AMERICAN ELECTRIC POWER COMPANY, INC. Proposed Form of Underwriting Agreement ________________ Equity Units* Dated ______________
Exhibit 1
(e)
AMERICAN
ELECTRIC POWER COMPANY, INC.
Proposed
Form of Underwriting Agreement
________________
Equity Units*
Dated
______________
AGREEMENT
made between AMERICAN ELECTRIC POWER COMPANY, INC., a corporation organized and
existing under the laws of the State of New York (the "Company"), and the
several persons, firms and corporations (the "Underwriters") named in Exhibit 1
hereto.
WITNESSETH:
WHEREAS,
the Company proposes to sell to the Underwriters _____________of its
_____% Equity Units. The Equity Units will initially consist of ____________
units (the "Underwritten Securities") with a stated amount, per Equity Unit, of
$__ (the "Stated Amount"). Each Equity Unit will initially consist of (a)
aforward stock purchase contract (a "Forward Purchase Contract") under which (i)
the holder will agree to purchase from the Company on ______________ (the
"Forward Purchase Contract Settlement Date"), for an amount of cash equal to the
Stated Amount, shares of common stock, $_____ par value, of the Company ("Common
Stock"), equal to the Settlement Rate (as defined in the Forward Purchase
Contract Agreement referred to below) and (ii) the Company will agree to pay to
the holder contract adjustment payments set forth in the Forward Purchase
Contract Agreement and (b) $__ principal amount of the Company's ____% senior
notes due _____________ (the "Notes") issued pursuant to the Indenture (as
defined below); and
WHEREAS,
the Company also proposes to grant to the Underwriters an option to
purchase up to an additional ____________of its Equity Units to cover
over-allotments (the "Option Securities"; the Option Securities, together with
the Underwritten Securities, being hereinafter called the "Securities"). The
Notes that will initially constitute a component of the Equity Units are
hereinafter sometimes referred to as the "Underlying Notes". In accordance with
the terms of the Forward Purchase Contract Agreement, to be dated as of
___________ (the "Forward Purchase Contract Agreement"), between the Company and
The Bank of New York, as forward purchase contract agent (the "Forward Purchase
Contract Agent"), the Underlying Notes will be pledged by the Forward Purchase
Contract Agent, on behalf of the holders of the Equity Units, to The Bank of New
York, as collateral agent (the "Collateral Agent"), pursuant to the Pledge
Agreement, to be dated as of _____________ (the "Pledge Agreement"), among the
Company, the Forward Purchase Contract Agent and the Collateral Agent, to secure
the holders' obligations to purchase Common Stock under the Forward Purchase
Contracts. The shares of Common Stock issuable pursuant to the Forward Purchase
Contracts are hereinafter called the "Shares * Plus an option to
purchase from American Electric Power Company, Inc. up
to ____________ additional Equity Units to cover
over-allotments.
"
and
WHEREAS,
the Notes are to be issued pursuant to an indenture dated as of _________ (the
"Base Indenture"), between the Company and The Bank of New York, as trustee (the
"Trustee"), as amended and supplemented by a supplemental indenture relating to
the Notes constituting a part of the Securities (the "Supplemental Indenture")
between the Company and the Trustee (the "Base Indenture", as supplemented and
amended by the Supplemental Indenture, being referred to as the "Indenture").
The Securities and the Indenture are more fully described in the Prospectus
referred to below; and
WHEREAS,
pursuant to a Remarketing Agreement (the "Remarketing Agreement") to be dated as
of ___________, among the Company, the Forward Purchase Contract Agent and
___________., as remarketing agent (the "Remarketing Agent"), the Notes may be
remarketed, subject to certain terms and conditions; and
WHEREAS,
as used in this Agreement, the term "Operative Documents" means the Forward
Purchase Contract Agreement (including the Forward Purchase Contracts), the
Pledge Agreement, the Remarketing Agreement, the Notes, the Indenture and the
Equity Units; and
WHEREAS,
the Underwriters have designated the persons signing this Agreement
(collectively, the "Representatives") to execute this Agreement on behalf of the
respective Underwriters and to act for the respective Underwriters in the manner
provided in this Agreement; and
WHEREAS,
the Company has prepared and filed, in accordance with the provisions of the
Securities Act of 1933 (the "Act"), with the Securities and Exchange Commission
(the "Commission"), a registration statement (File No. 333-___________) and a
prospectus relating to $___________ principal amount of its securities,
including the Equity Units, and such registration statement has become
effective; and
WHEREAS,
such registration statement, including the financial statements, the documents
incorporated or deemed incorporated therein by reference, the exhibits thereto,
being herein called the Registration Statement, and the prospectus, including
the documents incorporated or deemed incorporated therein by reference,
constituting a part of such Registration Statement, as it may be last amended or
supplemented prior to the effectiveness of this Agreement, being herein called
the Basic Prospectus, and the Basic Prospectus, as supplemented by a preliminary
prospectus supplement (the "Preliminary Prospectus Supplement") and a final
prospectus supplement (the "Prospectus
Supplement")
to include information relating to the Securities, including the names of the
Underwriters, the price and terms of the offering, the interest rate, maturity
date, the contract adjustment payments and certain other information relating to
the Securities, which will be filed with the Commission pursuant to Rule 424(b)
of the Commission's General Rules and Regulations under the Act (the "Rules"),
including all documents then incorporated or deemed to have been incorporated
therein by reference, being herein called the "Prospectus."
