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 Simpson Thacher & Bartlett, 425
Lexington Avenue, New York, New York 10017-3909, 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 Dewey Ballantine 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 Dewey Ballantine LLP,
counsel to the Underwriters:
(1) Opinion of Simpson Thacher & Bartlett and any of Thomas G.
Berkemeyer, Esq., Ann B. Graf, Esq., David C. House, Esq., William E.
Johnson, Esq. or Kevin R. Fease, Esq., counsel to the Company,
substantially in the forms attached hereto as Exhibits A and B; and
(2) Opinion of Dewey Ballantine 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 Dewey Ballantine 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 Dewey
Ballantine 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 Dewey Ballantine 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 Moody's Investors Services, Inc.
(Moody's) or Standard & Poor's Ratings Group (S&P) or either Moody's or S&P
shall publicly announce that it has such 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, 1 Riverside Plaza, Columbus, Ohio 43215, attention of A. A.
Pena, Treasurer, (fax 614/223-1687).
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:
---------------------------------
A. A. Pena
Treasurer
- -----------------------------------
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
By:
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EXHIBIT 1
Name Principal Amount