by a trust, if and to the extent the trust
has
funds legally available for and cash sufficient to make such payments, is
guaranteed by us as described herein under Description
of Guarantees.
Option
to Accelerate Maturity Date
If,
at
any time the Debt Securities are held by a trust, we are not able to deduct
the
interest payable on the Debt Securities as a result of a Tax Event, then
we have
the right to accelerate the stated maturity of the Debt Securities to the
minimum extent required so that interest on the Debt Securities will be
deductible for United States federal income tax purposes. However, the resulting
maturity may not be less than 15 years from the date of the original issuance.
Moreover, we may not accelerate the stated maturity unless we have received
an
opinion of counsel to the effect that (1) following acceleration, interest
paid
on the Debt Securities will be deductible for United States federal income
tax
purposes and (2) the holders of Trust Preferred Securities will not recognize
income, gain or loss for United States federal income tax purposes as a result
of this acceleration and will be subject to United States federal tax in
the
same amount, in the same manner and at the same times as would have been
the
case if acceleration had not occurred.
Option
to Extend Interest Payment Period
If
the
applicable prospectus supplement so states, we will have the right to defer
the
payment of interest on the Debt Securities at any time or from time to time
for
a period, which we refer to in this prospectus as an “extension period,” not
exceeding 20 consecutive quarterly periods with respect to each extension
period. During each extension period we shall have the right to make partial
payments of interest on the Debt Security on any interest payment date. At
the
end of each extension period we shall pay all interest then accrued and unpaid.
No extension period may extend beyond the stated maturity of the Debt Securities
or end on a date other than an interest payment date. As a consequence of
any
such deferral, distributions on the Trust Preferred Securities by a trust
will
be deferred during any such extension period. Distributions to which holders
of
the Trust Preferred Securities are entitled will accumulate additional
distributions at the rate stated in the applicable prospectus supplement.
During
an extension period, interest will continue to accrue and holders of Debt
Securities, or holders of Trust Preferred Securities while outstanding, will
be
required to accrue original issue discount income for United States federal
income tax purposes. We will provide further discussion of the accrual of
original issue discount in the applicable prospectus supplement.
Prior
to
the termination of any extension period, we may further defer the payment
of
interest, provided that, unless the applicable prospectus supplement states
otherwise, no extension period may exceed 20 consecutive quarterly periods
or
extend beyond the stated maturity of the Debt Securities. Upon the termination
of any extension period and the payment of all amounts then due, we may elect
to
begin a new extension period subject to the above conditions. No interest
shall
be due and payable during an extension period, except at its end. We must
give
the applicable trustee and the Property Trustee notice of our election of
an
extension period at least one business day prior to the earlier of the date
the
distributions on the Trust Preferred Securities would have been payable but
for
the election to begin such extension period and the date the Property Trustee
is
required to give notice to holders of the Trust Preferred Securities of the
record date or the date such distributions are payable, but in any event
not
less than one business day prior to such record date. The applicable trustee
will give notice of our election to begin a new extension period to the holders
of the Trust Preferred Securities.
Unless
the applicable prospectus supplement states otherwise, during any extended
interest period, or for so long as an event of default under the applicable
indenture or any payment default under the Guarantee has occurred and is
continuing, we will not, except in limited circumstances, (1) declare or
pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of our capital stock; (2) make any
payment of principal of or interest or premium, if any, on or repay, repurchase
or redeem any Debt Securities of ours that rank equally with, or junior to,
the
Debt Securities; or (3) make any guarantee payments with respect to any
guarantee issued by us if such guarantee ranks equally with, or junior to,
the
applicable Debt Securities.
Registration,
Transfer and Exchange
Unless
otherwise indicated in the applicable prospectus supplement, each series
of
Trust Preferred Securities will be issued initially in the form of one or
more
global securities, in registered form, without coupons, as described under
Book-Entry
System.
However, if we issue certificates, they will be issued in the name of the
security holder.
Trust
Preferred Securities of any series will be exchangeable for other Trust
Preferred Securities of the same series of any authorized denominations of
a
like aggregate liquidation amount and tenor. Subject to the terms of the
trust
agreement and the limitations applicable to global securities, Trust Preferred
Securities may be presented for exchange or registration of transfer - duly
endorsed or accompanied by a duly executed instrument of transfer - at the
office of the Property Trustee, without service charges but upon payment
of any
taxes and other governmental charges as described in the trust agreement.
Such
transfer or exchange will be effected upon the Property Trustee being satisfied
with the documents of title and identity of the person making the
request.
The
Property Trustee will not be required to issue, register the transfer of,
or
exchange any Trust Preferred Securities during a period beginning at the
opening
of business 15 days before the day of mailing of a notice of redemption of
any
Trust Preferred Securities called for redemption and ending at the close
of
business on the day of mailing or register the transfer of, or exchange,
any
Trust Preferred Securities selected for redemption except, in the case of
any
Trust Preferred Security to be redeemed in part, the portion thereof not
to be
so redeemed.
Payment
and Paying Agents
Distributions
and other payments on Trust Preferred Securities issued in the form of global
securities will be paid in the manner described under Book-Entry
System.
The
paying agent initially will be the Property Trustee and any co-paying agent
chosen by the Property Trustee and acceptable to the Administrative Trustees.
If
the Property Trustee is no longer the paying agent, the Property Trustee
will
appoint a successor, which must be a bank or trust company reasonably acceptable
to the Administrative Trustees, to act as paying agent. Such paying agent
will
be permitted to resign as paying agent upon 30 days’ written notice to the
Property Trustee and the Administrative Trustees at which time the paying
agent
will return all unclaimed funds and all other funds in its possession to
the
Property Trustee.
Redemption
Upon
the
repayment or redemption, in whole or in part, of the Debt Securities held
by a
trust, the proceeds shall be applied by the Property Trustee to redeem a
Like
Amount, as defined below, of the Trust Securities issued by that trust, upon
not
less than 30 nor more than 60 days’ notice, unless otherwise indicated in a
prospectus supplement, at a redemption price equal to the aggregate liquidation
amount of the Trust Preferred Securities plus accumulated but unpaid
distributions to but excluding the redemption date and the related amount
of the
premium, if any, paid by us upon the concurrent redemption of the Debt
Securities. If less than all the Debt Securities held by a trust are to be
repaid or redeemed on a redemption date, then the proceeds from the repayment
or
redemption shall be allocated to the redemption proportionately of the Trust
Preferred Securities and the Trust Common Securities issued by that trust
based
on the relative liquidation amounts of the classes. The amount of premium,
if
any, paid by us upon the redemption of all or any part of the Debt Securities
held by a trust to be repaid or redeemed on a redemption date shall be allocated
to the redemption proportionately of the Trust Preferred Securities and the
Trust Common Securities issued by that trust.
Unless
the applicable prospectus supplement states otherwise, we will have the right
to
redeem the Debt Securities held by a trust:
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on
or after the date fixed for redemption as stated in the applicable
prospectus supplement, in whole at any time or in part from time
to time;
or
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prior
to the date fixed for redemption as stated in the applicable prospectus
supplement, in whole, but not in part, at any time within 90 days
following the occurrence and during the continuation of a Tax Event
or an
Investment Company Event, each as defined
below.
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“Like
Amount” means:
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with
respect to a redemption of Trust Securities, Trust Securities having
a
liquidation amount equal to that portion of the principal amount
of Debt
Securities to be contemporaneously redeemed in accordance with
the
applicable indenture, allocated to the Trust Common Securities
and to the
Trust Preferred Securities based upon the relative liquidation
amounts of
the classes; and
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with
respect to a distribution of Debt Securities to holders of Trust
Securities in connection with a dissolution or liquidation of a
trust,
Debt Securities having a principal amount equal to the liquidation
amount
of the Trust Securities of the holder to whom the Debt Securities
are
distributed.