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, it is agreed between the parties as follows:
1.
Purchase and Sale: (a) Upon the basis of the warranties and representations and
on the terms and subject to the conditions herein set forth, the Company agrees
to sell to the respective Underwriters named in Exhibit 1 hereto, severally and
not jointly, and the respective Underwriters, severally and not jointly, agree
to purchase from the Company, the respective number of Underwritten Securities
set opposite their names in Exhibit 1 hereto, together aggregating all of the
Underwritten Securities, at a purchase price equal to $_____ per
Security.
(b)
Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, not more than ___________
Option Securities at the same purchase price per share as the Underwriters shall
pay for the Underwritten Securities. Said option may be exercised only to
coverover-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised one time, in whole or in part,
provided that the settlement of the Option Securities shall be no later than the
13th day after the date of issuance of the Underwritten Securities. Said option
shall be exercised upon written or telegraphic notice by the
Representatives to the Company setting forth the number of shares of
the Option Securities as to which the several Underwriters are
exercising the option and the settlement date. The number of shares of the
Option Securities to be purchased by each Underwriter shall be the
same percentage of the total number of shares of the
Option Securities to be purchased by the several Underwriters as
such Underwriter is purchasing of the Underwritten Securities,
subject to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
Payment
and Delivery: Delivery of and payment for the Underwritten Securities
and the Option Securities (if the option provided for in
Section 1(b) hereof shall have been exercised on or before the third
Business Day prior to the Closing Date) shall be made at the offices of
___________, or at such other place as shall be agreed upon
by the Representatives and the Company, at 10:00 a.m., New York
City time, on ___________, or at such time on such later date not
more than three Business Days after the foregoing date as the
Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Company or as provided
in Section 8 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of
the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by
the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to an account specified by the Company.
Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company
unless the Representatives hall otherwise instruct.
If the
option provided for in Section 1(b) hereof is exercised after the third Business
Day prior to the Closing Date, the Company will deliver the Option Securities
(at the expense of the Company) to the Representatives, ___________, on the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. If settlement for the Option Securities occurs after the Closing
Date, the Company will deliver to the Representatives on the settlement date for
the Option Securities, and the obligation of the Underwriters to purchase the
Option Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 3 hereof. Any
settlement date for the Option Securities after the Closing Date shall be such
date as the Company and the Representatives may agree, but in no event shall
such date be sooner than the third Business Day following the exercise of the
option provided for in Section 1(b) hereof.
Certificates
for the Securities shall be registered in such names as the Underwriters may
request in writing at least two full Business Days before the Closing Date. The
certificates for Securities will be made available in New York City for
examination by the Underwriters no later than 10:00 a.m., New York City time on
the Business Day prior to the Closing Date.
3. Conditions
of Underwriters' Obligations: The several obligations of the
Underwriters hereunder to purchase Underwritten Securities and the
Option Securities, as the case may be, are subject to the accuracy of
the warranties and representations on the part of the Company on the
date hereof and at the Closing Date, and if applicable, the
settlement date pursuant to Section 2 hereof, and to the following
other conditions:
(a)
That all legal proceedings to be taken and all legal
opinions
to be rendered in connection with the sale of the Securities
shall
be satisfactory in form and substance to ___________,
counsel
to the Underwriters and the Company shall have furnished such
counsel
all documents and information that it may reasonably request to
enable
it to pass upon such matters.
(b)
That, at the Closing Date, the Representatives shall be
furnished
with the following opinions, dated the day of the Closing
Date,
with conformed copies or signed counterparts thereof for the
other
Underwriters, with such changes therein as may be agreed upon by
the
Company and the Representatives with the approval of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
LLP, counsel to the Underwriters:
(i) Opinion
of counsel to the Company, in form and substance satisfactory to counsel to the
Underwriters;
(ii) Opinion
of ___________, counsel to the
Underwriters,;
(iii)
Opinion of ___________, counsel to the
Trustee,
the Forward Purchase Contract Agent and the
Collateral
Agent, Securities Intermediary and
Custodial
Agent, in form and substance satisfactory to counsel to the
Underwriters;
;
(c)
That the Representatives shall have received letters from Deloitte & Touche
LLP in form and substance
satisfactory
to the Representatives, (A) dated as of the
date of this Agreement and substantially in the
form
of Exhibit D hereto and (B) dated as of the Closing
Date, reaffirming the statements made in the
letter
furnished pursuant to clause (A) above, except
that the specified date referred to shall be
a
date not more than five business days prior to the Closing
Date.
(d)
That no amendment to the Registration Statement and that no
prospectus or prospectus supplement of the Company (other than the
prospectus
or amendments, prospectuses or prospectus supplements relating
solely to securities other than the Securities) relating to
the
Securities and no document which would be deemed incorporated in the
Prospectus by reference filed subsequent to the date hereof and
prior
to the Closing Date shall contain material information substantially
different from that contained in the Registration Statement
which is
unsatisfactory in substance to the Representatives or
unsatisfactory in form to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the
Underwriters.
(e)
That, at the Closing Date, an appropriate order of the Commission
necessary to permit the sale of the Securities
to
the Underwriters, shall be in effect; and that, prior to the Closing Date,
no stop order with respect to the effectiveness of the
Registration
Statement shall have been issued under the Act by the Commission or proceedings
therefor initiated.
