Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Appalachian Power Company
(Exact name of registrant as specified in its charter)
Virginia 54-0124790
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1 Riverside Plaza
Columbus, Ohio 43215
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (614) 716-1000
JOHN B. KEANE, Senior Vice President and General Counsel
AMERICAN ELECTRIC POWER SERVICE CORPORATION
1 Riverside Plaza
Columbus, Ohio 43215
(614) 716-2929
(Name, address and telephone number,
including area code, of agent for service)
It is respectfully requested that the Commission send copies
of all notices, orders and communications to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, NY 10019-6092
Attention: E. N. Ellis, IV
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Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of the Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Title of
Each Class Proposed Proposed
of Maximum Maximum
Securities Amount Offering Aggregate
to be to be Price Offering Amount of
Registered Registered Per Unit* Price* Registration Fee
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Unsecured
Notes $950,000,000 100% $950,000,000 $111,815
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*Estimated solely for purpose of calculating the registration fee.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The within prospectus contains the information required by Rule 429 of the
Commission under the Securities Act of 1933 with respect to $175,000,000 of
Unsecured Notes of the registrant remaining unsold under Registration Statement
No. 333-116284, declared effective June 22, 2004.
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH 16, 2005
PROSPECTUS
APPALACHIAN POWER COMPANY
1 RIVERSIDE PLAZA
COLUMBUS, OHIO 43215
(614) 716-1000
$1,125,000,000
UNSECURED NOTES
TERMS OF SALE
The following terms may apply to the notes that we may sell at one or more
times. A prospectus supplement or pricing supplement will include the final
terms for each note. If we decide to list upon issuance any note or notes on a
securities exchange, a prospectus supplement or pricing supplement will identify
the exchange and state when we expect trading could begin.
- Mature 9 months to 50 years
- Fixed or floating interest rate
- Remarketing features
- Certificate or book-entry form
- Subject to redemption
- Not convertible, amortized or subject to a sinking fund
- Interest paid on fixed rate notes quarterly or semi-annually
- Interest paid on floating rate notes monthly, quarterly, semi-annually,
or annually
- Issued in multiples of a minimum denomination
INVESTING IN THESE NOTES INVOLVES RISKS. SEE THE SECTION ENTITLED "RISK
FACTORS" BEGINNING ON PAGE 2 FOR MORE INFORMATION.
The notes have not been approved or disapproved by the Securities and
Exchange Commission 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 __________, 2005.
THE COMPANY
We generate, sell, purchase, transmit and distribute electric power. We
serve approximately 934,000 retail customers in the southwestern portion of
Virginia and southern West Virginia. We also sell and transmit power at
wholesale to other electric utilities, municipalities, electric cooperatives and
power marketers engaged in the wholesale power market. Our principal executive
offices are located at 1 Riverside Plaza, Columbus, Ohio 43215 (telephone number
614-716-1000). We are a subsidiary of American Electric Power Company, Inc.,
("AEP") a public utility holding company, and we are a part of the American
Electric Power integrated utility system. The executive offices of American
Electric Power Company, Inc. are located at 1 Riverside Plaza, Columbus, Ohio
43215 (telephone number 614-716-1000).
PROSPECTUS SUPPLEMENTS
We may provide information to you about the notes 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 notes; (b) the
accompanying prospectus supplement provides more specific terms of your notes;
and (c) if not included in the accompanying prospectus supplement, a pricing
supplement will provide the final terms of your notes. It is important for you
to consider the information contained in this prospectus, the prospectus
supplement and any pricing supplement 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 for the fiscal year ended December
31, 2004, which is 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 not 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.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement we 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.
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 (including any documents filed after the date of the
initial registration statement and prior to its effectiveness) until we sell all
the notes.
Annual Report on Form 10-K for the year ended December 31, 2004;
Current Report on Form 8-K filed January 24, 2005; and
Current Report on Form 8-K filed February 28, 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 notes 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.
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
December 31, 2000 2.26
December 31, 2001 2.98
December 31, 2002 3.49
December 31, 2003 3.48
December 31, 2004 3.15
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
on page 2.
