EXHIBIT 1.2
[FORM OF COMMON STOCK AND PREFERRED STOCK
UNDERWRITING AGREEMENT]
__________ Shares
THE AES CORPORATION
Common Stock and Preferred Stock
UNDERWRITING AGREEMENT
__________, 199_
Dear Sirs:
The AES Corporation, a Delaware corporation (the "Company") proposes
to issue and sell _________ shares of its [common stock, par value $0.01 per
share] shares of its [preferred stock, no par value] (together, the "Firm
Shares") to the several underwriters named in Schedule I hereto (the
"Underwriters"). The Company also proposes to issue and sell to the several
Underwriters not more than _______ additional shares of its common stock, par
value $0.01 per share and not more than _________ additional shares of its
preferred stock, no par value (together, the "Additional Shares") if requested
by the Underwriters as provided in Section 2 hereof. The Firm Shares and the
Additional Shares are herein collectively called the "Shares". The shares of
common stock and the shares of preferred stock of the Company to be
outstanding after giving effect to the sales contemplated hereby are
hereinafter referred to as the Common Stock and the Preferred Stock,
respectively.
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Securities Act"), a registration statement on Form
S-3, including a prospectus, relating to, among other things, certain debt
securities, Common Stock, par value $0.01 per share, and Preferred Stock, no
par value, of the Company to be issued from time to time by the Company (the
"Shelf Securities"). The Company also has filed with, or proposes to file
with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities. The
registration statement as amended to the date of this Agreement is hereinafter
referred to as the "Base Registration Statement" and any registration
statement filed pursuant to Rule 462(b) under the Securities Act relating to
the Notes is herein referred to as the "Additional Registration Statement",
and, together with the Base Registration Statement, the "Registration
Statement". The related prospectus covering the Shelf Securities in the form
first used to confirm sales of the Securities is hereinafter referred to as
the "Basic Prospectus". The Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Securities in the form
first used to confirm sales of the Securities is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement,
the Basic Prospectus, any preliminary form of Prospectus (a "preliminary
prospectus") previously filed with the Commission pursuant to Rule 424 or the
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act
which were filed under the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Exchange Act") on or before the date of this Agreement or the date of the
Basic Prospectus, any preliminary prospectus or the Prospectus, as the case
may be; and any reference to "amend", "amendment" or "supplement" with respect
to the Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the
Prospectus, as the case may be, which are deemed to be incorporated by
reference therein.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each
Underwriter agrees, severally and not jointly, to purchase from the Company at
a price per share of $______ (the "Purchase Price"), [plus accrued dividends,
if any, to the closing Date] the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to
issue and sell the Additional Shares and the Underwriters shall have the right
to purchase, severally and not jointly, up to _______ Additional Shares from
the Company at the Purchase Price [plus accrued dividends, if any, to the
closing Date]. Additional Shares may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. The Underwriters may exercise their right to purchase Additional
Shares in whole or in part from time to time by giving written notice thereof
to the Company within 30 days after the date of this Agreement. You shall
give any such notice on behalf of the Underwriters and such notice shall
specify the aggregate number of Additional Shares to be purchased pursuant to
such exercise and the date for payment and delivery thereof. The date
specified in any such notice shall be a business day (i) no earlier than the
Closing Date (as hereinafter defined), (ii) no later than ten business days
after such notice has been given and (iii) no earlier than two business days
after such notice has been given. If any Additional Shares are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase
from the Company the number of Additional Shares (subject to such adjustments
to eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Shares to be purchased from the
Company as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Shares.
