AMERICAN ELECTRIC POWER COMPANY, INC. Underwriting Agreement 60,000,000 Shares* Common Stock ($6.50 par value) Dated April 1, 2009
Exhibit
1(a)
AMERICAN
ELECTRIC POWER COMPANY, INC.
60,000,000
Shares*
Common
Stock
($6.50
par value)
Dated
April 1, 2009
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 to the Underwriters 60,000,000 shares of common stock, $6.50 par value
(Common Stock), of the Company (the Underwritten Shares); and
WHEREAS, the Company also proposes to
grant to the Underwriters an option to purchase up to an additional 9,000,000
shares of Common Stock to cover over-allotments (the Option Shares; the Option
Shares, together with the Underwritten Shares, being hereinafter called the
Shares); and
WHEREAS, the Underwriters have
designated the persons signing this Agreement (collectively, 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, as
amended (the Act), with the Securities and Exchange Commission (the Commission),
a registration statement (File No. 333-156387), which was effective upon filing
with the Commission, and a prospectus relating to, among other securities, its
Common Stock; and
WHEREAS, such registration statement,
including the financial statements, the documents incorporated or deemed
incorporated therein by reference, and the exhibits thereto, being herein
called, collectively, the Registration Statement, and the prospectus, including
the documents incorporated or deemed incorporated therein by reference,
constituting a part of such Registration Statement, as it may be last amended or
supplemented prior to the effectiveness of this Agreement, but excluding any
amendment or supplement relating solely to securities other than the Shares,
being herein called the Basic Prospectus, and the Basic Prospectus, as amended
and supplemented, including documents incorporated by reference therein,
together with the Preliminary Prospectus Supplement dated March 30, 2009,
immediately prior to the Applicable Time (as defined below), being herein called
the Pricing Prospectus, and the Basic Prospectus included in the Registration
Statement, as it is to be supplemented by a final prospectus supplement (the
Prospectus Supplement) to include information relating to the Shares, including
the names of the Underwriters, the price and terms of the offering, and certain
other information relating to the Shares, which will be filed with the
Commission pursuant to 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 called
the Prospectus.
For purposes of this Agreement, the
Applicable Time is 5:30 pm (New York Time) on the date of this Agreement and the
documents and information listed in Exhibit 2, taken together, collectively
being herein called the Pricing Disclosure Package.
For purposes of this Agreement,
Permitted Free Writing Prospectus shall mean (a) one or more free writing
prospectuses that contain only preliminary or final terms of the Shares and is
not required to be filed by the Company pursuant to Rule 433, and (b) a free
writing prospectus that contains no more than “issuer information” (as defined
in Rule 433(h)(2) under the Act) that was previously included in the Pricing
Prospectus or a free writing prospectus previously filed by the
Company.
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: (a) 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
Underwritten Shares set opposite their names in Exhibit 1 hereto, together
aggregating all of the Underwritten Shares, at a purchase price equal to $23.765
per Share.
(b) Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, not more than 9,000,000
Option Shares at the same purchase price per share as the Underwriters shall pay
for the Underwritten Shares, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Underwritten Shares but
not payable on the Option Shares. Said option may be exercised only
to cover over-allotments in the sale of the Underwritten Shares by the
Underwriters. Said option may be exercised one time, in whole or in
part, on or before the 30th day
after the date of the Prospectus. Said option shall be exercised upon
written notice by the Representative to the Company setting forth the number of
shares of the Option Shares as to which the several Underwriters are exercising
the option and the settlement date. The number of shares of the
Option Shares to be purchased by each Underwriter shall be the same percentage
of the total number of Option Shares to be purchased by the several Underwriters
as such Underwriter is purchasing of the Underwritten Shares at the Closing Time
(as defined below), subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional share.
2. Payment and
Delivery: Payment for the Underwritten Shares and the Option
Shares (if the option provided for in Section 1(b) shall have been exercised on
or before the third business day prior to the Closing Time) shall be made to the
Company in immediately available funds or in such other manner as the Company
and the Representative shall mutually agree upon in writing, upon the delivery
of the Underwritten Shares and the Option Shares, as applicable, 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 delivery shall be made at 10:00 A.M., New York
Time, on April 7, 2009 (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 9 hereof, at the office of Hunton & Xxxxxxxx LLP, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as the Company and
the Representative shall mutually agree in writing. The time at which
payment and delivery are to be made is herein called the Closing
Time. Delivery of the Underwritten Shares and the Option Shares shall
be made through the facilities of The Depository Trust Company unless the
Representative shall otherwise instruct.