USE OF PROCEEDS
Unless otherwise stated in a prospectus supplement, the net proceeds from
the sale of the notes will be used for general corporate purposes relating to
our utility business. These purposes include redeeming or repurchasing
outstanding debt (including the repayment of advances from affiliates) or
preferred stock and replenishing working capital. If we do not use the net
proceeds immediately, we temporarily invest them in short-term, interest-bearing
obligations. We estimate that our construction costs in 2005 will approximate
$697 million.
DESCRIPTION OF THE NOTES
General
We will issue the notes under the Indenture dated January 1, 1998 (as
previously supplemented and amended) 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 notes that may be issued. The
Indenture permits us to issue 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 notes may differ as to their
terms. The Indenture also gives us the ability to reopen a previous issue of a
series of notes and issue additional notes of such series.
The notes are unsecured and will rank equally with all our unsecured
unsubordinated debt. Substantially all of our fixed properties and franchises
are subject to the lien of our first mortgage bonds issued under and secured by
a Mortgage and Deed of Trust, dated as of December 1, 1940 (as previously
supplemented and amended) between us and Bankers Trust Company, now known as
Deutsche Bank Trust Company Americas, as trustee. For current information on our
debt outstanding see our most recent Form 10-K and 10-Q. See Where You Can Find
More Information.
The 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 notes will not be subject to any conversion,
amortization, or sinking fund. We expect that the notes will be "book-entry,"
represented by a permanent global note registered in the name of The Depository
Trust Company, or its nominee. We reserve the right, however, to issue note
certificates registered in the name of the noteholders.
In the discussion that follows, whenever we talk about paying principal on
the 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 following terms may apply to each note as specified in the applicable
pricing or prospectus supplement and the note.
Redemptions
If we issue redeemable notes, we may redeem such 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 notes in whole or in part by delivering written notice to the noteholders
no more than 60, and not less than 30, days prior to redemption. If we do not
redeem all the notes of a series at one time, the Trustee selects the notes to
be redeemed in a manner it determines to be fair.
Remarketed Notes
If we issue notes with remarketing features, an applicable pricing or
prospectus supplement will describe the terms for the notes including: interest
rate, remarketing provisions, our right to redeem notes, the holders' right to
tender notes, and any other provisions.
Book-Entry Notes - Registration, Transfer, and Payment of Interest and Principal
Unless otherwise stated in a prospectus supplement, book-entry notes of a
series will be issued in the form of a global note that the Trustee will deposit
with The Depository Trust Company, New York, New York ("DTC"). This means that
we will not issue note certificates to each holder. One or more global notes
will be issued to DTC who will keep a computerized record of its participants
(for example, your broker) whose clients have purchased the notes. The
participant will then keep a record of its clients who purchased the notes.
Unless it is exchanged in whole or in part for a note certificate, a global note
may not be transferred; except that DTC, its nominees, and their successors may
transfer a global note as a whole to one another.
Beneficial interests in global notes will be shown on, and transfers of
global notes 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 Participants' accounts. This eliminates the need
to exchange note 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
Trustee will treat DTC's nominee as the owner of the global notes 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 notes to owners of
beneficial interests in the global notes.
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 notes 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 notes 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 notes and voting by participants,
as is the case with notes 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.
Unless otherwise described in a prospectus supplement, notes represented
by a global note will be exchangeable for note certificates with the same terms
in authorized denominations only if 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.
Note Certificates-Registration, Transfer, and Payment of Interest and Principal
If we issue note certificates, they will be registered in the name of the
noteholder. The 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 on note certificates will be made by check.
Interest Rate
The interest rate on the 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 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.
Unless an applicable pricing or prospectus supplement states otherwise, if
we issue a 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.
