AMERICAN ELECTRIC POWER COMPANY, INC. Underwriting Agreement Dated ____________________
Exhibit
1(b)
AMERICAN
ELECTRIC POWER COMPANY, INC.
Dated
____________________
AGREEMENT made between AMERICAN
ELECTRIC POWER COMPANY, INC., a corporation organized and existing under the
laws of the State of New York (the "Company"), and the several persons, firms
and corporations (the "Underwriters") named in Exhibit 1 hereto.
WITNESSETH:
WHEREAS, the Company proposes to issue
and sell __________ shares of its [Common Stock]; 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 [Common
Stock] and such registration statement has become effective; and
WHEREAS, such registration statement,
as it may have been amended to the date hereof, including the financial
statements, the documents incorporated or deemed incorporated therein by
reference and the exhibits, being herein called the Registration Statement, and
the prospectus, as included or referred to in the Registration Statement to
become effective, as it may be last amended or supplemented prior to the
effectiveness of the agreement (the Basic Prospectus), and the Basic Prospectus,
as supplemented by one or more prospectus supplements which includes certain
information relating to the Underwriters, the number of shares, price and terms
of offering, the interest rate and redemption prices of the [Common Stock],
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 number of shares of the [Common
Stock] set opposite their names in Exhibit 1 hereto, together aggregating all of
the [Common Stock] issued under the above-referenced Registration Statement, at
a price equal to $______ per share.
2. Payment and
Delivery: Payment for the [Common Stock] 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 [Common Stock] certificates 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 [Common Stock]
certificates 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 [Common Stock] 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 Xxxxxx X. Xxxxxxxxxx, Esq.,
Xxx X. Xxxx, Esq., Xxxxx X. House, Esq., Xxxxxxx X. Xxxxxxx, Esq. or Xxxxx
X. Xxxxx, 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 [Common Stock] 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, prior to the Time of Purchase, no stop order with
respect to the effectiveness of the Registration Statement shall have been
issued under the Act by the Commission or proceedings therefor
initiated.
|
|
|
(f)
|
That,
at the Time of Purchase, there shall not have been any material adverse
change in the business, properties or financial condition of the Company
from that set forth in the Prospectus (other than changes referred to in
or contemplated by the Prospectus), and that the Company shall, at the
Time of Purchase, have delivered to the Representative a certificate of an
executive officer of the Company to the effect that, to the best of his
knowledge, information and belief, there has been no such
change.
|
|
|
(g)
|
That
the Company shall have performed such of its obligations under this
Agreement as are to be performed at or before the Time of Purchase by the
terms hereof.
|
4. Certain Covenants of the
Company: In further consideration of the agreements of the
Underwriters herein contained, the Company covenants as follows:
|
|
(a)
|
As
soon as practicable, and in any event within the time prescribed by Rule
424 under the Act, to file any Prospectus Supplement relating to the
[Common Stock] 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
shares of the [Common Stock] 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 [Common Stock] for offer and sale
under the securities or "blue sky" laws of such jurisdictions as the
Representative may designate within six months after the date hereof and
itself to pay, or to reimburse the Underwriters and their counsel for,
reasonable filing fees and expenses in connection therewith in an amount
not exceeding $3,500 in the aggregate (including filing fees and expenses
paid and incurred prior to the effective date hereof), provided, however,
that the Company shall not be required to qualify as a foreign corporation
or to file a consent to service of process or to file annual reports or to
comply with any other requirements deemed by the Company to be unduly
burdensome.
|
|
|
(g)
|
To
pay all expenses, fees and taxes (other than transfer taxes on resales of
the [Common Stock] by the respective Underwriters) in connection with the
issuance and delivery of the [Common Stock], 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 [Common Stock] 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 [Common Stock]
due to the failure of the Company to comply with any of the conditions
specified in Section 3 hereof, to reimburse the Underwriters for their
reasonable out-of-pocket expenses, in an aggregate amount not exceeding a
total of $10,000, incurred in connection with the financing contemplated
by this Agreement.
