EXHIBIT 1.3
[FORM OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS AGREEMENT]
THE AES CORPORATION
Preferred Redeemable Increased Dividend Equity Securities, ___% PRIDES
(Stated Amount $___ per Security.)
PURCHASE AGREEMENT
_______, 199_
Dear Sirs:
The AES Corporation, a Delaware corporation (the "Company") and
the several Underwriters named in Schedule I hereto (collectively, the
"Underwriters"), for whom you are acting as the representatives (in such
capacity, such firms shall hereinafter be referred to as the
"Representatives") propose, subject to the terms and conditions stated herein,
to enter into the Purchase Contracts referred to in the Purchase Contract
Agreement dated as of _________ (the "Purchase Contract Agreement") between
the Company and _____________________, as Purchase Contract Agent (the
"Purchase Contract Agent"), relating to an aggregate of ____________
Preferred Redeemable Increased Dividend Securities, ___% PRIDES, Stated
Amount $______ per Security (the "PRIDES"). In connection therewith, the
Underwriters propose, subject to the terms and conditions stated herein, to
purchase at the direction of the Company, the underlying [Treasury Notes of
the United States Government] bearing interest at the rate of ___% per
annum and maturing on ____________ (the "Treasury Notes"), having an
aggregate principal amount of $______________. The Treasury Notes will be
pledged with _____________, as collateral agent for the Company (the
"Collateral Agent"), to secure the holders' obligation to purchase common
stock, $.01 par value, of the Company (the "Common Stock") under the
Purchase Contracts. The Company proposes to grant to the Underwriters an
option to enter into Purchase Contracts underlying up to ____________
additional PRIDES (the "Option Securities") and, in the event any such
additional Purchase Contracts are entered into, the Underwriters propose to
purchase, at the direction of the Company, the additional Treasury Notes
underlying such Option Securities, which would also be pledged to the
Collateral Agent. The aforesaid ____________ PRIDES (the "Initial
Securities") and all or any part of the Option Securities subject to the
over-allotment option described in Section 2(b) hereof are collectively
referred to herein as the "Securities". Capitalized terms used herein
without definition shall be used as defined in the Purchase Contract
Agreement.
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, ___% Preferred
Redeemable Increased Dividend Equity Securities (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 Securities 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 Security 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 enter into the Purchase
Contracts underlying the number of Initial Securities set forth in Schedule I
hereto opposite the name of such Underwriter, plus any additional Purchase
contracts underlying the number of Initial Securities which such Underwriter
may become obligated to enter into pursuant to the provisions of Section (a)
hereof.
In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company hereby grants to the Underwriters, severally and not jointly, the
right to enter into, at their election, up to __________ additional Purchase
Contracts. The option hereby granted will expire automatically at the close
of business on the 30th calendar day after the date the Registration Statement
and any Rule 46(b) Registration Statement becomes effective, and may be
exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Underwriters to the
Company setting forth the aggregate number of additional Purchase Contracts to
be entered into and the time and date of delivery for the related Option
Securities. Any such time and date of delivery (a "Date of Delivery") shall
be determined by the Underwriters but shall not be later than seven full
business days after the exercise of such option nor in any event before the
Closing Time, as hereinafter defined, unless otherwise agreed upon by the
Underwriters and the Company. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally
and not jointly, will enter into that proportion of the total number of
additional Purchase Contracts as to which such election has be exercised which
the number of Initial Securities set forth in Schedule I opposite the name of
such Underwriter bears to the total number of Initial Securities (subject in
each case to such adjustments as the Underwriters in their discretion shall
make to eliminate any fractional Purchase Contracts).
The Underwriters agree to purchase, at the direction of the
Company, the Treasury Notes underlying the Securities with respect to which
the Company and the Underwriters have entered into the Purchase Contracts.
The Treasury Notes will be pledged with the Collateral Agent to secure the
holders' obligations to purchase Common Stock under the Purchase Contracts.
Such pledge shall be effected by the transfer to the Collateral Agent by
Federal Reserve Bank-Wire of the Treasury Notes to be pledged at the Closing
Time and appropriate Date of Delivery, if any, in accordance with the Pledge
Agreement.