Fixed Rate Notes
A pricing or prospectus supplement will designate the record dates,
payment dates and the fixed rate of interest payable on a note. We will pay
interest monthly, 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 note will have an interest rate formula. The applicable
pricing supplement will state the initial interest rate or interest rate formula
on each 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
"Event of Default" means any of the following:
- failure to pay for three business days the principal of (or premium,
if any, on) any note of a series when due and payable;
- failure to pay for 30 days any interest on any note of any series when
due and payable;
- failure to perform any other requirements in such notes, or in the
Indenture in regard to such notes, for 90 days after notice;
- certain events of bankruptcy or insolvency; or any other event of
default specified in a series of notes.
An Event of Default for a particular series of notes does not necessarily
mean that an Event of Default has occurred for any other series of 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 notes of the series
affected may require us to repay the entire principal of the notes of such
series immediately ("Repayment Acceleration"). In most instances, the holders of
at least a majority in aggregate principal amount of the 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.
The Trustee must within 90 days after a default occurs, notify the holders
of the 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 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 notes.
Modification of Indenture
Under the Indenture, our rights and obligations and the rights of the
holders of any notes may be changed. Any change affecting the rights of the
holders of any series of notes requires the consent of the holders of not less
than a majority in aggregate principal amount of the outstanding 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 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 noteholders.
Consolidation, Merger or Sale
We may merge or consolidate with any corporation or sell substantially all
of our assets as an entirety as long as the successor or purchaser expressly
assumes the payment of principal, and premium, if any, and interest on the
notes.
Legal Defeasance
We will be discharged from our obligations on the notes of any series at
any time if:
o 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 note of the series, and
o we deliver to the Trustee an opinion of counsel stating that the federal
income tax obligations of noteholders of that series will not change as a
result of our performing the action described above.
If this happens, the noteholders of the series will not be entitled to the
benefits of the Indenture except for registration of transfer and exchange of
notes and replacement of lost, stolen or mutilated notes.
Covenant Defeasance
We will be discharged from our obligations under any restrictive covenant
applicable to the 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 notes of that series. In that instance, we
would remain liable for such amounts.
Governing Law
The Indenture and 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 and other services of its affiliates in the normal course of business.
PLAN OF DISTRIBUTION
We may sell the notes (a) through agents; (b) through underwriters or
dealers; or (c) directly to one or more purchasers.
By Agents
Notes 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 Agents will not be obligated to make a market in the notes. We cannot
predict the amount of trading or liquidity of the notes.
By Underwriters
If underwriters are used in the sale, the underwriters will acquire the
notes for their own account. The underwriters may resell the notes 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 notes will be subject to certain conditions.
The underwriters will be obligated to purchase all the notes of the series
offered if any of the notes 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 notes directly. In this case, no underwriters or agents
would be involved.
General Information
Underwriters, dealers, and agents that participate in the distribution of
the notes 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 notes 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 or to contribute to payments that each underwriter, dealer or agent may
be required to make in respect thereto.
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
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 issue an opinion about the
legality of the notes 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.
EXPERTS
The consolidated financial statements and the related consolidated
financial statement schedule incorporated in this prospectus by reference from
the Company's Annual Report on Form 10-K for the year ended December 31, 2004
have been audited by Deloitte & Touche LLP, an independent registered public
accounting firm, as stated in their reports (which reports express an
unqualified opinion and include an explanatory paragraph concerning the adoption
of new accounting pronouncements in 2003 and 2004), which are incorporated
herein by reference, and have been so incorporated in reliance upon the reports
of such firm given upon their authority as experts in accounting and auditing.
