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Exhibit
1(b)
OHIO
POWER COMPANY
Underwriting
Agreement
Dated
____________________
AGREEMENT
made between OHIO POWER COMPANY, a corporation organized and
existing under the laws of the State of Ohio (the "Company"),
and the several persons, firms and corporations (the
"Underwriters") named in Exhibit 1 hereto.
WITNESSETH:
WHEREAS,
the Company proposes to issue and sell $__________ principal
amount of its [Unsecured Notes] to be issued pursuant to the
Indenture dated as of September 1, 1997, between the Company
and Bankers Trust Company, as trustee (the "Trustee"), as
heretofore supplemented and amended and as to be further
supplemented and amended (said Indenture as so supplemented
being hereafter referred to as the Indenture);
and
WHEREAS,
the Underwriters have designated the person signing this
Agreement (the Representative) to execute this Agreement on
behalf of the respective Underwriters and to act for the
respective Underwriters in the manner provided in this
Agreement; and
WHEREAS,
the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933 (the Act), with the
Securities and Exchange Commission (the Commission), a
registration statement and prospectus or prospectuses relating
to the [Unsecured Notes] and such registration statement has
become effective; and
WHEREAS,
such registration statement, as it may have been amended to
the date hereof, including the financial statements, the
documents incorporated or deemed incorporated therein by
reference and the exhibits, being herein called the
Registration Statement, and the prospectus, as included or
referred to in the Registration Statement to become effective,
as it may be last amended or supplemented prior to the
effectiveness of the agreement (the Basic Prospectus), and the
Basic Prospectus, as supplemented by a prospectus supplement
which includes certain information relating to the
Underwriters, the principal amount, price and terms of
offering, the interest rate and redemption prices of the
[Unsecured Notes], first filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) of the Commission's
General Rules and Regulations under the Act (the Rules),
including all documents then incorporated or deemed to have
been incorporated therein by reference, being herein call the
Prospectus.
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants herein contained, it is agreed between the parties
as follows:
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1.
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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 [Unsecured Notes] set opposite
their names in Exhibit 1 hereto, together aggregating all of the
[Unsecured Notes], at a price equal to ______% of the principal
amount thereof.
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2.
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Payment and Delivery :
Payment for the [Unsecured Notes] shall be made to the Company or
its order by certified or bank check or checks, payable in New York
Clearing House funds, at the office of Simpson Thacher &
Bartlett LLP, 425 Lexington Avenue, New York, New York 10017-3909,
or at such other place as the Company and the Representative shall
mutually agree in writing, upon the delivery of the [Unsecured
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 payments
and delivery shall be made at 10:00 A.M., New York Time, on
_______________ (or on such later business day, not more than five
business days subsequent to such day, as may be mutually agreed
upon by the Company and the Underwriters), unless postponed in
accordance with the provisions of Section 7 hereof. The time at
which payment and delivery are to be made is herein called the Time
of Purchase.
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[The
delivery of the [Unsecured 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.]
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3.
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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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(a)
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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
[Unsecured Notes] shall be satisfactory in form and substance
to Dewey Ballantine LLP, counsel to the
Underwriters.
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(b)
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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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(1)
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Opinion
of Simpson Thacher & Bartlett LLP and any of Thomas G.
Berkemeyer, Esq., Ann B. Graf, Esq., David C. House, Esq.,
William E. Johnson, Esq. or Kevin R Fease, Esq., counsel to
the Company, substantially in the forms attached hereto as
Exhibits A and B; and
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(2)
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Opinion
of Dewey Ballantine LLP, counsel to the Underwriters,
substantially in the form attached hereto as Exhibit
C.