[The Company hereby agrees not to offer, sell, contract to sell,
grant any option to purchase, or otherwise dispose of any Common Stock of the
Company or any securities convertible into or exercisable or exchangeable for
such Common Stock or in any other manner transfer all or a portion of the
economic consequences associated with the ownership of any such Common Stock,
except to the Underwriters pursuant to this Agreement, for a period of ___
days after the date of the Prospectus without the prior written consent of
____________________________.]
3. Terms of Public Offering. The Company is advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the effective date of the Registration
Statement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Firm Shares shall be made at 10:00 A.M., New York City time,
on ______, 199_, or at such other time or such other date as the Underwriters
and the Company may agree upon in writing. The time and date of such payment
are referred to herein as the "Closing Date". As used herein, the term
"Business Day" means any day other than a day on which banks are permitted or
required to be closed in New York City.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at such place as you shall
designate at 10:00 A.M., New York City time, on the date specified in the
applicable exercise notice given by you pursuant to Section 2 (an "Option
Closing Date"). Any such Option Closing Date and the location of delivery of
and the form of payment for such Additional Shares may be varied by agreement
between you and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date or an Option Closing Date, as
the case may be. Such certificates shall be made available to you for
inspection not later than 9:30 A.M., New York City time, on the business day
next preceding the Closing Date or the applicable Option Closing Date, as the
case may be. Certificates in definitive form evidencing the Shares shall be
delivered to you on the Closing Date or the applicable Option Closing Date, as
the case may be, with any transfer taxes thereon duly paid by the Company, for
the respective accounts of the several Underwriters, against payment of the
Purchase Price therefor by wire transfer in immediately available funds to the
account specified by the Company to the Underwriters (no later than noon on
the Business Day prior to the Closing Date) at the office of Xxxxx Xxxx &
Xxxxxxxx, counsel to the Company.
5. Agreements of the Company. The Company agrees with you:
(a) To file the Prospectus in a form approved by you with the
Commission within the time periods specified by Rule 424; and to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering
or sale of the Shares; and to furnish copies of the Prospectus to the
Underwriters in New York City prior to 10:00 a.m., New York City
time, on the Business Day next succeeding the date of this Agreement
in such quantities as the Underwriters may reasonably request;
(b) To advise you promptly and, if requested by you, to confirm
such advice in writing, (i) when any post-effective amendment to the
Registration Statement has been filed or becomes effective, (ii) of
any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation of any
proceeding for such purposes, and (iv) of the happening of any event
during the period referred to in paragraph (e) below which makes any
statement of a material fact made in the Registration Statement or
the Prospectus untrue or which requires the making of any additions
to or changes in the Registration Statement or the Prospectus in
order to make the statements therein not misleading. If at any time
the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make
every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time.
(c) To furnish to you three signed copies of the Registration
Statement as first filed with the Commission and of each amendment to
it, including all exhibits thereto and documents incorporated by
reference therein, and to furnish to you and each Underwriter
designated by you such number of conformed copies of the Registration
Statement as so filed and of each amendment to it, without exhibits
thereto and documents incorporated by reference therein, as you may
reasonably request.
(d) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes
effective, or to make any amendment or supplement to the Prospectus
of which you shall not previously have been advised or to which you
shall reasonably object; and to prepare and file with the Commission,
promptly upon your reasonable request, any amendment to the
Registration Statement or supplement to the Prospectus which may be
necessary or advisable in connection with the distribution of the
Shares by you, and to use its best efforts to cause the same to
become promptly effective.
(e) Promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as in
the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an
Underwriter or a dealer, to furnish to each Underwriter and dealer
as many copies of the Prospectus (and of any amendment or
supplement to the Prospectus) as such Underwriter or dealer may
reasonably request.
(f) If during the period specified in paragraph (e) any event
shall occur as a result of which, in the opinion of counsel for the
Underwriters, it becomes 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 misleading, or if it is necessary to amend or supplement the
Prospectus to comply with any law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply
with law, and to furnish to each Underwriter and to such dealers as
you shall specify, such number of copies thereof as such Underwriter
or dealers may reasonably request.
(g) Prior to any public offering of the Shares, to cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the Shares for offer and sale by the
several Underwriters and by dealers under the state securities or
Blue Sky laws of such jurisdictions as you may request, to continue
such qualification in effect so long as required for distribution of
the Shares and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification.
(h) To mail and make generally available to its securityholders
as soon as reasonably practicable an earnings statement covering a
period of at least twelve months after the effective date of the
Registration Statement (but in no event commencing later than 90 days
after such date) which shall satisfy the provisions of Section 11(a)
of the Act, and to advise you in writing when such statement has been
so made available.
(i) During the period of five years after the date of this
Agreement, or for such shorter period if the Shares no longer remain
outstanding, (i) to mail as soon as reasonably practicable after the
end of each fiscal year to the record holders of its Common Stock and
Preferred Stock a financial report of the Company and its
subsidiaries on a consolidated basis (and a similar financial report
of all unconsolidated subsidiaries, if required by Regulation S-X),
all such financial reports to include a consolidated balance sheet, a
consolidated statement of operations, a consolidated statement of
cash flows and a consolidated statement of shareholders' equity as of
the end of and for such fiscal year, together with comparable
information as of the end of and for the preceding year, certified by
independent certified public accountants, and (ii) to mail and make
generally available as soon as practicable after the end of each
quarterly period (except for the last quarterly period of each fiscal
year) to such holders, a consolidated balance sheet, a consolidated
statement of operations and a consolidated statement of cash flows
(and similar financial reports of all unconsolidated subsidiaries, if
required by Regulation S-X) as of the end of and for such period, and
for the period from the beginning of such year to the close of such
quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(j) During the period referred to in paragraph (i), to furnish
to you as soon as available a copy of each report or other publicly
available information of the Company mailed to the securityholders of
the Company or filed with the Commission and such other publicly
available information concerning the Company and its subsidiaries as
you may reasonably request.