If the option provided for in Section
1(b) hereof is exercised after the third business day prior to the Closing Time,
the Company will deliver the Option Shares (at the expense of the Company) to
the Representative, at the office of Hunton & Xxxxxxxx LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, on the date specified by the Representative (which
shall be at least three business days after exercise of said option) for the
respective accounts of the respective Underwriters, against payment by the
respective Underwriters through the Representative of the purchase price thereof
to or upon the order of the Company by wire transfer payable in same-day funds
to an account specified by the Company. If settlement for the Option
Shares occurs after the Closing Time, the Company will deliver to the
Representative on the settlement date for the Option Shares (the Option
Settlement Date), and the obligation of the Underwriters to purchase the Option
Shares shall be conditioned upon receipt of, supplemental opinions, certificates
and letters confirming as of such date the opinions, certificates and letters
delivered on the Closing Time pursuant to Section 3 hereof. Any
Option Settlement Date after the Closing Time shall be such date as the Company
and the Representative may agree.
3. Conditions of Underwriters’
Obligations: The several obligations of the Underwriters
hereunder to purchase Underwritten Shares and Option Shares, as the case may be,
are subject to the accuracy of the warranties and representations on the part of
the Company on the date hereof, at the Applicable Time, at the Closing Time and
at any Option Settlement Date 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 Shares shall be satisfactory in
form and substance to Xxxxx & XxXxxxx LLP, counsel to the Underwriters, and
the Company shall have furnished such counsel all documents and information that
it may reasonably request to enable it to pass upon such matters.
(b) That, at
the Closing Time and any Option Settlement Date, as applicable, the
Representative shall be furnished with the following opinions, dated the day of
the Closing Time or the Option Settlement Date, as applicable, 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 & XxXxxxx LLP, counsel to the
Underwriters
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(1)
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Opinion
of Hunton & Xxxxxxxx LLP and either of Xxxxxxx X. Xxxxx,
Esq., Xxxxxx X. Xxxxxxxxxx, Esq. or Xxxxxxx X. Xxxxxxx, Esq.,
counsel to the Company, substantially in the form heretofore previously
provided to the Underwriters; and
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(2)
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Opinion
of Xxxxx & XxXxxxx LLP, counsel to the Underwriters, substantially in
the form heretofore previously provided to the
Underwriters.
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(c) That the
Representative shall have received on the date hereof and shall receive at the
Closing Time and at the Option Settlement Date, as applicable, letters from
Deloitte & Touche LLP dated the date hereof and the date of the Closing Time
and the Option Settlement Date, respectively, in form and substance satisfactory
to the Representative (which may refer to the letter previously delivered to the
Representative, as applicable) (i) confirming that with respect to the Company
they are an independent registered public accounting firm within the meaning of
the Act and the applicable published rules and regulations of the Commission and
the Public Company Accounting Oversight Board (United States) thereunder, (ii)
stating that in their opinion the consolidated financial statements audited by
them and included or incorporated by reference in the Registration Statement,
Pricing Prospectus and Prospectus, respectively, 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 three business days
prior to the date of each such letter, as applicable, such other matters as the
Representative reasonably requests.
(d) Any
material required pursuant to Section 433(d) shall have been filed by the
Company with the Commission within the applicable time periods prescribed by
Rule 433.
(e) That no
amendment to the Registration Statement and that no supplement to the Pricing
Prospectus or the Prospectus of the Company (other than the Pricing Prospectus
or amendments, prospectuses or prospectus supplements relating solely to
securities other than the Shares) relating to the Shares and no document which
would be deemed incorporated in the Pricing Prospectus or Prospectus by
reference filed subsequent to the date hereof and prior to the Closing Time or
the Option Settlement Date, as applicable, shall contain material information
substantially different from that contained in the Pricing Prospectus which is
unsatisfactory in substance to the Representative or unsatisfactory in form to
Xxxxx & XxXxxxx LLP, counsel to the Underwriters.
(f) That, at
the Closing Time and the Option Settlement Date, as applicable, 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.
(g) That,
from the date hereof to the Closing Time or the Option Settlement Date, as
applicable, 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 Pricing Prospectus (other than changes referred to in or contemplated by
the Pricing Prospectus), and that the Company shall, at the Closing Time and the
Option Settlement Date, as applicable, have delivered to the Representative a
certificate of an executive officer of the Company to the effect that, to the
best of his or her knowledge, information and belief, (a) there has been no such
change, (b) there has not been any material transaction entered into by the
Company or any of its “Significant Subsidiaries” (as such term is defined in
Rule 1-02 of Regulation S-X promulgated under the Act) other than transactions
contemplated by the Registration Statement and the Pricing Prospectus or
transactions arising in the ordinary course of business, and (c) as to the
matters set forth in paragraph (f) of this Section 3.
