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Date
of report (Date of earliest event reported)
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May
16, 2008
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COLUMBUS
SOUTHERN POWER COMPANY
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Ohio
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1-2680
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31-4154203
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(Commission
File Number)
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(IRS
Employer Identification No.)
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1
Riverside Plaza, Columbus, OH
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43215
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(Address
of Principal Executive Offices)
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(Zip
Code)
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614-716-1000
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None
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[
]
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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[
]
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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1(a)
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Underwriting
Agreement, dated May 13, 2008, between the Company and the Underwriters,
as representatives of the several underwriters named in Exhibit 1 thereto,
in connection with the sale of the Notes.
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4(a)
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Company
Order and Officer’s Certificate, between the Company and Deutsche Bank
Trust Company Americas, as trustee, dated May 16, 2008, establishing the
terms of the Notes.
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4(b)
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Form
of the Notes (included in Exhibit 4(a) hereto).
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5(a)
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Opinion
of Thomas G. Berkemeyer regarding the legality of the
Notes.
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COLUMBUS
SOUTHERN POWER COMPANY
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By:
/s/ Thomas G. Berkemeyer
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Name:
Thomas G. Berkemeyer
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Title:
Assistant Secretary
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Exhibit
Number
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Description
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1(a)
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Underwriting
Agreement, dated May 13, 2008, between the Company and the Underwriters,
as representatives of the several underwriters named in Exhibit 1 thereto,
in connection with the sale of the Notes.
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4(a)
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Company
Order and Officer’s Certificate, between the Company and Deutsche Bank
Trust Company Americas, as trustee, dated May 16, 2008, establishing the
terms of the Notes.
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4(b)
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Form
of the Notes (included in Exhibit 4(a) hereto).
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5(a)
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Opinion
of Thomas G. Berkemeyer regarding the legality of the
Notes.
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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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(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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(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 Pricing Disclosure Package as of the Applicable Time, did 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.
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(d)
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Since
the respective dates as of which information is given in the Registration
Statement and the Pricing Prospectus, except as otherwise referred to or
contemplated therein, there has been no material adverse change in the
business, properties or financial condition of the
Company.
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(e)
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This
Agreement has been duly authorized, executed and delivered by the
Company.
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(f)
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The
consummation by the Company of the transactions contemplated herein is not
in violation of its charter or bylaws, will not result in the violation of
any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court having
jurisdiction over the Company or its properties, and will not conflict
with, or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
under any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company is a party or by which
it may be bound or to which any of its properties may be subject (except
for conflicts, breaches or defaults which would not, individually or in
the aggregate, be materially adverse to the Company or materially adverse
to the transactions contemplated by this
Agreement).
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(g)
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No
authorization, approval, consent or order of any court or governmental
authority or agency is necessary in connection with the issuance and sale
by the Company of the Notes or the transactions by the Company
contemplated in this Agreement, except (A) such as may be required under
the 1933 Act or the rules and regulations thereunder; (B) the
qualification of the Indenture under the Trust Indenture Act; (C) the
approval of the PUCO; and (D) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or “Blue Sky” laws.
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(h)
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The
consolidated financial statements of the Company and its consolidated
subsidiaries together with the notes thereto, included or incorporated by
reference in the Pricing Prospectus and the Prospectus present fairly the
financial position of the Company at the dates or for the periods
indicated; said consolidated financial statements have been prepared in
accordance with United States generally accepted accounting principles
applied, apart from reclassifications disclosed therein, on a consistent
basis throughout the periods involved; and the selected consolidated
financial information of the Company included in the Pricing Prospectus
and the Prospectus presents fairly the information shown therein and has
been compiled, apart from reclassifications disclosed therein, on a basis
consistent with that of the audited financial statements of the Company
included or incorporated by reference in the Pricing Prospectus and the
Prospectus.
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(i)
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There
is no pending action, suit, investigation, litigation or proceeding,
including, without limitation, any environmental action, affecting the
Company before any court, governmental agency or arbitration that is
reasonably likely to have a material adverse effect on the business,
properties, financial condition or results of operations of the Company,
except as disclosed in the Pricing
Prospectus.
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(j)
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At
the determination date for purposes of the Notes within the meaning of
Rule 164(h) under the Act, the Company was not an “ineligible issuer” as
defined in Rule 405 under the Act.