[The Company hereby agrees not to offer, sell contract to sell,
grant any option to purchase, or otherwise dispose of any Securities, Purchase
Contracts or Common Stock of the Company or any securities of the Company
similar to the Securities, Purchase Contracts or Common Stock or any security
convertible into or exercisable or exchangeable for Securities, Purchase
Contracts or Common Stock or in any other manner transfer all or a portion of
the economic consequences associated with the ownership of any Securities,
Purchase Contracts or 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 Initial Securities as soon after the effective date
of the Registration Statement as in your judgment is advisable and (ii)
initially to offer the Initial Securities upon the terms set forth in the
Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Initial Securities 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 Option
Securities to be purchased by the Underwriters and payment of the related
Underwriters' Compensation shall be made at such place as you shall designate
at 10:00A.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 Option Securities may be varied by agreement between you and
the Company.
Certificates for the Securities 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 10A.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
Securities 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 the Business Day prior to the Closing Date or the
applicable Option Closing Date, as the case may be) 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 Securities; 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
Securities 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
Securities 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 Securities, to
cooperate with you and counsel for the Underwriters in connection
with the registration or qualification of the Securities 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 Securities 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 Securities 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 Securities 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
Securities 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 Securities, including any expenses of the Trustee, (ii) the
preparation, printing, filing and distribution under the Securities
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 Securities (including in each case any disbursements of
counsel for the Underwriters relating to such printing and delivery),
(v) the registration or qualification of the Securities 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 Securities by the Underwriters or by dealers to whom
Securities may be sold and (viii) the rating of the Securities
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 and to satisfy all
conditions precedent to the delivery of the Securities.
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 of Common Stock to be issued and sold by the
Company pursuant to the Purchase Contract Agreement (the "Shares")
and the preferred share purchase rights (the "Rights") to be issued
with the Shares have been duly and validly authorized and reserved
for issuance; such Shares, when issued and delivered in accordance
with the provisions of the Purchase Contract Agreement and the Pledge
Agreement dated as of _________ (the "Pledge Agreement") among the
Company, the Collateral Agent and the Purchase Contract Agent, will
be duly authorized, validly issued and fully paid and non-assessable
and will conform to the descriptions of the Common Stock and the
Rights contained in the Prospectus and the Registration Statement;
and the issuance of such Shares will not be subject to preemptive or
other similar rights.
(f) The entry into the Purchase Contracts underlying the
Securities by the Company, the offer of the Securities as
contemplated herein and in the Prospectus, the issue and sale of the
Shares by the Company pursuant to the Purchase Contracts; the
execution, delivery and performance by the Company of all of the
provisions of this Agreement and the Pledge Agreement; the
consummation of the transactions herein and therein and thereunder
and hereunder have been duly authorized by all necessary corporate
action of the Company and will not conflict with or constitute a
breach of, or a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries, or any applicable law, administrative regulation or
administrative or court decree.
(g) 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).
(h) The Purchase Contract Agreement and the Pledge Agreement
have been duly authorized, executed and delivered by the Company, and
each constitutes a legal, valid and binding obligation of the Company
enforceable in accordance with its terms.
(i) The Securities conform as to legal matters to the
description thereof contained in the Registration Statement and the
Prospectus.
(j) 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.
(k) The execution, delivery and performance of this Agreement,
the compliance by the Company with all the provisions hereof, the
consummation of the transactions contemplated hereby, the entry into
the Purchase Contracts underlying the Securities, the issuance and
sale of the Securities hereunder, the issuance and sale of the shares
by the Company pursuant to such Purchase Contracts or the
consummation by the Company of the transactions contemplated under
this Agreement, such Purchase Contracts, the Purchase Contract
Agreement and the Pledge Agreement 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, the Trust
Indenture 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).
(l) 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.
(m) 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.
(n) 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.
(o) Deloitte & Touche are independent public accountants with
respect to the Company as required by the Securities Act.
(p) 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.
(q) 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.
(r) 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".
(s) 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.
(t) 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.
(u) 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.