(f) That,
at the Closing Date, there shall not have been any material
adverse
change in the business, properties or financial condition of the
Company
from that set forth in the Prospectus (other than changes referred
to
in or contemplated by the Prospectus), and that the Company shall,
at
the
Closing Date, have delivered to the Representatives a certificate of
an
executive
officer of the Company to the effect that, to the best of his
knowledge,
information and belief, there has been no such change.
(g) That
the Company shall have performed such of its obligations
under
this Agreement as are to be performed at or before the Closing Date
by
the terms hereof.
(h) Subsequent
to the date of this Agreement, there shall not have
been
decreases in the ratings of the Company's senior unsecured debt
securities
by both ▇▇▇▇▇'▇ Investors Services, Inc. ("Moody's") and
Standard
& Poor's Ratings Group ("S&P") as follows: (i) a decrease
by
Moody's
to a rating of Baa3 or below and (ii) a decrease by S&P to a
rating
of
BBB- or below.
(i) That,
at the Closing Date, the Securities shall have been
approved
for listing on the New York Stock Exchange, subject to official
notice
of issuance, and satisfactory evidence of such actions shall have
been
provided to the Representatives.
(j) That,
at the Closing Date, each of the executive officers and
directors
of the Company have entered into an
agreement
to refrain from the sale of securities of the Company
In
case any of the conditions specified in this Section 3 shall not
have been
fulfilled, this Agreement may be terminated by the Underwriters at
any
time at
or prior to the Closing Date upon written notice thereof to the
Company.
Any such
termination shall be without liability of any party to any other
party
except as
otherwise provided in Section 4(f), Section 4(g) and Section 4(h)
hereof
and except for any liability under Section 7 hereof.
4. Certain
Covenants of the Company: In further consideration of the
agreements
of the Underwriters herein contained, the Company covenants as
follows:
(a) As
soon as practicable, and in any event within the time
prescribed
by Rule 424 under the Act, to file the Prospectus with the
Commission;
as soon as the Company is advised thereof, to advise the
Representatives
and confirm the advice in writing of any request made by
the
Commission for amendments to the Registration Statement or
Prospectus
or
for additional information with respect thereto or of the entry of
a
stop
order suspending the effectiveness of the Registration Statement or
of
the
initiation or threat of any proceedings for that purpose and, if such
a
stop
order should be entered by the Commission, to make every reasonable
effort
to obtain the prompt lifting or removal thereof.
(b) To
deliver to the Underwriters, without charge, as soon as
practicable
(and in any event within 24 hours after the date hereof), and
from
time to time thereafter during such period of time (not exceeding
nine
months)
after the date hereof as they are required by
law
to deliver a prospectus, as many copies of the Prospectus (as
supplemented
or amended if the Company shall have made any supplements or
amendments
thereto, other than supplements or amendments relating solely to
securities
other than the Securities) as the Representatives may reasonably
request;
and in case any Underwriter is required to deliver a prospectus
after
the expiration of nine months after the date hereof, to furnish to
any
Underwriter, upon request, at the expense of such Underwriter, a
reasonable
quantity of a supplemental prospectus or of supplements to the
Prospectus
complying with Section 10(a)(3) of the Act.
(c) To
furnish to the Representatives, upon request, a copy,
certified
by the Secretary or an Assistant Secretary of the Company, of the
Registration
Statement as initially filed with the Commission and of all
amendments
thereto (exclusive of exhibits), other than amendments relating
solely
to securities other than the Securities and, upon request, to
furnish
to the Representatives sufficient plain copies thereof (exclusive
of
exhibits) for distribution of one to the other Underwriters.
(d) For
such period of time after the date hereof as they are
required
by law to deliver a prospectus, if any event shall have occurred
as
a result of which it is necessary to amend or supplement the
Prospectus
in
order to make the statements therein, in the light of the
circumstances
when
the Prospectus is delivered to a purchaser, not contain any untrue
statement
of a material fact or not omit to state any material fact
required
to be stated therein or necessary in order to make the statements
therein
not misleading, immediately to notify the Underwriters of such
event
and forthwith to prepare and furnish, at its own expense during the
period
ending nine months from the date of this Agreement, and thereafter
at
the Underwriters' expense, to the Underwriters and to dealers
(whose
names
and addresses are furnished to the Company by the Representatives)
to
whom
principal amounts of the Securities may have been sold by the
Representatives
for the accounts of the Underwriters and, upon request, to
any
other dealers making such request, copies of such amendments to the
Prospectus
or supplements to the Prospectus.
(e) As
soon as practicable, the Company will make generally available
to
its security holders and to the Underwriters an earnings statement
or
statement
of the Company and its subsidiaries which will satisfy the
provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(f) To
use its best efforts to qualify the Securities for offer and
sale
under the securities or "blue sky" laws of such jurisdictions as
the
Representatives
may designate within six months after the date hereof and
itself
to pay, or to reimburse the Underwriters and their counsel for,
reasonable
filing fees and expenses in connection therewith in an amount
not
exceeding $3,500 in the aggregate (including filing fees and
expenses
paid
and incurred prior to the effective date hereof), provided,
however,
that
the Company shall not be required to qualify as a foreign
corporation
or
to file a consent to service of process or to file annual reports or
to
comply
with any other requirements deemed by the Company to be unduly
burdensome.