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(k)
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The
Company has not made any filings pursuant to the Securities Exchange Act
of 1934, as amended, or the rules and regulations thereunder, within 24
hours preceding the Applicable
Time.
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(a)
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The
Company represents and agrees that, without the prior consent of the
Representative, it has not made and will not make any offer relating to
the Notes that would constitute a “free writing prospectus” as defined in
Rule 405 under the Act, other than a Permitted Free Writing Prospectus;
each Underwriter, severally and not jointly, represents and agrees that,
without the prior consent of the Company and the Representative, it has
not made and will not make any offer relating to the Notes that would
constitute a “free writing prospectus,” as defined in Rule 405 under the
Act, other than a Permitted Free Writing Prospectus or one or more free
writing prospectuses that contains only preliminary or final terms of the
Notes (which may include prices of bonds from comparable issuers) and is
not required to be filed by the Company pursuant to Rule 433 or one or
more free writing prospectuses that contains information substantially the
same as the information contained in Exhibit 2 hereto (an “Underwriter
Free Writing Prospectus”); any such free writing prospectus the use of
which has been consented to by the Company and the Representative (which
shall include the pricing term sheet discussed in Section 6(b)) is listed
in Exhibit 3 and herein called a “Permitted Free Writing
Prospectus.”
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(b)
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The
Company agrees to prepare a pricing term sheet, substantially in the form
of Exhibit 2 hereto and approved by the Representative, and to file such
pricing term sheet pursuant to Rule 433(d) under the Securities Act within
the time period prescribed by such
Rule.
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(c)
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The
Company and each Underwriter has complied and will comply with the
requirements of Rule 433 applicable to any other Permitted Free Writing
Prospectus, including timely Commission filing where required and
legending.
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(d)
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The
Company and each Underwriter agrees that if at any time following issuance
of a Permitted Free Writing Prospectus any event occurred or occurs as a
result of which such Permitted Free Writing Prospectus would conflict in
any material respect with the information in the Registration Statement,
the Pricing Prospectus or the Prospectus or include an untrue statement of
a material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances then
prevailing, not misleading, then (i) the party that first becomes aware of
the foregoing will give prompt notice thereof to the Representative and/
or the Company, as applicable, and, (ii) if requested by the
Representative or the Company, as applicable, the Company will prepare and
furnish without charge a Permitted Free Writing Prospectus or other
document which will correct such conflict, statement or
omission.
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(e)
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Each
Underwriter agrees that (i) no information that is conveyed to investors
by such Underwriter has been or will be inconsistent with the information
contained in the Pricing Disclosure Package, and (ii) if an Underwriter
shall use an Underwriter Free Writing Prospectus that contains information
in addition to, or in conflict with, the Pricing Disclosure Package, the
liability arising from the use of such additional or conflicting
information shall be the sole responsibility of the Underwriter using such
Underwriter Free Writing Prospectus; provided, however, that, for the
avoidance of doubt, this clause 6(e)(ii) shall not be interpreted as
tantamount to the indemnification obligations contained in Section 8(b)
hereof.
