Exhibit
1(a)
OHIO
POWER COMPANY
Underwriting Agreement
Dated
September 21, 2009
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 $500,000,000 aggregate principal amount of its 5.375% Senior
Notes, Series M, due 2021 (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. 333-161537) and a
prospectus relating to $750,000,000 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, 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 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 September 21, 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 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 2:30 pm (New York 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 98.912% 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 September 24, 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 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:
|
|
|
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.
|
|
|
|
|
|
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
|
|
|
|
|
|
|
|
|
|
Opinion of Jeffrey D. Cross, Esq. or Thomas G.
Berkemeyer, Esq., counsel to the Company, substantially in the form
heretofore previously provided to the Underwriters; and
|
|
|
|
|
|
|
|
|
|
Opinion of Dewey & LeBoeuf LLP, counsel to
the Underwriters, substantially in the form heretofore previously
provided to the Underwriters.
|
|
|
|
|
|
|
|
|
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 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 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.
|
|
|
|
|
|
|
|
|
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.
|
|
|
|
|
|
|
|
|
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.
|
|
|
|
|
|
|
|
|
That, at the Time of Purchase, an appropriate
order of the Public Utilities Commission of Ohio
(“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.
|
|
|
|
|
|
|
|
|
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.
|
|
|
|
|
|
|
|
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.
|
|
|
|
|
|
4.
Certain Covenants of the Company : In further
consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
|
|
|
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.
|
|
|
|
|
|
|
|
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.
|
|
|
|
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.
|
|
|
|
|
|
|
|
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.
|
|
|
|
|
|
|
|
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.
|
|
|
|
|
|
|
|
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 and
shall maintain such qualifications so long as required for the
offering and sale of the Notes 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.
|
|
|
|
|
|
|
|
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.
|
|
|
|
|
|
|
|
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.
|
|
|
|
|
|
|
|
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.
|
5.
Warranties of the Company : The Company
represents and warrants to, and agrees with you, as set forth
below:
|
|
|
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 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 and the
Prospectus as of their respective dates 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 the Trustee under the Indenture.
|
|
|
|
|
|
|
|
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.
|
|
|
|
|
|
|
|
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
Pricing D
|
|