(g) To
pay all expenses, fees and taxes (other than transfer taxes on
resales
of the Securities by the respective Underwriters, but including all
amounts
relating to (i) the
Company's
costs and expenses for travel, lodging and incidental expenses
relating
to investor presentations on any "road show" undertaken in
connection
with the marketing of the Securities; (ii) the listing of the
Securities
on the New York Stock Exchange; (iii) the preparation of the
Registration
Statement, the Preliminary Prospectus Supplement and the
Prospectus
Supplement (and any amendments or supplements thereto); (iv) the
sale
and delivery of the Securities; (v) the reasonable fees and
disbursements
of counsel and accountants for the Company, the Trustee and
any
paying agent, the Forward Purchase Contract Agent and the
Collateral
Agent,
Securities Intermediary and Custodial Agent and the Remarketing
Agent;
and (vi) the printing and delivery of the Preliminary Prospectus
Supplement
and the Prospectus Supplement) in connection with the sale and
delivery
of the Securities, except that the Company shall be required to
pay
the fees and disbursements (other than disbursements referred to in
paragraph
(f) of this Section 4) of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the
Underwriters,
only in the events provided in paragraph (h) of this Section
4,
the Underwriters hereby agreeing to pay such fees and disbursements
in
any
other event.
(h) If
the Underwriters shall not take up and pay for the Securities
due
to the failure of the Company to comply with any of the conditions
specified
in Section 3 hereof, or, if this Agreement shall be terminated in
accordance
with the provisions of Section 9(b) or 13(ii) hereof, to pay the
fees
and disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the
Underwriters,
and, to reimburse the Underwriters for their reasonable
out-of-pocket
expenses, in an aggregate amount not exceeding a total of
$50,000,
incurred in connection with the financing contemplated by this
Agreement.
(i) To
use its best efforts to cause the Securities to be accepted
for
clearance and settlement through the facilities of The Depositary
Trust
Company.
(j) The
Company will timely file any certificate required by the 1935
Act
in connection with the sale of the Securities.
(k) The
Company will not, without the prior written consent of the
Representatives,
offer, sell, contract to sell, pledge, or otherwise
dispose
of, (or enter into any transaction which is designed to, or might
reasonably
be expected to, result in the disposition (whether by actual
disposition
or effective economic disposition due to cash settlement or
otherwise)
by the Company or any affiliate of the Company or any person in
privity
with the Company or any affiliate of the Company) directly or
indirectly,
including the filing (or participation in the filing) of a
registration
statement with the Commission in respect of, or establish or
increase
a put equivalent position or liquidate or decrease a call
equivalent
position within the meaning of Rule 16a-1 under the 1934 Act,
any
shares of Common Stock or any securities convertible into, or
exercisable,
or exchangeable for, shares of Common Stock other than as
provided
in this Agreement; or publicly announce an intention to effect any
such
transaction, for a period of 90 days after the date of the
Underwriting
Agreement, provided, however, that (i) the Company may issue
and
sell up to 18,400,000 shares of its Common Stock in the concurrent
offering
contemplated by the Prospectus and (ii) the Company may issue and
sell
Common Stock pursuant to the terms of any employee stock option
plan,
stock
ownership plan, dividend reinvestment plan or any other similar
plan
of
the Company in effect as of the date hereof and the Company may
issue
Common Stock issuable upon the conversion of securities or the
exercise
of warrants outstanding as of the date hereof.
(l) To
use its reasonable efforts to effect the listing of the
Securities
on the New York Stock Exchange.
5. Representations
and Warranties of by the Company: The Company
represents
and warrants to, and agrees with each Underwriter, as set forth
below:
(a)
The Registration Statement on its effective date complied, or was
deemed
to comply, with the applicable provisions of the Act and the rules
and
regulations of the Commission and the Registration Statement at its
effective
date did not, and at the Closing Date will not, contain any
untrue
statement of a material fact or omit to state a material fact
required
to be stated therein or necessary to make the statements therein
not
misleading, and the Basic Prospectus on the date of this Agreement
and
the
Prospectus when first filed in accordance with Rule 424(b)
complies,
and
at the Closing Date the Prospectus will comply, with the applicable
provisions
of the Act and the Trust Indenture Act of 1939, as amended, and
the
rules and regulations of the Commission, the Basic Prospectus on
the
date
of this Agreement and the Prospectus when first filed in accordance
with
Rule 424(b) under the Act do not, and the Prospectus at the Closing
Date
will not, contain any untrue statement of a material fact or omit
to
state
a material fact required to be stated therein or necessary to make
the
statements therein, in the light of the circumstances under which
they
were
made, not misleading, except that the Company makes no warranty or
representation
to the Underwriters with respect to any statements or
omissions
made in the Registration Statement, the Basic Prospectus or the
Prospectus
in reliance upon and in conformity with information furnished in
writing
to the Company by, or through the Representatives on behalf of, any
Underwriter
expressly for use in the Registration Statement, the Basic
Prospectus
or Prospectus, or to any statements in or omissions from that
part
of the Registration Statement that shall constitute the Statement
of
Eligibility
under the Trust Indenture Act of 1939 of any indenture trustee
under
an indenture of the Company.