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(a)
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To
the extent permitted by law, the Company agrees to indemnify and hold each
Underwriter harmless, each Underwriter’s employees, agents, officers and
directors and each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act, against any and all losses, claims,
damages or liabilities, joint or several, to which an Underwriter, they or
any of you or them may become subject under the Act or otherwise, and to
reimburse the Underwriters, they or any of you or them, for any legal or
other expenses incurred by you or them in connection with defending any
action, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon (i) any alleged untrue statement or untrue
statement of a material fact contained in (A) the Registration Statement,
(B) the Basic Prospectus (if used prior to the effective date of this
Agreement), (C) the Pricing Prospectus, (D) any Permitted Free Writing
Prospectus, (E) any “issuer free writing prospectus” (as defined in Rule
433 under the Act) or (F) the Prospectus, or (G) if the Company shall
furnish or cause to be furnished to the Underwriters any amendments or any
supplements to the Pricing Prospectus or the Prospectus, in the Pricing
Prospectus or the Prospectus as so amended or supplemented except to the
extent that such amendments or supplements relate solely to securities
other than the Notes (provided that if such Prospectus or such Prospectus,
as amended or supplemented, is used after the period of time referred to
in Section 4(b) hereof, it shall contain such amendments or supplements as
the Company deems necessary to comply with Section 10(a) of the Act), or
(ii) arise out of or are based upon any alleged omission or omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or actions arise out of or are based
upon any such alleged untrue statement or omission, or untrue statement or
omission which was made in the Registration Statement, in the Basic
Prospectus, in the Pricing Prospectus, in any Permitted Free Writing
Prospectus, in any “issuer free writing prospectus” (as defined in Rule
433 under the Act) or in the Prospectus, or in the Prospectus as so
amended or supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by or through the
Representative expressly for use therein or with 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. Each
Underwriter agrees promptly after its receipt of written notice of the
commencement of any action in respect to which indemnity from the Company
on account of its agreement contained in this Section 8(a) may be sought
by any such Underwriter, or by any person controlling any such
Underwriter, to notify the Company in writing of the commencement thereof,
but the omission so to notify the Company of any such action shall not
release the Company from any liability which it may have to an Underwriter
or to such controlling person otherwise than on account of the indemnity
agreement contained in this Section 8(a). In case any such
action shall be brought against an Underwriter or any such controlling
person and an Underwriter shall notify the Company of the commencement
thereof, as above provided, the Company shall be entitled to participate
in, and, to the extent that it shall wish, including the selection of
counsel (such counsel to be reasonably acceptable to the indemnified
party), to direct the defense thereof at its own expense. In
case the Company elects to direct such defense and select such counsel
(hereinafter, Company’s counsel), an Underwriter or any controlling person
shall have the right to employ its own counsel, but, in any such case, the
fees and expenses of such counsel shall be at such Underwriter’s or
controlling person’s expense unless (i) the Company has agreed in writing
to pay such fees and expenses or (ii) the named parties to any such action
(including any impleaded parties) include both an Underwriter or any
controlling person and the Company and such Underwriter or any controlling
person shall have been advised by its counsel that a conflict of interest
between the Company and such Underwriter or any controlling person may
arise (and the Company’s counsel shall have concurred in good faith with
such advice) and for this reason it is not desirable for the Company’s
counsel to represent both the indemnifying party and the indemnified party
(it being understood, however, that the Company shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for the Underwriters
or any controlling person (plus any local counsel retained by the
Underwriters or any controlling person in their reasonable judgment),
which firm (or firms) shall be designated in writing by the Underwriters
or any controlling person).
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(b)
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Each
Underwriter agrees, to the extent permitted by law, severally and not
jointly, to indemnify, hold harmless and reimburse the Company, its
directors and such of its officers as shall have signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the Act, to the same extent and upon the same
terms as the indemnity agreement of the Company set forth in Section 8(a)
hereof, but only with respect to untrue statements or alleged untrue
statements or omissions or alleged omissions made in the Registration
Statement, or in the Basic Prospectus, or in the Pricing Prospectus, or in
any Permitted Free Writing Prospectus, or in the Prospectus, or in the
Prospectus as so amended or supplemented, in reliance upon and in
conformity with information furnished in writing to the Company by the
Representative on behalf of such Underwriter expressly for use
therein. The Company agrees promptly after the receipt by it of
written notice of the commencement of any action in respect to which
indemnity from you on account of your agreement contained in this Section
8(b) may be sought by the Company, or by any person controlling the
Company, to notify you in writing of the commencement thereof, but the
Company’s omission so to notify you of any such action shall not release
you from any liability which you may have to the Company or to such
controlling person otherwise than on account of the indemnity agreement
contained in this Section 8(b).
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(c)
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If
recovery is not available or insufficient under Section 8(a) or 8(b)
hereof for any reason other than as specified therein, the indemnified
party shall be entitled to contribution for any and all losses, claims,
damages, liabilities and expenses for which such indemnification is so
unavailable or insufficient under this Section 8(c). In
determining the amount of contribution to which such indemnified party is
entitled, there shall be considered the portion of the proceeds of the
offering of the Notes realized by the Company on the one hand and the
Underwriters on the other hand, the relative knowledge and access to
information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or
omission, and any equitable considerations appropriate under the
circumstances. The Company and the Underwriters agree that it
would not be equitable if the amount of such contribution were determined
by pro rata or per capita allocation (even if the Underwriters were
treated as one entity for such purpose) without reference to the
considerations called for in the previous sentence. No
Underwriter or any person controlling such Underwriter shall be obligated
to contribute any amount or amounts hereunder which in the aggregate
exceeds the total price of the Notes purchased by such Underwriter under
this Agreement, less the aggregate amount of any damages which such
Underwriter and its controlling persons have otherwise been required to
pay in respect of the same claim or any substantially similar
claim. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. An Underwriter’s obligation to contribute
under this Section 8 is in proportion to its purchase obligation and not
joint with any other Underwriter.