(h) That the
Company shall have performed such of its obligations under this Agreement as are
to be performed at or before the Closing Time or the Option Settlement Date, as
applicable, by the terms hereof.
(i) That, at
the Closing Time, the Shares shall have been approved for listing on the New
York Stock Exchange, subject to official notice of issuance, and satisfactory
evidence of such actions shall have been provided to the
Representative.
(j) That, at
the Closing Time, each of the executive officers and directors of the Company
listed in Exhibit 3 shall have entered into an agreement substantially in the
form attached hereto as Exhibit 4.
(k) No action
shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any federal, state or foreign governmental or
regulatory authority that would, as of the Closing Time or the Option Settlement
Date, as the case may be, prevent the issuance or sale of the Shares; and no
injunction or order of any federal, state or foreign court shall have been
issued that would, as of the Closing Time or the Option Settlement Date, as the
case may be, prevent the issuance or sale of the Shares.
In case
any of the conditions specified in this Section 3 shall not have been fulfilled,
this Agreement may be terminated by the Underwriters at any time at or prior to
the Closing Date upon written notice thereof to the Company. Any such
termination shall be without liability of any party to any other party except as
otherwise provided in Section 4(g), Section 4(h) and Section 4(i) hereof and
except for any liability under Section 8 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 the Prospectus with the Commission and make any other required
filings pursuant to Rule 433; 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, Pricing
Prospectus, Prospectus or any Permitted Free Writing Prospectus or for
additional information with respect thereto or of the entry of an order
suspending the effectiveness of the Registration Statement or preventing or
suspending the use of the Pricing Prospectus, the Prospectus or any Permitted
Free Writing Prospectus or of the initiation or threat of any proceedings for
that purpose and, if such an 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 (or required to deliver but for
Rule 172 under the Act)(the Prospectus Delivery Period), as many copies of the
Prospectus or Permitted Free Writing Prospectus (as supplemented or amended if
the Company shall have made any supplements or amendments thereto, other than
supplements or amendments relating solely to securities other than the Shares)
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), other than
amendments relating solely to securities other than the Shares and, upon
request, to furnish to the Representative sufficient plain copies thereof
(exclusive of exhibits) for distribution to the other Underwriters.
(d) The
Company will advise the Representative promptly, and confirm such advice in
writing, (i) when any amendment to the Registration Statement has been filed;
(ii) when any supplement or amendment to the Prospectus or any Permitted Free
Writing Prospectus has been filed; (iii) of the occurrence of any event within
the Prospectus Delivery Period as a result of which the Prospectus, the Pricing
Disclosure Package or any Permitted Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus, the Pricing Disclosure
Package or any such Permitted Free Writing Prospectus is delivered to a
purchaser, not misleading; (iv) of the receipt by the Company of any notice of
objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act; and
(v) of the receipt by the Company of any notice with respect to any suspension
of the qualification of the Shares for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and the Company
will use its reasonable efforts to prevent the issuance of any such order
suspending the effectiveness of the Registration Statement, preventing or
suspending the use of any Preliminary Prospectus, the Pricing Disclosure Package
or the Prospectus or suspending any such qualification of the Shares and, if any
such order is issued, will use reasonable efforts to obtain as soon as possible
the withdrawal thereof.
(e) During
the Prospectus Delivery Period, if any event shall have occurred as a result of
which it is necessary to amend or supplement the Pricing Prospectus or the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Pricing Prospectus, the Prospectus or any Permitted Free
Writing 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,
promptly notify the Underwriters of such event and forthwith to prepare and
furnish, at its own expense, to the Underwriters and to dealers (whose names and
addresses will be furnished to the Company by the Representative) to whom Shares
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 Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus or supplements to the Pricing Prospectus, the Prospectus or
any Permitted Free Writing Prospectus.
(f) 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.
(g) To use
its best efforts to qualify the Shares for offer and sale under the securities
or “blue sky” laws of such jurisdictions as the Representative may designate and
shall maintain such qualifications so long as required for the offering and sale
of the Shares 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.
(h) To pay
all expenses, fees and taxes (other than transfer taxes on resales of the Shares
by the respective Underwriters, but including all amounts relating to (i) the
Company’s costs and expenses for travel, lodging and incidental expenses
relating to investor presentations on any “road show” undertaken in connection
with the marketing of the Shares; (ii) the listing of the Shares on the New York
Stock Exchange; (iii) the preparation of the Registration Statement, the
Preliminary Prospectus Supplement and the Prospectus Supplement (and any
amendments or supplements thereto); (iv) the sale and delivery of the Shares;
(v) the reasonable fees and disbursements of counsel and accountants for the
Company; and (vi) the printing and delivery of the Preliminary Prospectus
Supplement, the Prospectus Supplement and any Permitted Free Writing Prospectus)
in connection with the sale and delivery of the Shares, except that the Company
shall be required to pay the fees and disbursements (other than disbursements
referred to in paragraph (g) of this Section 4) of counsel to the Underwriters
only in the events provided in paragraph (i) of this Section 4 and paragraph (a)
of Section 8, the Underwriters hereby agreeing to pay such fees and
disbursements in any other event.