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“Tax
Event” means the receipt by a trust of an opinion of counsel to us experienced
in relevant matters to the effect that, as a result of any amendment to,
or
change - including any announced prospective change - in, the laws or any
regulations thereunder of the United States or any political subdivision
or
taxing authority of or in the United States, or as a result of any official
administrative pronouncement or action or judicial decision interpreting
or
applying these laws or regulations, which amendment or change is effective
or
which pronouncement or decision is announced on or after the date of issuance
by
a trust of Trust Preferred Securities, including, without limitation, any
of the
foregoing arising with respect to, or resulting from, any proposal, proceeding
or other action commencing on or before the date of issuance, there is more
than
an insubstantial risk that:
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the
trust is, or will be within 90 days of the delivery of the opinion,
subject to United States federal income tax with respect to income
received or accrued on the Debt Securities we have issued to that
trust;
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interest
payable by us on the Debt Securities is not, or within 90 days
of the
delivery of the opinion, will not be, deductible by us, in whole
or in
part, for United States federal income tax purposes; or
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the
trust is, or will be within 90 days of the delivery of the opinion,
subject to more than an insubstantial amount of other taxes, duties
or
other governmental charges.
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“Investment
Company Event” means the receipt by a trust of an opinion of counsel to us
experienced in these matters to the effect that, as a result of the occurrence
of a change in law or regulation or a written change - including any announced
prospective change - in interpretation or application of law or regulation
by
any legislative body, court, governmental agency or regulatory authority,
there
is more than an insubstantial risk that the trust is or will be considered
an
“investment company” that is required to be registered under the Investment
Company Act, which change or prospective change becomes effective or would
become effective, as the case may be, on or after the date of the issuance
by
that trust of Trust Preferred Securities.
If
and
for so long as a trust is the holder of all the Debt Securities issued by
us to
that trust, we will pay, with respect to the Debt Securities, such additional
amounts as may be necessary in order that the amount of distributions then
due
and payable by a trust on the outstanding Trust Preferred Securities and
Trust
Common Securities of a trust will not be reduced as a result of any additional
taxes, duties and other governmental charges to which that trust has become
subject, including as a result of a Tax Event.
Redemption
Procedures
Trust
Preferred Securities of a trust redeemed on each redemption date shall be
redeemed at the redemption price with the applicable proceeds from the
contemporaneous redemption of the Debt Securities held by that trust.
Redemptions of Trust Preferred Securities shall be made and the redemption
price
shall be payable on each redemption date only to the extent that a trust
has
funds on hand available for the payment of the redemption price. See also
Subordination
of Trust Common Securities.
If
a
trust gives a notice of redemption in respect of any Trust Preferred Securities,
then, by 12:00 noon, New York City time, on the redemption date, to the extent
funds are available, in the case of Trust Preferred Securities held in
book-entry form, the Property Trustee will deposit irrevocably with the
depository funds sufficient to pay the applicable redemption price and will
give
the depository irrevocable instructions and authority to pay the redemption
price to the holders of the Trust Preferred Securities. With respect to Trust
Preferred Securities not held in book-entry form, the Property Trustee, to
the
extent funds are available, will irrevocably deposit with the paying agent
for
the Trust Preferred Securities funds sufficient to pay the applicable redemption
price and will give the paying agent irrevocable instructions and authority
to
pay the redemption price to the holders upon surrender of their certificates
evidencing the Trust Preferred Securities. Notwithstanding the foregoing,
distributions payable on or prior to the redemption date for any Trust Preferred
Securities called for redemption shall be payable to the holders of the Trust
Preferred Securities on the relevant record dates for the related distribution
dates. If notice of redemption shall have been given and funds deposited
as
required, then upon the date of the deposit all rights of the holders of
the
Trust Preferred Securities so called for redemption will cease, except the
right
of the holders of the Trust Preferred Securities to receive the redemption
price, and any distribution payable in respect of the Trust Preferred
Securities, but without interest on the redemption price, and the Trust
Preferred Securities will cease to be outstanding. In the event that payment
of
the redemption price in respect of Trust Preferred Securities called for
redemption is improperly withheld or refused and not paid either by a trust
or
by us pursuant to the Guarantee as described under Description
of Guarantees,
distributions on the Trust Preferred Securities will continue to accumulate
at
the then applicable rate, from the redemption date originally established
by a
trust for the Trust Preferred Securities it issues to the date the redemption
price is actually paid, in which case the actual payment date will be the
date
fixed for redemption for purposes of calculating the redemption
price.
If
less
than all the Trust Preferred Securities and Trust Common Securities are to
be
redeemed on a redemption date, then the aggregate liquidation amount of the
Trust Preferred Securities and Trust Common Securities to be redeemed shall
be
allocated proportionately to the Trust Preferred Securities and the Trust
Common
Securities based upon the relative liquidation amounts of the classes. The
particular Trust Preferred Securities to be redeemed shall be selected on
a
proportionate basis not more than 60 days prior to the redemption date by
the
Property Trustee from the outstanding Trust Preferred Securities not previously
called for redemption, or if the Trust Preferred Securities are then held
in the
form of a global Trust Preferred Security, in accordance with the depository’s
customary procedures. The Property Trustee shall promptly notify the securities
registrar for the Trust Securities in writing of the Trust Preferred Securities
selected for redemption and, in the case of any Trust Preferred Securities
selected for partial redemption, the liquidation amount to be redeemed. For
all
purposes of the trust agreements, unless the context otherwise requires,
all
provisions relating to the redemption of Trust Preferred Securities shall
relate, in the case of any Trust Preferred Securities redeemed or to be redeemed
only in part, to the portion of the aggregate liquidation amount of Trust
Preferred Securities which has been or is to be redeemed.
Notice
of
any redemption will be mailed at least 30 days but not more than 60 days
before
the redemption date to each registered holder of Trust Preferred Securities
to
be redeemed at its address appearing on the securities register for the Trust
Securities. Unless we default in payment of the redemption price on the related
Debt Securities, on and after the redemption date interest will cease to
accrue
on the Debt Securities or portions of them called for redemption.
Subordination
of Trust Common Securities
If
on any
distribution date or redemption date a payment event of default with respect
to
the underlying Debt Securities has occurred and is continuing, no payment
on or
in respect of the related Trust Common Securities shall be made unless all
amounts due in respect of the related Trust Preferred Securities (including
the
liquidation amount or redemption price, if applicable) shall have been paid
or
payment provided for. All funds immediately available to the respective Property
Trustee shall first be applied to the payment in full in cash of all
distributions on, or redemption price of, the Trust Preferred Securities
then
due and payable.
In
the
case of any event of default under the trust agreement, as defined below,
resulting from an event of default with respect to the underlying Debt
Securities, the holders of Trust Common Securities will be deemed to have
waived
any right to act with respect to any event of default under the related trust
agreement until the effects of all events of default with respect to the
related
Trust Preferred Securities have been cured, waived or otherwise eliminated.
Until all events of default under the related trust agreement with respect
to
the Trust Preferred Securities have been so cured, waived or otherwise
eliminated, the Property Trustee will act solely on behalf of the holders
of the
Trust Preferred Securities and not on behalf of the holders of the Trust
Common
Securities, and only the holders of the Trust Preferred Securities will have
the
right to direct the Property Trustee to act on their behalf.