(k) To pay all costs, expenses, fees and taxes incident to the
performance of its obligations hereunder, including without limiting
the generality of the foregoing, all costs and expenses incident to
(i) the preparation, issuance, and delivery of the certificates for
the Shares, (ii) the preparation, printing, filing and distribution
under the Act of the Registration Statement (including financial
statements and exhibits), each preliminary prospectus and all
amendments and supplements to any of them prior to or during the
period specified in paragraph (e), (iii) the printing and delivery of
the Prospectus and any Preliminary Prospectus and all amendments or
supplements to it during the period specified in paragraph (e), (iv)
the printing and delivery of this Agreement, Preliminary and
Supplemental Blue Sky Memoranda and all other agreements, memoranda,
correspondence and other documents printed and delivered in
connection with the offering of the Shares (including in each case
any disbursements of counsel for the Underwriters relating to such
printing and delivery), (v) the registration or qualification of the
Shares for offer and sale under the securities or Blue Sky laws of
the several states (including in each case the fees and disbursements
of counsel for the Underwriters relating to such registration or
qualification and memoranda relating thereto), (vi) filings and
clearance with the National Association of Securities Dealers, Inc.
in connection with the offering, (vii) furnishing such copies of the
Registration Statement, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with
the offering or sale of the Shares by the Underwriters or by dealers
to whom Shares may be sold and (viii) the rating of the Shares
including, without limitation, fees payable to rating agencies in
connection therewith.
(l) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement
by the Company prior to the Closing Date or any Option Closing Date,
as the case may be, and to satisfy all conditions precedent to the
delivery of the Shares.
6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Company, threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply,
or will comply, as the case may be, in all material respects with the
Securities Act and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact
or omit to state any 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, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; except that the foregoing representations and
warranties shall not apply to statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the
Representatives expressly for use therein;
(b) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents are
filed with the Commission will conform in all material respects to
the requirements of the Exchange Act, as applicable, and will not
contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(c) The Company and each of its subsidiaries and each of its
affiliates which meets the criteria in the definition of "significant
subsidiary" pursuant to Rule 1-02(w) of Regulation S-X under the
Securities Act (each, a "Principal Subsidiary") has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority required to carry on its business as it
is currently being conducted and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the
business, financial condition or results of operations of the Company
and the Principal Subsidiaries, taken as a whole.
(d) Except as set forth in the Registration Statement or on
Annex I hereto, all of the outstanding shares of capital stock of, or
other ownership interests in, the Principal Subsidiaries have been
duly and validly authorized and issued and are fully paid and
non-assessable, and are owned by the Company or one of the Principal
Subsidiaries, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature.
(e) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor as provided by
this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject
to any preemptive or similar rights.
(f) This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company (except as rights to indemnity and contribution hereunder may
be limited by applicable law).
(g) The authorized capital stock of the Company conforms as
to legal matters to the description thereof contained in the
Registration Statement and the Prospectus.
(h) The Company is not in violation of its Restated
Certificate of Incorporation or its By-laws and none of the Principal
Subsidiaries is in violation of its respective charter, or except for
any such violations which would not have a material adverse effect on
the Company and its subsidiaries taken as a whole, in violation of
its by-laws, nor is the Company or any of the Principal Subsidiaries,
except as set forth in the Registration Statement, in default in the
performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or in
any other agreement, indenture or instrument to which the Company or
any of the Principal Subsidiaries is a party or by which it or any of
the Principal Subsidiaries or their respective property is bound
except for any such defaults which, individually or in the aggregate,
would not have a material adverse effect on the business, financial
condition or results of operations of the Company and the Principal
Subsidiaries, taken as a whole.