Table of Contents
THE COMPANY........................ 2
PROSPECTUS SUPPLEMENTS............. 2
RISK FACTORS....................... 2
WHERE YOU CAN FIND MORE
INFORMATION ................... 2
RATIO OF EARNINGS TO
FIXED CHARGES.................. 3
USE OF PROCEEDS ................... 3 $1,125,000,000 UNSECURED NOTES
DESCRIPTION OF THE NOTES .......... 4
General ....................... 4
Redemptions .................... 4
Remarketed Notes................ 5
Book-Entry Notes - Registration,
Transfer, and Payment of PROSPECTUS
Interest and Principal ...... 5
Note Certificates - Registration,
Transfer, and Payment of
Interest and Principal ...... 6
Interest Rate .................. 6
Fixed Rate Notes ............ 7 The date of this
Floating Rate Notes ......... 7 Prospectus is March __, 2005
Events of Default............... 7
Modification of Indenture....... 8
Consolidation, Merger or Sale... 8
Legal Defeasance................ 8
Covenant Defeasance............. 9
Governing Law................... 9
Concerning the Trustee.......... 9
PLAN OF DISTRIBUTION............... 9
By Agents....................... 9
By Underwriters................. 9
Direct Sales.................... 10
General Information............. 10
LEGAL OPINIONS..................... 10
EXPERTS............................ 10
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
Estimation based upon the issuance of all of the unsecured notes in six
issuances:
Securities and Exchange Commission Filing Fees.................$ 111,815
Printing Registration Statement, Prospectus, etc............... 90,000
Independent Registered Public Accounting Firm.................. 130,000
Charges of Trustee (including counsel fees).................... 60,000
Legal fees..................................................... 300,000
Rating Agency fees............................................. 656,000
Miscellaneous expenses......................................... 150,000
-----------
Total.....................................................$ 1,497,815
===========
* ....Estimated, except for filing fees.
Item 15. Indemnification of Directors and Officers.
The Bylaws of the Company provide that the Company shall indemnify any
person who was or is a party to any threatened, pending or completed action,
suit or proceeding because such person is or was a director, officer or employee
of the Company or is or was serving at the request of the Company as a director,
officer, partner, trustee, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against any liability in connection with such proceeding if (a) such
person conducted him or herself in good faith; (b) such person believed, in the
case of conduct in such person's official capacity with the Company (as
defined), that his or her conduct was in the best interests of the Company, and,
in all other cases, that his or her conduct was at least not opposed to its best
interests; (c) with respect to any criminal action or proceeding, such person
had no reasonable cause to believe his or her conduct was unlawful; and (d) such
person was not grossly negligent or guilty of willful misconduct. Such
indemnification in connection with a proceeding by or in the right of the
Company is limited to reasonable expenses incurred in connection with the
proceeding. Any such indemnification (unless ordered by a court) shall be made
by the Company only as authorized in the specific case upon a determination that
indemnification of the director is proper in the circumstances because such
person has met the applicable standard of conduct.
Section 13.1-698 of the Code of Virginia provides that unless limited by
the articles of incorporation, a corporation shall indemnify a director who
entirely prevails in the defense of any proceeding to which such person was a
party because such person is or was a director of the corporation against
reasonable expenses incurred in connection with such proceeding. Section
13.1-699 provides that a corporation may pay for or reimburse reasonable
expenses incurred by a director who is a party to such a proceeding in advance
of final disposition of such proceeding if (a) the director furnishes a written
statement of his or her good faith belief that the standard of conduct described
in Section 13.1-697 has been met; (b) the director furnishes the corporation a
written undertaking by or on behalf of the director to repay the advance if it
is ultimately determined that such person did not meet the standard of conduct;
and (c) a determination is made that the facts then known to those making the
determination would not preclude indemnification. Section 13.1-700.1 provides
procedures which allow directors to apply to a court for an order directing
advances, reimbursement or indemnification.
Section 13.1-702 provides that unless limited by the articles of
incorporation, (a) officers are entitled to mandatory indemnification under
Section 13.1-698 and to apply for court ordered indemnification under Section
13.1-700.1 to the same extent as a director, and (b) that a corporation may
indemnify and advance expenses to an officer, employee or agent to the same
extent as to a director. Section 13.1-704 provides that any corporation shall
have the power to make any further indemnity to any director, officer, employee
or agent that may be authorized by the articles of incorporation or any bylaw
made by the stockholders or any resolution adopted, before or after the event,
by the stockholders, except an indemnity against willful misconduct or a knowing
violation of criminal law.