Liquidation
Distribution Upon Dissolution
In
the
event of any liquidation of a trust, the applicable prospectus supplement
will
state the amount payable on the Trust Preferred Securities issued by that
trust
as a dollar amount per Trust Preferred Security plus accumulated and unpaid
distributions to the date of payment, subject to certain exceptions, which
may
be in the form of a distribution of the amount in Debt Securities held by
that
trust.
The
holders of all the outstanding Trust Common Securities of a trust have the
right
at any time to dissolve the trust and, after satisfaction of liabilities
to
creditors of the trust as provided by applicable law, cause the Debt Securities
held by that trust to be distributed in liquidation of the trust to the holders
of the Trust Preferred Securities and Trust Common Securities issued by the
trust.
Pursuant
to the related trust agreement, unless the applicable prospectus supplement
states otherwise, a trust will automatically dissolve upon expiration of
its
term or, if earlier, will dissolve on the first to occur of:
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events
of bankruptcy, dissolution or liquidation involving us or the holder
of
the Trust Common Securities, as specified in the trust
agreement;
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the
giving by the holder of the Trust Common Securities issued by the
trust of
written direction to the Property Trustee to dissolve the trust,
which
direction, subject to the foregoing restrictions, is optional and
wholly
within the discretion of the holder of the Trust Common
Securities;
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the
redemption of all the Trust Preferred Securities issued by the
trust in
connection with the repayment or redemption of all the Debt Securities
as
described under “Redemption”; and
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the
entry of an order for the dissolution of the trust by a court of
competent
jurisdiction.
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If
dissolution of a trust occurs as described in the first, second or fourth
bullet
point above, the trust will be liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be possible by distributing,
after satisfaction of liabilities to creditors of the trust as provided by
applicable law, to the holders of the Trust Securities issued by the trust
a
Like Amount of the related Debt Securities. If such distribution is not
practical, or, if a dissolution of a trust occurs as described in the third
bullet point above, the holders will be entitled to receive out of the assets
of
the trust available for distribution to holders, after satisfaction of
liabilities to creditors of the trust as provided by applicable law, an amount
equal to, in the case of holders of the Trust Preferred Securities, the
aggregate of the liquidation amount plus accumulated and unpaid distributions
to
the date of payment. In this prospectus we refer to this amount as the
“liquidation distribution.” If the liquidation distribution can be paid only in
part because the trust has insufficient assets available to pay in full the
aggregate liquidation distribution, then the amounts payable directly by
the
trust on its Trust Preferred Securities shall be paid on a proportionate
basis.
The holders of the Trust Common Securities issued by the trust will be entitled
to receive distributions upon any liquidation proportionately with the holders
of the Trust Preferred Securities, except that if a payment event of default
has
occurred and is continuing on the related Debt Securities, the Trust Preferred
Securities shall have a priority over the Trust Common Securities. See
Subordination
of Trust Common Securities.
After
the
liquidation date is fixed for any distribution of Debt Securities we have
issued
to a trust,
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the
Trust Preferred Securities issued by that trust will no longer
be deemed
to be outstanding,
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the
depository or its nominee, as the registered holder of the Trust
Preferred
Securities, will receive a registered global certificate or certificates
representing the Debt Securities to be delivered upon the distribution
with respect to the Trust Preferred Securities held by the depository
or
its nominee, and
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any
certificates representing the Trust Preferred Securities not held
by the
depository or its nominee will be deemed to represent the Debt
Securities
having a principal amount equal to the stated liquidation amount
of the
Trust Preferred Securities and bearing accrued and unpaid interest
in an
amount equal to the accumulated and unpaid distributions on the
Trust
Preferred Securities until the certificates are presented to the
security
registrar for the Trust Securities for transfer or
reissuance.
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If
we do
not redeem the Debt Securities we have issued to a trust prior to the stated
maturity and the trust is not liquidated and the Debt Securities are not
distributed to holders of the Trust Preferred Securities issued by that trust,
the Trust Preferred Securities will remain outstanding until the repayment
of
the Debt Securities and the distribution of the liquidation distribution
to the
holders of the Trust Preferred Securities.
There
can
be no assurance as to the market prices for Trust Preferred Securities or
the
related Debt Securities that may be distributed in exchange for Trust Preferred
Securities if a dissolution and liquidation of a trust were to occur.
Accordingly, the Trust Preferred Securities that an investor may purchase,
or
the related Debt Securities that the investor may receive on dissolution
and
liquidation of a trust, may trade at a discount to the price that the investor
paid to purchase the Trust Preferred Securities offered hereby.
Certain
Covenants
In
connection with the issuance of Trust Preferred Securities by a trust, we
will
agree:
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to
continue to hold, directly or indirectly, 100% of the Trust Common
Securities of any trust to which Debt Securities have been issued
while
such Debt Securities are outstanding, provided that certain successors
that are permitted pursuant to the applicable indenture may succeed
to our
ownership of the Trust Common
Securities;
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not
to voluntarily dissolve, wind up or liquidate a trust to which
Debt
Securities have been issued, other than in connection with a distribution
of Debt Securities to the holders of the Trust Preferred Securities
in
liquidation of a trust or in connection with certain mergers,
consolidations or amalgamations permitted by the trust agreements;
and
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to
use our reasonable efforts, consistent with the terms and provisions
of
the trust agreements, to cause each trust to which Debt Securities
have
been issued to continue not to be taxable other than as a grantor
trust
for United States federal income tax
purposes.
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Unless
the applicable prospectus supplement states otherwise, during any extended
interest period, or for so long as an event of default under the applicable
indenture or any payment default under the preferred security Guarantee has
occurred and is continuing, we will also agree that we will not, except in
limited circumstances, (1) declare or pay any dividends or distributions
on, or
redeem, purchase, acquire or make a liquidation payment with respect to,
any of
our capital stock; (2) make any payment of principal of or interest or premium,
if any, on or repay, repurchase or redeem any Debt Securities of ours that
rank
equally with, or junior to, the Debt Securities; or (3) make any guarantee
payments with respect to any guarantee issued by us if such guarantee ranks
equally with, or junior to, the applicable Debt Securities, other than, in
each
case, repurchases, redemptions or other acquisitions of shares of
our:
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capital
stock in connection with any employment contract, benefit plan
or other
similar arrangement with or for the benefit of any one or more
employees,
officers, directors or consultants or in connection with a dividend
reinvestment or shareholder stock purchase plan;
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as
a result of an exchange or conversion of any class or series of
our
capital stock, or any capital stock of a subsidiary of ours, for
any class
or series of our capital stock or of any class or series of our
then
outstanding indebtedness for any class or series of our capital
stock;
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the
purchase of fractional interests in shares of our capital stock
pursuant
to the conversion or exchange provisions of the capital stock or
the
security being converted or
exchanged;
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payments
under any Guarantee executed and delivered by us concurrently with
the
issuance of any Trust Preferred
Securities;
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any
declaration of a dividend in the form of capital stock in connection
with
any shareholders’ rights plan, or the issuance of rights to capital stock
under any shareholders’ rights plan, or the redemption or repurchase of
rights pursuant to any such plan; or
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any
dividend in the form of stock, warrants, options or other rights
where the
dividend stock or the stock issuable upon exercise of the warrants,
options or other rights is the same stock as that on which the
dividend is
being paid or ranks on a parity with or junior to the
stock,
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if
at
such time
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we
have actual knowledge of any event that (a) with the giving of
notice or
the lapse of time, or both, would constitute an event of default
under the
applicable indenture, and (b) we have not taken reasonable steps
to cure
the same;
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we
are in default with respect to our payment of any obligations under
any
Guarantee executed and delivered by us concurrently with the issuance
of
any Trust Preferred Securities; or
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an
extension period is
continuing.