(i) The execution, delivery and performance of this Agreement,
compliance by the Company with all the provisions hereof and thereof
and the consummation of the transactions contemplated hereby and
thereby will not require any consent, approval, authorization or
other order of any court, regulatory body, administrative agency or
other governmental body (except such as may be required under the
Securities Act, the Exchange Act, or other securities or Blue Sky
laws) and will not conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws of
the Company or any of the Principal Subsidiaries or any agreement,
indenture or other instrument to which it or any of the Principal
Subsidiaries is a party or by which it or any of the Principal
Subsidiaries or their respective property is bound, or violate or
conflict with any laws, administrative regulations or rulings or
court decrees applicable to the Company, any of the Principal
Subsidiaries or their respective property (except state securities or
Blue Sky laws).
(j) Except as set forth in the Registration Statement, there
are no material legal or governmental proceedings pending to which
the Company or any of the Principal Subsidiaries is a party or to
which any of their respective property is the subject, and, to the
best of the Company's knowledge, no such proceedings are threatened
or contemplated. No contract or document of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement is not so described
or filed as required.
(k) Except as set forth in the Registration Statement,
neither the Company nor any of the Principal Subsidiaries has
violated any U.S. federal or state law relating to discrimination in
the hiring, promotion or pay of employees nor any applicable U.S.
federal or state wages and hours laws, or any provisions of the
Employee Retirement Income Security Act or the rules and regulations
promulgated thereunder, which in each case could result in any
material adverse change in the business, financial condition or
results of operations of the Company and the Principal Subsidiaries,
taken as a whole.
(l) Except as set forth in the Registration Statement, the
Company and each of the Principal Subsidiaries has good and
marketable title, free and clear of all liens, claims, encumbrances
and restrictions which are required to be described in the
Registration Statement except liens for taxes not yet due and
payable, to all property and assets described in the Registration
Statement as being owned by it. All leases to which the Company or
any of the Principal Subsidiaries is a party are valid and binding
and no default by the Company or any such Principal Subsidiary, or,
to the best of the Company's knowledge, by any other party to any
such leases, has occurred or is continuing thereunder, which could
result in any material adverse change in the business, financial
condition or results of operations of the Company and the Principal
Subsidiaries taken as a whole, and the Company and the Principal
Subsidiaries enjoy peaceful and undisturbed possession under all such
leases to which any of them is a party as lessee with such exceptions
as do not materially interfere with the use made by the Company or
such Principal Subsidiary.
(m) Deloitte & Touche are independent public accountants with
respect to the Company as required by the Act.
(n) The financial statements, together with related schedules
and notes forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations and
statements of cash flow of the Company and its subsidiaries on the
basis stated in the Registration Statement at the respective dates
and for the respective periods to which they apply; such statements
and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), in all material respects, present fairly the
information purported to be shown thereby at the respective dates or
for the respective periods to which they apply and have been prepared
on a basis consistent with such financial statements and the books
and records of the Company.
(o) Each of the Company and the Principal Subsidiaries has
such permits, licenses, franchises and authorizations of governmental
or regulatory authorities ("permits") which are required to have been
obtained by it prior to the date hereof and which are material to the
ownership or leasing and operation of or construction of its
respective properties and to the conduct of its business in the
manner described in the Prospectus, except for any such permits, the
failure of which to have, individually or in the aggregate, would not
have a material adverse effect on the business, financial condition
or results of operations of the Company and the Principal
Subsidiaries, taken as a whole, and subject to such qualifications
as may be set forth in the Registration Statement; each of the
Company and the Principal Subsidiaries has fulfilled and performed
all of its material obligations with respect to such permits required
to have been fulfilled and performed prior to the date hereof and no
event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or result in any other
material impairment of the rights of the holder of any such permit,
subject in each case to such qualification as may be set forth in the
Registration Statement; and, except as described in the Registration
Statement, such permits do not materially interfere with the use or
operation of the electric power generation facilities of the Principal
Subsidiaries as currently used or operated or as contemplated to be
used or operated.
(p) Each of the AES Beaver Valley, the AES Deepwater, the AES
Placerita, the AES Shady Point, the AES Barbers Point and the AES
Thames facilities (each as defined in the Registration Statement) is
a "qualifying cogeneration facility" under the Federal Power Act
("FPA"), as amended by Section 201 of the Public Utility Regulatory
Policies Act of 1978 ("PURPA") and the FERC's regulations promulgated
thereunder, and each such facility's current use, operation and
ownership are consistent with such facility's status as a "qualifying
cogeneration facility".
(q) Neither the Company nor any of the Principal Subsidiaries
is (i) subject to regulation as a "holding company" or a "subsidiary
company" of a holding company or a "public utility company" under
Section 2(a) of the Public Utility Holding Company Act of 1935
("PUHCA"), except that the Company and its subsidiary in the United
Kingdom, Applied Energy Services Electric Limited, are exempt holding
companies under Section 3(a)(5) of PUHCA by order of the Commission,
(ii) subject to regulation under the FPA, other than as contemplated
by 18 C.F.R. Section 292.601(c), or (iii) except as described in the
Registration Statement (other than contained in the exhibits
thereto), subject to regulation by any state law with respect to
rates or the financial or organizational regulation of electric
utilities.
(r) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(s) Except as set forth in the Registration Statement, each
of the Company, each Principal Subsidiary, and any other subsidiary
or entity which the Company may be deemed to operate (together with
the Principal Subsidiaries, the "Subsidiaries") is in compliance with
all applicable foreign, federal, state and local environmental
(including, without limitation, the Comprehensive Environmental
Response, Compensation & Liability Act of 1980, as amended), safety
or similar law, rule and regulation, and there are no costs or
liabilities associated with any such law, rule or regulation, except
for any such noncompliances, costs or liabilities which, individually
or in the aggregate, would not have a material adverse effect on the
business, financial condition or results of operations of the Company
and the Subsidiaries, taken as a whole.
(t) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
7. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments (i) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (other
than that part of the Registration Statement that constitutes the Form
T-1) or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged 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 judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished in writing to the Company by or on
behalf of any Underwriter through you expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages, liabilities or
judgments purchased Notes, or any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages,
liabilities or judgments.
(b) In case any action shall be brought against any Underwriter or
any person controlling such Underwriter, based upon any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment or
supplement thereto and with respect to which indemnity may be sought against
the Company, such Underwriter shall promptly notify the Company in writing and
the Company shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of all
fees and expenses. Any Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (i) the
employment of such counsel has been specifically authorized in writing by the
Company, (ii) the Company has failed to assume the defense and employ counsel
or (iii) the named parties to any such action (including any impleaded
parties) include both such Underwriter or such controlling person and the
Company and such Underwriter or such controlling person shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the Company
(in which case the Company shall not have the right to assume the defense of
such action on behalf of such Underwriter or such controlling person, 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 (in addition to any local counsel) for all such
Underwriters and controlling persons, which firm shall be designated in
writing by __________________ and that all such fees and expenses shall be
reimbursed as they are incurred). The Company shall not be liable for any
settlement of any such action effected without the written consent of the
Company but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Underwriter and any such controlling
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of
this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 10 business days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Underwriter but
only with reference to information relating to such Underwriter furnished in
writing by or on behalf of such Underwriter through you expressly for use in
the Registration Statement, the Prospectus, any preliminary prospectus or any
amendment or supplement thereto. In case any action shall be brought against
the Company, any of its directors, any such officer or any person controlling
the Company based on the Registration Statement, the Prospectus or any
preliminary prospectus or any amendment or supplement thereto and in respect
of which indemnity may be sought against any Underwriter, the Underwriter
shall have the rights and duties given to the Company (except that if the
Company shall have assumed the defense thereof, such Underwriter shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof but the fees and expenses of such counsel shall be at the
expense of such Underwriter), and the Company, its directors, any such
officers and any person controlling the Company shall have the rights and
duties given to the Underwriter, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Underwriters shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received
by the Company, and the total underwriting discounts and commissions received
by the Underwriters, bear to the total price to the public of the Shares, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective number of Shares purchased by each of the
Underwriters hereunder and not joint.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the
Closing Date.
(b) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been commenced or shall be pending before or,
to the best of the Company's knowledge, contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have been
any downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization", as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act.
