Exhibit 1(a)
AMERICAN ELECTRIC POWER COMPANY, INC.
Underwriting Agreement
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 issue and sell $__________ principal
amount of its [Unsecured Notes] to be issued pursuant to the Indenture dated as
of __________, ____, between the Company and The Bank of New York, as trustee
(the "Trustee"), as heretofore supplemented and amended and as to be further
supplemented and amended (said Indenture as so supplemented being hereafter
referred to as the Indenture); and
WHEREAS, the Underwriters have designated the person signing this
Agreement (the Representative) to execute this Agreement on behalf of the
respective Underwriters and to act for the respective Underwriters in the manner
provided in this Agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933 (the Act), with the Securities and
Exchange Commission (the Commission), a registration statement and prospectus or
prospectuses relating to the [Unsecured Notes] and such registration statement
has become effective; and
WHEREAS, such registration statement, as it may have been amended to the
date hereof, including the financial statements, the documents incorporated or
deemed incorporated therein by reference and the exhibits, being herein called
the Registration Statement, and the prospectus, as included or referred to in
the Registration Statement to become effective, as it may be last amended or
supplemented prior to the effectiveness of the agreement (the Basic Prospectus),
and the Basic Prospectus, as supplemented by one or more prospectus supplements
which includes certain information relating to the Underwriters, the principal
amount, price and terms of offering, the interest rate and redemption prices of
the [Unsecured Notes], first filed with the Commission pursuant to the
applicable paragraph of 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 call the
Prospectus.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and representations
and on the terms and subject to the conditions herein set forth, the Company
agrees to sell to the respective Underwriters named in Exhibit 1 hereto,
severally and not jointly, and the respective Underwriters, severally and not
jointly, agree to purchase from the Company, the respective principal amounts of
the [Unsecured Notes] set opposite their names in Exhibit 1 hereto, together
aggregating all of the [Unsecured Notes], at a price equal to ______% of the
principal amount thereof.
2. Payment and Delivery: Payment for the [Unsecured Notes] shall be made
to the Company or its order by certified or bank check or checks, payable in New
York Clearing House funds, at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place as the
Company and the Representative shall mutually agree in writing, upon the
delivery of the [Unsecured Notes] to the Representative for the respective
accounts of the Underwriters against receipt therefor signed by the
Representative on behalf of itself and for the other Underwriters. Such payments
and delivery shall be made at 10:00 A.M., New York Time, on _______________ (or
on such later business day, not more than five business days subsequent to such
day, as may be mutually agreed upon by the Company and the Underwriters), unless
postponed in accordance with the provisions of Section 7 hereof. The time at
which payment and delivery are to be made is herein called the Time of Purchase.
[The delivery of the [Unsecured Notes] shall be made in fully registered
form, registered in the name of CEDE & CO., to the offices of The Depository
Trust Company in New York, New York and the Underwriters shall accept such
delivery.]
3. Conditions of Underwriters' Obligations: The several obligations of the
Underwriters hereunder are subject to the accuracy of the warranties and
representations on the part of the Company on the date hereof and at the Time of
Purchase and to the following other conditions:
(a) That all legal proceedings to be taken and all legal
opinions to be rendered in connection with the issue and sale
of the [Unsecured Notes] shall be satisfactory in form and
substance to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the
Underwriters.
(b) That, at the Time of Purchase, the Representative
shall be furnished with the following opinions, dated the day
of the Time of Purchase, with conformed copies or signed
counterparts thereof for the other Underwriters, with such
changes therein as may be agreed upon by the Company and the
Representative with the approval of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel to the Underwriters:
(1) Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
and any of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., ▇▇▇ ▇. ▇▇▇▇,
Esq., ▇▇▇▇▇ ▇. House, Esq., or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
counsel to the Company, substantially in the forms
attached hereto as Exhibits A and B; and
(2) Opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel
to the Underwriters, substantially in the form attached
hereto as Exhibit C.
(c) That the Representative shall have received a letter
from Deloitte & Touche LLP in form and substance satisfactory
to the Representative, dated as of the day of the Time of
Purchase, (i) confirming that they are independent public
accountants within the meaning of the Act and the applicable
published rules and regulations of the Commission thereunder,
(ii) stating that in their opinion the financial statements
audited by them and included or incorporated by reference in
the Registration Statement complied as to form in all material
respects with the then applicable accounting requirements of
the Commission, including the applicable published rules and
regulations of the Commission and (iii) covering as of a date
not more than five business days prior to the day of the Time
of Purchase such other matters as the Representative
reasonably requests.
