EXHIBIT 99.02
OGE ENERGY CORP.
DESCRIPTION OF COMMON STOCK
The following statements are summaries of certain provisions of the
Restated Certificate of Incorporation of OGE Energy Corp. (the "Company") and
are subject to the detailed provisions thereof. Such summaries do not purport to
be complete, and reference is made to the Company's Restated Certificate of
Incorporation (which is filed as Exhibit 3.01 to the Company's Form 10-K for the
year ended December 31, 1996, File No. 1-12579) for a full and complete
statement of such provisions.
AUTHORIZED SHARES
Under the Company's Restated Certificate of Incorporation, the Company
is authorized to issue 125,000,000 shares of Common Stock, par value $.01 per
share (the "Common Stock"), of which approximately 40,373,991 shares were
outstanding on February 28, 1997.
The Company also is authorized to issue 5,000,000 shares of preferred
stock, par value $.01 per share (the "Preferred Stock"). As discussed below
under the caption "Rights to Purchase Series A Preferred Stock," the Company has
created a series of Preferred Stock designated as "Series A Preferred Stock" and
the number of shares constituting such series is 1,250,000. No shares of such
Series A Preferred Stock and no shares of any other Preferred Stock are
currently outstanding. Preferred Stock may be issued in the future in such
series as may be designated by the Company's Board of Directors. In creating any
such series, the Company's Board of Directors has the authority to fix the
rights and preferences of each series with respect to, among other things, the
dividend rate, redemption provisions, liquidation preferences, sinking fund
provisions, conversion rights and voting rights.
DIVIDEND RIGHTS
Subject to the prior payment in full of all accrued and unpaid
dividends on the Series A Preferred Stock and the possible prior rights of
holders of other Preferred Stock that may be issued in the future, holders of
the Company's Common Stock are entitled to receive such dividends as may be
declared from time to time by the Board of Directors of the Company out of funds
legally available therefor. The funds required by the Company to enable it to
pay dividends on its Common Stock are expected to be derived principally from
dividends paid by Oklahoma Gas and Electric Company, the Company's principal
subsidiary ("OG&E"), on OG&E's common stock. The Company's ability to receive
dividends on OG&E's common stock is subject to the prior rights of the holders
of OG&E preferred stock and the covenants of OG&E's certificate of incorporation
and its debt instruments limiting the ability of OG&E to pay dividends.
Under OG&E's certificate of incorporation, unless the capital
represented by the OG&E common stock (including premiums on capital stock and
retained earnings accounts) is 25% or more of total capital (which also includes
debt maturing more than one year after date of issue), dividends (other than
dividends payable in OG&E common stock) or distributions on, or acquisitions for
value of, OG&E common stock may not exceed 75% of net income for the preceding
twelve-month period after deducting dividends accruing on OG&E preferred stock
during the period; and if less than 20%, may not exceed 50% of such net income.
No portion of the retained earnings of OG&E is presently restricted by this
provision. OG&E's certificate of incorporation further provides that no dividend
may be declared or paid on the
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OG&E common stock until all amounts required to be paid or set aside for any
sinking fund for the redemption or purchase of OG&E Cumulative Preferred Stock,
par value $25 per share, have been paid or set aside. Currently, no shares of
Cumulative Preferred Stock, par value $25 per share, are outstanding.
The Indenture, as supplemented, which secures the first mortgage bonds
of OG&E contains provisions providing that, so long as any first mortgage bonds
are outstanding, earned surplus (i.e., retained earnings) equal to the sum of
(1) the amount by which the aggregate of (a) provisions for retirement and
depreciation and (b) expenditures for maintenance, during the period from June
1, 1955, to the last date for which a statement of income is available, is less
than 15% of gross operating revenues (after deducting cost of electricity
purchased for resale, rentals paid for utility property and the portion of gross
operating revenues attributable to increases since January 6, 1975, in OG&E's
cost of fuel used in electric generation) for that period and (2) the amount, if
any, by which all of the consideration paid by OG&E in acquiring shares of its
common stock during the above period exceeds $217,301,128 plus any consideration
received by OG&E from the sale after September 30, 1991 of its common stock,
shall not be available for the payment of cash dividends on common stock; and
that OG&E shall not acquire shares of its common stock for a valuable
consideration if after such acquisition the sum of (1) and (2) above would
exceed its then earned surplus (retained earnings). These provisions are not
expected to affect adversely OG&E's ability to pay dividends during the
foreseeable future.
VOTING RIGHTS
Each holder of Common Stock and each holder of Series A Preferred Stock
that may be issued in the future is entitled to one vote per share upon all
matters upon which shareowners have the right to vote. The Board of Directors of
the Company has the authority to fix conversion and voting rights for any new
series of Preferred Stock (including the right to elect directors upon a failure
to pay dividends), provided that no share of Preferred Stock can have more than
one vote per share. Notwithstanding the foregoing, if any Series A Preferred
Stock is issued in the future and if and when dividends payable on such Series A
Preferred Stock that may be issued in the future shall be in default for six
full quarterly dividends and thereafter until all defaults shall have been paid,
the holders of the Series A Preferred Stock, voting separately as one class, to
the exclusion of the holders of Common Stock, will be entitled to elect two (2)
directors of the Company.
The Company's Restated Certificate of Incorporation also contains "fair
price" provisions, which require the approval by the holders of at least 80% of
the voting power of the Company's outstanding Voting Stock (as defined below) as
a condition for mergers, consolidations, sales of substantial assets, issuances
of capital stock and certain other business combinations and transactions
involving the Company and any substantial (10% or more) holder of the Company's
Voting Stock unless the transaction is either approved by a majority of the
members of the Company's Board of Directors who are unaffiliated with the
substantial holder or certain minimum price and procedural requirements are met.
The provisions summarized in the foregoing sentence may be amended only by the
approval of the holders of at least 80% of the voting power of the Company's
outstanding Voting Stock. The Company's Voting Stock consists of all outstanding
shares of the Company entitled to vote generally in the election of directors
and currently consists of the Common Stock.
The Voting Stock of the Company does not have cumulative voting rights
for the election of directors. Subject to the rights of the holders of the
Series A Preferred Stock (if any are issued) to elect directors under certain
circumstances, the Company's Restated Certificate of Incorporation and By-Laws
contain provisions stating that: (1) the Board of Directors shall be divided
into three classes as nearly equal in number as possible with staggered terms of
office so that only approximately one-third of the
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directors are elected at each annual meeting of shareowners; (2) directors may
be removed only with the approval of the holders of at least 80% of the voting
power of the shares of the Company generally entitled to vote; (3) any vacancy
on the Board of Directors shall be filled only by the remaining directors then
in office, though less than a quorum; (4) advance notice of introduction by
shareowners of business at annual shareowner meetings and of shareowner
nominations for the election of directors shall be given and that certain
information be provided with respect to such matters; (5) shareowner action may
be taken only at an annual meeting of shareowners or a special meeting of
shareowners called by the President or the Board of Directors; and (6) the
foregoing provisions may be amended only by the approval of the holders of at
least 80% of the voting power of the shares generally entitled to vote. These
provisions, along with the "fair price" provisions discussed above and the
Rights described below, may deter attempts to change control of the Company (by
proxy contest, tender offer or otherwise) and will make more difficult a change
in control of the Company that is opposed by the Company's Board of Directors.
LIQUIDATION RIGHTS
Subject to the prior rights of the holders of the Series A Preferred
Stock that may be issued in the future and the possible prior rights of holders
of other Preferred Stock that may be issued in the future in the event of
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, the holders of the Common Stock are entitled to receive the
remaining assets and funds pro rata, according to the number of shares of Common
Stock held.
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OTHER PROVISIONS
The Board of Directors may allot and issue shares of Common Stock for
such consideration, not less than the par value thereof, as it may from time to
time determine. No holder of Common Stock has the preemptive right to subscribe
for or purchase any part of any new or additional issue of stock or securities
convertible into stock. The Common Stock of the Company is not subject to
further calls or to assessment by the Company.
RIGHTS TO PURCHASE SERIES A PREFERRED STOCK
On August 7, 1995, the Board of Directors of the Company declared a
dividend of one preferred stock purchase right (a "Right" or "Rights") for each
outstanding share of Common Stock of the Company. If and when the Rights become
exercisable, each Right will entitle the holder of record to purchase from the
Company one one-hundredth of a share of Series A Preferred Stock, par value $.01
per share ("Series A Preferred Stock") of the Company, at a price of $95 per one
one-hundredth of a share (the "Purchase Price"), although the price may be
adjusted as described below. The description and terms of the Rights are set
forth in a Rights Agreement (the "Rights Agreement") between the Company and The
Liberty National Bank and Trust Company of Oklahoma City, as Rights Agent (the
"Rights Agent").
Initially, (i) the Rights will not be exercisable, (ii) certificates
will not be sent to shareowners, (iii) the Rights will be evidenced by the
Common Stock certificates, (iv) the Rights will automatically trade with the
Common Stock, (v) the Rights will be transferred with and only with such Common
Stock certificates, (vi) new Common Stock certificates will contain a notation
incorporating the Rights Agreement by reference and (vii) the surrender for
transfer of any certificates for Common Stock outstanding will also constitute
the transfer of the Rights associated with the Common Stock represented by such
certificate.
Separate certificates representing the Rights will be distributed as
soon as practicable after the "Distribution Date," which is the close of
business on the earlier to occur of the tenth day following:
(i) a public announcement (or, if earlier, the date a majority of
the Board of Directors of the Company becomes aware) that a
person or group of affiliated or associated persons acquired,
or obtained the right to acquire, beneficial ownership of
Common Stock or other securities of the Company representing
20% or more of the voting power of all securities of the
Company then outstanding generally entitled to vote for the
election of directors ("Voting Power") (such person or group
being called an "Acquiring Person" and such date of first
public announcement being called the "Stock Acquisition
Date"), or
(ii) the commencement of, or public announcement of an intention to
commence, a tender or exchange offer the consummation of which
would result in the ownership of 20% or more of the
outstanding Voting Power (the earlier of the dates in clause
(i) or (ii) being called the "Distribution Date").
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Company's Common Stock as of the close of business on
the Distribution Date, and such separate certificates alone will evidence the
Rights from and after the Distribution Date.
Even if they have acquired, or obtained the right to acquire,
beneficial ownership of 20% or more of the Voting Power of the Company, each of
the following persons (an "Exempt Person") will not be
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deemed to be an Acquiring Person: (i) OG&E, the Company, any subsidiary of the
Company, any employee benefit plan or employee stock plan of the Company or of
any subsidiary of the Company or of OG&E; and (ii) any person who becomes an
Acquiring Person solely by virtue of a reduction in the number of outstanding
shares of Common Stock, unless and until such person shall become the beneficial
owner of, or make a tender offer for any additional shares of Common Stock.
The holders of the Rights are not required to take any action until the
Rights become exercisable. The Rights are not exercisable until the Distribution
Date. The Rights will expire at the close of business on December 11, 2000,
unless earlier redeemed or exchanged by the Company as described below.
In order to protect the value of the Rights to the holders, the
Purchase Price and the number of shares of Series A Preferred Stock (or other
securities or property) issuable upon exercise of the Rights are subject to
adjustment from time to time (i) in the event of a stock dividend on, or
subdivision, combination or reclassification of, the Company's Common Stock or
Series A Preferred Stock, (ii) upon the grant to holders of the Series A
Preferred Stock of certain rights or warrants to subscribe for Series A
Preferred Stock or convertible securities at less than the current market price
of the Series A Preferred Stock or (iii) upon the distribution to holders of the
Series A Preferred Stock of evidences of indebtedness or assets (excluding
dividends payable in Series A Preferred Stock) or of subscription rights or
warrants (other than those referred to above).
These adjustments are called anti-dilution provisions and are intended
to ensure that a holder of Rights will be adversely affected by the occurrence
of such events. With certain exceptions, the Company is not required to adjust
the Purchase Price until cumulative adjustments require a change of at least 1%
in the Purchase Price.
In the event (i) any Person (other than an Exempt Person) becomes an
Acquiring Person (except pursuant to an offer for all outstanding shares of
Common Stock that the independent directors determine prior to the time such
offer is made to be fair to and otherwise in the best interest of the Company
and its shareowners) or (ii) any Exempt Person who is the beneficial owner of
20% or more of the outstanding Voting Power of the Company fails to continue to
qualify as an Exempt Person, then each holder of record of a Right, other than
the Acquiring Person, will thereafter have the right to receive, upon payment of
the Purchase Price, Common Stock (or, in certain circumstance, cash, property or
other securities of the Company) having a market value at the time of the
transaction equal to twice the Purchase Price. Rights are not exercisable
following such event, however, until such time as the Rights are no longer
redeemable by the Company as set forth below. Any Rights that are or were at any
time, on or after the Distribution Date, beneficially owned by an Acquiring
Person shall become null and void.
For example, at an exercise price of $95 per Right, each Right not
owned by an Acquiring Person (or by certain related parties) following an event
set forth in the preceding paragraph would entitle its holder to purchase $190
worth of Common Stock (or other consideration, as noted above) for $95. Assuming
that the Common Stock had a per share value of $40 at such time, the holder of
each valid Right would be entitled to purchase 4.75 shares of Common Stock for
$95.
After the Rights have become exercisable, if (i) the Company is
acquired in a merger or other business combination (in which any shares of the
Company's Common Stock are changed into or exchanged for other securities or
assets) or (ii) more than 50% of the assets or earning power of the Company and
its subsidiaries (taken as a whole) are sold or transferred in one or a series
of related transactions, the Rights Agreement provides that proper provision
shall be made so that each holder of record of a Right will have the right to
receive, upon payment of the Purchase Price, that number of shares
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of common stock of the acquiring company having a market value at the time of
such transaction equal to two times the Purchase Price.
To the extent that insufficient shares of Common Stock are available
for the exercise in full of the Rights, holders of Rights will receive upon
exercise shares of Common Stock to the extent available and then other
securities of the Company, including units of shares of Series A Preferred Stock
with rights substantially comparable to those of the Common Stock, property, or
cash, in proportions determined by the Company, so that the aggregate value
received is equal to twice the Purchase Price. The Company, however, shall not
be required to issue any cash, property or debt securities upon exercise of the
Rights to the extent their aggregate value would exceed the amount of cash the
Company would otherwise be entitled to receive upon exercise in full of the then
exercisable Rights.
No fractional shares of Series A Preferred Stock or Common Stock will
be required to be issued upon exercise of the Rights and, in lieu thereof, a
payment in cash may be made to the holder of such Rights equal to the same
fraction of the current market value of a share of Series A Preferred Stock or,
if applicable, Common Stock.
At any time until the earlier of (i) ten days after the Stock
Acquisition Date (subject to extension by the Board of Directors) or (ii) the
date the Rights are exchanged pursuant to the Rights Agreement, the Company may
redeem the Rights in whole, but not in part, at a price of $0.01 per Right (the
"Redemption Price"). Immediately upon the action of the Board of Directors of
the Company authorizing redemption of the Rights, the right to exercise the
Rights will terminate, and the only right of the holders of Rights will be to
receive the Redemption Price without any interest thereon.
At any time after any Person becomes an Acquiring Person, the Board of
Directors may, at its option, exchange all or part of the outstanding Rights
(other than Rights held by the Acquiring Person and certain related parties) for
shares of Common Stock at an exchange ratio of one share of Common Stock per
Right (subject to certain anti-dilution adjustments). The Board may not effect
such an exchange, however, at any time any Person or group owns 50% or more of
the Voting Power of the Company. Immediately after the Board orders such an
exchange, the right to exercise the Rights shall terminate and the holders of
Rights shall thereafter only be entitled to receive shares of Common Stock at
the applicable exchange ratio.
Under presently existing federal income tax law, the issuance of the
Rights is not taxable to the Company or to shareowners and will not change the
way in which shareowners can presently trade the Company's shares of Common
Stock. If the Rights should become exercisable, shareowners, depending on then
existing circumstances, may recognize taxable income.
The Rights Agreement may be amended by the Board of Directors of the
Company. After the Distribution Date, however, the provisions of the Rights
Agreement may be amended by the Board only to cure any ambiguity, to make
changes which do not adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person or an affiliate or associate of
an Acquiring Person), or to shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment to adjust the time period
governing redemption shall be made at such time as the Rights are not
redeemable. In addition, no supplement or amendment may be made which changes
the Redemption Price, the final expiration date, the Purchase Price or the
number of one one-hundredths of a share of Series A Preferred Stock for which a
Right is exercisable, unless at the time of such supplement or amendment there
has been
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no occurrence of a Stock Acquisition Date and such supplement or amendment does
not adversely affect the interests of the holders of Right Certificates (other
than an Acquiring Person or an associate or affiliate of an Acquiring Person).
Until a right is exercised, the holder, as such, will have no rights as
a shareholder of the Company, including, without limitation, the right to vote
or to receive dividends.
The Rights may have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to acquire the
Company on terms not approved by the Board of Directors and, accordingly, will
make more difficult a change of control that is opposed by the Company's Board
of Directors. However, the Rights should not interfere with a proposed change of
control (including a merger or other business combination) approved by a
majority of the Board of Directors since the Rights may be redeemed by the
Company at $.01 per Right at any time until ten days after the Stock Acquisition
Date (subject to extension by the Board of Directors). Thus, the Rights are
intended to encourage persons who may seek to acquire control of the Company to
initiate such an acquisition through negotiations with the Board of Directors.
Nevertheless, the Rights also may discourage a third party from making a partial
tender offer or otherwise attempting to obtain a substantial equity position in,
or seeking to obtain control of, the Company. To the extent any potential
acquirors are deterred by the Rights, the Rights may have the effect of
preserving incumbent management in office.
This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is
filed as an Exhibit to the Company's Registration Statement on Form S-4,
Registration Statement No. 33-61699, and is incorporated herein by reference.
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