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Exhibit
1a
COLUMBUS
SOUTHERN POWER COMPANY
Underwriting
Agreement
Dated
May 13, 2008
AGREEMENT made between
COLUMBUS SOUTHERN 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 $350,000,000 aggregate principal
amount of its 6.05% Senior Notes, Series G, due 2018 (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 on Form S-3 (File No. 333-150603) and
a prospectus relating to $590,000,000 aggregate principal
amount of, among other securities, its Senior 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, together with the Preliminary
Prospectus Supplement dated May 13, 2008, 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 1:30 p.m.
(NY Time) on the date of this Agreement and the documents
listed in Exhibit 3, 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 99.124% 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 May 16, 2008 (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 &
LeBoeuf 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 Representative
shall accept such delivery on behalf of itself and the other
Underwriters.
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, at the Applicable Time, 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 Notes shall
be satisfactory in form and substance to Dewey & LeBoeuf 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 &
LeBoeuf LLP, counsel to the Underwriters:
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(1)
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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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(2)
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Opinion
of Dewey & LeBoeuf LLP, counsel to the Underwriters,
substantially in the form heretofore previously provided to the
Underwriters.
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(c)
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That
the Representative shall have received on the date hereof and shall
receive at the Time of Purchase letters from Deloitte & Touche
LLP dated the date hereof and the date of the Time of Purchase,
respectively, in form and substance satisfactory to the
Representative (which may refer to the letters 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 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.
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(d)
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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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(e)
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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 or 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 Pricing Prospectus which is
unsatisfactory in substance to the Representative or unsatisfactory
in form to Dewey & LeBoeuf LLP, counsel to the
Underwriters.
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(f)
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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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(g)
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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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(h)
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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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(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 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 or
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 or the 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.
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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 (or required to deliver but for Rule 172 under
the Act), 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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(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), 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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(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 (or
required to deliver but for Rule 172 under the Act), 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 or 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 Pricing Prospectus or the Prospectus or
supplements to the Pricing Prospectus or 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 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 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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(h)
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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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(i)
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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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(a)
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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 thereunder and the Registration Statement at its
effective date and as of the Applicable Time 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 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
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, 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 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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(b)
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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
the 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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(c)
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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
misleading. The information contained in a Permitted
Free Writing Prospectus listed in Exhibit 3 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
Pricin
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