EXHIBIT
1(a)
INDIANA MICHIGAN POWER COMPANY
Underwriting Agreement
Dated
December 7, 2005
AGREEMENT made between INDIANA MICHIGAN POWER
COMPANY, a corporation organized and existing under the laws of the
State of Indiana (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 $125,000,000 aggregate principal amount of its 5.65% Senior
Notes, Series G, due 2015 (the Notes) to be issued pursuant to the
Indenture dated as of October 1, 1998, between the Company and The
Bank of New York, as trustee (the Trustee), as heretofore
supplemented and amended and as to be further supplemented and
amended (said Indenture as so supplemented being hereafter referred
to as the Indenture); and
WHEREAS, the Underwriters have designated the
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. 333-108975) and a
prospectus relating to $400,000,000 aggregate principal amount of
its securities, including the Notes, and such registration
statement has become effective; 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 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 Notes,
being herein called the Basic Prospectus, and the Basic Prospectus,
as amended and supplemented, including documents incorporated by
reference therein and the Preliminary Prospectus Supplement dated
December 7, 2005, at or 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
Notes, including the names of the Underwriters, the price and terms
of the offering, the interest rate, maturity date and certain other
information relating to the Notes, 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 2:20 p.m. (NY Time) on the date of this Agreement; the
Pricing Prospectus as supplemented by the documents listed in
Exhibit 3, including the Permitted Free Writing Prospectuses (as
defined in Section 6(a) herein and attached hereto), taken
together, collectively being herein called the Pricing Disclosure
Package.
NOW, THEREFORE, in consideration of the
premises and the mutual covenants herein contained, it is agreed
between the parties as follows:
1. Purchase and
Sale : Upon the basis of the warranties and representations and
on the terms and subject to the conditions herein set forth, the
Company agrees to sell to the respective Underwriters named in
Exhibit 1 hereto, severally and not jointly, and the respective
Underwriters, severally and not jointly, agree to purchase from the
Company, the respective principal amounts of the Notes set opposite
their names in Exhibit 1 hereto, together aggregating all of the
Notes, at a price equal to 99.209% of the principal amount
thereof.
2. Payment and
Delivery : Payment for the Notes 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 Notes 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 December 12, 2005 (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 Dewey Ballantine LLP, 1301 Avenue of the Americas,
New York, New York 10019, 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 Time
of Purchase.
The delivery of the Notes shall be made in
fully registered form, registered in the name of CEDE & CO., to
the offices of The Depository Trust Company in New York, New York
and the Underwriters shall accept such delivery.
3. Conditions of
Underwriters' Obligations : The several obligations of the
Underwriters hereunder are subject to the accuracy of the
warranties and representations on the part of the Company on the
date hereof and at the Time of Purchase and to the following other
conditions:
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That all legal proceedings to be taken and all
legal opinions to be rendered in connection with the issue and sale
of the Notes shall be satisfactory in form and substance to Dewey
Ballantine LLP, counsel to the Underwriters.
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That, at the Time of Purchase, the
Representative shall be furnished with the following opinions,
dated the day of the Time of Purchase, with conformed copies or
signed counterparts thereof for the other Underwriters, with such
changes therein as may be agreed upon by the Company and the
Representative with the approval of Dewey Ballantine LLP, counsel
to the Underwriters:
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Opinion of Jeffrey D. Cross, Esq., Thomas G.
Berkemeyer, Esq. or Ann B. Graf, Esq., counsel to the Company,
substantially in the form heretofore previously provided to the
Underwriters; and
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Opinion of Dewey Ballantine LLP, counsel to
the Underwriters, substantially in the form heretofore previously
provided to the Underwriters.
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That the Representative shall have received a
letter from Deloitte & Touche LLP dated the day of the Time of
Purchase in form and substance satisfactory to the Representative
(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 thereunder, (ii) stating that in their opinion the
consolidated financial statements audited by them and included or
incorporated by reference in the Registration Statement complied as
to form in all material respects with the then applicable
accounting requirements of the Commission, including the applicable
published rules and regulations of the Commission and (iii)
covering as of a date not more than five business days prior to the
day of the Time of Purchase such other matters as the
Representative reasonably requests.
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The pricing term sheet contemplated by Section
6(b) hereof, and any other 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.
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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 Notes) relating to the Notes and no
document which would be deemed incorporated in the Pricing
Prospectus by reference filed subsequent to the date hereof and
prior to the Time of Purchase shall contain material information
substantially different from that contained in the Registration
Statement which is unsatisfactory in substance to the
Representative or unsatisfactory in form to Dewey Ballantine LLP,
counsel to the Underwriters.
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That, at the Time of Purchase, an appropriate
order of the Indiana Utility Regulatory Commission (the IURC)
necessary to permit the sale of the Notes to the Underwriters,
shall be in effect; and that, prior to the Time of Purchase, no
stop order with respect to the effectiveness of the Registration
Statement shall have been issued under the Act by the Commission or
proceedings therefor initiated.
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That, from the date hereof to the Time of
Purchase, there shall not have been any material adverse change in
the business, properties or financial condition of the Company from
that set forth in the Pricing Prospectus (other than changes
referred to in or contemplated by the Pricing Prospectus), and that
the Company shall, at the Time of Purchase, have delivered to the
Representative a certificate of an executive officer of the Company
to the effect that, to the best of his knowledge, information and
belief, there has been no such change.