|
|
|
(d)
|
No
indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever in respect of which indemnification
or contribution could be sought under this Section 8 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act by or on
behalf of such indemnified party.
|
|
|
(e)
|
In
no event shall any indemnifying party have any liability or responsibility
in respect of the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim
effected without its prior written
consent.
|
|
|
(i)
|
trading
in securities on the New York Stock Exchange shall have been generally
suspended by the Commission or by the New York Stock Exchange or trading
in the securities of the Company shall have been suspended by the New York
Stock Exchange, or
|
|
|
(ii)
|
there
shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other national or
international calamity or crisis,
or
|
|
|
(iii)
|
a
general banking moratorium shall have been declared by Federal or New York
State authorities, or
|
|
|
(iv)
|
there
shall have been any decrease in the ratings of the Company's debt
securities by Moody's Investors Services, Inc. (Moody's) or Standard &
Poor's Ratings Group (S&P) or either Moody's or S&P shall publicly
announce that it has such debt securities under consideration for possible
further downgrade.
|
|
Name
|
Principal
Amount of Notes
|
|
BNY
Mellon Capital Markets, LLC
|
$105,000,000
|
|
Goldman,
Sachs & Co.
|
105,000,000
|
|
Lehman
Brothers Inc.
|
105,000,000
|
|
SunTrust
Robinson Humphrey, Inc.
|
14,000,000
|
|
Fifth
Third Securities, Inc.
|
10,500,000
|
|
NatCity
Investments, Inc.
|
10,500,000
|
|
TOTAL
|
$350,000,000
|
|
Filed
pursuant to Rule 433
|
|
Registration
No. 333-150603
|
|
May
13, 2008
|
|
Issuer:
|
Columbus
Southern Power Company
|
|
Designation:
|
6.05%
Series G Senior Notes due 2018
|
|
Principal
Amount:
|
$350,000,000
|
|
Maturity:
|
May
1, 2018
|
|
Coupon:
|
6.05%
|
|
Interest
Payment Dates:
|
May
1 and November 1
|
|
First
Interest Payment Date:
|
November
1, 2008
|
|
Treasury
Benchmark:
|
3.875%
due May 15, 2018
|
|
Treasury
Price:
|
99-30+
|
|
Treasury
Yield:
|
3.881%
|
|
Reoffer
Spread:
|
+220
basis points
|
|
Yield
to Maturity:
|
6.081%
|
|
Price
to Public:
|
$99.774
|
|
Optional
redemption
|
Make-Whole
Call, at any time at a discount rate of Treasury plus 35 basis
points
|
|
Minimum
Denomination:
|
$2,000
x $1,000
|
|
Joint
Book-Running Managers:
|
BNY
Mellon Capital Markets, LLC
Goldman,
Sachs & Co.
Lehman
Brothers Inc.
|
|
Co-managers
|
SunTrust
Robinson Humphrey
NatCity
Investments, Inc.
Fifth
Third Securities, Inc.
|
|
Settlement
Date:
|
May
16, 2008
|
|
CUSIP:
|
199575
AW1
|
|
Ratings:
|
A3
by Moody’s Investors Service, Inc.