(d)(i) Since the date of the latest balance sheet included in the
Registration Statement, there shall not have been any material
adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the
earnings, affairs or business prospects, whether or not arising in
the ordinary course of business, of the Company and the Principal
Subsidiaries, taken as a whole, from that described in the
Registration Statement, (ii) since the date of the latest balance
sheet included in the Registration Statement there shall not have
been any material change, or any development involving a
prospective material adverse change, in the capital stock or in
the long-term debt of the Company from that set forth in the
Registration Statement, the Company shall have no liability or
obligation, direct or contingent, which is material to the Company
and the Principal Subsidiaries, taken as a whole, other than those
reflected in the Registration Statement and on the Closing Date
you shall have received a certificate dated the Closing Date,
signed by such executive officers of the Company as you may
designate, and such other certificates of executive officers and
key personnel of the Principal Subsidiaries as you may specify
confirming the matters set forth in paragraphs (a), (b), (c) and
(d) of this Section 8.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Xxxxxxx X. Xxxxxxxx, General Counsel of AES, to the
effect that:
(i) the Company and each of the Principal Subsidiaries
has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction
of incorporation and has the corporate power and authority
required to carry on its business as it is currently being
conducted and to own its properties;
(ii) the Company and each of the Principal Subsidiaries is
duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the
Company and the Principal Subsidiaries, taken as a whole;
(iii) except as set forth in the Registration Statement or
otherwise set forth on Annex I, all of the outstanding shares
of capital stock of, or other ownership interests in, the
Principal Subsidiaries have been duly and validly authorized
and issued and are fully paid and non-assessable, and are owned
of record, and to the knowledge of such counsel, after due
inquiry, beneficially, by the Company or the Principal
Subsidiary as set forth in such opinion; and such counsel,
after due inquiry, is not aware of any security interest,
claim, lien, encumbrance or adverse interest of any nature on
such shares or other ownership interests except as set forth in
the Registration Statement or in Annex I;
(iv) the Company is not in violation of its Restated
Certificate of Incorporation or in violation of its By-laws and
none of the Principal Subsidiaries is in violation of its
respective charter or, except for any such violations which
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole, its by-laws;
(v) the execution, delivery and performance of this
Agreement by the Company, compliance by the Company with all
the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not require
any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other
governmental body (except such as may be required under the
Securities Act, the Exchange Act or other securities or Blue
Sky laws) and will not conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the
charter or by-laws of the Company or any of the Principal
Subsidiaries or any agreement, indenture or other instrument
known to such counsel, to which the Company or any of the
Principal Subsidiaries is a party or by which the Company or
any of the Principal Subsidiaries or their respective
properties are bound that is material to the Company and its
Principal Subsidiaries, taken as a whole, or violate or
conflict with any laws, administrative regulations or rulings
or court decrees known to such counsel, after due inquiry,
applicable to the Company or any of the Principal Subsidiaries
or their respective properties;
(vi) such counsel does not know of any legal or
governmental proceeding pending or threatened to which the
Company or any of the Principal Subsidiaries is a party or to
which any of their respective property is subject which is
required to be described in the Registration Statement or the
Prospectus and is not so described, or of any contract or other
document which is required to be described in the Registration
Statement or the Prospectus or is required to be filed as an
exhibit to the Registration Statement which is not described or
filed as required;
(vii) each of the applicable Principal Subsidiaries has
obtained all permits, licenses, franchises and authorizations
of governmental or regulatory authorities ("permits") which are
required to have been obtained by it prior to the date hereof
and which are material to the construction, ownership or
leasing and operation of each of the Principal Subsidiaries, as
the case may be, as contemplated by the Registration Statement,
except for any such permits, the failure to have obtained
which, individually or in the aggregate would not have a
material adverse effect on the business, financial condition or
results of operations of the Company and the Principal
Subsidiaries, taken as a whole, and subject to such
qualifications as may be set forth in the Registration
Statement, and all such permits are in full force and effect;
and such counsel has no reason to believe that any other
permits which may be material to the construction, ownership or
leasing and operation of such facilities will not be obtained
in due course;
(viii) each of the AES Beaver Valley, the AES Deepwater,
the AES Placerita, the AES Shady Point, the AES Barbers Point
and the AES Thames facilities is a "qualifying cogeneration
facility" under the FPA, as amended by Section 201 of PURPA and
the FERC regulations promulgated thereunder, and, to the best
of such counsel's knowledge, after due inquiry, each such
facility's current use, operation and ownership are consistent
with such facility's status as a "qualifying cogeneration
facility";
(ix) neither the Company nor any of the Principal
Subsidiaries is (i) subject to regulation as a "holding
company" or a "subsidiary company" of a holding company or an
"affiliate" of a subsidiary or holding company or a "public
utility company" under Section 2(a) of PUHCA, except that the
Company and its subsidiary in the United Kingdom, Applied Energy
Services Electric Limited, are exempt holding companies under
Section 3(a)(5) of PUHCA by order of the Commission, (ii)
subject to regulation under the FPA, other than as contemplated
by 18 C.F.R. Section 292.601(c), or (iii) except as described
in the Registration Statement, subject to regulation under any
state law with respect to the rates or the financial or
organizational regulation of electric utilities; and
(x) the Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Xxxxx Xxxx & Xxxxxxxx, counsel for the Company, to
the effect that:
(i) the Shares have been duly authorized and, when
issued and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be fully paid
and non-assessable, and the issuance of such Shares is not
subject to any preemptive or similar rights;
(ii) this Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company (except as rights to indemnity and
contribution hereunder may be limited by applicable law);
(iii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Registration Statement and the Prospectus;
(iv) the Registration Statement has become effective
under the Act (assuming compliance with clause (2) of Rule
462(b) in the case of the Additional Registration Statement)
and, to the best of such counsel's knowledge, no stop order
suspending its effectiveness has been issued and no proceedings
for that purpose are pending before or contemplated by the
Commission;
(v) the statements under the captions "____________" in
the Prospectus, insofar as such statements constitute a summary
of the legal matters, documents or proceedings specifically
referred to therein, fairly present all the material
information called for with respect to such legal matters,
documents or proceedings;
(vi) except for the order of the Commission making the
Registration Statement effective and permits and similar
authorizations required under the securities or Blue Sky laws
of certain states, no consent, approval, authorization or other
order of any regulatory body, administrative agency or other
governmental body is legally required for the valid issuance
and sale of the Shares to the Underwriters as contemplated by
this Agreement or the public offering of the Shares
contemplated by the Prospectus; and
(vii) the Registration Statement and the Prospectus and
any supplement or amendment thereto (except for financial
statements and other financial and statistical information
therein as to which no opinion need be expressed) comply as to
form in all material respects with the Act.