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That the Company shall have performed such of
its obligations under this Agreement as are to be performed at or
before the Time of Purchase by the terms hereof.
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4. Certain
Covenants of the Company : In further consideration of the
agreements of the Underwriters herein contained, the Company
covenants as follows:
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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 or Prospectus or for additional information with respect
thereto or of the entry of a stop order suspending the
effectiveness of the Registration Statement or of the initiation or
threat of any proceedings for that purpose and, if such a stop
order should be entered by the Commission, to make every reasonable
effort to obtain the prompt lifting or removal thereof.
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To deliver to the Underwriters, without
charge, as soon as practicable (and in any event within 24 hours
after the date hereof), and from time to time thereafter during
such period of time (not exceeding nine months) after the date
hereof as they are required by law to deliver a prospectus, as many
copies of the Prospectus (as supplemented or amended if the Company
shall have made any supplements or amendments thereto, other than
supplements or amendments relating solely to securities other than
the Notes) 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.
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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
Notes and, upon request, to furnish to the Representative
sufficient plain copies thereof (exclusive of exhibits) for
distribution to the other Underwriters.
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For such period of time (not exceeding nine
months) after the date hereof as they are required by law to
deliver a prospectus, if any event shall have occurred as a result
of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
contain any untrue statement of a material fact or not omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading, forthwith
to prepare and furnish, at its own expense, to the Underwriters and
to dealers (whose names and addresses will be furnished to the
Company by the Representative) to whom principal amounts of the
Notes may have been sold by the Representative for the accounts of
the Underwriters and, upon request, to any other dealers making
such request, copies of such amendments to the Prospectus or
supplements to the Prospectus.
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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.
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To use its best efforts to qualify the Notes
for offer and sale under the securities or "blue sky" laws of such
jurisdictions as the Representative may designate within six months
after the date hereof and itself to pay, or to reimburse the
Underwriters and their counsel for, reasonable filing fees and
expenses in connection therewith in an amount not exceeding $3,500
in the aggregate (including filing fees and expenses paid and
incurred prior to the effective date hereof), provided, however,
that the Company shall not be required to qualify as a foreign
corporation or to file a consent to service of process or to file
annual reports or to comply with any other requirements deemed by
the Company to be unduly burdensome.
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To pay all expenses, fees and taxes (other
than transfer taxes on resales of the Notes by the respective
Underwriters) in connection with the issuance and delivery of the
Notes, except that the Company shall be required to pay the fees
and disbursements (other than disbursements referred to in
paragraph (f) of this Section 4) of counsel to the Underwriters,
only in the events provided in paragraph (h) of this Section 4 and
paragraph (a) of Section 8, the Underwriters hereby agreeing to pay
such fees and disbursements in any other event.
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If the Underwriters shall not take up and pay
for the Notes 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 Notes due to the failure of the Company to
comply with any of the conditions specified in Section 3 hereof, to
reimburse the Underwriters for their reasonable out-of-pocket
expenses, in an aggregate amount not exceeding a total of $10,000,
incurred in connection with the financing contemplated by this
Agreement.
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To timely file any certificate required by
Rule 52 under the Public Utility Holding Company Act of 1935 (the
1935 Act) in connection with the sale of the Notes.
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During the period from the date hereof and
continuing to and including the earlier of (i) the date which is
after the Time of Purchase on which the distribution of the Notes
ceases, as determined by the Representative in its sole discretion,
and (ii) the date which is 30 days after the Time of Purchase, the
Company agrees not to offer, sell, contract to sell or otherwise
dispose of any Notes of the Company or any substantially similar
securities of the Company without the consent of the
Representative.
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5. Warranties of
the Company : The Company represents and warrants to, and
agrees with you, as set forth below:
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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 did not, and at the Time of
Purchase will not, contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, the
Pricing Disclosure Package as of the Applicable Time did not
contain an untrue statement of a material fact necessary 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 when first filed in accordance with
Rule 424(b) complies, and at the Time of Purchase the Prospectus
will comply, with the applicable provisions of the Act and the
Trust Indenture Act of 1939, as amended (Trust Indenture Act), and
the rules and regulations of the Commission, the Basic Prospectus
on the date of this Agreement and the Prospectus when first filed
in accordance with Rule 424(b) under the Act do not, and the
Prospectus at the Time of Purchase will not, contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to any statements
or omissions made in the Registration Statement, the Basic
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 or Prospectus, or to any statements
in or omissions from that part of the Registration Statement that
shall constitute the Statement of Eligibility under the Trust
Indenture Act of any indenture trustee under an indenture of the
Company.
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As of the Time of Purchase, the Indenture will
have been duly authorized by the Company and duly qualified under
the Trust Indenture Act and, when executed and delivered by the
Trustee and the Company, will constitute a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms and such Notes will have been duly authorized, executed,
authenticated and, when paid for by the purchasers thereof, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture, except as the
enforceability thereof may be limited by bankruptcy, insolvency, or
other similar laws affecting the enforcement of creditors' rights
in general, and except as the availability of the remedy of
specific performance is subject to general principles of equity
(regardless of whether such remedy is sought in a proceeding in
equity or at law), and by an implied covenant of good faith and
fair dealing.
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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 Securities Exchange Act of 1934, as
amended 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
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