Preferred Securities
OGE ENERGY CAPITAL TRUST I
UNDERWRITING AGREEMENT
New York, New York
Dated the date set forth
In Schedule I hereto
To the Representatives
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
OGE Energy Capital Trust I, a Delaware statutory business trust (the
"Trust"), proposes to issue and sell to you and the other underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the aggregate liquidation amount
identified in Schedule I hereto of the Trust's preferred securities (the
"Preferred Securities") guaranteed (the "Guarantee"; together with the Preferred
Securities, the "Securities") by the Company (as defined herein) to the extent
set forth in the Guarantee Agreement (the "Guarantee Agreement") identified in
such Schedule I, to be entered into between the Company and the guarantee
trustee (the "Guarantee Trustee") identified therein. OGE Energy Corp., an
Oklahoma corporation (the "Company"), will be the owner of all of the beneficial
ownership interests represented by common securities (the "Common Securities")
of the Trust. Concurrently with the issuance of the Securities and the
Company's purchase of all of the Common Securities of the Trust, the Trust will
invest the proceeds of each in the Company's debt securities identified in
Schedule I hereto (the "Debentures"). The Debentures are to be issued under the
indenture (the "Indenture") identified in such Schedule I, between the Company
and the indenture trustee (the "Indenture Trustee") identified therein. If the
firm or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives" shall
each be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to each Underwriter that:
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations promulgated thereunder (the "Rules"), and has
carefully prepared and filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the file number of
which is set forth in Schedule I hereto), which has become
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effective, for the registration of the Securities under the Securities
Act. The registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under
the Securities Act and complies in all other material respects with such
rule. The Company proposes to file with the Commission pursuant to Rule
424 under the Securities Act ("Rule 424") a supplement to the form of
prospectus included in the registration statement relating to the
initial offering of the Securities and the plan of distribution thereof
and has previously advised you of all further information (financial and
other) with respect to the Company to be set forth therein. A second
registration statement (the "462(b) Registration Statement") may also be
prepared by the Company in conformity with the Securities Act and the
Rules and Regulations and if so prepared, will be filed with the
Commission under the Securities Act pursuant to Rule 462(b) of the Rules
and Regulations on the date of this Agreement. The term "Registration
Statement" means the initial registration statement and any 462(b)
Registration Statement, as amended at the date of this Agreement,
including the exhibits thereto, financial statements, and all documents
incorporated therein by reference pursuant to Item 12 of Form S-3 (the
"Incorporated Documents"), and such prospectus as then amended or
supplemented, including the Incorporated Documents, is hereinafter
referred to as the "Basic Prospectus"; and such supplemented form of
prospectus, in the form in which it shall be filed with the Commission
pursuant to Rule 424 (including the Basic Prospectus as so
supplemented), is hereinafter called the "Final Prospectus." Any
preliminary form of the Basic Prospectus which has heretofore been filed
pursuant to Rule 424 is hereinafter called the "Interim Prospectus."
Any reference herein to the Registration Statement, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus shall be
deemed to refer to and include the Incorporated Documents which were
filed under the Securities Exchange Act of 1934 (the "Exchange Act"), on
or before the date of this Agreement or the issue date of the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any Incorporated Documents
under the Exchange Act after the date of this Agreement or the issue
date of the Basic Prospectus, any Interim Prospectus or the Final
Prospectus, as the case may be, and deemed to be incorporated therein by
reference.
(b) (i) As of the date hereof, (ii) when the Final Prospectus is
first filed with the Commission pursuant to Rule 424, (iii) when, before
the Closing Date (hereinafter defined), any amendment to the Registration
Statement becomes effective, (iv) when, before the Closing Date, any
Incorporated Document is filed with the Commission, (v) when any supplement
to the Final Prospectus is filed with the Commission and (vi) at the
Closing Date, the Registration Statement, the Final Prospectus and any such
amendment or supplement will comply in all material respects with the
applicable requirements of the Securities Act and the Rules, and the
Incorporated Documents will comply in all material respects with the
requirements of the Exchange Act or the Securities Act, as applicable, and
the rules and regulations adopted by the Commission thereunder; on the date
hereof and on the Closing Date, the Indenture shall have been qualified
under and will comply in all material respects with the Trust Indenture Act
of 1939, as amended (the "Trust
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Indenture Act"); on the date it became effective, the Registration
Statement did not, and, on the date that any post-effective amendment to
the Registration Statement becomes effective, the Registration Statement
as amended by such post-effective amendment did not or will not, as the
case may be, contain an 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; on the date the Final Prospectus
is filed with the Commission pursuant to Rule 424 and on the Closing
Date, the Final Prospectus, as it may be amended or supplemented, will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading;
and on said dates, the Incorporated Documents will comply in all
material respects with the applicable provisions of the Exchange Act and
rules and regulations of the Commission thereunder, and, when read
together with the Final Prospectus, or the Final Prospectus as it may be
then amended or supplemented, will not contain an 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 are made, not misleading; PROVIDED THAT
the foregoing representations and warranties in this paragraph (b) shall
not apply to (i) statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by or
through the Representatives on behalf of any Underwriter specifically
for use in connection with the preparation of the Registration Statement
or the Final Prospectus, as they may be amended or supplemented, (ii)
information relating to The Depository Trust Company, Cedelbank and
Euroclear, or (iii) any statements in or omissions from the statements
of eligibility and qualification on Form T-1 of the Indenture Trustee,
the Property Trustee (the "Property Trustee") identified in Schedule I
hereto and the Guarantee Trustee under the Trust Indenture Act (the
"Forms T-1").
(c) The Basic Prospectus and any Interim Prospectus, as of their
respective dates, complied in all material respects with the requirements
of the Securities Act and of the Rules and did not include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Commission has not issued
an order preventing or suspending the use of the Basic Prospectus or any
Interim Prospectus.
(d) The independent public accountants whose report appears in the
Company's most recent Annual Report on Form 10-K, which is incorporated by
reference in the Final Prospectus, are independent public accountants as
required by the Securities Act and the Rules.
(e) The independent public accountants whose report on the historical
consolidated financial statements of Tejas Transok Holding, L.L.C.
("Transok") is incorporated by reference in the Final Prospectus, were
independent public accountants, as required by the Securities Act and the
Rules, during the period of their engagement to examine the financial
statements being reported on and at the date of their report.
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(f) The audited consolidated financial statements of the Company, and
the historical consolidated financial statements of Transok, in the Final
Prospectus and the Registration Statement present fairly on a consolidated
basis the financial position, the results of operations, changes in common
stock and other stockholder's equity and cash flows of the Company and its
subsidiaries, or of Transok and its subsidiaries, as the case may be, as of
the respective dates and for the respective periods indicated, all in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved. The unaudited
consolidated financial statements of the Company and of Transok and its
subsidiaries included in the Final Prospectus and the Registration
Statement and the related notes are true, complete and correct, subject to
normally recurring changes resulting from year-end audit adjustments, and
have been prepared in accordance with the instructions to Form 10-Q or
Form 8-K, as the case may be.