BBB
by Standard & Poor’s Ratings Services
A-
by Fitch Ratings Ltd.
|
|
1)
|
Prospectus
dated May 12, 2008
|
|
2)
|
Preliminary
Prospectus Supplement dated May 13, 2008 (including Incorporated
Documents)
|
|
3)
|
Permitted
Free Writing Prospectuses
|
|
a) Pricing
Term Sheet attached as Exhibit 2
hereto
|
|
1.
|
The
Company’s 6.05% Senior Notes, Series G, due 2018 (the “Notes”) are hereby
established. The Notes shall be in substantially the form attached hereto
as Exhibit 1.
|
|
2.
|
The
terms and characteristics of the Notes shall be as follows (the numbered
clauses set forth below correspond to the numbered subsections of Section
2.01 of the Indenture, with terms used and not defined herein having the
meanings specified in the Indenture or in the
Notes):
|
|
|
(i)
|
the
aggregate principal amount of Notes which may be authenticated and
delivered under the Indenture shall be limited to $350,000,000, except as
contemplated in Section 2.01(i) of the
Indenture;
|
|
|
(ii)
|
the
date on which the principal of the Notes shall be payable shall be May 1,
2018;
|
|
|
(iii)
|
interest
shall accrue from the date of authentication of the Notes; the Interest
Payment Dates on which such interest will be payable shall be May 1 and
November 1, and the Regular Record Date for the determination of holders
to whom interest is payable on any such Interest Payment Date shall be
April 15 and October 15, respectively; provided that the first Interest
Payment Date shall be November 1, 2008 and interest payable on the Stated
Maturity Date or any Redemption Date shall be paid to the Person to whom
principal shall be paid;
|
|
|
(iv)
|
the
interest rate at which the Notes shall bear interest shall be 6.05% per
annum;
|
|
|
(v)
|
the
Notes shall be redeemable at the option of the Company, in whole at any
time or in part from time to time, upon not less than thirty but not more
than sixty days’ previous notice given by mail to the registered owners of
the Notes at a redemption price equal to the greater of (i) 100% of the
principal amount of the Notes being redeemed and (ii) the sum of the
present values of the remaining scheduled payments of principal and
interest on the Notes being redeemed (excluding the portion of any such
interest accrued to the date of redemption) discounted (for purposes of
determining present value) to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate (as defined below) plus 35 basis points, plus, in each case,
accrued interest thereon to the date of
redemption.
|
|
·
|
the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical
release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System
and which establishes yields on actively traded U.S. Treasury securities
adjusted to constant maturity under the caption “Treasury Constant
Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the remaining
life (as defined above), yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue will be determined
and the Treasury Rate will be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month);
or
|
|
·
|
if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such redemption
date.
|
|
|
(vi)
(a) the Notes shall be issued in the form of a Global Note; (b) the
Depositary for such Global Note shall be The Depository Trust Company; and
(c) the procedures with respect to transfer and exchange of Global Notes
shall be as set forth in the form of Note attached
hereto;
|
|
|
(vii)
|
the
title of the Notes shall be “6.05% Senior Notes, Series G, due
2018”;
|
|
|
(viii)
|
the
form of the Notes shall be as set forth in Paragraph 1,
above;
|
|
|
(ix)
|
not
applicable;
|
|
|
(x)
|
the
Notes may be subject to a Periodic
Offering;
|
|
|
(xi)
|
not
applicable;
|
|
|
(xii)
|
not
applicable;
|
|
(xiii)
|
not
applicable;
|
|
(xiv)
|
the
Notes shall be issuable in denominations of $2,000 and integral multiples
of $1,000;
|
|
|
(xv)
|
not
applicable;
|
|
(xvi)
|
the
Notes shall not be issued as Discount
Securities;
|
|
|
(xvii)
|
not
applicable;
|
|
(xviii)
|
not
applicable; and
|
|
|
(xix)
|
Limitations
on Liens:
|
|
·
|
Liens
on property existing at the time of acquisition or construction of such
property (or created within one year after completion of such acquisition
or construction), whether by purchase, merger, construction or otherwise,
or to secure the payment of all or any part of the purchase price or
construction cost thereof, including the extension of any Liens to
repairs, renewals, replacements substitutions, betterments, additions,
extensions and improvements then or thereafter made on the property
subject thereto;
|
|
·
|
Financing
of the Company’s accounts receivable for electric
service;
|
|
·
|
Any
extensions, renewals or replacements (or successive extensions, renewals
or replacements), in whole or in part, of liens permitted by the foregoing
clauses; and
|
|
·
|
The
pledge of any bonds or other securities at any time issued under any of
the Secured Debt permitted by the above
clauses.
|
|
3.
|
You
are hereby requested to authenticate $350,000,000 aggregate principal
amount of 6.05% Senior Notes, Series G, due 2018, executed by the Company
and delivered to you concurrently with this Company Order and Officers’
Certificate, in the manner provided by the
Indenture.