(i) If the
Underwriters shall not take up and pay for the Shares 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 9 or 10 hereof, to pay the fees and disbursements of counsel to the
Underwriters, and, if the Underwriters shall not take up and pay for the Shares
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
$100,000, incurred in connection with the financing contemplated by this
Agreement.
(j) The
Company will not, without the prior written consent of X.X. Xxxxxx Securities
Inc. and Credit Suisse Securities (USA) LLC, offer, sell, contract to sell,
pledge, or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or any
person in privity with the Company or any affiliate of the Company) directly or
indirectly, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Rule 16a-1 under the
Securities Exchange Act of 1934 (1934 Act), any shares of Common Stock or any
securities convertible into, or exercisable, or exchangeable for, shares of
Common Stock other than as provided in this Agreement; or publicly announce an
intention to effect any such transaction, for a period of 60 days after the date
of this Agreement, provided, however, that the Company may issue and sell Common
Stock pursuant to the terms of any employee stock option plan, stock ownership
plan, dividend reinvestment plan or any other similar plan of the Company in
effect as of the date hereof and the Company may issue Common Stock issuable
upon the conversion of securities or the exercise of warrants outstanding as of
the date hereof.
(k) To use
its reasonable efforts to cause the Shares to be accepted for clearance and
settlement through the facilities of The Depositary Trust Company.
(l) To use
its reasonable efforts to effect the listing of the Shares on the New York Stock
Exchange.
5. Representations and
Warranties of
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 with the applicable
provisions of the Act and the rules and regulations of the Commission and the
Registration Statement at its effective date and as of the Applicable Time did
not, and at the Closing Time and the Option Settlement Date, as applicable, 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, the Pricing Disclosure Package, and the Pricing Disclosure
Package considered together with any Permitted Free Writing Prospectuses, as of
the Applicable Time did not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading, each
broadly available electronic road show within the meaning of Rule 433(h)(5), if
any, when considered as a whole with the Pricing Disclosure Package, as of the
Applicable Time, did not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, and the
Basic Prospectus on the date of this Agreement and the Prospectus as of its date
complies, and at the Closing Time and the Option Settlement Date, as applicable,
the Prospectus will comply, with the applicable provisions of the Act, and the
rules and regulations of the Commission, the Basic Prospectus and the Prospectus
as of their respective dates do not, and the Prospectus at the Closing Time and
the Option Settlement Date, as applicable, 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, the Basic
Prospectus, the Pricing Prospectus, any Permitted Free Writing Prospectus or the
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, the Pricing Prospectus or Prospectus.
(b) The
documents incorporated by reference in the Registration Statement or Pricing
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 Pricing Prospectus, the Permitted Free Writing
Prospectuses and 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. The
information contained in any Permitted Free Writing Prospectus listed in Exhibit
2 does not conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus and no such Permitted Free
Writing Prospectus, taken together with the remainder of the Pricing Disclosure
Package as of the Applicable Time, contains an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(c) Since the
respective dates as of which information is given in the Registration Statement,
the Pricing Disclosure Package and the Pricing Prospectus, except as otherwise
referred to or contemplated therein, there has been no material adverse change
in the business, properties or financial condition from that set forth in the
Pricing Prospectus.
(d) This
Agreement has been duly authorized, executed and delivered by the
Company.
(e) The
execution, delivery and performance of this Agreement, the issuance of the
Shares and the consummation by the Company of the transactions contemplated
herein is not in violation of its charter or bylaws, will not result in the
violation of any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court having
jurisdiction over the Company or its properties, and 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, other than with respect to
its charter or bylaws, 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).
(f) The
Shares have been duly authorized and, when issued and delivered in accordance
with the provisions of this Agreement, will be duly and validly issued, fully
paid and non-assessable.
(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 Shares or the consummation of the transactions by the Company
contemplated in this Agreement, except (A) such as may be required under the Act
or the rules and regulations thereunder and (B) such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or “Blue Sky” laws.
(h) The
Company and each Significant Subsidiary of the Company have been duly organized
and are validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation.