(g) Except as described in or contemplated by the Registration
Statement and the Final Prospectus, there has not been any material adverse
change in or any adverse development which materially affects the business,
properties, financial condition or results of the Company and its
subsidiaries taken as whole, from the dates as of which information is
given in the Registration Statement and Final Prospectus.
(h) This Agreement has been duly and validly authorized, executed and
delivered by the Company; the Guarantee Agreement has been duly and validly
authorized by the Company and, when duly executed and delivered by the
proper officers of the Company (assuming due execution and delivery by the
Guarantee Trustee) will constitute a valid and legally binding agreement of
the Company enforceable against the Company in accordance with its terms;
the Indenture has been duly and validly authorized and, when duly executed
and delivered by the proper officers of the Company and (assuming due
execution and delivery by the Indenture Trustee) constitutes a valid and
legally binding agreement of the Company, enforceable against the Company
in accordance with its terms; and the Debentures have been duly and validly
authorized, and, when validly authenticated, issued and delivered in
accordance with the Indenture against payment of the purchase price
therefor as contemplated by the Final Prospectus, will be validly issued
and outstanding obligations of the Company entitled to the benefits of the
Indenture; and the Debentures and the Guarantee, when issued and delivered,
will conform to the descriptions thereof contained in the Final Prospectus.
(i) The Company does not have any direct or indirect subsidiaries
that have business or properties that are material to the business and
properties of the Company and its subsidiaries taken as a whole except
those named on Exhibit A to this Agreement (the "Named Subsidiaries").
(j) The Company and the Named Subsidiaries have been duly
organized, are validly existing and in good standing under the laws of
their respective jurisdictions of organization, are duly qualified to do
business and in good standing as foreign corporations or limited
liability companies, as the case may be, in each jurisdiction in which
their respective ownership of property or the conduct of their
respective businesses
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requires such qualification or registration and in which the failure to
qualify or register would be reasonably likely, individually or in the
aggregate, to have a material adverse effect on the condition, financial
or otherwise, or on the earnings, results of operations, properties,
business affairs or business prospects, whether or not arising in the
ordinary course of business, of the Company and its subsidiaries taken
as a whole (a "Material Adverse Effect"). Except as may be disclosed in
the Registration Statement and the Final Prospectus, all outstanding
shares of capital stock or other capital interests of the Named
Subsidiaries are owned by the Company or a subsidiary of the Company,
free and clear of any lien, pledge and encumbrance or any claim of any
third party and are duly authorized, validly issued and outstanding,
fully paid and non-assessable.
(k) None of the Company or the Named Subsidiaries is in violation
of its certificate of incorporation, by-laws or similar governing
instrument or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which it is a party or by which it
may be bound, or to which any of its property or assets is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Guarantee Agreement, the
Indenture and the Debentures by the Company, the purchase of the Common
Securities by the Company from the Trust, and the consummation of the
transactions contemplated herein and in the Registration Statement do not
and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, the Agreements and
Instruments (except for such conflicts, breaches, defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions
of the certificate of incorporation, by-laws, or similar governing
instrument of the Company or any of its subsidiaries, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or any of
their respective assets, properties or operations. As used herein, a
"Repayment Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company, other than such events or conditions that are contemplated by
the terms of this Agreement and the Indenture.
(l) Other than as disclosed in the Registration Statement, there is
no action, suit, proceeding, inquiry or investigation before or brought by
any court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, that is required to be disclosed in the
Registration Statement or that might reasonably be expected to result in a
Material Adverse Effect, or that might reasonably be expected to materially
and
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adversely affect its properties or assets or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder. The aggregate of all pending legal
or governmental proceedings to which the Company or any of its subsidiaries
is a party or of which any of their respective properties or assets is the
subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(m) There are no contracts or documents which are required to be
described in the Registration Statement, the Final Prospectus or the
documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(n) Each of the Company and its Named Subsidiaries possess such
permits, licenses, approvals, consents and other authorizations issued
by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct in all material respects the businesses
now operated by the Company and its Named Subsidiaries and as described
in the Registration Statement and Prospectus (collectively,
"Governmental Licenses"); each of the Company and its Named Subsidiaries
are in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are in full force and effect, except when the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses
to be in full force and effect would not have a Material Adverse Effect;
and the Company has not received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(o) The Company and its Named Subsidiaries have good and
sufficient title to all real property, principal plants and all other
property owned by them and which is material to their operations, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (i) are described in the Final Prospectus or (ii) do not, singly or
in the aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property
by the Company or any of its Named Subsidiaries; and all of the leases
and subleases material to the business of the Company and its Named
Subsidiaries, and under which the Company and its Named Subsidiaries
hold properties described in the Prospectus, are in full force and
effect, and none of the Company or any of its Named Subsidiaries has
notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any of its Named
Subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or any of its Named
Subsidiaries to the continued possession of the leased or subleased
premises under any such lease or sublease.
(p) The certificates delivered pursuant to paragraph (h) of
Section 7 hereof and all other documents delivered by the Company or its
representatives in connection
6
with the issuance and sale of the Securities were on the dates on which
they were delivered, or will be on the dates on which they are to be
delivered, in all material respects true and complete.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
TRUST. The Company and the Trust, jointly and severally, represent, warrant and
agree that:
(a) The Trust has been duly created, is validly existing as a
statutory business trust and in good standing under the Business Trust Act
of the State of Delaware (the "Delaware Business Trust Act") with the trust
power and authority to own property and conduct its business as described
in the Registration Statement and the Final Prospectus, and has conducted
and will conduct no business other than the transactions contemplated by
this Agreement as described in the Registration Statement and the Final
Prospectus; the Trust is not and will not be a party to or bound by any
agreement or instrument other than this Agreement, the Declaration of Trust
of the Trust identified in Schedule I hereto, among the Company, as
Sponsor, and the regular trustees identified in Schedule I hereto (the
"Regular Trustees"), the Property Trustee and the Delaware Trustee
identified in Schedule I hereto (the "Delaware Trustee" and, together with
the Regular Trustees and the Property Trustee, the "Trustees"), and the
Amended and Restated Declaration of Trust of the Trust (the "Declaration")
identified in Schedule I hereto, among the Company, as Sponsor, and the
Trustees; the Trust has no and will not have any liabilities or obligations
other than those arising out of the transactions contemplated by this
Agreement, such Declaration of Trust and the Declaration and described in
the Final Prospectus; and the Trust is not a party to or subject to any
action, suit or proceeding of any nature.
(b) The Declaration is duly and validly authorized and, when duly
executed and delivered by the Company, as Sponsor, and the Trustees, and
(assuming due authorization, execution and delivery of the Declaration by
the Property Trustee and the Delaware Trustee), will constitute a valid and
legally binding agreement of the Company and the Trust, and will conform to
the description thereof contained in the Final Prospectus.
(c) All of the outstanding beneficial ownership interests in the
Trust have been, and the Preferred Securities and the Common Securities,
upon issuance and delivery and payment therefor in the manner described
herein, will be, duly authorized, validly issued and outstanding, fully
paid and non-assessable and will conform to the descriptions of the
Preferred Securities and the Common Securities contained in the Final
Prospectus.
(d) This Agreement has been duly and validly authorized, executed and
delivered by the Trust.