The above is a general summary of certain provisions of the Company's
Bylaws and the Code of Virginia and is subject in all respects to the specific
and detailed provisions of the Company's Bylaws and the Code of Virginia.
Reference is made to the Selling Agency Agreement and the Underwriting
Agreement filed as Exhibits 1(a) and 1(b) hereto, respectively, which provide
for indemnification of the Company, certain of its directors and officers, and
persons who control the Company, under certain circumstances.
The Company maintains insurance policies insuring its directors and
officers against certain obligations that may be incurred by them.
Item 16. Exhibits.
Reference is made to the information contained in the Exhibit Index filed
as part of this Registration Statement.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of unsecured notes offered (if the total dollar value
of unsecured notes offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) of the Securities Act of 1933 if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that (i) and (ii) do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the unsecured notes offered, and the
offering thereof at that time shall be deemed to be the initial bona fide
offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the laws of the Commonwealth of Virginia,
the registrant's bylaws, or otherwise, the registrant has been advised that in
the opinion of the SEC such indemnification is against public policy as
expressed in said Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the unsecured notes, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in said Act and will
be governed by the final adjudication of such issue.
(6) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(7) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable cause to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Columbus and State of Ohio, on the 16th day of March,
2005.
APPALACHIAN POWER COMPANY
Michael G. Morris*
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
(i) Principal Executive
Officer Chairman of the Board
and Chief Executive
Michael G. Morris* Officer March 16, 2005
(ii) Principal Financial
Officer:
/s/ Susan Tomasky
Susan Tomasky Vice President March 16, 2005
(iii) Principal Accounting
Officer:
/s/ Joseph M. Buonaiuto Controller and Chief
Joseph M. Buonaiuto Accounting Officer March 16, 2005
(iv) A Majority of the Directors:
Michael G. Morris*
Carl L. English*
John B. Keane*
Holly K. Koeppel*
Venita McCellon-Allen*
Robert P. Powers*
Stephen P. Smith*
Susan Tomasky
*By /s/ Susan Tomasky March 16, 2005
(Susan Tomasky, Attorney-in-Fact)
EXHIBIT INDEX
Certain of the following exhibits, designated with an asterisk(*), have
heretofore been filed with the Commission and, pursuant to 17 C.F.R.
Sections 201.24 and 230.411, are incorporated herein by reference to the
documents indicated following the descriptions of such exhibits.
Exhibit No. Description
1(a) - Copy of proposed form of Selling Agency Agreement for the
unsecured notes.
1(b) - Copy of proposed form of Underwriting Agreement for the
unsecured notes.
*4(a) - Copy of Indenture, dated as of January 1, 1998, between the
Company and The Bank of New York, as Trustee [Registration
Statement No. 333-45927, Exhibits 4(a) and 4(b); Registration
Statement No. 333-49071, Exhibit 4(b); Registration Statement
No. 333-84061, Exhibits 4(b) and 4(c); Registration Statement
No. 333-100451, Exhibits 4(b), 4(c) and 4(d); Registration
Statement No. 333-116284 Exhibits 4(b) and 4(c)].
4(b) - Copy of Company Order and Officers' Certificate, dated July
1, 2004, establishing certain terms of the Floating Rate
Notes, Series C, Due 2007.
4(c) - Copy of Company Order and Officers' Certificate, dated
January 25, 2005, establishing certain terms of the 4.95%
Senior Notes, Series I, Due 2015.
4(d) - Copy of proposed form of Company Order for the unsecured
notes.
5 - Opinion of Thomas G. Berkemeyer, Esq. regarding the validity
of the notes.
*12 - Statement re Computations of Ratios [Annual Report on Form
10-K of the Company for the period ended December 31, 2004,
File No. 1-3457, Exhibit 12].
23(a) - Consent of Deloitte & Touche LLP.
23(b) - Consent of Thomas G. Berkemeyer, Esq. (included in Exhibit
5).
24 - Powers of Attorney and resolutions of the Board of Directors
of the Company.
25 - Form T-1 re eligibility of The Bank of New York to act as
Trustee under the Indenture.