(i) The
consolidated financial statements of the Company and its consolidated
subsidiaries together with the notes thereto, included or incorporated by
reference in the Pricing Prospectus and the Prospectus present fairly the
financial position of the Company at the dates or for the periods indicated;
said consolidated financial statements have been prepared in accordance with
United States generally accepted accounting principles applied, apart from
reclassifications disclosed therein, on a consistent basis throughout the
periods involved; and the selected consolidated financial information of the
Company included in the Pricing Prospectus and the Prospectus presents fairly
the information shown therein and has been compiled, apart from
reclassifications disclosed therein, on a basis consistent with that of the
audited financial statements of the Company included or incorporated by
reference in the Pricing Prospectus and the Prospectus.
(j) The
Company has the authorized capitalization as set forth in the Pricing Disclosure
Package under the heading “Capitalization and Short-Term Debt”. The
authorized capital stock of the Company is 600,000,000 shares of common stock,
of which 406,071,256 shares of common stock were issued and outstanding as of
December 31, 2008 (except for subsequent issuances, if any, pursuant to this
Agreement, or pursuant to agreements or employee benefit plans referred to in
the Prospectus or pursuant to the Dividend Reinvestment and Direct Stock
Purchase Plan). The shares of issued and outstanding capital stock of
the Company have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the Company
were issued in violation of the preemptive or other similar rights, if any, of
any securityholder of the Company. The issued and outstanding capital
stock of each Significant Subsidiary has been duly authorized and validly issued
and is fully paid and non-assessable; and the common capital stock of each
Significant Subsidiary is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equitable right.
(k) There is
no pending action, suit, investigation, litigation or proceeding, including,
without limitation, any environmental action, affecting the Company or any of
its Significant Subsidiaries before any court, governmental agency or
arbitration that is reasonably likely to have a material adverse effect on the
business, properties, financial condition or results of operations of the
Company, except as disclosed in the Pricing Prospectus.
(l) Neither
the Company nor any of its Significant Subsidiaries is (i) in violation of its
charter or by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries is bound or to which any of the property or assets of the Company
or any of its Significant Subsidiaries is subject; or (iii) except as described
in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, in violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority,
including violation of any federal, state, local or foreign laws, regulations,
ordinances, rules, orders, judgments, decrees, permits or other legal
requirements relating to the protection of human health and safety, the
environment, natural resources or hazardous or toxic substances or wastes,
pollutants or contaminants, except, in the case of clauses (ii) and (iii) above,
for any such default or violation that would not, individually or in the
aggregate, have a material adverse effect on the business, properties or
financial condition of the Company (a Material Adverse Effect).
(m) At the
determination date for purposes of the Shares within the meaning of Rule 164(h)
under the Act, the Company was not an “ineligible issuer” as defined in Rule 405
under the Act.
(n) The
Company and its Significant Subsidiaries possess all licenses, certificates,
permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or
regulatory authorities that are necessary for the ownership or lease of their
respective properties or the conduct of their respective businesses as described
in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, except where the failure to possess or make the same would not,
individually or in the aggregate, have a Material Adverse Effect; and except as
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, neither the Company nor any of its Significant Subsidiaries has
received notice of any revocation or modification of any such license,
certificate, permit or authorization.
(o) The
Company has not made any filings pursuant to the 1934 Act or the rules and
regulations thereunder, within 24 hours preceding the Applicable
Time.
(p) The
Company employs disclosure controls and procedures that are designed to ensure
that information required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is accumulated and communicated to the
Company’s management, including its principal executive and principal financial
officer, as appropriate, to allow timely decisions regarding disclosure; as of
the time of the last evaluation by the Company’s principal executive and
principal financial officers, such disclosure controls and procedures are
effective.
(q) The Company’s internal control over financial reporting includes
policies and procedures that are designed to (i) provide for the
maintenance of records that, in reasonable detail, accurately and fairly reflect
transactions concerning the assets of the Company; (ii) provide reasonable
assurance that transactions are recorded as necessary to permit preparation of
financial statements in accordance with generally accepted accounting principles
in the United States of America; (iii) provide reasonable assurance that
receipts and expenditures of the Company are being made only in accordance with
authorizations of management and directors of the Company; and (iv) provide
reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Company’s assets that could have a
material effect on the financial statements.
The Company’s 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 Shares hereunder.
|
6.
|
Free Writing
Prospectuses:
|
(a) The
Company represents and agrees that, without the prior consent of the
Representative, it has not made and will not make any offer relating to the
Shares that would constitute a “free writing prospectus” as defined in Rule 405
under the Act, other than a Permitted Free Writing Prospectus; each Underwriter,
severally and not jointly, represents and agrees that, without the prior consent
of the Company and the Representative, it has not made and will not make any
offer relating to the Shares that would constitute a “free writing prospectus,”
as defined in Rule 405 under the Act, other than a Permitted Free Writing
Prospectus.