(d) That no amendment to the Registration Statement and
that no prospectus or prospectus supplement of the Company
relating to the [Unsecured Notes] and no document which would
be deemed incorporated in the Prospectus by reference filed
subsequent to the date hereof and prior to the Time of
Purchase shall contain material information substantially
different from that contained in the Registration Statement
which is unsatisfactory in substance to the Representative or
unsatisfactory in form to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the
Underwriters.
(e) That, at the Time of Purchase, prior to the Time of
Purchase, no stop order with respect to the effectiveness of
the Registration Statement shall have been issued under the
Act by the Commission or proceedings therefor initiated.
(f) That, at the Time of Purchase, there shall not have
been any material adverse change in the business, properties
or financial condition of the Company from that set forth in
the Prospectus (other than changes referred to in or
contemplated by the Prospectus), and that the Company shall,
at the Time of Purchase, have delivered to the Representative
a certificate of an executive officer of the Company to the
effect that, to the best of his knowledge, information and
belief, there has been no such change.
(g) That the Company shall have performed such of its
obligations under this Agreement as are to be performed at or
before the Time of Purchase by the terms hereof.
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 any
Prospectus Supplement relating to the [Unsecured Notes] with
the Commission; as soon as the Company is advised thereof, to
advise the Representative and confirm the advice in writing of
any request made by the Commission for amendments to the
Registration Statement or the 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) as the Representative may reasonably request; and in
case any Underwriter is required to deliver a prospectus after
the expiration of nine months after the date hereof, to
furnish to any Underwriter, upon request, at the expense of
such Underwriter, a reasonable quantity of a supplemental
prospectus or of supplements to the Prospectus complying with
Section 10(a)(3) of the Act.
(c) To furnish to the Representative a copy, certified
by the Secretary or an Assistant Secretary of the Company, of
the Registration Statement as initially filed with the
Commission and of all amendments thereto (exclusive of
exhibits), and, upon request, to furnish to the Representative
sufficient plain copies thereof (exclusive of exhibits) for
distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months)
after the date hereof as they are required by law to deliver a
prospectus, if any event shall have occurred as a result of
which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser,
not contain any untrue statement of a material fact or not
omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not
misleading, forthwith to prepare and furnish, at its own
expense, to the Underwriters and to dealers (whose names and
addresses are furnished to the Company by the Representative)
to whom principal amounts of the [Unsecured Notes] may have
been sold by the Representative for the accounts of the
Underwriters and, upon request, to any other dealers making
such request, copies of such amendments to the Prospectus or
supplements to the Prospectus.
(e) As soon as practicable, the Company will make
generally available to its security holders and to the
Underwriters an earnings statement or statement of the Company
and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the [Unsecured
Notes] for offer and sale under the securities or "blue sky"
laws of such jurisdictions as the Representative may designate
within six months after the date hereof and itself to pay, or
to reimburse the Underwriters and their counsel for,
reasonable filing fees and expenses in connection therewith in
an amount not exceeding $3,500 in the aggregate (including
filing fees and expenses paid and incurred prior to the
effective date hereof), provided, however, that the Company
shall not be required to qualify as a foreign corporation or
to file a consent to service of process or to file annual
reports or to comply with any other requirements deemed by the
Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than
transfer taxes on resales of the [Unsecured Notes] by the
respective Underwriters) in connection with the issuance and
delivery of the [Unsecured Notes], 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 [Unsecured Notes] due to the failure of the Company to
comply with any of the conditions specified in Section 3
hereof, or, if this Agreement shall be terminated in
accordance with the provisions of Section 7 or 8 hereof, to
pay the fees and disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel to the Underwriters, and, if the Underwriters shall
not take up and pay for the [Unsecured Notes] due to the
failure of the Company to comply with any of the conditions
specified in Section 3 hereof, to reimburse the Underwriters
for their reasonable out-of-pocket expenses, in an aggregate
amount not exceeding a total of $10,000, incurred in
connection with the financing contemplated by this Agreement.
(i) The Company will timely file any certificate
required by the Public Utility Holding Company Act of 1935 in
connection with the sale of the [Unsecured Notes].
[(j) The Company will use its best efforts to list,
subject to notice of issuance, the [Unsecured Notes] on the
New York Stock Exchange.]
[(k) During the period from the date hereof and
continuing to and including the earlier of (i) the date which
is after the Time of Purchase on which the distribution of the
[Unsecured Notes] ceases, as determined by the Representative
in its sole discretion, and (ii) the date which is 30 days
after the Time of Purchase, the Company agrees not to offer,
sell, contract to sell or otherwise dispose of any [Unsecured
Notes] of the Company or any substantially similar securities
of the Company without the consent of the Representative.]