(e) The execution, delivery and performance of this Agreement, the
Declaration, the Common Securities and the Preferred Securities by the
Trust, the purchase of the Debentures by the Trust from the Company, the
distribution of the Debentures upon the liquidation of the Trust in the
circumstances contemplated by the
7
Declaration and described in the Final Prospectus, and the consummation
by the Trust of the transactions contemplated hereby and by the
Declaration (the "Trust Transactions") will not result in a violation of
any order, rule or regulation of any court or governmental agency having
jurisdiction over the Trust or its property. Except as set forth in the
Final Prospectus or as required by the Securities Act, the Exchange Act,
the Trust Indenture Act and applicable state securities laws, no
consent, authorization or order of, or filing or registration with, any
court or governmental agency is required for the Trust Transactions.
(f) Neither the Company nor the Trust is required to be registered as
an "investment company" under the Investment Company Act of 1940, as
amended.
3. SALE AND PURCHASE OF THE PREFERRED SECURITIES.
(a) The Trust agrees to sell to each Underwriter, and each
Underwriter, on the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein stated,
agrees to purchase from the Trust, at a purchase price equal to ___% of the
liquidation amount of the Preferred Securities (plus accrued
distributions), the number of Preferred Securities set forth opposite the
name of such Underwriter in Schedule II hereto. The obligations of the
Underwriters under this Agreement are several and not joint.
(b) As compensation to the Underwriters, the Company shall, on the
Closing Date pay to the Representatives for the accounts of the several
Underwriters commissions (as described in Schedule I hereto) on the
aggregate liquidation amount of the Preferred Securities sold by the Trust
on the Closing Date.
4. DELIVERY AND PAYMENT.
(a) Delivery by the Trust of the Preferred Securities to the
Representatives for the respective accounts of the several Underwriters and
payment by the Underwriters therefor by wire transfer in federal (same day)
funds to such account as the Company shall specify on behalf of the Trust,
shall take place at the office, on the date and at the time specified in
Schedule I hereto, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in Section 10
hereof (such date and time of delivery and payment for the Preferred
Securities being herein called the "Closing Date").
(b) The Preferred Securities will be in the form of one or more
global Securities registered in the name of Cede & Co., as nominee of the
Depository Trust Company ("DTC").
(c) On the Closing Date, the Company shall pay, or cause to be paid,
the commissions payable on the Closing Date to the Representatives for the
accounts of the Underwriters under Section 3 by wire transfer in federal
(same day) funds to such account as the Representatives shall specify.
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5. OFFERING BY UNDERWRITERS. The Company and the Trust hereby confirm
that the Underwriters and dealers have been authorized to distribute or cause to
be distributed any Interim Prospectus and are authorized to distribute the Final
Prospectus (as from time to time amended or supplemented if the Company
furnishes amendments or supplements thereto to the Underwriters). The
Representatives agree that, as soon as the Representatives believe the offering
of the Preferred Securities has been terminated, the Representatives will so
advise the Company and the Trust.
6. AGREEMENTS. Each of the Company and the Trust agrees with the several
Underwriters:
(a) To prepare the 462(b) Registration Statement, if necessary, in a
form approved by the Representatives and to file such 462(b) Registration
Statement with the Commission on the date hereof; to cause the Final
Prospectus to be filed with the Commission pursuant to Rule 424 as required
thereby and promptly to advise the Representatives (A) when the Final
Prospectus shall have been filed with the Commission pursuant to Rule 424,
(B) when any amendment to the Registration Statement relating to the
Securities shall have become effective, (C) of any request by the
Commission for any amendment of the Registration Statement, the Final
Prospectus, the Basic Prospectus or any Interim Prospectus, or for any
additional information, (D) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
qualification of the Declaration, the Guarantee Agreement or the Indenture
or the institution or threatening of any proceedings for that purpose and
(E) of the receipt by the Company or the Trust of any notification with
respect to the suspension of the qualification of the Securities or the
Debentures for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; after the date of this Agreement and prior
to the termination of the offering of the Preferred Securities, not to file
any amendment of the Registration Statement or amendment or supplement to
the Final Prospectus (except an amendment or supplement to the Final
Prospectus that is deemed to be incorporated by reference in the Final
Prospectus pursuant to Item 12 of Form S-3) without the consent of the
Representatives and to use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof; prior to receipt of the advice to be given by the
Representatives pursuant to Section 5, not to file any document that would
be deemed to be incorporated by reference in the Final Prospectus pursuant
to Item 12 of Form S-3 without delivering to the Representatives a copy of
the document proposed to be so filed, such delivery to be made at least 24
hours prior to such filing, and to consult with the Representatives as to
any comments that the Representatives make in a timely manner with respect
to the document so delivered.
(b) Subject to the last sentence of the immediately preceding
paragraph, if, at any time when a prospectus relating to the Securities is
required to be delivered under the Securities Act, any event occurs as a
result of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of
9
the circumstances under which they were made, not misleading, or
if it shall be necessary at any time to amend or supplement the Final
Prospectus to comply with the Securities Act or the Rules, to promptly
prepare and file with the Commission an amendment or supplement that will
correct such statement or omission or an amendment that will effect such
compliance and to use its best efforts to cause any amendment of the
Registration Statement containing an amended Final Prospectus to be made
effective as soon as possible.
(c) To deliver to the Representatives, without charge, (i) signed
copies of the Registration Statement relating to the Securities and of any
amendments thereto (including all exhibits filed with, or incorporated by
reference in, any such document) and (ii) as many conformed copies of the
Registration Statement and of any amendments thereto which shall become
effective on or before the Closing Date (excluding exhibits) as the
Representatives may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, to deliver, without charge to the
Representatives and to Underwriters and dealers, at such office or offices
as the Representatives may designate, as many copies of the Basic
Prospectus, any Interim Prospectus and the Final Prospectus as the
Representatives may reasonably request.
(e) To make generally available to the Company's security holders and
to the Representatives as soon as practicable an earnings statement (which
need not be audited) of the Company and its subsidiaries, covering a period
of at least 12 months beginning after the date the Final Prospectus is
filed with the Commission pursuant to Rule 424, which will satisfy the
provisions of Section 11(a) of the Securities Act.
(f) To furnish such information, execute such instruments and take
such actions as may be required to qualify the Securities and the
Debentures for offering and sale under the laws of such jurisdictions as
the Representatives may designate and to maintain such qualifications in
effect so long as required for the distribution of the Preferred
Securities; PROVIDED, HOWEVER, that neither the Company nor the Trust shall
be required to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
(g) So long as any Preferred Securities are outstanding, to furnish
or cause to be furnished to the Representatives copies of all annual
reports and current reports filed with the Commission on Forms 10-K, 10-Q
and 8-K, or such other similar forms as may be designated by the
Commission.
(h) To use its best efforts to cause the listing of the Preferred
Securities on the New York Stock Exchange, Inc. (the "NYSE") to be approved
as soon as possible.
(i) For a period beginning at the time of execution of this Agreement
and ending 30 business days thereafter, without the prior consent of Lehman
Brothers Inc.,
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not to directly or indirectly offer, sell, offer to sell, grant any
option for the sale of or otherwise dispose of any Preferred Securities
or Debentures or any securities convertible or exchangeable into, or
exercisable for Preferred Securities or Debentures, or any debt
securities substantially similar to the Debentures or any equity
securities substantially similar to the Preferred Securities.