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We
will
also agree that, if and for so long as a trust is the holder of all Debt
Securities issued by us in connection with the issuance of Trust Preferred
Securities by that trust and that trust is required to pay any additional
taxes,
duties or other governmental charges, including in connection with a Tax
Event,
we will pay as additional sums on the Debt Securities the amounts that may
be
required so that the distributions payable by that trust will not be reduced
as
a result of any additional taxes, duties or other governmental
charges.
Events
of Default
Any
one
of the following events constitutes an event of default with respect to the
Trust Preferred Securities issued by a trust under the related trust
agreement:
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default
by the trust in the payment of any distribution when it becomes
due and
payable, and continuation of the default for a period of 30
days;
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default
by the trust in the payment of any redemption price of any trust
security
issued by that trust when it becomes due and
payable;
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default
in the performance, or breach, in any material respect, of any
covenant or
warranty of the Property Trustee and the Delaware Trustee in the
trust
agreement, other than as described above, and continuation of the
default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the appropriate trustees and to
us by the
holders of at least 33% in aggregate liquidation amount of the
outstanding
Trust Preferred Securities, a written notice specifying the default
or
breach and requiring it to be remedied and stating that the notice
is a
“Notice of Default” under the trust
agreement;
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the
occurrence of an event of default under the applicable indenture
relating
to the Debt Securities held by a trust (see Description
of the Senior Notes--Events of Default
and
Description of the Junior Subordinated Debentures -
Events of Default);
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the
occurrence of certain events of bankruptcy or insolvency with respect
to
the Property Trustee or all or substantially all of its property
if a
successor Property Trustee has not been appointed within 90 days
of the
occurrence; or
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the
occurrence of certain events of bankruptcy or insolvency with respect
to
the
trust.
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Within
five business days after the occurrence of certain events of default actually
known to the respective Property Trustee, the Property Trustee will transmit
notice of the event of default to the respective holders of Trust Securities
and
the respective Administrative Trustees, unless the event of default has been
cured or waived. Within five business days after the receipt of notice that
we
intend to exercise our right under the applicable indenture to defer the
payment
of interest on the related Debt Securities, the Property Trustee must notify
the
holders and the Administrative Trustees that we intend to defer these interest
payments, unless we have revoked our determination to do so.
The
applicable trust agreement includes provisions as to the duties of the Property
Trustee in case an event of default occurs and is continuing. Consistent
with
these provisions, the Property Trustee will be under no obligation to exercise
any of its rights or powers at the request or direction of any of the holders
unless those holders have offered to the Property Trustee reasonable indemnity.
Subject to these provisions for indemnification, the holders of a majority
in
liquidation amount of the related outstanding Trust Preferred Securities
may
direct the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power conferred
on
the Property Trustee, with respect to the related Trust Preferred
Securities.
The
holders of at least a majority in aggregate liquidation amount of the
outstanding Trust Preferred Securities issued by a trust may waive any past
default under the applicable trust agreement except:
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a
default in the payment of any distribution when it becomes due
and payable
or any redemption price;
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a
default with respect to certain covenants and provisions of the
applicable
trust agreement that cannot be modified or amended without consent
of the
holder of each outstanding Trust Preferred Security; and
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a
default under the applicable indenture that the holders of a majority
in
liquidation amount of the Trust Preferred Securities would not
be entitled
to waive under the applicable trust agreement.
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If
an
event of default under the applicable indenture has occurred and is continuing
as a result of any failure by us to pay any amounts when due in respect of
the
related Debt Securities issued by us to a trust, the related Trust Preferred
Securities will have a preference over the related Trust Common Securities
with
respect to payments of any amounts in respect of the Trust Preferred Securities
as described above. See Subordination
of Trust Common Securities,
Liquidation
Distribution Upon Dissolution, Description
of the Senior Notes -
Events of Default and
Description of Junior Subordinated Debentures -
Events of Default.
We
must
furnish annually to each Property Trustee a statement by an appropriate officer
as to that officer’s knowledge of our compliance with all conditions and
covenants under the respective trust agreement. Also, the Administrative
Trustees for each trust must file, on behalf of the respective trust, a
statement as to our compliance with all conditions and covenants under the
respective trust agreement.
Voting
Rights; Amendment of Trust Agreement
Except
as
provided below and under Resignation,
Removal of Property Trustee and Delaware Trustee; Appointment of
Successors
and
Description
of Guarantees -
Amendments and Assignment
and as
otherwise required by law and the applicable trust agreement, the holders
of the
Trust Preferred Securities issued by a trust will have no voting
rights.
The
trust
agreement applicable to a trust may be amended from time to time by the holders
of a majority in liquidation amount of its Trust Common Securities and the
respective Property Trustee, without the consent of the holders of the Trust
Preferred Securities issued by the trust:
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to
cure any ambiguity, correct or supplement any provisions in the
trust
agreements that may be inconsistent with any other provision, or
to make
any other provisions with respect to matters or questions arising
under
the trust agreements, provided that any such amendment does not
adversely
affect in any material respect the interests of any holder of Trust
Securities;
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to
facilitate the tendering, remarketing and settlement of the Trust
Preferred Securities, as contemplated in the trust
agreement;
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to
modify, eliminate or add to any provisions of the trust agreements
to the
extent as may be necessary to ensure that a trust will not be taxable
other than as a grantor trust for United States federal income
tax
purposes at any time that any Trust Securities are outstanding
or to
ensure that a trust will not be required to register as an “investment
company” under the Investment Company Act;
or
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to
reflect the appointment of a successor
trustee.
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The
trust
agreement may be amended by the holders of a majority in aggregate liquidation
amount of the Trust Common Securities and the Property Trustee with the consent
of holders representing not less than a majority in aggregate liquidation
amount
of the outstanding Trust Preferred Securities and receipt by the Property
Trustee and the Delaware Trustee of an opinion of counsel to the effect that
the
amendment or the exercise of any power granted to the trustees in accordance
with the amendment will not affect the trust’s not being taxable other than as a
grantor trust for United States federal income tax purposes or the trust’s
exemption from status as an “investment company” under the Investment Company
Act.
Without
the consent of each holder of Trust Preferred Securities affected by the
amendment or related exercise of power, the trust agreement applicable to
a
trust may not be amended to change the amount or timing of any distribution
on
the Trust Securities or otherwise adversely affect the amount of any
distribution required to be made in respect of the Trust Securities as of
a
specified date or restrict the right of a holder of Trust Securities to
institute suit for the enforcement of any payment due.
So
long
as any Debt Securities are held by a trust, the respective Property Trustee
will
not:
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direct
the time, method and place of conducting any proceeding for any
remedy
available to the trustee for the Debt Securities under the related
indenture, or execute any trust or power conferred on the Property
Trustee
with respect to the related Debt
Securities;
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waive
any past default that is waivable under the applicable
indenture;
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exercise
any right to rescind or annul a declaration that the Debt Securities
shall
be due and payable; or
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consent
to any amendment, modification or termination of the applicable
indenture
or the related Debt Securities, where consent shall be
required;
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without,
in each case, obtaining the prior approval of the holders of at least a majority
in aggregate liquidation amount of the Trust Preferred Securities, except
that,
if a consent under the applicable indenture would require the consent of
each
holder of Debt Securities affected by the consent, no consent will be given
by
the Property Trustee without the prior written consent of each holder of
the
Trust Preferred Securities.