(b)
The documents incorporated by reference in the Registration
Statement
or Prospectus, when they were filed with the Commission, complied
in
all material respects with the applicable provisions of the 1934 Act
and
the
rules and regulations of the Commission thereunder, and as of such
time
of
filing, when read together with the Prospectus, none of such
documents
contained
an untrue statement of a material fact or omitted to state a
material
fact required to be stated therein or necessary to make the
statements
therein, in the light of the circumstances under which they were
made,
not misleading.
(c)
Since the respective dates as of which information is given in the
Registration
Statement and the Prospectus, except as otherwise referred to
or
contemplated therein, there has been no material adverse change in
the
business,
properties or financial condition of the Company.
(d)
This Agreement has been duly authorized, executed and delivered by
the
Company.
(e) As
of the Closing Date, the Indenture will have been duly
authorized
by the Company and duly qualified under the Trust Indenture Act
of
1939, as amended, and, when executed and delivered by the Trustee
and
the
Company, will constitute a legal, valid and binding instrument
enforceable
against the Company in accordance with its terms and the Notes
will
have been duly authorized, executed, authenticated and, when paid
for
by
the purchasers thereof, will constitute legal, valid and binding
obligations
of the Company entitled to the benefits of the Indenture,
except
as the enforceability thereof may be limited by bankruptcy,
insolvency,
or other similar laws affecting the enforcement of creditors'
rights
in general, and except as the availability of the remedy of
specific
performance
is subject to general principles of equity (regardless of
whether
such remedy is sought in a proceeding in equity or at law), and by
an
implied covenant of good faith and fair dealing.
(f) Each
of the Forward Purchase Contract Agreement, the Pledge
Agreement
and the Remarketing Agreement has been duly authorized by the
Company.
(g) The
Equity Units have been duly authorized by the Company. The
Equity
Units and the Shares have been duly registered under the Exchange
Act;
and the issuance of the Equity Units is not subject to preemptive
or
other
similar rights.
(h) The
execution, delivery and performance of this Agreement, the
Indenture
and the other Operative Documents and the Securities and the
consummation
by the Company of the transactions contemplated herein and
therein
is not in violation of its charter or bylaws, will not result in
the
violation of any applicable law, statute, rule, regulation,
judgment,
order,
writ or decree of any government, governmental instrumentality or
court
having jurisdiction over the Company or its properties and will not
conflict
with, or result in a breach of any of the terms or provisions of,
or
constitute a default under, or result in the creation or imposition
of
any
lien, charge or encumbrance upon any property or assets of the
Company
under
any contract, indenture, mortgage, loan agreement, note, lease or
other
agreement or instrument to which the Company is a party or by which
it
may be bound or to which any of its properties may be subject
(except
for
conflicts, breaches or defaults which would not, individually or in
the
aggregate,
be materially adverse to the Company or materially adverse to
the
transactions contemplated by this Agreement or the other Operative
Documents).
(i) The
Shares of Common Stock to be issued and sold by the Company
upon
settlement of the Forward Purchase Contracts have been duly
authorized
and
reserved for issuance and, when issued and delivered in accordance
with
the
provisions of the Forward Purchase Contracts, will be duly and
validly
issued,
fully paid and non-assessable and will not be subject to any
preemptive
or similar rights.
(j)
No authorization, approval, consent or order of any court or
governmental
authority or agency is necessary in connection with the
issuance
and sale by the Company of the Securities or the transactions by
the
Company contemplated in this Agreement or in the other Operative
Documents,
except (A) such as may be required under the 1933 Act or the
rules
and regulations thereunder; (B) such as may be required under the
1935
Act; (C) the qualification of the Indenture under the 1939 Act; and
(D)
such consents, approvals, authorizations, registrations or
qualifications
as may be required under state securities or
Blue
Sky laws.
(k) The
Company and each "significant subsidiary" of the Company (as
such
term is defined in Rule 1-02 of Regulation S-X promulgated under
the
Act)
has been duly organized and is validly existing as a corporation in
good
standing under the laws of the jurisdiction of its incorporation.
(l) The
consolidated financial statements of the Company and its
consolidated
subsidiaries together with the notes thereto, included or
incorporated
by reference in the Prospectus present fairly the financial
position
of the Company at the dates or for the periods indicated; said
consolidated
financial statements have been prepared in accordance with
United
States generally accepted accounting principles applied, apart from
reclassifications
disclosed therein, on a consistent basis throughout the
periods
involved; and the selected consolidated financial information of
the
Company included in the Prospectus present fairly the information
shown
therein
and have been compiled, apart from reclassifications disclosed
therein,
on a basis consistent with that of the audited financial
statements
of the Company included or incorporated by reference in the
Prospectus.
(m) There
is no pending action, suit, investigation, litigation or
proceeding,
including, without limitation, any environmental action,
affecting
the Company or any of its "significant subsidiaries" before any
court,
governmental agency or arbitration that is reasonably likely to
have
a
material adverse effect on the business, properties, financial
condition
or
results of operations of the Company, except as disclosed in the
Prospectus.
The
Company's covenants, warranties and representations contained in
this
Agreement,
shall remain in full force and effect regardless of any
investigation
made by
or on behalf of any person, and shall survive the delivery of and
payment
for the Securities hereunder.
6. Warranties
of Underwriters:
(a) Each
Underwriter warrants and represents that the information
furnished
in writing to the Company through the Representatives for use in
the
Registration Statement, in the Basic Prospectus, in the Prospectus,
or
in
the Prospectus as amended or supplemented is correct as to such
Underwriter.