(j) To use its best efforts to do and perform all things to be done
and performed hereunder prior to each Closing Date and to satisfy all
conditions precedent to the delivery of the Preferred Securities to be
purchased hereunder.
(k) So long as the Preferred Securities are outstanding, to take such
steps as shall be necessary to ensure that neither the Company nor the
Trust shall become subject to registration as an "investment company" under
the Investment Company Act of 1940, as amended.
7. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy in
all material respects of the representations and warranties on the part of the
Company and the Trust contained herein as of the date hereof and the Closing
Date, to the accuracy of any material statements made in any certificates,
opinions, affidavits, written statements or letters furnished to the
Representatives or to Jones, Day, Reavis & Pogue ("Underwriters' Counsel")
pursuant to this Agreement, to the performance by the Company and the Trust of
their respective obligations hereunder and to the following additional
conditions:
(a) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 not later than 5:00 p.m., New York City time, on the
second business day following the date of this Agreement or such later date
and time as shall be consented to in writing by the Representatives.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, or suspending the qualification of
the Declaration, the Guarantee Agreement or the Indenture, shall be in
effect and no proceedings for such purpose shall be pending before or
threatened by the Commission and any requests for additional information on
the part of the Commission (to be included in the Registration Statement or
the Final Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Representatives.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, there shall not have
been any change or decrease specified in the letter or letters referred to
in paragraph (j) (k), (l) or (m) of this Section 7 which, in the judgment
of the Representatives, makes it impracticable or inadvisable to proceed
with the offering and delivery of the Preferred Securities as contemplated
by the Registration Statement and the Final Prospectus.
11
(d) The Company shall have furnished to the Representatives the
opinion of Gardner, Carton & Douglas, counsel to the Company, dated the
Closing Date, to the effect that:
(i) The Company has been duly organized and is legally
existing and in good standing under the laws of the jurisdiction of
its incorporation with all requisite corporate power and authority to
own and operate its properties and to conduct its business as
described in the Final Prospectus.
(ii) The statements made in the Final Prospectus under the
captions "Description of Securities," "Certain Terms of the Preferred
Securities," "Certain Terms of the Junior Subordinated Debt
Securities," "Description of Preferred Securities," "Description of
the Junior Subordinated Debt Securities," "Description of the
Guarantee" and "Effect of Obligations Under the Junior Subordinated
Debt Securities and the Guarantee" insofar as such statements purport
to constitute summaries of the terms of the Preferred Securities, the
Debentures and the Guarantee, constitute accurate summaries of the
terms of the Preferred Securities, the Debentures and the Guarantee in
all material respects.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms; and the
Debentures have been duly authorized, executed and issued by the
Company, and assuming due authentication by the Indenture Trustee and
upon payment and delivery as contemplated by the Final Prospectus,
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture; and the Guarantee Agreement
has been duly authorized, executed and delivered by the Company, has
been duly qualified under the Trust Indenture Act and, assuming due
authorization, execution and delivery by the Guarantee Trustee, will
constitute a legal, valid and binding obligation of the Company;
provided however, that the foregoing is subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and by an implied covenant of good
faith and fair dealing.
(iv) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement, except for (1)
such consents, approvals, authorizations or orders as have been
obtained under the Securities Act and such as may be required under
the Exchange Act and the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters, and (2) the qualification of the Indenture, the
Declaration and the Guarantee Agreement under the Trust Indenture Act,
which has been obtained.
12
(v) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules which
have not been filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules.
(vi) To the best of such counsel's knowledge, neither the
Company nor either of its Named Subsidiaries is in violation of its
corporate charter or by-laws, or in default under any material
agreement, indenture or instrument known to such counsel, the effect
of which violation or default would be material to the Company and its
subsidiaries taken as a whole.
(vii) This Agreement and the Declaration have been duly
authorized, executed and delivered by the Company; the execution,
delivery and performance of this Agreement, the Declaration, the
Indenture and the Guarantee Agreement (collectively the "Transaction
Documents") by the Company and the Trust will not conflict with, or
result in the creation or imposition of any material lien, charge or
encumbrance upon any of the assets of the Company or its Named
Subsidiaries pursuant to the terms of, or constitute a default under,
any material agreement, indenture or instrument known to such counsel
and to which the Company or either of its Named Subsidiaries is a
party or is bound, or result in a violation of the corporate charter
or by-laws of the Company or either of its Named Subsidiaries or any
order, rule or regulation known to such counsel of any court or
governmental agency having jurisdiction over the Company, its Named
Subsidiaries or any of their respective properties, the effect of
which would be material to the Company and its subsidiaries taken as a
whole.
(viii) The Registration Statement has become effective under
the Securities Act, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
(ix) The Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto (except that no opinion
need be expressed as to the financial statements or other financial or
statistical data or the Forms T-1 included or incorporated by
reference therein) comply as to form in all material respects with the
requirements of the Securities Act and the Rules.
(x) Authorization for the listing of the Preferred
Securities on the NYSE has been given, subject to official notice of
issuance and evidence of satisfactory distribution.
(xi) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company or
any of its subsidiaries which would affect the subject matter of this
Agreement or is
13
required to be disclosed in the Final Prospectus which is not
disclosed and correctly summarized therein.
(xii) To such counsel's knowledge, the Trust is not a party
to or otherwise bound by any agreement other than those described in
the Final Prospectus.
(xiii) The Trust is not subject to registration as an
"investment company" under the Investment Company Act of 1940, as
amended.
Such opinion shall also contain a statement that although such counsel
is not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Final Prospectus (except as to those matters stated in
paragraph (ii) of such opinion), such counsel has no reason to believe that (i)
the Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading or (ii) the Final Prospectus contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except that no opinion need be expressed as to (a) the
financial statements or other financial or statistical data, (b) information
relating to The Depository Trust Company, Cedelbank and Euroclear, or (c) the
Forms T-1 included or incorporated by reference therein).
In rendering such opinion, such counsel may rely upon opinions of
local counsel satisfactory to the Representatives for matters governed by
Oklahoma law and may rely as to matters of fact, to the extent he or she deems
proper, upon certificates or affidavits of officers of the Company, the
Trustees, the Guarantee Trustee or the Indenture Trustee and public officials.
Such counsel may rely on a certificate of the Indenture Trustee and the
Guarantee Trustee with respect to the execution of the Debentures and the
Guarantee, respectively, by the Company, the authentication of the Debentures by
the Indenture Trustee, and the execution of the Guarantee by the Guarantee
Trustee.
(e) The Company shall have furnished to the Representatives the opinion of
Rainey, Ross, Rice & Binns, counsel to the Company, dated the Closing Date, to
the effect that:
(i) The Company has been duly organized and is legally
existing and in good standing under the laws of the jurisdiction of
its incorporation with all requisite corporate power and authority to
own and operate its properties and to conduct its business as
described in the Final Prospectus.