(b) The
Company and each Underwriter has complied and will comply with the requirements
of Rule 433 applicable to any other Permitted Free Writing Prospectus, including
timely Commission filing where required and legending.
(c) The
Company agrees that if at any time following issuance of a Permitted Free
Writing Prospectus any event occurred or occurs as a result of which such
Permitted Free Writing Prospectus would conflict in any material respect with
the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in light of
the circumstances then prevailing, not misleading, then (i) the Company will
give prompt notice thereof to the Representative, and (ii) if requested by the
Representative, the Company will prepare and furnish without charge a Permitted
Free Writing Prospectus or other document which will correct such conflict,
statement or omission.
7. Warranties of
Underwriters: 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 any Permitted
Free Writing Prospectus, in the Pricing Prospectus, in the Prospectus, or in the
Prospectus as amended or supplemented is correct as to such
Underwriter.
The
warranty and representation of each 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 Shares hereunder.
8. Indemnification and
Contribution:
(a) To the
extent permitted by law, the Company agrees to indemnify and hold each
Underwriter harmless, each Underwriter’s employees, agents, officers and
directors and each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act, against any and all losses, claims, damages or
liabilities, joint or several, to which an Underwriter, they or any of you or
them may become subject under the Act or otherwise, and to reimburse the
Underwriters, they or any of you or them, 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 (if used prior to the
effective date of this Agreement), in the Pricing Prospectus, in any Permitted
Free Writing Prospectus, in any “issuer free writing prospectus” (as defined in
Rule 433 under the Act) or in the Prospectus, or if the Company shall furnish or
cause to be furnished to the Underwriters any amendments or any supplements to
the Pricing Prospectus or the Prospectus, in the Pricing Prospectus or the
Prospectus as so amended or supplemented except to the extent that such
amendments or supplements relate solely to securities other than the Shares
(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, in the Pricing Prospectus, in any Permitted Free Writing Prospectus,
in any “issuer free writing prospectus” (as defined in Rule 433 under the Act)
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 the Representative expressly for use
therein. Each Underwriter agrees promptly after its receipt 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 8(a) may
be sought by any such Underwriter, or by any person controlling any such
Underwriter, to notify the Company in writing of the commencement thereof, but
the omission so to notify the Company of any such action shall not release the
Company from any liability which it may have to an Underwriter 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 an Underwriter or any such controlling person and an Underwriter
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), an Underwriter or any controlling
person shall have the right to employ its own counsel, but, in any such case,
the fees and expenses of such counsel shall be at such Underwriter’s or
controlling person’s 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 an Underwriter or any controlling person and
the Company and such Underwriter or any controlling person shall have been
advised by its counsel that a conflict of interest between the Company and such
Underwriter 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 the Underwriters or any controlling
person (plus any local counsel retained by the Underwriters or any controlling
person in their reasonable judgment), which firm (or firms) shall be designated
in writing by the Underwriters or any controlling person).
(b) Each
Underwriter agrees, to the extent permitted by law, severally and not jointly,
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 8(a) 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 (if used prior to the
effective date of this Agreement), or in the Pricing Prospectus, or in any
Permitted Free Writing 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 8(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
8(b).
(c) If
recovery is not available or insufficient to hold the indemnified party harmless
under Section 8(a) or 8(b) hereof for any reason other than as specified
therein, the indemnified party shall be entitled to contribution for any and all
losses, claims, damages, liabilities and expenses for which such indemnification
is so unavailable or insufficient under this Section 8(c). In
determining the amount of contribution to which such indemnified party is
entitled, there shall be considered the portion of the proceeds of the offering
of the Shares realized by the Company on the one hand and the Underwriters on
the other hand, the relative knowledge and access to information concerning the
matter with respect to which the claim was asserted, the opportunity to correct
and prevent any statement or omission, and any equitable considerations
appropriate under the circumstances. The Company and the Underwriters
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Underwriters were
treated as one entity for such purpose) without reference to the considerations
called for in the previous sentence. No Underwriter or any person
controlling such Underwriter shall be obligated to contribute any amount or
amounts hereunder which in the aggregate exceeds the total price of the Shares
purchased by such Underwriter under this Agreement, less the aggregate amount of
any damages which such Underwriter and its controlling persons have otherwise
been required to pay in respect of the same claim or any substantially similar
claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. An
Underwriter’s obligation to contribute under this Section 8 is in proportion to
its purchase obligation and not joint with any other Underwriter.
