EXHIBIT 1(a)
OHIO POWER COMPANY
Underwriting Agreement
Dated ___________ __,
2007
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 $___,000,000 aggregate principal
amount of its ____% Senior Notes, Series _, due ____ (the Notes) to
be issued pursuant to the Indenture dated as of September 1, 1997,
between the Company and Deutsche Bank Trust Company Americas, 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-______) and a prospectus relating to
$750,000,000 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 ________ __, ____, 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 ______% 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 ________ __, ____ (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 David C.
House, 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 Public Utilities
Commission of Ohio (the PUCO) 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 $_____ 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 $______, incurred in
connection with the financing contemplated by this
Agreement.
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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 w
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