(ii) The statements made in the Final Prospectus under the
captions "Description of Securities," "Certain Terms of the Preferred
Securities," "Certain Terms of the Junior Subordinated Debt
Securities," "Description of Preferred Securities," "Description of
the Junior Subordinated Debt Securities," "Description of the
Guarantee" and "Effect of Obligations Under the Junior Subordinated
Debt Securities and the Guarantee" insofar as such statements
14
purport to constitute summaries of the terms of the Preferred
Securities, the Debentures and the Guarantee, constitute accurate
summaries of the terms of the Preferred Securities, the Debentures
and the Guarantee in all material respects.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms; and the Debentures have been duly authorized, executed and
issued by the Company, and assuming due authentication by the
Indenture Trustee and upon payment and delivery as contemplated by the
Final Prospectus, will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture; and the
Guarantee Agreement has been duly authorized, executed and delivered
by the Company, has been duly qualified under the Trust Indenture Act
and, assuming due authorization, execution and delivery by the
Guarantee Trustee, will constitute a legal, valid and binding
obligation of the Company; provided however, that the foregoing is
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law)
and by an implied covenant of good faith and fair dealing.
(iv) No consent, approval, authorization or order of any
Oklahoma court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement,
except for (1) such consents, approvals, authorizations or orders as
have been obtained under the Securities Act and such as may be
required under the Exchange Act and the blue sky laws of the State of
Oklahoma in connection with the purchase and distribution of the
Securities by the Underwriters, and (2) the qualification of the
Indenture, the Declaration and the Guarantee Agreement under the Trust
Indenture Act, which has been obtained.
(v) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules which
have not been filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules.
(vi) To the best of such counsel's knowledge, neither the
Company nor either of its Named Subsidiaries is in violation of its
corporate charter or by-laws, or in default under any material
agreement, indenture or instrument known to such counsel, the effect
of which violation or default would be material to the Company and its
subsidiaries taken as a whole.
(vii) This Agreement and the Declaration have been duly
authorized, executed and delivered by the Company; the execution,
delivery and performance of this Agreement, the Declaration, the
Indenture and the Guarantee
15
Agreement (collectively the "Transaction Documents") by the Company
and the Trust will not conflict with, or result in the creation or
imposition of any material lien, charge or encumbrance upon any of
the assets of the Company or its Named Subsidiaries pursuant to
the terms of, or constitute a default under, any material
agreement, indenture or instrument known to such counsel and to
which the Company or either of its Named Subsidiaries is a party
or is bound, or result in a violation of the corporate charter or
by-laws of the Company or either of its Named Subsidiaries or any
order, rule or regulation known to such counsel of any court or
governmental agency having jurisdiction over the Company, its
Named Subsidiaries or any of their respective properties, the
effect of which would be material to the Company and its
subsidiaries taken as a whole.
(viii) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company or
any of its subsidiaries which would affect the subject matter of this
Agreement or is required to be disclosed in the Final Prospectus which
is not disclosed and correctly summarized therein.
(ix) To such counsel's knowledge, the Trust is not a party
to or otherwise bound by any agreement other than those described in
the Final Prospectus.
Such opinion shall also contain a statement that although such counsel
is not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Final Prospectus (except as to those matters stated in
paragraph (ii) of such opinion), such counsel has no reason to believe that (i)
the Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading or (ii) the Final Prospectus contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except that no opinion need be expressed as to (a) the
financial statements or other financial or statistical data, (b) information
relating to The Depository Trust Company, Cedelbank and Euroclear, or (c) the
Forms T-1 included or incorporated by reference therein).
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent he or she deems proper, upon certificates or affidavits of
officers of the Company, the Trustees, the Guarantee Trustee or the Indenture
Trustee and public officials. Such counsel may rely on a certificate of the
Indenture Trustee and the Guarantee Trustee with respect to the execution of the
Debentures and the Guarantee, respectively, by the Company, the authentication
of the Debentures by the Indenture Trustee, and the execution of the Guarantee
by the Guarantee Trustee.
(f) Richards, Layton & Finger, special Delaware counsel for the
Company and the Trust, shall have furnished to the Representatives its
opinion, on certain matters
16
of Delaware law relating to the validity of the Preferred Securities,
dated the Closing Date, to the effect that:
(i) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business Trust
Act and, under the Declaration and the Act, has the trust power and
authority to own property and to conduct its business as described in
the Final Prospectus and to enter into and perform its obligations
under each of this Agreement, the Preferred Securities and the Common
Securities.
(ii) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Declaration and the Final
Prospectus, will be validly issued and will represent undivided
beneficial ownership interests in the assets of the Trust; under the
Delaware Business Trust Act and the Declaration the issuance of the
Common Securities is not subject to preemptive rights.
(iii) The Preferred Securities have been duly authorized by
the Declaration and, when issued and delivered against payment of the
consideration as set forth in the Declaration and the Final
Prospectus, the Preferred Securities will be validly issued and
(subject to the terms of the Declaration) will represent fully paid
and non-assessable undivided beneficial ownership interests in the
Trust, and the holders of the Preferred Securities will be entitled to
the benefits of the Declaration (subject to the limitations set forth
in clause (v) below) and will be entitled to the same limitation of
personal liability under Delaware law as extended to stockholders of
private corporations for profit (such counsel may note that the
holders of Preferred Securities will be required to make payment or
provide indemnity or security as set forth in the Declaration).
(iv) Under the Delaware Business Trust Act and the
Declaration, the execution and delivery by the Trust of this Agreement
has been duly authorized by all requisite trust action on the part of
the Trust.
(v) Assuming the Declaration has been duly authorized by
the Company and has been duly executed and delivered by the Company
and the Regular Trustees, and assuming due authorization, execution
and delivery of the Declaration by the Property Trustee and the
Delaware Trustee, the Declaration constitutes a valid and binding
obligation of the Company and the Regular Trustees, enforceable
against the Company and the Regular Trustees in accordance with its
terms; provided however, that the foregoing is subject to the effects
of bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer, and other similar laws
relating to or affecting creditors' rights generally, principles of
equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in
equity or at law) and the effect of applicable public policy on the
enforceability of provisions relating to indemnification and
contribution.
17
(vi) The issuance and sale by the Trust of the Preferred
Securities, the purchase by the Trust of the Debentures, the
execution, delivery and performance by the Trust of this Agreement,
the consummation by the Trust of the transactions contemplated by this
Agreement and compliance by the Trust with its obligations thereunder
will not violate (i) any of the provisions of the Certificate of Trust
or the Declaration or (ii) any Delaware law or administrative
regulation applicable to the Trust.
(vii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any Delaware
court or Delaware governmental authority or agency is necessary or
required in connection with the due authorization, execution and
delivery of this Agreement or the offering, issuance, sale or delivery
of the Preferred Securities, other than the filing of the Certificate
of Trust with the Secretary of State.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the law of the State of Delaware.