(d) 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 or contribution could be
sought under this Section 8 (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 such indemnified party.
(e) 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.
The agreements contained in this
Section 8 hereof 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 Shares hereunder.
9. 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 number of Shares which it has
agreed to purchase and pay for hereunder, and the aggregate number of Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of the Shares,
the other Underwriters shall be obligated severally in the proportions which the
amounts of Shares set forth opposite their names in Exhibit 1 hereto bear to the
aggregate number of Shares set forth opposite the names of all such
non-defaulting Underwriters, to purchase the Shares 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
which any Underwriter has agreed to purchase pursuant to Section 1 hereof be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter. In
the event of any such purchase, (a) the non-defaulting Underwriters or the
Company shall have the right to fix as a postponed Closing Time a date not
exceeding four full business days after the date specified in Section 2 and (b)
the respective number of Shares to be purchased by the non-defaulting
Underwriters shall be taken as the basis of their respective underwriting
obligations for all purposes of this Agreement. If any Underwriter or
Underwriters shall fail or refuse to purchase Shares and the aggregate number of
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of the Shares then this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter; provided, however, that
the non-defaulting Underwriters may agree, in their sole discretion, to purchase
the Shares which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on the terms set forth herein. 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(i) hereof), nor
shall any Underwriter (other than an Underwriter who shall have failed or
refused to purchase the Shares 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.
10. Termination of Agreement by
the Underwriters: This Agreement may be terminated at any time
prior to the Closing Time by the Representative if, after the execution and
delivery of this Agreement and prior to the Closing Time, in the Representative’
reasonable judgment, the Underwriters’ ability to market the Shares shall have
been materially adversely affected because:
|
(i)
|
|
(ii)
|
there
shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other national or
international calamity or crisis,
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 senior
unsecured debt securities by Xxxxx’x to a rating of below Baa2 or S&P
to a rating of below BBB or either Xxxxx’x or S&P shall publicly
announce that it has such debt securities under consideration for possible
downgrade.
|
If the Representative elects to
terminate this Agreement, as provided in this Section 10, 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 Shares 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 Sections 4(h),
4(i) and 8 hereof) and the Underwriters shall be under no liability to the
Company nor be under any liability under this Agreement to one
another.
11. 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 the Representative at X.X. Xxxxxx Securities Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000) Attention Equity
Syndicate Desk; Credit Suisse Securities (USA) LLC, 00 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: LCD-IBD; Barclays Capital Inc., 000 0xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Syndicate Registration (Fax: 000-000-0000);
Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention; General Counsel’s Office; and Xxxxxx Xxxxxxx & Co. Incorporated,
0000 Xxxxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk (Fax: 000-000-0000);
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: General Counsel (fax 614/000-0000).
12. 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 Section 8 hereof,
and their respective successors, assigns, executors and administrators, and,
except as expressly otherwise provided in Section 9 hereof, no other person
shall acquire or have any right under or by the virtue of this
Agreement. The Company acknowledges and agrees that in connection
with all aspects of each transaction contemplated by this Underwriting
Agreement, the Company and the Underwriters have an arms length business
relationship that creates no fiduciary duty on the part of any party and each
expressly disclaims any fiduciary relationship.
13. 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 9 hereof. 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
Shares from any of the respective Underwriters.
14. Conditions of the Company’s
Obligations: The obligations of the Company hereunder are
subject to the Underwriters’ performance of their obligations hereunder, and the
further condition that at the Closing Time the Commission shall not have issued
a stop order with respect to the effectiveness of the Registration
Statement.
15. Applicable
Law: This Agreement will be governed and construed in
accordance with the laws of the State of New York.
16. 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.
*Plus an
option to purchase from American Electric Power Company, Inc. up to 9,000,000
additional shares to cover over-allotments.
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:
|
/s/ Xxxxxxx X.
Xxxxxx
|
|
Name:
|
Xxxxxxx
X. Xxxxxx
|
|
|
Title:
|
Treasurer
|
X.X.
Xxxxxx Securities Inc.
Credit
Suisse Securities (USA) LLC
Barclays
Capital Inc.
Citigroup
Global Markets Inc.
Xxxxxx
Xxxxxxx & Co. Incorporated
as
Representatives
and on
behalf of the Underwriters
named in
Exhibit 1 hereto
X.X.
Xxxxxx Securities Inc.
By: /s/ Xxx
Slettner
Name: Xxx
Slettner
Title: Managing
Director
Credit
Suisse Securities (USA) LLC
By: /s/ Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title: Managing
Director
Barclays
Capital Inc.
By: /s/ Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Title: Managing
Director
Citigroup
Global Markets Inc.