|
|
4.
|
You
are hereby requested to hold the Notes as custodian for DTC in accordance
with the Blanket Issuer Letter of Representations dated November 20, 2003,
from the Company to DTC.
|
|
5.
|
Concurrently
with this Company Order and Officers’ Certificate, an Opinion of Counsel
under Sections 2.04 and 13.06 of the Indenture is being delivered to
you.
|
|
6.
|
The
undersigned Renee V. Hawkins and Thomas G. Berkemeyer, the Assistant
Treasurer and Assistant Secretary, respectively, of the Company do hereby
certify that:
|
|
|
(i)
|
we
have read the relevant portions of the Indenture, including without
limitation the conditions precedent provided for therein relating to the
action proposed to be taken by the Trustee as requested in this Company
Order and Officers’ Certificate, and the definitions in the Indenture
relating thereto;
|
|
|
(ii)
|
we
have read the Board Resolutions of the Company and the Opinion of Counsel
referred to above;
|
|
|
(iii)
|
we
have conferred with other officers of the Company, have examined such
records of the Company and have made such other investigation as we deemed
relevant for purposes of this
certificate;
|
|
|
(iv)
|
in
our opinion, we have made such examination or investigation as is
necessary to enable us to express an informed opinion as to whether or not
such conditions have been complied with;
and
|
|
|
(v)
|
on
the basis of the foregoing, we are of the opinion that all conditions
precedent provided for in the Indenture relating to the action proposed to
be taken by the Trustee as requested herein have been complied
with.
|
|
·
|
the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical
release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System
and which establishes yields on actively traded U.S. Treasury securities
adjusted to constant maturity under the caption “Treasury Constant
Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the remaining
life (as defined above), yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue will be determined
and the Treasury Rate will be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month);
or
|
|
·
|
if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such redemption
date.
|
|
NOTICE:
|
The
signature to this assignment must correspond with the name as written upon
the face of the within Note in every particular, without alteration or
enlargement or any change whatever and NOTICE: Signature(s)
must be guaranteed by a financial institution that is a member of the
Securities Transfer Agents Medallion Program (“STAMP”), the Stock Exchange
Medallion Program (“SEMP”) or the New York Stock Exchange, Inc. Medallion
Signature Program (“MSP”).
|
|
(a)
|
The
Company is a corporation duly organized and existing under the laws of the
State of Ohio, and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the
properties used by it in such
business.
|
|
(b)
|
The
Indenture has been duly qualified under the Trust Indenture Act of 1939,
as amended.
|
|
(c)
|
The
Company has full power and authority to execute and deliver the Company
Order, and the Indenture and the Company Order have been duly authorized,
executed and delivered by the Company and constitute valid and legally
binding obligations of the Company enforceable against the Company in
accordance with their respective terms. The Underwriting
Agreement has been duly authorized, executed and delivered by the
Company.
|
|
(d)
|
The
Company has full power and authority to execute and deliver the Notes, the
Notes have been duly authorized, executed and delivered by the Company,
and, upon payment and delivery in accordance with the Underwriting
Agreement, constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms and
entitled to the benefits of the
Indenture.
|
|
(e)
|
The
Public Utilities Commission of Ohio has issued an appropriate order
authorizing, among other things, the issuance and the sale of the Notes;
such order is sufficient for the issuance and the sale of the Notes; and
the issuance and the sale of the Notes in accordance with the Underwriting
Agreement are in conformity with the terms of such order. The
Commission has issued an appropriate order under the Securities Act with
respect to the sale of the Notes. No other approval or consent
of any governmental body is required for the issuance and the sale of the
Notes to you or the performance by the Company of its obligations under
the Underwriting Agreement, the Indenture or the Company
Order. I have not considered whether any approval or consent is
required under the blue sky laws of any
jurisdiction.
|
|
(f)
|
The
statements made in the Prospectus under the captions “Description of the
Notes” (other than under the heading “Book-Entry Notes-Registration,
Transfer, and Payment of Interest and Principal”) and “Supplemental
Description of the Senior Notes”, insofar as they purport to constitute
summaries of certain terms of documents referred to therein, constitute
accurate summaries of the terms of such documents in all material
respects.
|