(g) Gardner, Carton & Douglas, special tax counsel to the Company and
the Trust, shall have furnished to the Representatives its opinion, dated
the Closing Date, to the effect that:
(i) Subject to the qualifications set forth in the opinion
and the Final Prospectus, under current law and assuming full
compliance with the terms of the Declaration and based upon certain
facts and assumptions set forth in such opinion the Trust will be
characterized as a grantor trust for United States federal income tax
purposes and not as an association taxable as a corporation;
(ii) Subject to the qualifications set forth in the opinion
and the Final Prospectus, under current law and based on certain
representations, facts and assumptions set forth in the opinion, the
Debentures will be classified as indebtedness for United States
federal income tax purposes; and
(iii) Subject to the qualifications set forth in the opinion
and the Final Prospectus, the statements made in the Final Prospectus
under the caption "Certain United States Federal Income Tax
Consequences" insofar as they purport to constitute summaries of
matters of United States federal tax law and regulations or legal
conclusions with respect thereto, constitute accurate summaries of the
matters described therein in all material respects.
(h) The Representatives shall have received from the Underwriters'
Counsel such opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Preferred Securities, the Guarantee, the
Debentures, the Registration Statement, the Final Prospectus and other
related matters as the Representatives may reasonably require,
18
and the Company and the Trust shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(i) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Vice
President and its Chief Financial Officer or its Treasurer, dated the
Closing Date, to the effect that, to the best of their knowledge after due
inquiry:
(i) The representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing
Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
(iii) Insofar as it relates to the Trust, (x) the
Registration Statement does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
(y) the Final Prospectus does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
and (z) since the effective date of the Registration Statement there
has not occurred any event required to be set forth in an amended or
supplemented prospectus which has not been so set forth.
(j) The Trust shall have furnished to the Representatives a
certificate of its Regular Trustees, dated the applicable Closing Date, to
the effect that, to the best of their knowledge after due inquiry:
(i) The representations and warranties of the Trust in this
Agreement are true and correct in all material respects on and as of
such Closing Date with the same effect as if made on such Closing
Date, and the Trust has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to such Closing Date.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
(iii) (x) The Registration Statement does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (y) the Final
19
Prospectus does not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and
(z) since the effective date of the Registration Statement there
has not occurred any event required to be set forth in an amended
or supplemented prospectus which has not been so set forth.
(k) At the date of execution of this Agreement, a nationally
recognized firm of independent public accountants shall have furnished to
the Representatives a letter, dated the date of this Agreement, in form and
substance satisfactory to the Representatives, which states in effect that:
(i) In their opinion, any consolidated financial statements
of the Company and its subsidiaries, and the supporting schedules,
included in the Registration Statement and the Final Prospectus and
audited by them comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder.
(ii) On the basis of a reading of the unaudited consolidated
financial statements of the Company and its subsidiaries, if any,
included in the Registration Statement and the Final Prospectus and of
the latest unaudited consolidated financial statements made available
by the Company, carrying out certain specified procedures (but not an
audit in accordance with generally accepted auditing standards), a
reading of the minutes of the meetings of the directors of the
Company, and inquiries of certain officials of the Company and its
subsidiaries, who have responsibility for financial and accounting
matters of the Company and its subsidiaries, as to transactions and
events subsequent to the date of the most recent audited consolidated
financial statements included in the Registration Statement and the
Final Prospectus, nothing came to their attention that caused them to
believe that:
(A) any material modifications should be made to the
unaudited consolidated financial statements of the Company and
its subsidiaries included in the Registration Statement and the
Final Prospectus for them to be in conformity with generally
accepted accounting principles; and such financial statements do
not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
published instructions, rules and regulations thereunder.
(B) the unaudited capsule information of the Company and
its subsidiaries included in the Registration Statement and the
Final Prospectus does not agree with the amounts set forth in the
unaudited consolidated financial statements of the Company from
which it was derived or was not determined on a basis
substantially consistent with that of the corresponding financial
information in the latest audited financial
20
statements of the Company included in the Registration Statement
and the Final Prospectus.
(C) (I) as of the latest date as of which the Company and
its subsidiaries have monthly financial statements, there was any
decrease in the capital stock, additional paid-in capital or
retained earnings, or increase in long-term indebtedness of the
Company and its subsidiaries, as compared with the amounts shown
in the most recent consolidated statement of financial condition
of the Company and its subsidiaries included in the Registration
Statement and the Final Prospectus or (II) with respect to the
period subsequent to the date of the most recent financial
statements included in the Registration Statement and the Final
Prospectus and extending through the latest date as of which the
Company and its subsidiaries have monthly financial statements,
there was any decline in consolidated revenues or net income as
compared with the comparable period of the prior fiscal year;
(D) as of a specified date not more than three business
days prior to the date of the letter, there was any decrease in
the capital stock or additional paid-in capital, or increase in
long-term indebtedness of the Company and its subsidiaries as
compared with the amounts shown in the most recent consolidated
statement of financial condition of the Company and its
subsidiaries included in the Registration Statement and the Final
Prospectus;
except in all instances for increases or decreases set forth in such
letter, in which case the letter shall be accompanied by an explanation by
the Company as to the significance thereof, unless said explanation is not
deemed necessary by the Representatives.
(iii) (x) They have read the pro forma financial statements
included in the Registration Statement and the Final Prospectus,
(y) they have made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of the
Company as to the basis for their determination of the pro forma
adjustments and whether such pro forma financial statements comply as
to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X and (z) they have proved
the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts; and as a result thereof,
nothing came to their attention that caused them to believe that such
pro forma financial statements do not so comply with Rule 11-02 of
Regulation S-X and that such pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements.
(iv) They have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is expressed in
dollars, or percentages derived
21
from dollar amounts, and has been obtained from the general
accounting records of the Company) set forth in the Registration
Statement, as amended, and the Final Prospectus, as amended or
supplemented, and in Exhibit 12 to the Registration Statement,
including specified information, if any, included or incorporated
from the Company's Annual Report on Form 10-K incorporated therein
or specified information, if any, included or incorporated from any
of the Company's Quarterly Reports on Form 10-Q or its Current
Reports on Form 8-K incorporated therein, agrees with the
accounting records of the Company and its subsidiaries or
computations made therefrom, excluding any questions of legal
interpretation.
(l) At the Closing Date, the nationally recognized firm of
independent public accountants that furnished the letter referred to in
paragraph (k) of this Section 7 shall have furnished to the Representatives
a letter dated the Closing Date, which shall confirm, on the basis of a
review in accordance with the procedures set forth in the letter, that
nothing has come to their attention that would require any change in the
letter referred to in paragraph (k) of this Section 7 if it were required
to be dated and delivered at the Closing Date.
(m) At the date of execution of this Agreement, a nationally
recognized firm of independent public accountants shall have furnished to
the Representatives a letter, dated the date of this Agreement, in form and
substance satisfactory to the Representatives, which states in effect that:
(i) In their opinion, any consolidated financial statements
of Transok and its subsidiaries, and the supporting schedules,
included in the Registration Statement and the Final Prospectus and
audited by them comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder.