A
Property Trustee may not revoke any action previously authorized or approved
by
a vote of the holders of the Trust Preferred Securities issued by its respective
trust except by subsequent vote of the holders of the Trust Preferred
Securities. The Property Trustee will notify each holder of Trust Preferred
Securities of any notice of default with respect to the Debt Securities.
In
addition, before taking any of the foregoing actions, the Property Trustee
will
obtain an opinion of counsel experienced in relevant matters to the effect
that
the trust will not be taxable other than as a grantor trust for United States
federal income tax purposes on account of the action.
Any
required approval of holders of Trust Preferred Securities issued by a trust
may
be given at a meeting of holders of those Trust Preferred Securities convened
for the purpose or pursuant to written consent. The Property Trustee will
cause
a notice of any meeting at which holders of Trust Preferred Securities are
entitled to vote, or of any matter upon which action by written consent of
the
holders is to be taken, to be given to each registered holder of Trust Preferred
Securities in the manner set forth in the applicable trust
agreement.
No
vote
or consent of the holders of Trust Preferred Securities issued by a trust
will
be required to redeem and cancel those Trust Preferred Securities in accordance
with the applicable trust agreement. See above under Redemption.
Notwithstanding
that holders of Trust Preferred Securities issued by a trust are entitled
to
vote or consent under any of the circumstances described above, any of those
Trust Preferred Securities that are owned by us, the respective Property
Trustee
or Delaware Trustee, or any affiliate of us or either trustee, will, for
purposes of the vote or consent, be treated as if they were not
outstanding.
Enforcement
of Certain Rights by Holders of Trust Preferred Securities
If
an
event of default has occurred and is continuing under the applicable indenture,
and the trustee for the related Debt Securities and the holders of those
Debt
Securities have failed to declare the principal due and payable, the holders
of
at least 33% in aggregate liquidation amount of the related outstanding Trust
Preferred Securities shall have this right.
If
an
event of default has occurred and is continuing under a trust agreement and
the
event is attributable to our failure to pay any amounts payable in respect
of
Debt Securities on the date the amounts are otherwise payable, a registered
holder of Trust Preferred Securities may institute a direct action against
us
for enforcement of payment to the holder of an amount equal to the amount
payable in respect of Debt Securities having a principal amount equal to
the
aggregate liquidation amount of the Trust Preferred Securities held by the
holder, which we refer to in this discussion as a “Direct Action”. We will have
the right under the applicable indenture to set-off any payment made to the
holders of Trust Preferred Securities by us in connection with a Direct
Action.
We
may
not amend the applicable indenture to remove the foregoing right to bring
a
Direct Action without the prior written consent of the holders of all the
Trust
Preferred Securities. Furthermore, so long as any of the Trust Preferred
Securities are outstanding:
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no
modification of the applicable indenture may be made that adversely
affects the holders of the Trust Preferred Securities in any material
respect,
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no termination of the applicable indenture may occur
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no
waiver of any event of default or compliance with any covenant
under the
applicable indenture may be
effective,
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without
the prior consent of the holders of at least a majority of the aggregate
liquidation amount of the outstanding Trust Preferred Securities unless and
until the principal of, accrued and unpaid interest on and premium, if any,
on
the related Debt Securities have been paid in full and certain other conditions
are satisfied.
With
certain exceptions, the holders of the Trust Preferred Securities would not
be
able to exercise directly any remedies available to the holders of the Debt
Securities except under the circumstances described in this
section.
Resignation,
Removal of Property Trustee and Delaware Trustee; Appointment of
Successors
The
Property Trustee or the Delaware Trustee of a trust may resign at any time
by
giving written notice to us or may be removed at any time by an action of
the
holders of a majority in liquidation amount of that trust’s outstanding Trust
Preferred Securities delivered to the trustee to be removed and to us. No
resignation or removal of either of the trustees and no appointment of a
successor trustee will become effective until a successor trustee accepts
appointment in accordance with the requirements of the trust agreement. So
long
as no event of default or event that would become an event of default has
occurred and is continuing, and except with respect to a trustee appointed
by an
action of the holders, if we have delivered to either the Property Trustee
or
the Delaware Trustee a resolution of our board of directors appointing a
successor trustee and the successor trustee has accepted the appointment
in
accordance with the terms of the trust agreement, the Property Trustee or
the
Delaware Trustee, as the case may be, will be deemed to have resigned and
the
successor trustee will be deemed to have been appointed as trustee in accordance
with the trust agreement.
Mergers,
Consolidations, Amalgamations or Replacements of a Trust
A
trust
may not merge with or into, consolidate, amalgamate, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety
to any entity, except as described below or as otherwise set forth in the
applicable trust agreement. A trust may, at the request of the holders of
its
Trust Common Securities and with the consent of the holders of at least a
majority in aggregate liquidation amount of its outstanding Trust Preferred
Securities, merge with or into, consolidate, amalgamate, or be replaced by
or
convey, transfer or lease its properties and assets substantially as an entirety
to a trust organized as such under the laws of any state, so long
as:
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the
successor entity either expressly assumes all the obligations of
the trust
with respect to its Trust Preferred Securities or substitutes for
the
Trust Preferred Securities other securities having substantially
the same
terms as the Trust Preferred Securities, which we refer to in this
prospectus as the successor securities, so long as the successor
securities have the same priority as the Trust Preferred Securities
with
respect to distributions and payments upon liquidation, redemption
and
otherwise;
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a
trustee of the successor entity, possessing the same powers and
duties as
the Property Trustee, is appointed to hold the related Debt
Securities;
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the
merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease does not cause the Trust Preferred Securities, including
any
successor securities, to be downgraded by any nationally recognized
statistical rating organization;
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the
Trust Preferred Securities or any successor securities are listed
or
quoted, or any successor securities will be listed or quoted upon
notification of issuance, on any national securities exchange or
with
another organization on which the Trust Preferred Securities are
then
listed or quoted;
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the
merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease does not adversely affect the rights, preferences and privileges
of
the holders of the Trust Preferred Securities, including any successor
securities, in any material
respect;
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the
successor entity has a purpose substantially identical to that
of the
trust;
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prior
to the merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Property Trustee has received an opinion
from
independent counsel experienced in relevant matters to the effect
that
such transaction does not adversely affect the rights, preferences
and
privileges of the holders of the Trust Preferred Securities, including
any
successor securities, in any material respect and following such
transaction, neither the trust nor the successor entity will be
required
to register as an investment company under the Investment Company
Act;
and
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we
or any permitted successor or assignee owns all the Trust Common
Securities of the successor entity and guarantees the obligations
of the
successor entity under the successor securities at least to the
extent
provided by the applicable
Guarantee.
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Notwithstanding
the foregoing, a trust may not, except with the consent of holders of 100%
in
aggregate liquidation amount of the Trust Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or
lease
its properties and assets substantially as an entirety to, any other entity
or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if the consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the trust or the successor entity to be taxable
other than as a grantor trust for United States federal income tax
purposes.
Information
Concerning the Property Trustees
Each
Property Trustee, other than during the occurrence and continuance of an
event
of default, undertakes to perform only the duties as are specifically set
forth
in the applicable trust agreement and, after an event of default, must exercise
the same degree of care and skill as a prudent person would exercise or use
in
the conduct of his or her own affairs. Subject to this provision, each Property
Trustee is under no obligation to exercise any of the powers vested in it
by the
trust agreements at the request of any holder of Trust Preferred Securities
issued by the respective trust unless it is offered reasonable indemnity
against
the costs, expenses and liabilities that might be incurred by exercising
these
powers.