(v) 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 Securities 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 Notes 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 Securities 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 Securities 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 Securities, 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 Securities 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 Securities 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
Securities purchased by each of the Underwriters hereunder and not joint.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Initial Securities 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, (iii) 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 (iv) 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, the Purchase Contract Agreement and the Pledge
Agreement, the issuance of the Securities 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 subject to the Purchase Contract
Agreement have been duly and validly authorized and reserved
for issuance and, when issued and delivered by the Company in
accordance with the provisions of the Purchase Contract
Agreement and the Pledge Agreement, will be fully paid and
non-assessable; the issuance of such Shares will not be subject
to preemptive or other similar rights arising by law or, to the
best of such counsel's knowledge, otherwise;
(ii) the Purchase Contract Agreement, the Purchase
Contracts underlying the Securities being delivered at the
closing time and at any Date of Delivery and the Pledge
agreement have been duly authorized, executed and delivered by
the company;
(iii) the entry into the Purchase contracts underlying
the Securities, the offer of the Securities by the Company as
contemplated herein and in the Prospectus, the issue and sale
of the Shares by the Company pursuant to the Purchase
Contracts; the execution, delivery and performance by the
Company of all of the provisions of this Agreement, the Pricing
Agreement, the Purchase Contracts, the Purchase Contract
Agreement and the Pledge Agreement; the consummation of the
transactions contemplated herein and therein; and the
compliance by the Company with its obligations hereunder and
thereunder will not result in any violation of the provisions
of the charter or by-laws of the Company or any of its
subsidiaries, or any applicable law, administrative regulation
or administrative or court decree;
(iv) the Rights to be issued with the Shares have been
duly authorized and, upon issuance of such Shares, will be
validly issued and conform to the description thereof in the
Prospectus;
(v) 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);
(vi) the certificate(s) used to evidence the Securities
are in a form contemplated by the Purchase Contract Agreement
and comply with all applicable statutory requirements and with
the requirements of the New York Stock Exchange;
(vii) the Registration Statement has become effective
under the Securities 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;
(viii) 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;
(ix) 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 Securities to the Underwriters as contemplated
by this Agreement or the public offering of the Securities
contemplated by the Prospectus;
(x) 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 Securities Act;
(xi) the entry into the Purchase Contracts underlying the
Securities, the offer of the Securities by the Company as
contemplated herein and in the Prospectus, the issue and sale
of the Shares by the Company pursuant to the Purchase
Contracts; the execution, delivery and performance by the
Company of all of the provisions of this Agreement, the
Purchase Contracts, the Purchase Contract Agreement and the
Pledge Agreement; the consummation of the transactions
contemplated herein and therein; and the compliance by the
Company with its obligations hereunder and thereunder have been
duly authorized by all necessary corporate action of the
Company and will not conflict with or constitute a breach
of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it
or any of them may be bound, or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or of
its subsidiaries, or any applicable law, administrative
regulation or administrative or court decree;
(xii) the Shares and the Securities conform in all
material respects to the description thereof contained in the
Prospectus and the Registration Statement; and
(xiii) no authorization, approval, consent, order,
registration or qualification of or with any court or federal
or New York state governmental authority or agency is required
for the entry into the Purchase Contracts underlying the
Securities, the issuance and sale of the Securities hereunder
or the issuance and sale of the Shares by the Company pursuant
to such Purchase Contracts or the consummation by the Company
of any transactions contemplated under this Agreement, such
Purchase Contracts, the Purchase Contract Agreement and the
Pledge Agreement, except such as have been obtained and made
under the federal securities laws or such as may be required
under state or foreign securities or Blue Sky laws.
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 and that part of the Registration Statement that
constitutes the Form T-1 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 and that part of the Registration Statement that
constitutes the Form T-1 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 ___________" 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
Registration Statement that constitutes the Form T-1 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.
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 Securities 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 Securities 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 any one or more of the Underwriters
shall fail or refuse to enter into the Purchase Contracts underlying the
Initial Securities which it or they are obligated to enter into under this
Agreement and the aggregate number of the Initial Securities 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
Initial Securities to be purchased by all Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the
principal amount of Initial Securities set forth opposite its name in Schedule
I bears to the aggregate number of Initial Securities 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 enter into Purchase Contracts
underlying the full amount thereof; provided that in no event shall the number
of Initial Securities 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 Initial Securities without the written
consent of such Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Initial Securities and the
aggregate number of Initial Securities with respect to which such default
occurs is more than one-tenth of the aggregate number of Initial Securities to
be purchased on such date by all Underwriters in the event of a default by a
Underwriter and arrangements satisfactory to you and the Company for purchase
of such Initial Securities 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 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 Securities, 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
Securities 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 Securities 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:____________________________
Acting severally on behalf of
itself and the several Underwriters
named above
By:________________________________
SCHEDULE I
Number of Initial Securities
Underwriters to be Purchased
------------ ----------------------------
---------------
Total.................................... $
===============
Annex I
Principal Subsidiaries
Ownership Security
Name Interest Interest
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