(ii) On the basis of a reading of the unaudited consolidated
financial statements of Transok and its subsidiaries, if any, included
in the Registration Statement and the Final Prospectus and of the
latest unaudited consolidated financial statements made available by
Transok, carrying out certain specified procedures (but not an audit
in accordance with generally accepted auditing standards), a reading
of the minutes of the meetings of the members of Transok, and
inquiries of certain officials of Transok and its subsidiaries, who
have responsibility for financial and accounting matters of Transok
and its subsidiaries, as to transactions and events subsequent to the
date of the most recent audited consolidated financial statements
included in the Registration Statement and the Final Prospectus,
nothing came to their attention that caused them to believe that:
(A) any material modifications should be made to the
unaudited consolidated financial statements of Transok and its
subsidiaries included
22
in the Registration Statement and the Final Prospectus for them
to be in conformity with generally accepted accounting
principles; and such financial statements do not comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the published
instructions, rules and regulations thereunder.
(B) any unaudited capsule information of Transok and its
subsidiaries included in the Registration Statement and the Final
Prospectus does not agree with the amounts set forth in the
unaudited consolidated financial statements of Transok from which
it was derived or was not determined on a basis substantially
consistent with that of the corresponding financial information
in the latest audited financial statements of Transok included
in the Registration Statement and the Final Prospectus.
(C) (I) as of the latest date as of which Transok and its
subsidiaries have monthly financial statements, there was any
decrease in the capital stock, additional paid-in capital or
retained earnings, or increase in long-term indebtedness of
Transok and its subsidiaries, as compared with the amounts shown
in the most recent consolidated statement of financial condition
of Transok and its subsidiaries included in the Registration
Statement and the Final Prospectus or (II) with respect to the
period subsequent to the date of the most recent financial
statements included in the Registration Statement and the Final
Prospectus and extending through the latest date as of which
Transok and its subsidiaries have monthly financial statements,
there was any decline in consolidated revenues or net income as
compared with the comparable period of the prior fiscal year;
(D) as of a specified date not more than three business
days prior to the date of the letter, there was any decrease in
the capital interests or additional paid-in capital, or increase
in long-term indebtedness of Transok and its subsidiaries as
compared with the amounts shown in the most recent consolidated
statement of financial condition of Transok and its subsidiaries
included in the Registration Statement and the Final Prospectus;
except in all instances for increases or decreases set forth in such
letter, in which case the letter shall be accompanied by an explanation by
the Company as to the significance thereof, unless said explanation is not
deemed necessary by the Representatives.
(iii) They have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is expressed in
dollars, or percentages derived from dollar amounts, and has been
obtained from the general accounting records of Transok) set forth in
the Registration Statement, as amended, and the Final
23
Prospectus, as amended or supplemented, and in Exhibit 12 to the
Registration Statement, including specified information, if any,
included or incorporated from the Company's Annual Report on Form
10-K incorporated therein or specified information, if any,
included or incorporated from any of the Company's Quarterly
Reports on Form 10-Q or its Current Reports on Form 8-K
incorporated therein, agrees with the accounting records of the
Company and its subsidiaries or computations made therefrom,
excluding any questions of legal interpretation.
(n) At the Closing Date, the nationally recognized firm of
independent public accountants that furnished the letter referred to in
paragraph (m) of this Section 7 shall have furnished to the Representatives
a letter dated the Closing Date, which shall confirm, on the basis of a
review in accordance with the procedures set forth in the letter, that
nothing has come to their attention that would require any change in the
letter referred to in paragraph (m) of this Section 7 if it were required
to be dated and delivered at the Closing Date.
(o) Subsequent to the execution of this Agreement, there shall not
have been any decrease in or suspension of the ratings of any of the
Company's debt securities by Moody's Investors Service, Inc. or Standard &
Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc.
(p) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives or Underwriters' Counsel may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates
or opinions furnished to the Representatives or Underwriters' Counsel pursuant
to this Section 7 shall not be in all material respects reasonably satisfactory
in form and substance to the Representatives and to Underwriters' Counsel, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing, or by telegraph
confirmed in writing.
8. EXPENSES.
24
(a) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company will pay all
costs and expenses incident to the performance of the obligations of the
Company and the Trust hereunder, including, without limiting the generality
of the foregoing, all costs, taxes and expenses incident to the issuance,
sale and delivery of the Preferred Securities to the Underwriters, all fees
and expenses of the Company's counsel and accountants, all costs and
expenses incident to the preparing, printing and filing of the Registration
Statement (including all exhibits thereto), any Interim Prospectus, the
Basic Prospectus, the Final Prospectus and any amendments thereof or
supplements thereto and the Declaration, the Guarantee Agreement and the
Indenture, and the rating of the Preferred Securities by one or more rating
agencies, all costs and expenses (including fees of Underwriters' Counsel
and their disbursements) incurred in connection with blue sky
qualifications, advising on the legality of the Securities for investment,
the filing requirements, if any, of the National Association of Securities
Dealers, Inc. in connection with its review of corporate financings, the
fee for listing the Securities on the NYSE, the fees and expenses of the
Property Trustee, the Guarantee Trustee and the Indenture Trustee and all
costs and expenses of the printing and distribution of all documents in
connection with such offering. Except as provided in this Section 8, the
Company will have no responsibility to the Underwriters for the
Underwriters' own costs and expenses, including the fees of Underwriters'
Counsel and any advertising expenses in connection with any offer the
Underwriters may make.
(b) If the sale of the Preferred Securities provided for herein is
not consummated because any condition to the obligations of the
Underwriters set forth in Section 7 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company or the Trust
to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by the Representatives, reimburse the
Underwriters for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Preferred Securities.
9. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls such Underwriter within the
meaning of the Securities Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, as
originally filed or in any amendment thereof, or in any Interim Prospectus,
the Basic Prospectus or the Final Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with
25
investigating or defending any such loss, claim, damage, liability or
action; PROVIDED, HOWEVER, that (i) the Company will not be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement made therein or omission or alleged omission
therefrom (a) in reliance upon and in conformity with written
information furnished to the Company as herein stated by the
Representatives on behalf of any Underwriter specifically for use in
connection with the preparation thereof or (b) relating to The
Depository Trust Company, Cedelbank and Euroclear, and (ii) such
indemnity with respect to the Basic Prospectus or any Interim Prospectus
shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Final
Prospectus at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by
the Securities Act and the untrue statement or omission of a material
fact contained in the Basic Prospectus or any Interim Prospectus was
corrected in the Final Prospectus, unless such failure to deliver the
Final Prospectus was a result of noncompliance by the Company with
Section 6(d) hereof. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, the Trust and each Trustee, and each person, if
any, who controls the Company or the Trust within the meaning of the
Securities Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Basic Prospectus, any
Interim Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that the same was made therein
in reliance upon and in conformity with written information furnished to
the Company as herein stated by the Representatives on behalf of such
Underwriter specifically for use in the preparation thereof, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The names of the underwriters set forth on the cover page
and in the second, sixth, seventh, eighth (last two sentences only), tenth,
eleventh and twelfth paragraphs under the heading "Underwriting" in the
Final Prospectus constitute the only information furnished to the Company
in writing by or on behalf of the several Underwriters for inclusion in the
Registration Statement and the Final Prospectus, as the case may be, and
you, as the Representatives, confirm that such statements are correct.
26
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 9. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; PROVIDED,
HOWEVER, if the defendants in any such action include both the indemnified
party and the indemnifying party and either (i) the indemnifying party or
parties and the indemnified party or parties mutually agree or (ii)
representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, the indemnified party or parties shall
have the right to select separate counsel to assume such legal defenses and
to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed counsel in connection with the
assumption of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel, approved by the Representatives in the case of subparagraph (a)
representing the indemnified parties under subparagraph (a), as the case
may be, who are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of the
indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph (a)
of this Section 9 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company on grounds of policy or
other similar grounds, the Company and the Underwriters shall contribute to
the aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) to which the Company, the Trust and one or more of the
Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting commission appearing on the cover page of the Final Prospectus
bears to the public offering price appearing thereon and the Company is
responsible for the balance; PROVIDED, HOWEVER, that (i) in no case shall
any Underwriter (except as may be provided in any agreement among
underwriters) be
27
responsible for any amount in excess of the underwriting commission
applicable to the Preferred Securities purchased by such Underwriter
hereunder and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each
person who controls an Underwriter within the meaning of the Securities
Act shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement each director of the
Company, the Trust and each Trustee shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and
(ii) of this subparagraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
subparagraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall
not relieve the party or parties from whom contribution may be sought
from any other obligation it or they may have hereunder or otherwise
than under this subparagraph (d).
10. DEFAULT BY AN UNDERWRITER. If, on the Closing Date, any one or more
Underwriters shall fail to purchase and pay for all of the Preferred Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions which
the aggregate liquidation amount of Preferred Securities set forth opposite
their names in Schedule II hereto bear to the aggregate liquidation amount of
Firm Securities set opposite the names of the remaining Underwriters) the Firm
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase on the Closing Date; PROVIDED, HOWEVER, that in the event that the
aggregate liquidation amount of Preferred Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase on the Closing Date
shall exceed 10% of the aggregate liquidation amount of Preferred Securities,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Preferred Securities, and if
such non-defaulting Underwriters do not purchase all the Preferred Securities,
this Agreement will terminate without liability to any non-defaulting
Underwriters or the Company or the Trust. In the event of a default by any
Underwriter as set forth in this Section 10, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing herein contained shall relieve any defaulting Underwriter of its
liability, if any, to the Company or the Trust and any non-defaulting
Underwriter for damages occasioned by its default hereunder.
11. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company at
or prior to delivery of and payment for all of the Preferred Securities, if,
prior to such time (i) trading in securities generally on the NYSE or the
over-the-counter market shall have been suspended or limited or minimum
28
prices shall have been established on the NYSE or the NASDAQ Stock Market,
(ii) a banking moratorium shall have been declared either by federal, New
York State or Oklahoma authorities, (iii) any new restriction materially
affecting the distribution of the Preferred Securities shall have become
effective; (iv) trading in any securities of the Company shall have been
suspended or halted by any national securities exchange, the National
Association of Securities Dealers, Inc. or the Commission, (v) the United
States becomes engaged in hostilities or there is an escalation in
hostilities involving the United States or there is a declaration of a
national emergency or war by the United States, or (vi) there shall have been
such a material adverse change in national or international political,
financial or economic conditions, national or international equity markets or
currency exchange rates or controls as to make it, in the judgment of the
Representatives, inadvisable or impracticable to proceed with the payment for
and delivery of the Preferred Securities.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers (as such officers) or the Trust and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or the Company or the Trust or any of their respective officers, directors or
trustees or any controlling person within the meaning of the Securities Act, and
will survive delivery of the payment for the Preferred Securities.
13. NOTICES. All communications hereunder will be in writing, and, if
sent to the Representatives will be mailed, delivered, telegraphed or telexed
and confirmed to them, at the address specified in Schedule I hereto; or, if
sent to the Trust or the Company, will be mailed, delivered, telegraphed or
telexed and confirmed to the Trust or the Company at OGE Energy Corp., 321 North
Harvey, Oklahoma City, Oklahoma 73101, Attention: President.
14. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their successors and, to the extent and only
to the extent stated in Section 9 hereof, the officers and directors and
controlling persons referred to in Section 9 hereof, and except as provided in
Section 9 hereof, no person other than the parties hereto and their respective
successors will have any right or obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Oklahoma.
[SIGNATURE PAGE FOLLOWS]
29
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
OGE ENERGY CAPITAL TRUST I
By: ______________________________
By: ______________________________
OGE ENERGY CORP.
By: _______________________________
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
LEHMAN BROTHERS INC.
By: ____________________________
Acting on behalf of the Representatives named in
Schedule I annexed hereto and the several Underwriters
named in Schedule II annexed hereto.
30
EXHIBIT A
Subsidiaries of the Company
Enogex Inc.
Oklahoma Gas and Electric Company
A-1
SCHEDULE I
Date of Underwriting Agreement:
Registration Statement No. 333-______
Representative and Address: Lehman Brothers Inc.
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Declaration of Trust, Declaration, Title, Purchase Price and Description of
Preferred Securities:
Declaration of Trust:
Declaration of Trust, dated ___________________
Declaration:
The Amended and Restated Declaration of Trust dated as of _________,
1999, among the Company and the Trustees.
Title:
_____% Preferred Securities, Series __.
Aggregate liquidation amount of Preferred Securities:
$___________.
Price to public:
___% of liquidation amount (plus accrued distributions).
Distribution rate:
_____%.
Distribution Payment Dates:
March 31, June 30, September 30 and December 31 of each year beginning
on ___________, 1999.
1
Redemption provisions:
As set forth in the Final Prospectus.
Indenture, Title, Purchase Price and Description of Debentures:
Indenture:
Indenture, dated as of _________, 1999, between the Company and
______________________, as supplemented by First Supplemental
Indenture dated as of __________, 1999.
Title:
_____% Subordinated Deferrable Interest Debentures due 20__.
Principal Amount:
$___________.
Price to Trust:
___% of principal amount (plus accrued distributions).
Interest rate:
_____%
Interest Payment Dates:
March 31, June 30, September 30 and December 31 of each year beginning
___________.
Maturity:
__________, 20___.
Redemption provisions:
As set forth in the Final Prospectus.
Guarantee Agreement:
Guarantee Agreement, dated as of ________, 1999, between the Company
and ________________________.
Commission payable by Company on Preferred Securities:
2
$______ per Preferred Security (except that, with respect to sales of
Preferred Securities to certain institutions, the commission will be $____ per
Preferred Security).
Closing Date, Time and Location:
Date: _____________________________
Time: 10:00 a.m.
Location: Gardner, Carton & Douglas
Suite 3400
Quaker Tower
321 North Clark Street
Chicago, Illinois 60610-4795
3
SCHEDULE II
NUMBER OF
PREFERRED
SECURITIES
UNDERWRITERS
1. Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . __________
2. A.G. Edwards & Sons, Inc.. . . . . . . . . . . . . . . . . . . . . . . __________
3. CIBC World Markets Corp. . . . . . . . . . . . . . . . . . . . . . . . __________
4. Merrill, Lynch, Pierce, Fenner & Smith Incorporated. . . . . . . . . . __________
5. Morgan Stanley & Co. Incorporated. . . . . . . . . . . . . . . . . . . __________
6. Prudential Securities Incorporated . . . . . . . . . . . . . . . . . . __________
__________
Total. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
__________
__________
4