5. Warranties of and Indemnity by the Company: The Company represents and
warrants to, and agrees with you, 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 Time of Purchase will not, contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Basic
Prospectus at the time that the Registration Statement became
effective, and the Prospectus when first filed in accordance
with Rule 424(b) complies, and at the Time of Purchase the
Prospectus will comply, with the applicable provisions of the
Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission, the Basic Prospectus
at the time that the Registration Statement became effective,
and the Prospectus when first filed in accordance with Rule
424(b) did not, and the Prospectus at the Time of Purchase
will not, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that the Company makes no warranty or representation to
the Underwriters with respect to any statements or omissions
made in the Registration Statement or Prospectus in reliance
upon and in conformity with information furnished in writing
to the Company by, or through the Representative on behalf of,
any Underwriter expressly for use in the Registration
Statement, the Basic Prospectus or Prospectus, or to any
statements in or omissions from that part of the Registration
Statement that shall constitute the Statement of Eligibility
under the Trust Indenture Act of 1939 of any indenture trustee
under an indenture of the Company.
(b) As of the Time of Purchase, the Indenture will have
been duly authorized by the Company and duly qualified under
the Trust Indenture Act of 1939, as amended, and, when
executed and delivered by the Trustee and the Company, will
constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms and such
[Unsecured Notes] will have been duly authorized, executed,
authenticated and, when paid for by the purchasers thereof,
will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture, except as
the enforceability thereof may be limited by bankruptcy,
insolvency, or other similar laws affecting the enforcement of
creditors' rights in general, and except as the availability
of the remedy of specific performance is subject to general
principles of equity (regardless of whether such remedy is
sought in a proceeding in equity or at law), and by an implied
covenant of good faith and fair dealing.
(c) To the extent permitted by law, 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, or in the Prospectus, or if the Company shall
furnish or cause to be furnished to you any amendments or any
supplemental information, in the Prospectus as so amended or
supplemented other than amendments or supplements relating
solely to securities other than the Notes (provided that if
such Prospectus or such Prospectus, as amended or
supplemented, is used after the period of time referred to in
Section 4(b) hereof, it shall contain such amendments or
supplements as the Company deems necessary to comply with
Section 10(a) of the Act), or arise out of or are based upon
any alleged omission or omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or actions arise out of
or are based upon any such alleged untrue statement or
omission, or untrue statement or omission which was made in
the Registration Statement, in the Basic Prospectus or in the
Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by or through
you 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 Notes to any person if such loss arises
from the fact that a copy of the Prospectus, as the same may
then be supplemented or amended to the extent such Prospectus
was provided to you by the Company (excluding, however, any
document then incorporated or deemed incorporated therein by
reference), was not sent or given by you to such person with
or prior to the written confirmation of the sale involved and
the alleged omission or alleged untrue statement or omission
or untrue statement was corrected in the Prospectus as
supplemented or amended at the time of such confirmation, and
such Prospectus, as amended or supplemented, was timely
delivered to you by the Company. You agree promptly after the
receipt by you of written notice of the commencement of any
action in respect to which indemnity from the Company on
account of its agreement contained in this Section 5(c) 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 8(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). 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 indemnification
could be sought under this Section 5 (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 any indemnified party. 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.
(d) 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.
(e) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, there has been no material
adverse change in the business, properties or financial
condition of the Company.
(f) This Agreement has been duly authorized, executed
and delivered by the Company.
(g) The consummation by the Company of the transactions
contemplated herein 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.)
(h) 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
Notes or the transactions by the Company contemplated in this
Agreement, except (A) such as may be required under the 1933
Act or the rules and regulations thereunder; (B) such as may
be required under the Public Utility Holding Company Act of
1935, as amended (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.
The Company's indemnity agreement contained in Section 5(c) hereof, and
its 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
[Unsecured Notes] hereunder.
6. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents that the
information furnished in writing to the Company through the
Representative for use in the Registration Statement, in the
Basic Prospectus, in the Prospectus, or in the Prospectus as
amended or supplemented is correct as to such Underwriter.
(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 5(c)
hereof, but only with respect to untrue statements or alleged
untrue statements or omissions or alleged omissions made in
the Registration Statement, or in the Basic Prospectus, or in
the Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by the
Representative on behalf of such Underwriter expressly for use
therein. The Company agrees promptly after the receipt by it
of written notice of the commencement of any action in respect
to which indemnity from you on account of your agreement
contained in this Section 6(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 6(b).
The indemnity agreement on the part of each Underwriter contained in
Section 6(b) hereof, and 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 [Unsecured Notes] hereunder.