By: /s/ Xxxxxxx
Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice
President
Xxxxxx
Xxxxxxx & Co. Incorporated
By: /s/ Xxxx
Xxxxxxxx
Name: Xxxx
Xxxxxxxx
Title: Executive
Director
EXHIBIT
1
|
Underwriters:
|
|
|
Name
|
Number of Shares
|
|
X.X.
Xxxxxx Securities Inc.
|
15,600,000
|
|
Credit
Suisse Securities (USA) LLC
|
12,420,000
|
|
Barclays
Capital Inc.
|
6,660,000
|
|
Citigroup
Global Markets Inc.
|
6,660,000
|
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
6,660,000
|
|
Xxxxxxx,
Sachs & Co.
|
2,800,000
|
|
UBS
Securities LLC
|
2,800,000
|
|
Wachovia
Capital Markets, LLC
|
2,800,000
|
|
ABN
AMRO Incorporated
|
1,200,000
|
|
KeyBanc
Capital Markets Inc.
|
1,200,000
|
|
Mitsubishi
UFJ Securities (USA), Inc.
|
1,200,000
|
|
Total
|
60,000,000
|
EXHIBIT
2
PRICING
DISCLOSURE PACKAGE
|
1)
|
Prospectus
dated December 22, 2008
|
|
2)
|
Preliminary
Prospectus Supplement dated March 30, 2009 (including Incorporated
Documents)
|
|
3)
|
Pricing
Information
|
|
a) Shares
Offered: Up to 69,000,000 shares of Common Stock
b) Price
to Public: $24.50
c) Closing
Date: April 7, 2009
|
|
EXHIBIT
3
PERSONS
SUBJECT TO LOCK-UP
Xxxxx,
Xxxxxxxx X.
Xxxxxx,
X. X.
Xxxxxxx,
Xxxxxx X.
Xxxxxx,
Xx., Xxxxx X.
English,
Xxxx X.
Xxxxxxxxx,
Xxxxx X.
Xxxxxxx,
Xxxxxx X.
Xxxxxx,
Xx., Xxxxxx X.
Xxxxx,
Xxxx X.
Xxxxxxx,
Xxxxx X.
XxXxxxxx-Xxxxx,
Xxxxxx
Xxxxxx,
Xxxxxxx X.
Xxxxxxxxxx,
Xxxxxxx X.
Xxxxxx,
III, Xxxxxx X.
Xxxxxx,
Xxxxxx X.
Xxxxxx,
Xxxxxxx X.
Xxxxxxxx,
Xxxxxxx X.
Xxxxxxx,
Xxxxx X.
Xxxxxxx,
Xxxxx
Xxxxxx,
Xxxx Xxxxxxxx
Xxxxxx,
Xxxx X.
EXHIBIT
4
FORM
OF LOCK-UP AGREEMENT
American
Electric Power Company, Inc.
Lock-Up
Agreement
April 1, 2009
X.X.
Xxxxxx Securities Inc.
Credit
Suisse Securities (USA) LLC
As Representatives of the several
Underwriters
Ladies
and Gentlemen:
This
letter is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”), between the Company and each of you as
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of up to 69,000,000 shares of Common Stock, $6.50
par value (the “Shares”) of the Company.
In order
to induce you and the other Underwriters to enter into the Underwriting
Agreement, the undersigned will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge or otherwise dispose of
(or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
undersigned, directly or indirectly, including the filing (or participation in
the filing) of a registration statement with the Securities and Exchange
Commission in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Securities Exchange Act of 1934, as amended (“’34 Act”), and the rules and regulations of
the Securities and Exchange Commission promulgated thereunder with respect to,
any shares of capital stock of the Company of
which the undersigned is the beneficial owner within the meaning of Rule 13d-3
under the ’34 Act, or any securities convertible into or exercisable or
exchangeable for such capital stock, or publicly announce an intention to effect
any such transaction, for a period of 60 days after the date of this Lock-Up Agreement, other than shares of Common
Stock disposed of as bona fide gifts, provided the transferee or transferees
agree in writing to be bound by the Lock-Up
Agreement.
If for
any reason the Underwriting Agreement shall be terminated prior to the Closing
Time (as defined in the Underwriting Agreement), this Lock-Up Agreement set forth above shall
likewise be terminated simultaneously
therewith.
The
undersigned understands that the Company and the Underwriters are relying on
this Lock-Up Agreement in proceeding with the offering of the
Shares. The undersigned understands that this Lock-Up Agreement is
irrevocable and shall be binding on the undersigned’s heirs, legal
representatives, successors and assigns.
This Lock-Up Agreement will be governed and construed in
accordance with the laws of the State of New York.
Yours
very truly,
______________________________
Name:
