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As filed with the Securities and Exchange Commission on July 28, 1997.
Registration No. 333-26005
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment 1 to
FORM S - 3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ONEOK INC.
(Exact name of registrant as specified in its charter)
Delaware 73-0383100
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
100 West Fifth Street
Tulsa, Oklahoma 74103
918-588-7000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
J. D. NEAL DONALD A. KIHLE, ESQ.
VICE PRESIDENT and GABLE GOTWALS MOCK SCHWABE KIHLE
CHIEF FINANCIAL OFFICER GABERINO, P.C.
ONEOK INC. 100 WEST FIFTH STREET
100 WEST FIFTH STREET SUITE 1000
TULSA, OKLAHOMA 74013 TULSA, OKLAHOMA 74103-4219
918-588-7000 918-585-8141
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.|_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box.|X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
===========================================================================================
Proposed Proposed
Maximum Maximum
Title of Each Amount Offering Aggregate Amount of
Class of Securities to be price Offering Registration
to be Registered Registered Per Unit(1) Price(2) Fee
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Common Stock,
without par value 334,252 shs. $ 29.250 $ 9,776,871 $ 3,371
===========================================================================================
(1) Based on price of $29.250 per share of the Common Stock, the average of
the high and low sales price of the Common Stock published in the Wall
Street Journal report of the New York Stock Exchange for April 22, 1997.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c).
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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===============================================================================
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation, or sale would be lawful prior
to registration or qualification under the securities laws of any such state.
===============================================================================
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED APRIL 23, 1997
334,252 Shares
ONEOK Inc.
Common Stock
Up to 334,252 presently outstanding shares of common stock of ONEOK Inc. (the
"Company") may be offered for sale from time to time by certain stockholders of
the Company (the "Selling Stockholders"). See "Selling Stockholders." The
Company will not receive any of the proceeds from the sale of shares in this
offering.
Sales of shares by the Selling Stockholders may be effected from time to time
in one or more transactions on the New York Stock Exchange or other exchange on
which the common stock may be listed, in negotiated transactions or in a
combination of any such methods of sale. The selling price of the shares may be
at the market price prevailing at the time of sale, at a price related to such
prevailing market price, or at a negotiated price. The Selling Stockholders may
be deemed to be "underwriters" within the meaning, of the Securities Act of
1933, as amended (the "Securities Act"). See "Plan of Distribution." The
Company has agreed to indemnify the Selling Stockholders against certain civil
liabilities, including liabilities under the Securities Act.
The Company's common stock is traded on the New York Stock Exchange under the
trading symbol "OKE". On April 22, 1997, the last reported sale price of the
common stock on the New York Stock Exchange was $29.125 per share. See "Common
Stock Dividends and Price Range."
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The Date of this Prospectus is ______________________
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements, and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements, and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Judiciary Plaza, Washington, D.C. 20549, and at the following
regional offices of the Commission: Chicago Regional Office, CitiCorp Center,
500 West Madison Avenue, Suite 1400, Chicago, Illinois 60661-2511; and New York
Regional Office, Seven World Trade Center, Suite 1300, New York, New York
10048. Copies of such material can also be obtained (at prescribed rates) from
the Public Reference Section of the Commission at 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549. The Company's filings with the Commission are
also available to the public from commercial document retrieval services and at
the Website maintained by the Commission at "http://www.sec.gov." The common
stock of the Company is also listed on the New York Stock Exchange, and such
reports, proxy material, and other information concerning the Company also can
be inspected and copied at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on Form S-3
(the "Registration Statement") under the Securities Act with respect to the
shares of common stock offered by this prospectus. This prospectus, which
constitutes a part of the Registration Statement, does not contain all of the
information set forth in the Registration Statement and the exhibits and
schedules thereto, to which reference is made. Statements made in this
prospectus as to the contents of any contract, agreement, or other document
referred to are not necessarily complete, and in each instance reference is
made to the copy of such contract, agreement, or other document filed as an
exhibit to the Registration Statement, and each such statement is qualified in
its entirety by such reference. Any interested party may inspect the
Registration Statement, and the exhibits and schedules thereto, without charge,
at the public reference facilities of the Commission and may obtain copies of
all or any portion of the Registration Statement from the Commission upon
payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by, the Company with the
Commission pursuant to the Exchange Act (Commission File No. 1-2572), are
incorporated in this prospectus by reference and shall be deemed to be a part
hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
August 31, 1996;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
November 30, 1996, February 28, 1997, and May 31, 1997;
(c) The Company's Current Reports on Form 8-K dated December 23, 1996;
(d) The Company's Proxy Statement dated November 7, 1996, in connection
with the Annual Meeting of Shareholders held on December 12, 1996;
and
(e) The description of the Company's common stock contained in the
Company's Form S-16, Registration Statement under the Securities Act,
Registration Number 2-74435, filed October 16, 1981, including any
amendment or report filed for the purpose of updating such
description.
(f) The Company's Annual Report on Form 10-K/A, for the fiscal year ended
August 31, 1996.
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All other documents filed by the Company pursuant to Section 13(a), 13(c), 14,
or 15(d) of the Exchange Act subsequent to the date of this prospectus and
prior to the termination of the offering made hereby shall be deemed to be
incorporated by reference in this prospectus and to be a part hereof from the
date of the filing of such documents. Any statement contained in this
prospectus, in a supplement to this prospectus, or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this prospectus to the extent that a statement
contained herein or in any subsequently filed supplement to this prospectus or
in any document that also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
The Company will provide without charge to each person to whom a copy of this
prospectus has been delivered, on the written or oral request of any such
person, a copy of any or all of the documents referred to above, which have
been or may be incorporated in this prospectus by reference, other than
exhibits to such documents unless such exhibits are specifically incorporated
by reference in such documents. Written or telephone requests for such copies
should be directed to Weldon Watson, Manager of Investor Relations, ONEOK Inc.,
100 West Fifth Street, Post Office Box 871, Tulsa, Oklahoma 74102-0871,
telephone number (918) 588-7000.
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere in the prospectus and by the more detailed
information and the financial statements and notes appearing in the
incorporated documents.
THE COMPANY
ONEOK Inc. and its subsidiaries (collectively, the "Company") engage in
several aspects of the energy business. The Company purchases, gathers,
compresses, transports, and stores natural gas for distribution to consumers.
It transports gas for others, leases pipeline capacity to others for their use
in transporting gas, and leases a small intrastate transmission system in Texas
to others. The Company explores for and produces oil and gas, extracts and
sells natural gas liquids, and is engaged in the gas marketing business. In
addition, it leases and operates a headquarters office building (leasing excess
space to others) and owns and operates a related parking facility. As a
regulated natural gas utility, the Company distributes natural gas to
approximately 715,000 customers in a geographic service area comprising
approximately three-fourths of the State of Oklahoma, thereby meeting the
natural gas needs of over two million people. The Company is a Delaware
corporation with its principal executive offices located at 100 West Fifth
Street, P.O. Box 871, Tulsa, Oklahoma 74103-0871, and its telephone number is
(918) 588-7000.
The Company was incorporated in Delaware on November 10, 1933.
The principal executive offices of the Company are located at 100 West Fifth
Street, Tulsa, Oklahoma, and the telephone number is (918) 588-7000.
As of January 9, 1997, a certain Stock Purchase Agreement was entered into
between ONEOK Resources Company, a Delaware Corporation ("Resources') of which
the Company is the sole shareholder and the entities and individuals who owned
all of the issued and outstanding shares of the capital stock of PSEC, Inc. and
PSPC, Ltd., both Oklahoma Corporations (the"Selling Shareholders"), pursuant to
which the shareholders received shares of the Common Stock of the Company in
exchange for such issued and outstanding shares of capital stock (the "Stock
Transaction"). As a result of the Stock Transaction the Shareholders received
shares of the common stock of the Company, as follows:
Individual or Entity Number of Shares
-------------------- ----------------
Ray H. Potts, Trustee for
Ray H. Potts Living Trust 140,147
Ray H. Potts 71,804
Robert L. Stephenson, Trustee for Robert L.
Stephenson Living Trust 75,455
Robert L. Stephenson 38,659
R. L. Hilbun 5,848
Roger A. Rose 2,339
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of shares of
common stock in this offering.
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COMMON STOCK DIVIDENDS AND PRICE RANGE
The Company has paid regular quarterly dividends on its common stock for the
past six years, since February 1989. Dividends declared per share on common
stock (adjusted for a 2 for 1 stock split effective February 1990) for each
fiscal year beginning with the 1992 fiscal year are as follows:
1992 1993 1994 1995 1996 1997
$.96 $1.06 $1.11 $1.12 $1.18 $1.20*
*Estimated
Future dividends will depend on the Company's earnings, its financial
condition, and other factors.
The Company's common stock is traded on the New York Stock Exchange. The
following table sets forth the high and low sales prices of the Company's
common stock for the periods indicated, as reported by "The Wall Street
Journal" as New York Stock Exchange--Composite Transactions, and dividends
declared during such periods.
Price Range
-----------
Dividends Declared per
Fiscal Year Ended August 31 High Low Share
- --------------------------- ---- --- ------------
1995
1st Quarter ..................... $ 18 $ 15 7/8 $0.28
2nd Quarter ..................... 18 3/8 16 5/8 $0.28
3rd Quarter ..................... 19 5/8 17 1/4 $0.28
4th Quarter ..................... 23 5/8 18 3/4 $0.28
1996
1st Quarter ..................... $ 24 13/16 $ 22 $0.29
2nd Quarter ..................... 23 5/8 20 $0.29
3rd Quarter ..................... 27 1/2 21 1/8 $0.30
4th Quarter ..................... 28 5/8 24 3/8 $0.30
1997
1st Quarter ..................... $ 28 5/8 $ 25 1/4 $0.30
2nd Quarter ..................... 30 5/8 26 $0.30
3rd Quarter ..................... 31 1/8 25 7/8 $0.30
The last reported sale price of the common stock on April 22, 1997, on the New
York Stock Exchange was $ 29.125 per share. There were approximately 8,400
beneficial owners of the common stock on March 30, 1997.
MATERIAL CHANGES
On December 12, 1996, Western Resources Inc. ("Western Resources") and the
Company entered into an agreement (the "Agreement") providing for the
transactions (the "Transactions") described below. First, Western Resources
will transfer to a new corporation to be formed by Western Resources ("New
ONEOK") (i) all of the assets, property and interests owned by Western
Resources that are primarily used in, primarily related to or primarily
generated by the field operations of Western Resources's local natural gas
distribution business in the States of Kansas and Oklahoma, including: the gas
gathering, distribution and transmission system and related properties;
inventory in the form of gas, gas liquids and other related substances and
materials; computer hardware, measuring equipment, telemetry equipment,
machinery, furniture, vehicles and other tangible personal property; rights
under agreements, sales and purchase orders, contracts and other commitments;
leasehold interests; intangible personal
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property; government permits, franchises and licenses; real property leases;
accounts receivable; copies of customer and vendor lists, system maps and sales
materials; easements; rights and claims under insurance policies; and other
properties and assets; (ii) all of the capital stock of Western Resources'
wholly-owned subsidiaries, Mid Continent Market Center, Inc. and Westar Gas
Marketing, Inc. and (iii) all of the debts, claims and liabilities that arise
primarily out of, relate primarily to or are primarily generated by, the field
operations of Western Resources' local natural gas distribution business in the
States of Kansas and Oklahoma (such liabilities and debts to include an
aggregate principal amount of debt of Western Resources of $35 million, subject
to adjustment) and of the wholly-owned subsidiaries.
Immediately thereafter, the Company will merge with and into New ONEOK with New
ONEOK being the surviving corporation, and each outstanding share of common
stock of the Company will be exchanged for one share of New ONEOK Common Stock.
Upon consummation of the merger, (i) the current Company stockholders will hold
27,304,870 shares of New ONEOK Common Stock, representing 90.1% of the voting
power and 55% of the capital stock of New ONEOK, and (ii) Western Resources
will hold 2,996,702 shares of New ONEOK Common Stock, representing 9.9% of the
voting power of New ONEOK, and 19,317,584 shares of New ONEOK Preferred Stock,
which shares will not be entitled to vote in the election of directors, such
shares of New ONEOK Common Stock and New ONEOK Preferred Stock together
representing in the aggregate up to 45% of the capital stock of New ONEOK.
Each share of New ONEOK Preferred Stock will be convertible at Western
Resources' option into one share of New ONEOK Common Stock, subject to
adjustment, following the occurrence of a "regulatory change," which is defined
in the shareholder agreement to be entered into by Western Resources and New
ONEOK prior to the closing of the Transactions (the "Shareholder Agreement") as
(i) a repeal, modification, amendment or other change of the Public Utility
Holding Company Act of 1935 (the "1935 Act") and/or (ii) the receipt by Western
Resources of an exemption, unqualified opinion or no-action letter from the
Securities and Exchange Commission or its staff under the 1935 Act, or Western
Resources's registration under the 1935 Act, either or both of which has the
result of permitting Western Resources to convert its shares of New ONEOK
Preferred Stock into New ONEOK Common Stock.
Upon such conversion, Western Resources will hold up to 45% of the then
outstanding shares of New ONEOK Common Stock. The Shareholder Agreement will
impose certain standstill, transfer and voting restrictions on Western
Resources with respect to its beneficial ownership of New ONEOK capital stock
both before and after the regulatory change and will entitle Western Resources
to designate a number of directors (not exceeding one-third of the entire
Board) to be nominated to the New ONEOK Board.
The Company and New ONEOK filed a Registration Statement on Form S-4 in
connection with the Transactions pursuant to the Securities and Exchange Act of
1934 on March 17, 1997. The stockholders of the Company are expected to vote on
the proposed merger not more than 45 days after the Registration Statement
becomes effective. Consummation of the merger, expected to occur on or about
the third calendar quarter 1997, is conditioned upon the satisfaction or waiver
of all of the conditions to closing specified in the Agreement, including
receipt of state corporation commission orders in reasonably satisfactory form,
receipt of certain orders of the Securities and Exchange Commission pursuant to
the 1935 Act, receipt of certain third-party consents, entry of Western
Resources and the Company into certain ancillary agreements, including the
Shareholder Agreement, and expiration or early termination of waiting periods
required under the Hart-Scott-Rodino Antitrust Improvement Act of 1976.
The description of the Transactions contained herein is qualified in its
entirety by reference to the Agreement and the agreements ancillary thereto,
including the Shareholder Agreement. The Agreement is filed as Exhibit A to the
Company's Form 8-K, dated December 23, 1996, and is incorporated herein by
reference.
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SELLING STOCKHOLDERS
The following table sets forth certain information as of the date of this
Prospectus with respect to the Selling Stockholders. If all the shares offered
pursuant to this prospectus are sold, none of the Selling Stockholders will
beneficially own any shares of the Company's common stock. Any or all of the
shares offered hereby may be offered for sale by any of the Selling
Shareholders from time to time. Unless otherwise noted, each Selling
Stockholders has sole voting and investment power with respect to such shares.
Number of Shares Owned Number of Shares
Prior to Offering Which May be
Sold Pursuant to
Selling Stockholder Shares Percent of Class this Prospectus
- ------------------- ------ ---------------- ---------------
Ray H. Potts, Trustee for
140,147 less than 1% 140,147
Ray H. Potts Living Trust 71,804 less than 1% 71,804
Ray H. Potts
Robert L. Stephenson,
Trustee for Robert L 75,455 less than 1% 75,455
Stephenson Living Trust 38,659 less than 1% 38,659
Robert L. Stephenson 5,848 less than 1% 5,848
R. L. Hilbun 2,339 less than 1% 2,339
Roger A. Rose
In connection with the Stock Transaction, the Company and the Selling
Stockholders executed a Shelf Registration Agreement dated February 28, 1997
(the "Registration Agreement"), pursuant to which the Company agreed to prepare
and file a "shelf" registration statement on Form S-3 pursuant to Rule 415
under the Securities Act or any similar rule that may be adopted by the
Commission with respect to the shares acquired by the Selling Stockholders in
the Stock Transaction (together with any amendments, including post-effective
amendments and supplements thereto, to the "Shelf Registration"), to use its
reasonably best efforts to cause the Shelf Registration to be declared
effective by the Commission within 60 days of the date of the Registered
Statement, and keep the Shelf Registration continuously effective for a period
of 24 months from the date it becomes effective or, if earlier, until (i) all
the shares are sold in accordance with the Shelf Registration, or (ii) in the
opinion of Counsel for the Company, satisfactory to the Selling Stockholders,
registration of the shares is no longer required under the Securities Act and
the holder may sell all remaining shares in the open market without limitation
as to volume and without being required to file any forms or reports with the
Commission under the Securities act or the regulations thereunder. The Company
has also agreed to cause all the shares covered by the Shelf Registration, to
be listed on the New York Stock Exchange and any other exchange on which the
Company's common stock becomes listed. This Prospectus constitutes a part of
the Shelf Registration filed by the Company in accordance with the Registration
Agreement. The Company is responsible for and will bear the costs and expenses
of preparing and maintaining the Shelf Registration.
PLAN OF DISTRIBUTION
Shares of common stock may be sold pursuant to this prospectus from time to
time, in one or more transactions, by the Selling Stockholders, or by pledgees,
donees, transferees, or other successors in interest. Such sales may be made on
the New York Stock Exchange or any other exchange on which the Company's common
stock is listed, in negotiated transactions, or in a combination of any such
methods of sale. The selling price of the shares of common stock may be at the
market price prevailing at the time of sale, at a price related to the
prevailing market price, or at a negotiated price. Any shares which qualify for
sale under Rule 144 or Rule 144A
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under the Securities Act may be sold under Rule 144 or Rule 144A rather than
pursuant to this prospectus.
EXPERTS
The consolidated financial statements of ONEOK Inc. and subsidiaries as of
August 31, 1996 and 1995, and for each of the years in the three-year period
ended August 31, 1996, have been incorporated by reference herein and in the
Registration Statement in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing. The
report of KPMG Peat Marwick LLP covering the August 31, 1996, financial
statements refers to the adoption of Statement of Financial Accounting
Standards No. 121, Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to be Disposed Of.
LEGAL MATTERS
The legality of the common stock offered hereby will be passed upon for the
Company by Messrs. Gable Gotwals Mock Schwabe Kihle Gaberino, P. C., Tulsa,
Oklahoma.
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No person has been authorized to give any information or make any
representations in connection with this offering other than those contained in
this prospectus and, if given or made, such other information and
representations must not be relied upon as having been authorized. This
prospectus does not constitute an offer to sell or a solicitation of an offer
to buy any securities other than the registered securities to which it relates
or any offer to sell or the solicitation of an offer to buy such securities in
any circumstances in which such offer or solicitation is unlawful. Neither the
delivery of this prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or that the information contained
herein is correct as of any time subsequent to its date.
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TABLE OF CONTENTS
Page
----
Available Information ................................................... 3
Incorporation of Certain
Documents by Reference ................................................ 3
The Company ............................................................. 5
Use of Proceeds ......................................................... 5
Common Stock Dividends
and Price Range ....................................................... 6
Material Changes ........................................................ 6
Selling Stockholders .................................................... 8
Plan of Distribution .................................................... 8
Experts ................................................................. 9
Legal Matters ........................................................... 9
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334,252 Shares
Common Stock
ONEOK Inc.
------------------------
P R O S P E C T U S
------------------------
__________, ____
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
All amounts, except SEC registration fees, are estimates.
SEC registration fee ......................... $ 3,371
Printing and copying expenses ................ 1,000
Legal fees and expenses ...................... 10,000
Accounting, fees and expenses ................ 5,000
Miscellaneous ................................ 1,000
------------
Total ............................... $ 20,371
Item 15. Indemnification of Directors and Officers
The Registrant, as a Delaware corporation, is empowered by section 145 of the
Delaware General Corporation Act of the State of Delaware (the "DGCA"), subject
to the procedures and limitations stated therein, to indemnify any person
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with any
threatened, pending or completed action, suit or proceeding in which such
person is made or threatened to be made a party by reason of his being or
having been a director, officer, employee or agent of the Registrant. The
statute provides that indemnification pursuant to its provisions is not
exclusive of other rights of indemnification to which a person may be entitled
under any bylaw, agreement, vote of shareholders or disinterested directors, or
otherwise. Article VIII of the By-laws of the Company provides that directors
and officers of the Company shall be indemnified by the Company to the fullest
extent permitted by Delaware law as now or hereafter enforce, including the
advance of related expenses. If any determination is required under applicable
law as to whether a director or officer is entitled to indemnification, such
determination shall be made by the Board, by vote of a quorum of disinterested
directors, or by independent legal counsel by written opinion or by
shareholders.
