Exhibit 1(c)
COLUMBUS SOUTHERN POWER COMPANY
Underwriting Agreement
Dated ____________________
AGREEMENT made between COLUMBUS SOUTHERN POWER COMPANY, a
corporation organized and existing under the laws of the State of
Ohio (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 [Junior Subordinated Debentures] to be
issued pursuant to the Indenture dated as of September 1, 1995,
between the Company and The First National Bank of Chicago, 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 [Junior Subordinated Debentures] 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 a
prospectus supplement which includes certain information relating
to the Underwriters, the principal amount, price and terms of
offering, the interest rate and redemption prices of the [Junior
Subordinated Debentures], 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 [Junior Subordinated Debentures] set opposite their names in
Exhibit 1 hereto, together aggregating all of the [Junior
Subordinated Debentures], at a price equal to ______% of the
principal amount thereof.
2. Payment and Delivery: Payment for the [Junior
Subordinated Debentures] 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 Xxxxxxx Xxxxxxx & Xxxxxxxx, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, or at such other
place as the Company and the Representative shall mutually agree in
writing, upon the delivery of the [Junior Subordinated Debentures]
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 [Junior Subordinated Debentures] 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 [Junior Subordinated
Debentures] shall be satisfactory in form and
substance to Xxxxx Xxxxxxxxxx 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 Xxxxx
Xxxxxxxxxx LLP, counsel to the Underwriters:
(1) Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx and any
of Xxxx X. Xx Xxxxxxx, Xx. Esq., Xxxxxx X.
Xxxxxxxxxx, Esq., Xxxxx X. House, Esq. or
Xxxxxxx X. Xxxxxxx, Esq., counsel to the
Company, substantially in the forms attached
hereto as Exhibits A and B; and
(2) Opinion of Xxxxx Xxxxxxxxxx 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 [Junior Subordinated
Debentures] 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 Xxxxx Xxxxxxxxxx LLP, counsel to the
Underwriters.
(e) That, at the Time of Purchase, an appropriate order
of The Public Utilities Commission of Ohio,
necessary to permit the sale of the [Junior
Subordinated Debentures] to the Underwriters, shall
be in effect; and that, prior to the Time of
Purchase, no stop order with respect to the effec-
tiveness 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 Represen-
tative 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 [Junior
Subordinated Debentures] 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 [Junior Subordinated Debentures] 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 [Junior
Subordinated Debentures] for offer and sale under
the securities or "blue sky" laws of such juris-
dictions 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 [Junior
Subordinated Debentures] by the respective Under-
writers) in connection with the issuance and
delivery of the [Junior Subordinated Debentures],
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 Xxxxx Xxxxxxxxxx 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 [Junior Subordinated Debentures] 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 Xxxxx Xxxxxxxxxx
LLP, counsel to the Underwriters, and, if the
Underwriters shall not take up and pay for the
[Junior Subordinated Debentures] 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 Rule 52 under the Public Utility
Holding Company Act of 1935 in connection with the
sale of the [Junior Subordinated Debentures].
[(j) The Company will use its best efforts to list,
subject to notice of issuance, the [Junior
Subordinated Debentures] 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 [Junior Subordinated
Debentures] 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 [Junior
Subordinated Debentures] 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
[Junior Subordinated Debentures] 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; (D) the approval of The Public Utilities
Commission of Ohio; and (E) 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 [Junior Subordinated
Debentures] 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 [Junior
Subordinated Debentures] 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 [Junior Subordinated
Debentures] which it has agreed to purchase and pay for hereunder,
and the aggregate principal amount of [Junior Subordinated
Debentures] 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 [Junior Subordinated
Debentures], the other Underwriters shall be obligated severally in
the proportions which the amounts of [Junior Subordinated
Debentures] set forth opposite their names in Exhibit 1 hereto bear
to the aggregate principal amount of [Junior Subordinated
Debentures] set forth opposite the names of all such non-defaulting
Underwriters, to purchase the [Junior Subordinated Debentures]
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 [Junior Subordinated
Debentures] 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 [Junior
Subordinated Debentures] without the written consent of such
Underwriter. If any Underwriter or Underwriters shall fail or
refuse to purchase [Junior Subordinated Debentures] and the
aggregate principal amount of [Junior Subordinated Debentures] with
respect to which such default occurs is more than one-tenth of the
aggregate principal amount of the [Junior Subordinated Debentures]
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 [Junior Subordinated Debentures] 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 [Junior Subordinated
Debentures] 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 Under-
writer 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 Repre-
sentative's reasonable judgment, the Underwriters' ability to
market the [Junior Subordinated Debentures] 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 Xxxxx'x 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 transmis-
sion, 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 [Junior Subordinated Debentures] 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 trans-
actions 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 con-
firmed in writing to the following addresses: if to the Under-
writers, to _______________________________________________, as
Representative, _____________________________________________, and,
if to the Company, to Columbus Southern Power Company, c/o American
Electric Power Service Corporation, 0 Xxxxxxxxx Xxxxx, Xxxxxxxx,
Xxxx 00000, attention of X. X. Xxxx, Treasurer, (fax 614/000-0000).
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 [Junior Subordinated
Debentures] 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, and the further
condition that at the Time of Purchase The Public Utilities
Commission of Ohio shall have issued an appropriate order, and such
order shall remain in full force and effect, authorizing the
transactions contemplated hereby.
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.
COLUMBUS SOUTHERN POWER COMPANY
By:____________________________
X. X. Xxxx
Treasurer
___________________________________
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
By:____________________________
EXHIBIT 1
Name Principal Amount