Concerning
the Property Trustee
We
and
our affiliates use or will use some of the services of the Property Trustee
in
the normal course of business.
Miscellaneous
The
Administrative Trustees and the Property Trustee relating to each trust are
authorized and directed to conduct the affairs of and to operate the trust
in
such a way that the trust will not be deemed to be an “investment company”
required to be registered under the Investment Company Act or taxable other
than
as a grantor trust for United States federal income tax purposes and so that
the
Debt Securities held by that trust will be treated as indebtedness of ours
for
United States federal income tax purposes. In this regard, each Property
Trustee
and the holders of Trust Common Securities issued by the respective trust
are
authorized to take any action, not inconsistent with applicable law, the
certificate of trust of the trust or the applicable trust agreement, that
the
Property Trustee and the holders of Trust Common Securities determine in
their
discretion to be necessary or desirable for these purposes, as long as this
action does not materially adversely affect the interests of the holders
of the
Trust Preferred Securities.
Holders
of the Trust Preferred Securities have no preemptive or similar
rights.
A
trust
may not borrow money or issue debt or mortgage or pledge any of its
assets.
Governing
Law
The
trust
agreement and the Trust Preferred Securities will be governed by Delaware
law.
DESCRIPTION
OF GUARANTEES
Each
Guarantee will be executed and delivered by us concurrently with the issuance
of
Trust Preferred Securities by a trust for the benefit of the holders from
time
to time of the Trust Preferred Securities. We will appoint The Bank of New
York
as Guarantee Trustee under each Guarantee. Each Guarantee Trustee will hold
the
respective Guarantee for the benefit of the holders of the Trust Preferred
Securities issued by the related trust. Each Guarantee will be qualified
as an
indenture under the Trust Indenture Act of 1939. We have summarized below
certain provisions of the Guarantees. This summary does not purport to be
complete and is subject to, and qualified in its entirety by reference to,
all
the provisions of the Guarantee, including the definitions in the Guarantee
of
certain terms. The form of guarantee agreement will be filed as an exhibit
to
the registration statement of which this prospectus is a part.
General
Unless
otherwise provided in a prospectus supplement, we will fully and unconditionally
agree, to the extent described herein, to pay the Guarantee payments, as
defined
below, to the holders of the Trust Preferred Securities issued by each trust,
as
and when due, regardless of any defense, right of set-off or counterclaim
that a
trust may have or assert other than the defense of payment. The following
payments with respect to the Trust Preferred Securities, to the extent not
paid
or made by or on behalf of the respective trust, which payments we refer
to in
this discussion as the “Guarantee payments,” will be subject to the respective
Guarantee:
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any
accumulated and unpaid distributions required to be paid on the
Trust
Preferred Securities, to the extent that the trust has funds on
hand
available therefor;
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the
redemption price with respect to any Trust Preferred Securities
called for
redemption, to the extent that the trust has funds on hand available
therefor; and
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upon
a voluntary or involuntary dissolution, winding up or liquidation
of the
trust, unless the related Debt Securities are distributed to holders
of
the Trust Preferred Securities, the lesser of:
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(1)
the
aggregate of the liquidation amount and all accumulated and unpaid distributions
to the date of payment, to the extent that the trust has funds on hand available
therefor; and
(2)
the
amount of assets of the trust remaining available for distribution to holders
of
the Trust Preferred Securities on liquidation of the trust.
Our
obligation to make a Guarantee payment may be satisfied by direct payment
of the
required amounts by us to the holders of the Trust Preferred Securities or
by
causing the trust to pay these amounts to the holders.
Each
Guarantee will be an irrevocable guarantee of the obligations of the respective
trust under its Trust Preferred Securities, but will apply only to the extent
that the trust has funds sufficient to make these payments.
If
we do
not make payments on the Debt Securities held by a trust, the trust will
not be
able to pay any amounts payable in respect of its Trust Preferred Securities
and
will not have funds legally available for these payments. The applicable
prospectus supplement will describe the ranking of the Guarantee. See
Status
of the Guarantees.
The
Guarantees do not limit our incurrence or issuance of other secured or unsecured
debt, including Senior Indebtedness, whether under the applicable indenture,
any
other indenture that we may enter into in the future or otherwise.
We
will
enter into an agreement as to expenses and liabilities with each trust to
provide funds to such trust as needed to pay obligations of the trust to
parties
other than the holders of the Trust Preferred Securities. We have, through
the
Guarantees, the trust agreements, the agreements as to expenses and liabilities,
the applicable Debt Securities and the related indenture, taken together,
fully,
irrevocably and unconditionally guaranteed all of each trust’s obligations under
its Trust Preferred Securities. No single document standing alone or operating
in conjunction with fewer than all the other documents constitutes the
Guarantee. It is only the combined operation of these documents that has
the
effect of providing a full, irrevocable and unconditional guarantee of each
trust’s obligations in respect of its Trust Preferred Securities. See
Relationship
Among Trust Preferred Securities, Debt Securities and
Guarantees.
Status
of the Guarantees
Each
Guarantee will constitute an unsecured obligation of ours. The applicable
prospectus supplement will describe the ranking of each Guarantee.
Each
Guarantee will constitute a guarantee of payment and not of collection;
specifically, the Guaranteed party may institute a legal proceeding directly
against the guarantor to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other person or entity. Each
Guarantee will be held by the respective Guarantee Trustee for the benefit
of
the holders of the related Trust Preferred Securities. A Guarantee will not
be
discharged except by payment of the applicable Guarantee payments in full
to the
extent not paid or distributed by the respective trust.
Amendments
and Assignment
Except
with respect to any changes that do not materially adversely affect the rights
of holders of the related Trust Preferred Securities, in which case no vote
will
be required, a Guarantee may not be amended without the prior approval of
the
holders of not less than a majority of the aggregate liquidation amount of
the
related Trust Preferred Securities. The manner of obtaining this type of
approval will be as set forth under Description
of Trust Preferred Securities -
Voting Rights; Amendment of Trust Agreement.
All
Guarantees and agreements contained in each Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of ours and shall inure
to the
benefit of the holders of the related Trust Preferred Securities then
outstanding.
Events
of Default
An
event
of default under a Guarantee will occur upon our failure to perform any of
our
payment obligations under the Guarantee, or to perform any other obligation
if
such default remains unremedied for 30 days.
The
holders of not less than a majority in aggregate liquidation amount of the
related Trust Preferred Securities have the right to direct the time, method
and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of the Guarantee or to direct the exercise of any trust
or
power conferred upon the Guarantee Trustee under the Guarantee. Any registered
holder of Trust Preferred Securities may institute a legal proceeding directly
against us to enforce its rights under the related Guarantee without first
instituting a legal proceeding against the related trust, the Guarantee Trustee
or any other person or entity.
We,
as
guarantor, are required to file annually with each Guarantee Trustee a
certificate as to whether or not we are in compliance with all the conditions
and covenants applicable to us under each Guarantee.
Consolidation,
Merger, Sale of Assets and Other Transactions
We
may
merge or consolidate with any entity or sell substantially all of our assets
as
an entirety as long as the successor or purchaser (i) is organized and existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) expressly assumes our obligations under the Guarantee; and
(iii)
immediately after giving effect thereto no event of default under the Guarantee
and no event which after notice or lapse of time or both, would become an
event
of default under the Guarantee has happened and is continuing.
Information
Concerning the Guarantee Trustee
The
Guarantee Trustee, other than during the occurrence and continuance of a
default
by us in performance of the Guarantee, undertakes to perform only such duties
as
are specifically set forth in the guarantee agreement. After a default with
respect to the Guarantee, the Guarantee Trustee must exercise the same degree
of
care and skill as a prudent person would exercise or use in the conduct of
his
or her own affairs. Subject to this provision, the Guarantee Trustee is under
no
obligation to exercise any of the powers vested in it by the guarantee agreement
at the request of any holder of the Trust Preferred Securities unless it
is
offered reasonable indemnity against the costs, expenses and liabilities
that it
might thereby incur.
Termination
of the Guarantees
Each
Guarantee will terminate and be of no further force and effect upon full
payment
of the redemption price of the related Trust Preferred Securities, upon full
payment of the amounts payable with respect to the Trust Preferred Securities
upon liquidation of the respective trust and upon distribution of the related
Debt Securities to the holders of the Trust Preferred Securities. Each Guarantee
will continue to be effective or will be reinstated, as the case may be,
if at
any time any holder of the related Trust Preferred Securities must restore
payment of any sums paid under the Trust Preferred Securities or the Guarantee.
Governing
Law
Each
Guarantee will be governed by New York law.
Concerning
the Trustee
We
and
our affiliates use or will use some of the banking services of the Guarantee
Trustee in the normal course of business.
We
must
furnish annually to each Property Trustee a statement by an appropriate officer
as to that officer’s knowledge of our compliance with all conditions and
covenants under the respective trust agreement. Also, the Administrative
Trustees for each trust must file, on behalf of the respective trust, a
statement as to our compliance with all conditions and covenants under the
respective trust agreement.
RELATIONSHIP
AMONG TRUST PREFERRED SECURITIES, DEBT SECURITIES AND GUARANTEES
Full
and Unconditional Guarantee
Payments
of distributions and other amounts due on the Trust Preferred Securities
issued
by a trust, to the extent the trust has funds available for the payment,
are
irrevocably Guaranteed by us as and to the extent set forth under Description
of Guarantees.
Taken
together, our obligations under the related Debt Securities, the applicable
indenture, an agreement as to expenses and liabilities, the related trust
agreement and the related Guarantee provide, in the aggregate, a full,
irrevocable and unconditional Guarantee of payments of distributions and
other
amounts due on the Trust Preferred Securities issued by a trust. No single
document standing alone or operating in conjunction with fewer than all the
other documents constitutes the Guarantee. It is only the combined operation
of
these documents that has the effect of providing a full, irrevocable and
unconditional Guarantee of each trust’s obligations in respect of the related
Trust Preferred Securities. If and to the extent that we do not make payments
on
the Debt Securities issued to a trust, the trust will not have sufficient
funds
to pay distributions or other amounts due on its Trust Preferred Securities.
A
Guarantee does not cover payment of amounts payable with respect to the Trust
Preferred Securities issued by a trust when the trust does not have sufficient
funds to pay these amounts. In this event, the remedy of a holder of the
Trust
Preferred Securities is to institute a legal proceeding directly against
us for
enforcement of payment of our obligations under Debt Securities having a
principal amount equal to the liquidation amount of the Trust Preferred
Securities held by the holder.
Sufficiency
of Payments
As
long
as payments are made when due on the Debt Securities issued to a trust, these
payments will be sufficient to cover distributions and other payments
distributable on the Trust Preferred Securities issued by that trust, primarily
because:
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the
aggregate principal amount of the Debt Securities will be equal
to the sum
of the aggregate stated liquidation amount of the Trust Preferred
Securities and Trust Common
Securities;
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the
interest rate and interest and other payment dates on the Debt
Securities
will match the distribution rate, distribution dates and other
payment
dates for the Trust Preferred
Securities;
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we
will pay for any and all costs, expenses and liabilities of the
trust
except the trust’s obligations to holders of the related Trust Securities;
and
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the
applicable trust agreement further provides that the trust will
not engage
in any activity that is not consistent with the limited purposes
of the
trust.
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Notwithstanding
anything to the contrary in the applicable indenture, we have the right to
set-off any payment we are otherwise required to make under that indenture
against and to the extent we have previously made, or are concurrently on
the
date of the payment making, a payment under a Guarantee.
Enforcement
Rights of Holders of Trust Preferred Securities
Under
the
circumstances set forth under Description
of Trust Preferred Securities--Enforcement of Certain Rights by Holders of
Trust
Preferred Securities,
holders
of Trust Preferred Securities may bring a Direct Action against us.
A
holder
of any Trust Preferred Security may institute a legal proceeding directly
against us to enforce its rights under the related Guarantee without first
instituting a legal proceeding against the related Guarantee Trustee, the
related trust or any other person or entity. See Description
of Guarantees.
Limited
Purpose of Trust
The
Trust
Preferred Securities issued by a trust represent preferred undivided beneficial
interests in the assets of the trust, and the trust exists for the sole purpose
of issuing its Trust Preferred Securities and Trust Common Securities and
investing the proceeds of these Trust Securities in Debt Securities. A principal
difference between the rights of a holder of a Trust Preferred Security and
a
holder of a debt security is that a holder of a debt security is entitled
to
receive from us payments on Debt Securities held, while a holder of Trust
Preferred Securities is entitled to receive distributions or other amounts
distributable with respect to the Trust Preferred Securities from a trust,
or
from us under a Guarantee, only if and to the extent the trust has funds
available for the payment of the distributions.
Rights
Upon Dissolution
Upon
any
voluntary or involuntary dissolution of a trust, other than any dissolution
involving the distribution of the related Debt Securities, after satisfaction
of
liabilities to creditors of the trust as required by applicable law, the
holders
of the Trust Preferred Securities issued by the trust will be entitled to
receive, out of assets held by the trust, the liquidation distribution in
cash.
See Description
of Trust Preferred Securities -
Liquidation Distribution Upon Dissolution.
Since
we are the guarantor under each of the Guarantees and have agreed to pay
for all
costs, expenses and liabilities of each trust, other than each trust’s
obligations to the holders of the respective Trust Securities, the positions
of
a holder of Trust Preferred Securities and a holder of Debt Securities relative
to other creditors and to our shareholders in the event of our liquidation
or
bankruptcy are expected to be substantially the same.
DESCRIPTION
OF THE STOCK PURCHASE CONTRACTS AND THE STOCK PURCHASE
UNITS
We
may
issue Stock Purchase Contracts representing contracts obligating holders
to
purchase from us and we may sell to the holders, a specified number of shares
of
common stock (or a range of numbers of shares pursuant to a predetermined
formula) at a future date or dates. The price per share of common stock may
be
fixed at the time the Stock Purchase Contracts are issued or may be determined
by reference to a specific formula set forth in the Stock Purchase
Contracts.
The
Stock
Purchase Contracts may be issued separately or as a part of units, often
known
as Stock Purchase Units, consisting of a Stock Purchase Contract and either
Debt
Securities or debt obligations of third parties, including U.S. Treasury
securities or Trust Preferred Securities securing the holder’s obligations to
purchase the common stock under the Stock Purchase Contracts.
The
Stock
Purchase Contracts may require us to make periodic payments to the holders
of
the Stock Purchase Units or vice versa, and such payments may be unsecured
or
prefunded on some basis. The Stock Purchase Contracts may require holders
to
secure their obligations in a specified manner and in certain circumstances
we
may deliver newly issued prepaid Stock Purchase Contracts, often known as
prepaid securities, upon release to a holder of any collateral securing such
holder’s obligations under the original Stock Purchase Contract.
The
applicable prospectus supplement will describe the terms of any Stock Purchase
Contracts or Stock Purchase Units and, if applicable, prepaid securities.