(b) Each
of the Underwriters represents and agrees that it has not
and
will not offer, sell or delivery any of the Securities directly or
indirectly,
or distribute the Prospectus or any other offering material
relating
to the Securities, in or from any jurisdiction except under
circumstances
that will result in compliance with the applicable laws and
regulations
thereof and in a manner that will not impose any obligations on
the
Company except as set forth in this Agreement.
The
warranties and representations of such Underwriter contained in
this
Agreement, shall remain in full force and effect regardless of any
investigation
made by or on behalf of the Company or other person, and shall
survive
the delivery of and payment for the Securities hereunder.
7. Indemnification
and Contribution:
(a) To
the extent permitted by law, the Company agrees to indemnify
and
hold you harmless and each person, if any, who controls you within
the
meaning
of Section 15 of the Act, against any and all losses, claims,
damages
or liabilities, joint or several, to which you, they or any of you
or
them may become subject under the Act or otherwise, and to reimburse
you
and
such controlling person or persons, if any, for any legal or other
expenses
incurred by you or them in connection with defending any action,
insofar
as such losses, claims, damages, liabilities or actions arise out
of
or are based upon any alleged untrue statement or untrue statement of
a
material
fact contained in the Registration Statement, in the Basic
Prospectus
(if used prior to the effective date of this Agreement), or in
the
Prospectus, or if the Company shall furnish or cause to be furnished
to
you
any amendments or any supplements to the Prospectus, in the
Prospectus
as
so amended or supplemented except to the extent that such amendments
or
supplements
relate solely to securities other than the Securities (provided
that
if such Prospectus or such Prospectus, as amended or supplemented,
is
used
after the period of time referred to in Section 4(b) hereof, it
shall
contain
such amendments or supplements as the Company deems necessary to
comply
with Section 10(a) of the Act), or arise out of or are based upon
any
alleged omission or omission to state therein a material fact
required
to
be stated therein or necessary to make the statements therein not
misleading,
except insofar as such losses, claims, damages, liabilities or
actions
arise out of or are based upon any such alleged untrue statement or
omission,
or untrue statement or omission which was made in the
Registration
Statement, in the Basic Prospectus or in the Prospectus, or in
the
Prospectus as so amended or supplemented, in reliance upon and in
conformity
with information furnished in writing to the Company by or
through
the Representatives expressly for use therein or with any
statements
in or omissions from that part of the Registration Statement
that
shall constitute the Statement of Eligibility under the Trust
Indenture
Act of any indenture trustee under an indenture of the Company,
and
except that this indemnity shall not inure to your benefit (or of
any
person
controlling you) on account of any losses, claims, damages,
liabilities
or actions arising from the sale of the Securities to any
person
if such loss arises from the fact that a copy of the Prospectus, as
the
same may then be supplemented or amended to the extent such
Prospectus
was
provided to you by the Company (excluding, however, any document
then
incorporated
or deemed incorporated therein by reference), was not sent or
given
by you to such person with or prior to the written confirmation of
the
sale involved and the alleged omission or alleged untrue statement
or
omission
or untrue statement was corrected in the Prospectus as
supplemented
or amended at the time of such confirmation, and such
Prospectus,
as amended or supplemented, was timely delivered to you by the
Company
prior to the written confirmation of the sale involved. You agree
promptly
after the receipt by you of written notice of the commencement of
any
action in respect to which indemnity from the Company on account of
its
agreement
contained in this Section 7(a) may be sought by you, or by any
person
controlling you, to notify the Company in writing of the
commencement
thereof, but your omission so to notify the Company of any
such
action shall not release the Company from any liability which it
may
have
to you or to such controlling person otherwise than on account of
the
indemnity
agreement contained in this Section 7(a). In case any such action
shall
be brought against you or any such person controlling you and you
shall
notify the Company of the commencement thereof, as above provided,
the
Company shall be entitled to participate in, and, to the extent that
it
shall
wish, including the selection of counsel (such
counsel
to be reasonably acceptable to the indemnified party), to direct
the
defense thereof at its own expense. In case the Company elects to
direct
such defense and select such counsel (hereinafter, Company's
counsel),
you or any controlling person shall have the right to employ your
own
counsel, but, in any such case, the fees and expenses of such
counsel
shall
be at your expense unless (i) the Company has agreed in writing to
pay
such fees and expenses or (ii) the named parties to any such action
(including
any impleaded parties) include both you or any controlling
person
and the Company and you or any controlling person shall have been
advised
by your counsel that a conflict of interest between the Company and
you
or any controlling person may arise (and the Company's counsel
shall
have
concurred in good faith with such advice) and for this reason it is
not
desirable for the Company's counsel to represent both the
indemnifying
party
and the indemnified party (it being understood, however, that the
Company
shall not, in connection with any one such action or separate but
substantially
similar or related actions in the same jurisdiction arising
out
of the same general allegations or circumstances, be liable for the
reasonable
fees and expenses of more than one separate firm of attorneys
for
you or any controlling person (plus any local counsel retained by
you
or
any controlling person in their reasonable judgment), which firm
(or
firms)
shall be designated in writing by you or any controlling person).