The Certificate of Incorporation of the Company provides that a director of the
corporation shall not be personally liable to the corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director,
except for liability for (i) any breach of the director's duty of loyalty to
the corporation or its shareholders, (ii) acts or omissions not in good faith
or which would involve intentional misconduct or a knowing violation of law,
(iii) payment of unlawful dividends or unlawful stock purchases or redemptions,
or (iv) any transaction from which the director derived an improper personal
benefit.
Pursuant to Article VIII of the bylaws of the Company, upon authorization and
determination either (1) by the board of directors by a majority of a quorum
consisting of directors who were not parties to the action, suit, or proceeding
involved; (2) if such a quorum is not obtainable, or event if obtainable and a
quorum of disinterested directors so directs, by independent counsel in a
written opinion; or (3) by the stockholders, the Company is obligated to
indemnify any person who incurs liability by reason of the fact that he is or
was a director, officer, employee, or agent of the Company, or is or was
serving at its request as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise, or as a
member of any committee or similar body, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. However, in an action by
or in the right of the Company, no indemnification will
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be made if such person shall be adjudged to be liable to the Company, unless
such indemnification is allowed by a court of competent jurisdiction.
Under an insurance policy obtained by the Company, coverage of Company officers
and directors against liability for neglect, errors, omissions, or breaches of
duty in their capacities as such as provided for both the Company, to the
extent that it is obligated to indemnify such officers and directors, and the
officers and directors themselves. Such coverage is provided in the amount of
$85,000,000, with a retained limit by the Company of $200,000. The insurance
company is obligated to pay any loss in excess of the $200,000 retained limit
and defense costs from the first dollar, up to the policy limit of $85,000,000.
Among the policy exclusions are those which exclude coverage for accounting for
profits made within the meaning of Section 16(b) of the Securities Exchange Act
of 1934, claims based upon or attributable to directors and officers gaining
any personal profit or advantage to which such individuals are not legally
entitled, and for any claims brought about or attributable to the dishonesty of
an officer or director.
The registrant has been advised that, in the opinion of the Securities and
Exchange Commission, provisions providing for the indemnification by a
corporation of its officers, directors, and controlling persons against
liabilities imposed by the Securities Act of 1933 are against public policy as
expressed in said Act and are therefore unenforceable. It is recognized that
the above-summarized provisions of the registrant's bylaws and the applicable
Delaware General Corporation Law may be sufficiently broad to indemnify
officers, directors, and controlling persons of the registrant against
liabilities arising under said Act. Therefore, in the event that a claim of
indemnification against liability under said Act (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit, or
proceeding) shall be asserted by an officer, director, or controlling person
under said provisions, the registrant will, unless in the opinion of its
counsel the question has already been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question of whether or not such
indemnification by it is against public policy as expressed in said Act and
will be governed by the final adjudication of such issue.
Item 16. Exhibits*
(2)(a)** Stock Purchase Agreement, dated January 9, 1997, between
entities and individuals listed on Exhibit A, attached thereto,
and ONEOK Resources Company
(2)(b)***** Agreement between Western Resources, Inc. and ONEOK Inc., dated
as of December 12, 1996
(3)(a)*** Third Restated Certificate of Incorporation of ONEOK Inc.
(3)(b)**** By-Laws of ONEOK Inc., as Amended
(5)** Opinion and consent of Gable Gotwals Mock Schwabe Kihle
Gaberino, a Professional Corporation
(23)(a)** Consent of KPMG Peat Marwick LLP, Independent Certified Public
Accountants
(23)(b)** Consent of Gable Gotwals Mock Schwabe Kihle Gaberino, a
Professional Corporation (included in Exhibit 5)
(24)** Powers of attorney (Included on pages II-5 and II-6)
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13
- ---------------------
* Exhibits excluded are not applicable
** Filed herewith
*** Incorporated by reference to Exhibit (3)(a) to Annual Report on
Form 10-K dated August 31, 1996
**** Incorporated by reference to Exhibit (3)(b) to Annual Report on
Form 10-K dated August 31, 1996
***** Incorporated by reference to Exhibit 99.b to Current Report on
Form 8-K dated December 23, 1996
Item 17. Undertakings
1. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
2. Insofar as indemnification of liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that, in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in said
Act and is therefore unenforceable. In the event that a claim of
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has already been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of
whether or not such indemnification by it is against public police as expressed
in said Act and will be governed by the final adjudication of such issue.
3. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
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14
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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15
POWER OF ATTORNEY
The person whose signature appears below hereby authorizes David L. Kyle and J.
D. Neal, or either of them, as attorneys-in-fact with full power of
substitution, to execute in the name and on behalf of such person, in the
capacity stated below, and to file any and all amendments to this Registrations
Statement, including any and all post-effective amendments and all instruments
necessary or incidental in connection therewith.
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the registrant has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Tulsa and
the State of Oklahoma, on this 28th day of April, 1997.
ONEOK Inc.
By: Larry W. Brummett
-----------------------------
Larry W. Brummett
Chairman of the Board, President,
and Chief Executive Officer
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16
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes Larry W.
Brummett, David L. Kyle or J. D. Neal, or any of them, as attorneys-in-fact
with full power of substitution, to execute in the name and on behalf of each
person, individually and in each capacity stated below, and to file any and all
amendments to this Registration Statement, including any and all post-effective
amendments and all instruments necessary or incidental in connection therewith.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
indicated, in the City of Tulsa and the State of Oklahoma, on this 28th day of
April, 1997.
Larry W. Brummett J. D. Neal
- ---------------------------------------- ----------------------------------------
Larry W. Brummett J. D. Neal
Chairman of the Board, President Vice President, Chief Financial Officer,
Chief Executive Officer, and Director and Treasurer (Principal Financial and
Accounting Officer)
Edwyna G. Anderson Douglas Ann Newsom
- ---------------------------------------- ----------------------------------------
Edwyna G. Anderson Douglas Ann Newsom
Director Director
William M. Bell Gary D. Parker
- ---------------------------------------- ----------------------------------------
William M. Bell Gary D. Parker
Director Director
Douglas R. Cummings J. D. Scott
- ---------------------------------------- ----------------------------------------
Douglas R. Cummings J. D. Scott
Director Director
William L. Ford Deceased April 20, 1997
- ---------------------------------------- ----------------------------------------
William L. Ford G. Rainey Williams
Director Director
J. M. Graves Stanton L. Young
- ---------------------------------------- ----------------------------------------
J. M. Graves Stanton L. Young
Director Director
Stephen J. Jatras David L. Kyle
- ---------------------------------------- ----------------------------------------
Stephen J. Jatras David L. Kyle
Director Director
Bert H. Mackie
- ----------------------------------------
Bert H. Mackie
Director
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing Amendment 1 of Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Tulsa and the State of Oklahoma, on
July 28, 1997.
J. D. Neal
----------------------------------------
J. D. Neal
Vice President, Chief Financial Officer,
and Treasurer (Principal Financial and
Accounting Officer)
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION PAGE NO.
- ------- ----------- --------
(2)(a)* Stock Purchase Agreement 2a-1
(2)(b)**** Agreement between Western Resources, Inc. and
ONEOK Inc., dated as of December 12, 1996
(3)(a)** Third Restated Certificate of Incorporation of
ONEOK Inc.
(3)(b)*** Bylaws of ONEOK Inc., as Amended
(5)* Opinion and consent of Gable Gotwals Mock Schwabe
Kihle Gaberino, a Professional Corporation 5-1
(23)(a)* Consent of KPMG Peat Marwick LLP, independent
Certified Public Accountants 23a-1
(23)(b)* Consent of Gable Gotwals Mock Schwabe Kihle Gaberino,
a Professional Corporation 23b-1
(24)* Powers of Attorney (Included on pages II-5 and II-6)
- ----------------
* Filed herewith
** Incorporated by reference to Exhibit (3)(a) to Annual Report on
Form 10-K dated August 31, 1996
*** Incorporated by reference to Exhibit (3)(b) to Annual Report on
Form 10-K dated August 31, 1996
**** Incorporated by reference to Exhibit 99.b to Current Report on
Form 8-K dated December 23, 1996
II-8