The
description in the applicable prospectus supplement will not necessarily
contain
all of information that you may find useful. For more information, you should
review the Stock Purchase Contracts, the collateral arrangements and depositary
arrangements, if applicable, relating to such Stock Purchase Contracts or
Stock
Purchase Units and, if applicable, the prepaid securities and the document
pursuant to which the prepaid securities will be issued. These documents
will be
filed with the SEC promptly after the offering of such Stock Purchase Contracts
or Stock Purchase Units and, if applicable, prepaid securities.
BOOK-ENTRY
SYSTEM
Unless
otherwise stated in a prospectus supplement, book-entry securities of a series
will be issued in the form of a global security that the Trustee will deposit
with The Depository Trust Company, New York, New York (“DTC”). This means that
we will not issue security certificates to each holder. One or more global
securities will be issued to DTC who will keep a computerized record of its
participants (for example, your broker) whose clients have purchased the
securities. The participant will then keep a record of its clients who purchased
the securities. Unless it is exchanged in whole or in part for a certificate,
a
global security may not be transferred, except that DTC, its nominees, and
their
successors may transfer a global security as a whole to one
another.
Beneficial
interests in global securities will be shown on, and transfers of global
securities will be made only through, records maintained by DTC and its
participants.
DTC
has
provided us the following information: DTC is a limited-purpose trust company
organized under the New York Banking Law, a “banking organization” within the
meaning of the New York Banking Law, a member of the United States Federal
Reserve System, a “clearing corporation” within the meaning of the New York
Uniform Commercial Code and a “clearing agency” registered under the provisions
of Section 17A of the Securities Exchange Act of 1934. DTC holds securities
that
its participants (“Direct Participants”) deposit with DTC. DTC also records the
settlement among Direct Participants of securities transactions, such as
transfers and pledges, in deposited securities through computerized records
for
Direct Participant’s accounts. This eliminates the need to exchange security
certificates. Direct Participants include securities brokers and dealers,
banks,
trust companies, clearing corporations and certain other
organizations.
Other
organizations such as securities brokers and dealers, banks and trust companies
that work through a Direct Participant also use DTC’s book-entry system. The
rules that apply to DTC and its participants are on file with the
SEC.
A
number
of its Direct Participants and the New York Stock Exchange, Inc., The American
Stock Exchange, Inc. and the National Association of Securities Dealers,
Inc.
own DTC.
We
will
wire principal and interest payments to DTC’s nominee. We and the applicable
trustee will treat DTC’s nominee as the owner of the global securities for all
purposes. Accordingly, we, the trustee and any paying agent will have no
direct
responsibility or liability to pay amounts due on the global securities to
owners of beneficial interests in the global securities.
It
is
DTC’s current practice, upon receipt of any payment of principal or interest,
to
credit Direct Participants’ accounts on the payment date according to their
respective holdings of beneficial interests in the global securities as shown
on
DTC’s records. In addition, it is DTC’s current practice to assign any
consenting or voting rights to Direct Participants whose accounts are credited
with securities on a record date. The customary practices between the
participants and owners of beneficial interests will govern payments by
participants to owners of beneficial interests in the global securities and
voting by participants, as is the case with securities held for the account
of
customers registered in “street name.” However, payments will be the
responsibility of the participants and not of DTC, the Trustee or
us.
According
to DTC, the foregoing information with respect to DTC has been provided to
the
Direct Participants and other members of the financial community for
informational purposes only and is not intended to serve as a representation,
warranty or contract modification of any kind.
Securities
represented by a global certificate will be exchangeable for definitive
securities with the same terms in authorized denominations only if:
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DTC
notifies us that it is unwilling or unable to continue as depositary
or if
DTC ceases to be a clearing agency registered under applicable
law and a
successor depositary is not appointed by us within 90 days;
or
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we
determine not to require all of the securities of a series to be
represented by a global security and notify the Trustee of our
decision.
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PLAN
OF DISTRIBUTION
We
may
sell the securities (a) through agents; (b) through underwriters or dealers;
or
(c) directly to one or more purchasers.
By
Agents
Securities
may be sold on a continuing basis through agents designated by us. The agents
will agree to use their reasonable efforts to solicit purchases for the period
of their appointment.
The
applicable prospectus supplement will set forth the terms under which the
securities are offered, including the name or names of any underwriters,
the
purchase price of the securities and the proceeds to us from the sale, any
underwriting discounts and other items constituting underwriters’ compensation,
any initial offering price and any discounts, commissions or concessions
allowed
or reallowed or paid to dealers.
Any
initial offering price and any discounts, concessions or commissions allowed
or
reallowed or paid to dealers may be changed from time to time.
The
Agents will not be obligated to make a market in the securities. We cannot
predict the amount of trading or liquidity of the securities.
By
Underwriters
If
underwriters are used in the sale, the underwriters will acquire the securities
for their own account. The underwriters may resell the securities in one
or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The obligations
of
the underwriters to purchase the securities will be subject to certain
conditions. The underwriters will be obligated to purchase all the securities
offered if any are purchased. Any initial public offering price and any
discounts or concessions allowed or re-allowed or paid to dealers may be
changed
from time to time.
Direct
Sales
We
may
also sell securities directly. In this case, no underwriters or agents would
be
involved.
General
Information
Underwriters,
dealers, and agents that participate in the distribution of the securities
may
be underwriters as defined in the Securities Act of 1933 (the “Act”), and any
discounts or commissions received by them from us and any profit on the resale
of the securities by them may be treated as underwriting discounts and
commissions under the Act.
We
may
have agreements with the underwriters, dealers and agents to indemnify them
against certain civil liabilities, including liabilities under the
Act.
Underwriters,
dealers and agents may engage in transactions with, or perform services for,
us
or our affiliates in the ordinary course of their businesses.
LEGAL
OPINIONS
Our
counsel, Hunton & Williams LLP, New York, New York, and one of our lawyers,
Jeffrey D. Cross or Thomas G. Berkemeyer, Deputy General Counsel and Associate
General Counsel, respectively, of American Electric Power Service Corporation,
our service company affiliate, will each issue an opinion about the legality
of
the securities for us. Dewey Ballantine LLP, New York, NY will issue an opinion
for the agents or underwriters. From time to time, Dewey Ballantine LLP acts
as
counsel to our affiliates for some matters.
Certain
matters of Delaware law relating to the validity of the Trust Preferred
Securities, the enforceability of the trust agreement and the creation of
the
trusts will be passed upon by Richards Layton & Finger, P.A., Wilmington,
Delaware.
EXPERTS
The
consolidated financial statements, the related consolidated financial statement
schedule, and management’s report on the effectiveness of internal control over
financial reporting of the Company and its subsidiaries incorporated in this
prospectus by reference from the Company’s Annual Report on Form 10-K for the
year ended December 31, 2004, as amended by the Company’s Form 10-K/A, have been
audited by Deloitte & Touche LLP, an independent registered public
accounting firm, as stated in their reports, which are incorporated herein
by
reference (which reports (1) express an unqualified opinion on the consolidated
financial statements and include an explanatory paragraph referring to the
adoption of new accounting pronouncements in 2002, 2003 and 2004; (2) express
an
unqualified opinion on the consolidated financial statement schedule; (3)
express an unqualified opinion on management’s assessment regarding the
effectiveness of internal control over financial reporting; and (4) express
an
unqualified opinion on the effectiveness of internal control over financial
reporting), have been so incorporated in reliance upon the reports of such
firm
given upon their authority as experts in accounting and auditing.