(b) Each
Underwriter agrees, to the extent permitted by law, to
indemnify,
hold harmless and reimburse the Company, its directors and such
of
its officers as shall have signed the Registration Statement, and
each
person,
if any, who controls the Company within the meaning of Section 15
of
the Act, to the same extent and upon the same terms as the
indemnity
agreement
of the Company set forth in Section 7(a) hereof, but only with
respect
to untrue statements or alleged untrue statements or omissions or
alleged
omissions made in the Registration Statement, or in the Basic
Prospectus,
or in the Prospectus, or in the Prospectus as so amended or
supplemented,
in reliance upon and in conformity with information furnished
in
writing to the Company by the Representatives on behalf of such
Underwriter
expressly for use therein. The Company agrees promptly after
the
receipt by it of written notice of the commencement of any action
in
respect
to which indemnity from you on account of your agreement contained
in
this Section 7(b) may be sought by the Company, or by any person
controlling
the Company, to notify you in writing of the commencement
thereof,
but the Company's omission so to notify you of any such action
shall
not release you from any liability which you may have to the
Company
or
to such controlling person otherwise than on account of the
indemnity
agreement
contained in this Section 7(b).
(c) If
recovery is not available or insufficient under Section 7(a)
or
7(b) hereof for any reason other than as specified therein, the
indemnified
party shall be entitled to contribution for any and all losses,
claims,
damages, liabilities and expenses for which such indemnification is
so
unavailable or insufficient under this Section 7(c). In determining
the
amount
of contribution to which such indemnified party is entitled, there
shall
be considered the portion of the proceeds of the offering of the
Securities
realized, the relative knowledge and access to information
concerning
the matter with respect to which the claim was asserted, the
opportunity
to correct and prevent any statement or omission, and any
equitable
considerations appropriate under the circumstances. The Company
and
the Underwriters agree that it would not be equitable if the amount
of
such
contribution were determined by pro rata or per capita allocation
(even
if the Underwriters were treated as one entity for such
purpose)
without reference to the considerations called for in the previous
sentence.
No Underwriter or any person controlling such Underwriter shall
be
obligated to contribute any amount or amounts hereunder which in
the
aggregate
exceeds the total price of the Securities purchased by such
Underwriter
under this Agreement, less the aggregate amount of any damages
which
such Underwriter and its controlling persons have otherwise been
required
to pay in respect of the same claim or any substantially similar
claim.
No person guilty of fraudulent misrepresentation (within the
meaning
of
Section 11(f) of the Securities Act) shall be entitled to
contribution
from
any person who was not guilty of such fraudulent misrepresentation.
An
Underwriter's
obligation to contribute under this Section 7 is in
proportion
to its purchase obligation and not joint with any other
Underwriter.
(d) No
indemnifying party shall, without the prior written consent of
the
indemnified parties, settle or compromise or consent to the entry
of
any
judgment with respect to any litigation, or any investigation or
proceeding
by any governmental agency or body, commenced or threatened, or
any
claim whatsoever in respect of which contribution could be sought
under
this
Section 7 (whether or not the indemnified parties are actual or
potential
parties thereto), unless such settlement, compromise or consent
(i)
includes an unconditional release of each indemnified party from
all
liability
arising out of such litigation, investigation, proceeding or
claim
and (ii) does not include a statement as to or an admission of
fault,
culpability
or a failure to act by or on behalf of such indemnified party.
(e) In
no event shall any indemnifying party have any liability or
responsibility
in respect of the settlement or compromise of, or consent to
the
entry of any judgment with respect to, any pending or threatened
action
or
claim effected without its prior written consent.
The
agreements contained in Section 7 hereof shall remain in full
force
and effect regardless of any investigation made by or on behalf of
any
person, and shall survive the delivery of and payment for the
Securities
hereunder.
8. Default
of Underwriters: If any Underwriter under this Agreement
shall
fail or refuse (otherwise than for some reason sufficient to
justify,
in
accordance with the terms hereof, the cancellation or termination of
its
obligations
hereunder) to purchase and pay for the number of Securities
which
it has agreed to purchase and pay for hereunder, and the number of
Securities
which such defaulting Underwriter or Underwriters agreed but
failed
or refused to purchase is not more than one-tenth of the number of
the
Securities, the other Underwriters shall be obligated severally in
the
proportions
which the amounts of Securities set forth opposite their names
in
Exhibit 1 hereto bear to the number of Securities set forth opposite
the
names
of all such non-defaulting Underwriters, to purchase the Securities
which
such defaulting Underwriter or Underwriters agreed but failed or
refused
to purchase on the terms set forth herein; provided that in no
event
shall the number of Securities which any Underwriter has agreed to
purchase
pursuant to Section 1 hereof be increased pursuant to this Section
8
by an amount in excess of one-ninth of such number of Securities
without
the
written consent of such Underwriter. In the event of any such
purchase,
(a)
the non-defaulting Underwriters or the Company shall have the right
to
fix
as a postponed Closing Date a date not exceeding four full business
days
after the date specified in Section 2 and (b) the
respective
number of Securities to be purchased by the non-defaulting
Underwriters
shall be taken as the basis of their respective underwriting
obligations
for all purposes of this Agreement. If any Underwriter or
Underwriters
shall fail or refuse to purchase Securities and the number of
Securities
with respect to which such default occurs is more than one-tenth
of
the number of the Securities then this Agreement shall terminate
without
liability
on the part of any non-defaulting Underwriter; provided, however,
that
the non-defaulting Underwriters may agree, in their sole
discretion,
to
purchase the Securities which such defaulting Underwriter or
Underwriters
agreed but failed or refused to purchase on the terms set
forth
herein. In the event of any such termination, the Company shall not
be
under any liability to any Underwriter (except to the extent, if
any,
provided
in Section 4(h) hereof), nor shall any Underwriter (other than an
Underwriter
who shall have failed or refused to purchase the Securities
without
some reason sufficient to justify, in accordance with the terms
hereof,
its termination of its obligations hereunder) be under any
liability
to the Company or any other Underwriter.