In addition, Xxxxx Xxxx & Xxxxxxxx will deliver a separate
letter to the effect that such counsel has participated in
conferences with directors, officers and other representatives of the
Company and representatives of the independent public accountants for
the Company, at which conferences the contents of the Registration
Statement and related matters were discussed, and, although such
counsel has not independently verified and is not passing upon and
assume no responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement, except as
specified, no facts have come to such counsel's attention which lead
such counsel to believe that the Registration Statement (other than
any financial statements or other financial or statistical
information therein as to which no opinion is expressed) at its
effective date contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements contained therein not misleading, or
that the Prospectus as of its date or the Closing Date (other than
any financial statements or other financial or statistical information
therein as to which no opinion is expressed), contained any untrue
statement of a material fact or omitted to state any material fact
necessary to make the statements contained therein, in the light of
the circumstances under which they were made, not misleading.
In rendering their opinions above, Xxxxx Xxxx & Xxxxxxxx may
rely as to factual matters on such certificates of the Company's
officers or of governmental officials as they may deem relevant or
necessary for such opinions and as to matters governed by other than
federal or New York law or by the General Corporation Law of Delaware
on opinions of local counsel.
In addition, Xx. Xxxxxxxx will deliver a separate letter to
the effect that such counsel has participated in conferences with
directors, officers and other representatives of the Company and
representatives of the independent public accountants for the
Company, at which conferences the contents of the Registration
Statement and related matters were discussed, and, although such
counsel has not independently verified and is not passing upon and
assume no responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement, except as
specified, no facts have come to such counsel's attention which lead
such counsel to believe that the Registration Statement (other than
any financial statements or other financial or statistical
information therein as to which no opinion is expressed) at its
effective date contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements contained therein not misleading, or
that the Prospectus as of its date or the Closing Date (other than
any financial statements or other financial or statistical information
therein as to which no opinion is expressed), contained any untrue
statement of a material fact or omitted to state any material fact
necessary to make the statements contained therein, in the light of
the circumstances under which they were made, not misleading.
In rendering the opinions above, Xx. Xxxxxxxx may rely as to
factual matters on such certificates of the Company's officers or of
governmental officials as he may deem relevant or necessary for such
opinions and as to matters governed by other than federal or New York
law or by the General Corporation Law of Delaware on opinions of
local counsel.
(g) You shall have received on the Closing Date an opinion,
dated the Closing Date, of ___________, counsel for the Underwriters,
as to the matters referred to in clauses (i), (ii), (iii), (vi) (but
only with respect to the statements under the captions "Description
of Capital Stock" and "Underwriting") and (viii) of the foregoing
paragraph (f).
With respect to subparagraph (viii) of paragraph (f) above and
the final subparagraph of this paragraph (g), __________ may state
that their opinion and belief is based upon their participation in
the preparation of the Registration Statement and the Prospectus and
any amendments or supplements thereto (but not including documents
incorporated therein by reference) and review and discussion of the
contents thereof (including documents incorporated therein by
reference), but is without independent check or verification except
as specified.
In addition, Xxxxx Xxxx & Xxxxxxxx will opine to the effect
that such counsel has participated in conferences with officers and
other representatives of the Company and representatives of the
independent public accountants for the Company, at which conferences
the contents of the Registration Statement and related matters were
discussed, and, although such counsel has not independently verified
and is not passing upon and assume no responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, except as specified, no facts have come to
such counsel's attention which lead such counsel to believe that the
Registration Statement (other than any financial statements or other
financial or statistical information therein and that part of the as
to which no opinion is expressed) at its effective date contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements contained therein not misleading, or that the Prospectus
as of its date or the Closing Date (other than any financial
statements or other financial or statistical information therein as to
which no opinion is expressed), contained any untrue statement of a
material fact or omitted to state any material fact necessary to make
the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
(h) You shall have received a letter on and as of the Closing
Date, in form and substance satisfactory to you, from Deloitte &
Touche, independent public accountants, with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus and substantially in the
form and substance of the letter delivered to you by Deloitte &
Touche on the date of this Agreement.
(i) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the
Company at or prior to the Closing Date.
The several obligations of the Underwriters to purchase any Additional
Securities hereunder are subject to the delivery to you on the applicable
Option Closing Date of such documents as you may reasonably request with
respect to the good standing of the Company, the due authorization and
issuance of such Additional Securities and other matters related to the
issuance of such Additional Securities.
9. Effective Date of Agreement and Termination. This Agreement
shall become effective upon the later of (i) execution of this Agreement and
(ii) when notification of the effectiveness of the Registration Statement has
been released by the Commission.
This Agreement may be terminated at any time prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any adverse change or
development involving a prospective adverse change in the condition, financial
or otherwise, of the Company, any Principal Subsidiary or the earnings,
affairs, or business prospects of the Company or any Principal Subsidiary,
whether or not arising in the ordinary course of business, which would, in
your reasonable judgment, make it impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus, (ii) any outbreak or
escalation of hostilities or other national or international calamity or
crisis or material change in economic conditions, if the effect of such
outbreak, escalation, calamity, crisis or change on the financial markets of
the United States or elsewhere would, in your reasonable judgment, make it
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus, (iii) the suspension or material limitation of trading in
securities on the New York Stock Exchange, the American Stock Exchange or the
NASDAQ National Market System or limitation on prices for securities on any
such exchange or National Market System, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your reasonable
judgment materially and adversely affects, or will materially and adversely
affect, the business or operations of the Company, (v) the declaration of a
banking moratorium by either federal or New York State authorities or (vi) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your reasonable judgment
has a material adverse effect on the financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm
Shares set forth opposite its name in Schedule I bears to the total number of
Firm Shares which all the non-defaulting Underwriters, as the case may be,
have agreed to purchase, or in such other proportion as you may specify, to
purchase the Firm Shares or Additional Shares, as the case may be, which such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed
or refused to purchase on such date; provided that in no event shall the
number of Firm Shares or Additional Shares, as the case may be, which any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number
of Firm Shares or Additional Shares, as the case may be, without the written
consent of such Underwriter. If on the Closing Date or on an Option Closing
Date, as the case may be, any Underwriter or Underwriters shall fail or refuse
to purchase Firm Shares, or Additional Shares, as the case may be, and the
aggregate number of Firm Shares or Additional Shares, as the case may be, with
respect to which such default occurs is more than one-tenth of the aggregate
number of Shares to be purchased on such date by all Underwriters and
arrangements satisfactory to you and the Company for purchase of such Shares
are not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter and the
Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, or the applicable Option Closing Date, as the case may be, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and the Prospectus or any other documents
or arrangements may be effected. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any
default of any such Underwriter under this Agreement.
10. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to The AES
Corporation, 0000 X. 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention:
General Counsel and (b) if to any Underwriter or to you, to you c/o
____________________________, Attention: Syndicate Department, or in any case
to such other address as the person to be notified may have requested in
writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, its officers and directors and
of the several Underwriters set forth in or made pursuant to this Agreement
shall remain operative and in full force and effect, and will survive delivery
of and payment for the Shares, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter
or by or on behalf of the Company, the officers or directors of the Company
or any controlling person of the Company, (ii) acceptance of the Shares and
payment for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, the Company agrees to
reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriters.
Very truly yours,
THE AES CORPORATION
By: _________________________________
Title:
Acting severally on behalf of
itself and the several Underwriters
named above
By: _________________________________
Title:
SCHEDULE I
Principal Amount of Firm Shares
Underwriters to be Purchased
------------ --------------------------------
------------------
Total........................... $
==================
Annex I
Principal Subsidiaries
Ownership Security
Name Interest Interest
---- ---------- --------