7. Default of Underwriters: If any Underwriter under this Agreement shall
fail or refuse (otherwise than for some reason sufficient to justify, in
accordance with the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal amount of
[Unsecured Notes] which it has agreed to purchase and pay for hereunder, and the
aggregate principal amount of [Unsecured Notes] which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the [Unsecured Notes], the
other Underwriters shall be obligated severally in the proportions which the
amounts of [Unsecured Notes] set forth opposite their names in Exhibit 1 hereto
bear to the aggregate principal amount of [Unsecured Notes] set forth opposite
the names of all such non-defaulting Underwriters, to purchase the [Unsecured
Notes] which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on the terms set forth herein; provided that in no event
shall the principal amount of [Unsecured Notes] which any Underwriter has agreed
to purchase pursuant to Section 1 hereof be increased pursuant to this Section 7
by an amount in excess of one-ninth of such principal amount of [Unsecured
Notes] without the written consent of such Underwriter. If any Underwriter or
Underwriters shall fail or refuse to purchase [Unsecured Notes] and the
aggregate principal amount of [Unsecured Notes] with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
[Unsecured Notes] then this Agreement shall terminate without liability on the
part of any defaulting Underwriter; provided, however, that the non-defaulting
Underwriters may agree, in their sole discretion, to purchase the [Unsecured
Notes] which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on the terms set forth herein. In the event the Company
shall be entitled to but shall not elect (within the time period specified
above) to exercise its rights under clause (a) and/or (b), then this Agreement
shall terminate. 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 [Unsecured Notes] without some
reason sufficient to justify, in accordance with the terms hereof, its
termination of its obligations hereunder) be under any liability to the Company
or any other Underwriter.
Nothing herein contained shall release any defaulting Underwriter from its
liability to the Company or any non-defaulting Underwriter for damages
occasioned by its default hereunder.
8. Termination of Agreement by the Underwriters: This Agreement may be
terminated at any time prior to the Time of Purchase by the Representative if,
after the execution and delivery of this Agreement and prior to the Time of
Purchase, in the Representative's reasonable judgment, the Underwriters' ability
to market the [Unsecured Notes] shall have been materially adversely affected
because:
(i) trading in securities on the New York Stock Exchange shall
have been generally suspended by the Commission or by the New York Stock
Exchange, or
(ii) (A) a war involving the United States of America shall
have been declared, (B) any other national calamity shall have occurred,
or (C) any conflict involving the armed services of the United States of
America shall have escalated, or
(iii) a general banking moratorium shall have been declared
by Federal or New York State authorities, or
(iv) there shall have been any decrease in the ratings of the
Company's first mortgage bonds by ▇▇▇▇▇'▇ Investors Services, Inc.
(Moody's) or Standard & Poor's Ratings Group (S&P) or either Moody's or
S&P shall publicly announce that it has such first mortgage bonds under
consideration for possible downgrade.
If the Representative elects to terminate this Agreement, as
provided in this Section 8, the Representative will promptly notify the Company
by telephone or by telex or facsimile transmission, confirmed in writing. If
this Agreement shall not be carried out by any Underwriter for any reason
permitted hereunder, or if the sale of the [Unsecured Notes] to the Underwriters
as herein contemplated shall not be carried out because the Company is not able
to comply with the terms hereof, the Company shall not be under any obligation
under this Agreement and shall not be liable to any Underwriter or to any member
of any selling group for the loss of anticipated profits from the transactions
contemplated by this Agreement (except that the Company shall remain liable to
the extent provided in Section 4(h) hereof) and the Underwriters shall be under
no liability to the Company nor be under any liability under this Agreement to
one another.
9. 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
_______________________________________________________________, as
Representative, _____________________________________________, and, if to the
Company, to American Electric Power Company, Inc., c/o American Electric Power
Service Corporation, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, attention of ▇. ▇.
▇▇▇▇, Treasurer, (fax 614/▇▇▇-▇▇▇▇).
10. 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
Sections 5 and 6 hereof, and their respective successors, assigns, executors and
administrators, and, except as expressly otherwise provided in Section 7 hereof,
no other person shall acquire or have any right under or by the virtue of this
Agreement.
11. Definition of Certain Terms: If there be two or more persons, firms or
corporations named in Exhibit 1 hereto, the term "Underwriters", as used herein,
shall be deemed to mean the several persons, firms or corporations, so named
(including the Representative herein mentioned, if so named) and any party or
parties substituted pursuant to Section 7 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 [Unsecured
Notes] from any of the respective Underwriters.
12. Conditions of the Company's Obligations: The obligations of the Company
hereunder are subject to the Underwriters' performance of their obligations
hereunder.
13. Applicable Law: This Agreement will be governed and construed in
accordance with the laws of the State of New York.
14. 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:____________________________
▇. ▇. ▇▇▇▇
Treasurer
______________________________
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
By:____________________________
EXHIBIT 1
Name Principal Amount