Nothing
herein contained shall release any defaulting Underwriter from
its
liability to the Company or any non-defaulting Underwriter for
damages
occasioned
by its default hereunder.
9. Termination
of Agreement by the Underwriters: This Agreement may
be
terminated at any time prior to the Closing Date by the
Representatives
if,
after the execution and delivery of this Agreement and prior to the
Closing
Date, in the Representatives' reasonable judgment, the
Underwriters'
ability to market the Securities shall have been materially
adversely
affected because:
(a) trading
in securities on the New York Stock Exchange shall have
been
generally suspended by the Commission or by the New York Stock
Exchange,
or
(b) trading
in the securities of the Company shall have been
suspended
by the New York Stock Exchange, or
(c) there
shall have occurred any outbreak or escalation of
hostilities,
declaration by the United States of a national emergency or
war
or other national or international calamity or crisis, or
(d) a
general banking moratorium shall have been declared by Federal
or
New York State authorities.
If
the Representatives elect to terminate this Agreement, as provided
in this
Section 9, the Representatives will promptly notify the Company by
telephone
or by telex or facsimile transmission, confirmed in writing. If
this
Agreement
shall not be carried out by any Underwriter for any reason
permitted
hereunder,
or if the sale of the Securities to the Underwriters as herein
contemplated
shall not be carried out because the Company is not able to comply
with the
terms hereof, the Company shall not be under any obligation under
this
Agreement
and shall not be liable to any Underwriter or to any member of any
selling
group for the loss of anticipated profits from the transactions
contemplated
by this Agreement (except that the Company shall remain liable to
the
extent
provided in Sections 4(g), 4(h) and 7 hereof) and the Underwriters
shall
be under
no liability to the Company nor be under any liability under this
Agreement
to one another.
10.
Notices: All notices hereunder shall, unless otherwise expressly
provided,
be in writing and be delivered at or mailed to the following
addresses
or by telex or facsimile transmission confirmed in writing to the
following
addresses: if to the Underwriters, to the Representatives at the
following
firms:
and, if
to the Company, to American Electric Power Company, Inc., c/o
American
Electric
Power Service Corporation, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
Attention: Treasurer.
11.
Parties in Interest: The agreement herein set forth has been and
is
made solely for the benefit of the Underwriters, the Company
(including
the
directors thereof and such of the officers thereof as shall have
signed
the
Registration Statement), the controlling persons, if any, referred
to
in
Section 7 hereof, and their respective successors, assigns,
executors
and
administrators, and, except as expressly otherwise provided in
Section
8
hereof, no other person shall acquire or have any right under or by
the
virtue
of this Agreement.
12.
Definition of Certain Terms: If there be two or more
persons,
firms
or corporations named in Exhibit 1 hereto, the term "Underwriters",
as
used herein, shall be deemed to mean the several persons, firms or
corporations,
so named (including the Representatives herein mentioned, if
so
named) and any party or parties substituted pursuant to Section 8
hereof,
and the term "Representative", as used herein, shall be deemed to
mean
the representative or representatives designated by, or in the
manner
authorized
by, the Underwriters. All obligations of the Underwriters
hereunder
are several and not joint. If there shall be only one person,
firm
or corporation named in Exhibit 1 hereto, the term "Underwriters"
and
the
term "Representative", as used herein, shall mean such person, firm
or
corporation.
The term "successors" as used in this Agreement shall not
include
any purchaser, as such purchaser, of any of the Securities from any
of
the respective Underwriters.
13.
Conditions of the Company's Obligations: The obligations of the
Company
hereunder are subject to (i) the Underwriters' performance of their
obligations
hereunder; and (ii) that at the Closing Date the Commission
shall
have issued an appropriate order under the Act and 1935 Act, and
such
orders
shall remain in full force and effect, authorizing the transactions
contemplated
hereby. In case these conditions shall not have been
fulfilled,
this Agreement may be terminated by the Company upon notice
thereof
to the Underwriters. Any such termination shall be without
liability
of any party to any other party except as otherwise provided in
Sections
4(g), 4(h) and 7 hereof.
14.
Offering by Underwriters: It is understood that the several
Underwriters
propose to offer the Securities for sale to the public as set
forth
in the Prospectus.
15.
Applicable Law: This Agreement will be governed and construed in
accordance
with the laws of the State of New York.
16.
Execution of Counterparts: This Agreement may be executed in
several
counterparts, each of which shall be regarded as an original and
all
of which shall constitute one and the same document.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be
executed
by their respective officers thereunto duly authorized, on the date
first
above written.
AMERICAN
ELECTRIC POWER COMPANY, INC.
By: /s/
___________
-----------------------------------------
Name:
___________
Title: Assistant
Treasurer
as
Representatives
and on
behalf of the Underwriters
named in
Exhibit 1 hereto
19
<
EXHIBIT
1
Name of
Underwriter Number
of Underwritten Securities
to
be Purchased
---------------
TOTAL
......................................................