|
|
|
(i)
|
The
Company will timely file any certificate required by the Public Utility
Holding Company Act of 1935 in connection with the sale of the [Common
Stock].
|
|
|
[(j)
|
The
Company will use its best efforts to list, subject to notice of issuance,
the [Common Stock] 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 [Common Stock] 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 [Common Stock] 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)
|
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 Common Stock (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, 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 Common Stock 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.
|
|
|
(c)
|
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.
|
|
|
(d)
|
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.
|
|
|
(e)
|
This
Agreement has been duly authorized, executed and delivered by the
Company.
|
|
|
(f)
|
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.)
|
|
|
(g)
|
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"); and (C) 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 [Common Stock]
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 [Common Stock] 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 shares of [Common Stock]
which it has agreed to purchase and pay for hereunder, and the aggregate number
of shares of [Common Stock] which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of shares of the [Common Stock], the other Underwriters shall
be obligated severally in the proportions which the shares of [Common Stock] set
forth opposite their names in Exhibit 1 hereto bear to the aggregate number of
shares of [Common Stock] set forth opposite the names of all such non-defaulting
Underwriters, to purchase the [Common Stock] which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on the terms set forth
herein; provided that in no event shall the number of shares of [Common Stock]
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 [Common Stock] without the written consent of such
Underwriter. If any Underwriter or Underwriters shall fail or refuse
to purchase [Common Stock] and the aggregate number of shares of [Common Stock]
with respect to which such default occurs is more than one-tenth of the
aggregate number of shares of the [Common Stock] 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 [Common Stock] 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 [Common Stock] without some reason sufficient to
justify, in accordance with the terms hereof, its termination of its obligations
hereunder) be under any liability to the Company or any other
Underwriter.
Nothing herein contained shall release
any defaulting Underwriter from its liability to the Company or any
non-defaulting Underwriter for damages occasioned by its default
hereunder.
8. Termination of Agreement by
the Underwriters: This Agreement may be terminated at any time
prior to the Time of Purchase by the Representative if, after the execution and
delivery of this Agreement and prior to the Time of Purchase, in the
Representative's reasonable judgment, the Underwriters' ability to market the
[Common Stock] shall have been materially adversely affected
because:
|
(i)
|
|
(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 transmission,
confirmed in writing. If this Agreement shall not be carried out by
any Underwriter for any reason permitted hereunder, or if the sale of the
[Common Stock] to the Underwriters as herein contemplated shall not be carried
out because the Company is not able to comply with the terms hereof, the Company
shall not be under any obligation under this Agreement and shall not be liable
to any Underwriter or to any member of any selling group for the loss of
anticipated profits from the transactions contemplated by this Agreement (except
that the Company shall remain liable to the extent provided in Section 4(h)
hereof) and the Underwriters shall be under no liability to the Company nor be
under any liability under this Agreement to one another.
9. Notices: All
notices hereunder shall, unless otherwise expressly provided, be in writing and
be delivered at or mailed to the following addresses or by telex or facsimile
transmission confirmed in writing to the following addresses: if to
the Underwriters, to
_______________________________________________________________, as
Representative, _____________________________________________, and, if to the
Company, to American Electric Power Company, Inc., c/o American Electric Power
Service Corporation, 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
[Common Stock] from any of the respective Underwriters.
12. Conditions of the Company's
Obligations: The obligations of the Company hereunder are
subject to the Underwriters' performance of their obligations
hereunder.
13. Applicable
Law: This Agreement will be governed and construed in
accordance with the laws of the State of New York.
14. Execution of
Counterparts: This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed by their respective officers thereunto
duly authorized, on the date first above written.
AMERICAN ELECTRIC POWER COMPANY,
INC.
By:____________________________
X. X. Xxxx
Treasurer
___________________________________
as
Representative
and on
behalf of the Underwriters
named
in Exhibit 1 hereto
By:____________________________
EXHIBIT
1
Name Number of
Shares