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(c)
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That
the Representative shall have received a letter from Deloitte
& Touche LLP
in
form and substance satisfactory to the Representative, dated
as of the day of the Time of Purchase, (i) confirming that
they are independent public accountants within the meaning of
the Act and the applicable published rules and regulations of
the Commission thereunder, (ii) stating that in their opinion
the financial statements audited by them and included or
incorporated by reference in the Registration Statement
complied as to form in all material respects with the then
applicable accounting requirements of the Commission,
including the applicable published rules and regulations of
the Commission and (iii) covering as of a date not more than
five business days prior to the day of the Time of Purchase
such other matters as the Representative reasonably
requests.
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(d)
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That
no amendment to the Registration Statement and that no
prospectus or prospectus supplement of the Company relating to
the [Unsecured Notes] and no document which would be deemed
incorporated in the Prospectus by reference filed subsequent
to the date hereof and prior to the Time of Purchase shall
contain material information substantially different from that
contained in the Registration Statement which is
unsatisfactory in substance to the Representative or
unsatisfactory in form to Dewey Ballantine LLP, counsel to the
Underwriters.
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(e)
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That,
at the Time of Purchase, an appropriate order of The Public
Utilities Commission of Ohio, necessary to permit the sale of
the [Unsecured Notes] to the Underwriters, shall be in effect;
and that, prior to the Time of Purchase, no stop order with
respect to the effec-tiveness of the Registration Statement
shall have been issued under the Act by the Commission or
proceedings therefor initiated.
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(f)
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That,
at the Time of Purchase, there shall not have been any
material adverse change in the business, properties or
financial condition of the Company from that set forth in the
Prospectus (other than changes referred to in or contemplated
by the Prospectus), and that the Company shall, at the Time of
Purchase, have delivered to the Representative a certificate
of an executive officer of the Company to the effect that, to
the best of his knowledge, information and belief, there has
been no such change.
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(g)
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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.
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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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(a)
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As
soon as practicable, and in any event within the time
prescribed by Rule 424 under the Act, to file any Prospectus
Supplement relating to the [Unsecured Notes] with the
Commission; as soon as the Company is advised thereof, to
advise the Representative and confirm the advice in writing of
any request made by the Commission for amendments to the
Registration Statement or the Prospectus or for additional
information with respect thereto or of the entry of a stop
order suspending the effectiveness of the Registration
Statement or of the initiation or threat of any proceedings
for that purpose and, if such a stop order should be entered
by the Commission, to make every reason-able effort to obtain
the prompt lifting or removal thereof.
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(b)
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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)
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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(c)
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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), and,
upon request, to furnish to the Representative sufficient
plain copies thereof (exclusive of exhibits) for distribution
of one to the other Underwriters.
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(d)
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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 are
furnished to the Company by the Representative) to whom
principal amounts of the [Unsecured 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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(e)
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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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(f)
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To
use its best efforts to qualify the [Unsecured 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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(g)
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To
pay all expenses, fees and taxes (other than transfer taxes on
resales of the [Unsecured Notes] by the respective
Underwriters) in connection with the issuance and delivery of
the [Unsecured 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 Dewey Ballantine LLP, counsel to the Underwriters, only in
the events provided in paragraph (h) of this Section 4, the
Underwriters hereby agreeing to pay such fees and
disbursements in any other event.
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(h)
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If
the Underwriters shall not take up and pay for the [Unsecured
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 7 or 8 hereof, to pay the fees and
disbursements of Dewey Ballantine LLP, counsel to the
Underwriters, and, if the Underwriters shall not take up and
pay for the [Unsecured 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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(i)
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The
Company will timely file any certificate required by Rule 52
under the Public Utility Holding Company Act of 1935 in
connection with the sale of the [Unsecured
Notes].
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(j)
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The
Company will use its best efforts to list, subject to notice
of issuance, the [Unsecured Notes] on the New York Stock
Exchange.]
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(k)
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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 [Unsecured 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 [Unsecured Notes] of the
Company or any substantially similar securities of the Company
without the consent of the Representative.]
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5.
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Warranties of and Indemnity by the Company
:
The Company represents and warrants to, and agrees with you, as set
forth below:
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(a)
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the
Registration Statement on its effective date complied, or was
deemed to comply, with the ap
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