EXHIBIT 1.01
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OGE ENERGY CORP.
(an Oklahoma corporation)
$ % ____________, Series due
FORM OF
PURCHASE AGREEMENT
(Debt Securities)
Dated:
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TABLE OF CONTENTS
PAGE
SECTION 1. REPRESENTATIONS AND WARRANTIES..............................................................2
(a) Representations and Warranties by the Company..................................................2
(i) Compliance with Registration Requirements.............................................2
(ii) Incorporated Documents................................................................3
(iii) Independent Accountants...............................................................4
(iv) Financial Statements..................................................................4
(v) No Material Adverse Change............................................................4
(vi) Good Standing of the Company..........................................................4
(vii) Good Standing of the Company's Subsidiaries...........................................4
(viii) Capitalization........................................................................5
(ix) Authorization of Agreement............................................................5
(x) Authorization of the Indenture........................................................5
(xi) Authorization of the Debt Securities..................................................5
(xii) Description of the Debt Securities and the Indenture..................................5
(xiii) Absence of Defaults and Conflicts.....................................................5
(xiv) Absence of Proceedings................................................................6
(xv) Accuracy of Exhibits..................................................................6
(xvi) Absence of Further Requirements.......................................................7
(xvii) Possession of Licenses and Permits....................................................7
(xviii) Title to Property.....................................................................7
(b) Officer's Certificates.........................................................................7
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING..................................................8
(a) Debt Securities................................................................................8
(b) Payment........................................................................................8
(c) Denominations; Registration....................................................................8
SECTION 3. COVENANTS OF THE COMPANY....................................................................8
(a) Compliance with Securities Regulations and Commission Requests.................................8
(b) Filing of Amendments...........................................................................9
(c) Delivery of Registration Statements............................................................9
(d) Delivery of Prospectuses.......................................................................9
(e) Continued Compliance with Securities Laws......................................................9
(f) Rule 158......................................................................................10
(g) Use of Proceeds...............................................................................10
(h) Restriction on Sale of Securities.............................................................10
(i) Blue Sky Qualifications.......................................................................10
SECTION 4. PAYMENT OF EXPENSES........................................................................10
(a) Expenses......................................................................................10
(b) Termination of Agreement......................................................................11
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS....................................................11
(a) Effectiveness of Registration Statement; Filing of Prospectus.................................11
(b) Opinions of Counsel for Company...............................................................11
(i) Opinion of Oklahoma Counsel..........................................................11
(ii) Opinion of ▇▇▇▇▇ Day.................................................................13
(c) Opinion of Counsel for Underwriters...........................................................14
(d) Officers' Certificate.........................................................................14
(e) Accountants' Comfort Letter...................................................................14
(f) Bring-down Comfort Letter.....................................................................15
(g) Maintenance of Rating.........................................................................15
(h) Additional Documents..........................................................................15
(i) Termination of Agreement......................................................................15
SECTION 6. CONDITIONS OF COMPANY'S OBLIGATIONS........................................................15
SECTION 7. INDEMNIFICATION............................................................................16
(a) Indemnification of Underwriters...............................................................16
(b) Indemnification of Company, Directors and Officers............................................17
(c) Actions against Parties; Notification.........................................................17
(d) Settlement without Consent if Failure to Reimburse............................................18
SECTION 8. CONTRIBUTION...............................................................................18
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.............................19
SECTION 10. TERMINATION OF AGREEMENT...................................................................19
(a) Termination; General..........................................................................19
(b) Liabilities...................................................................................20
SECTION 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.................................................20
SECTION 12. NOTICES....................................................................................21
SECTION 13. PARTIES....................................................................................21
SECTION 14. GOVERNING LAW AND TIME.....................................................................21
SECTION 15. EFFECT OF HEADINGS.........................................................................21
SCHEDULES
Schedule A -- List of Underwriters.................................................................Sch. A-1
Schedule B -- Pricing Information..................................................................Sch. B-1
Schedule C -- Information Provided by Underwriters.................................................Sch. C-1
OGE ENERGY CORP.
(AN OKLAHOMA CORPORATION)
$
% __________________, SERIES DUE
PURCHASE AGREEMENT
,
To:
Ladies and Gentlemen:
OGE Energy Corp., an Oklahoma corporation (the "Company"), confirms its
agreement with (the "Representative"), and (collectively,
with the Representative, the "Underwriters," which term includes any underwriter
substituted as hereinafter provided in Section 11 hereof), with respect to the
issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective principal amounts set forth in
Schedule A hereto of $ aggregate principal amount of the Company's
%______________, Series due (the "Debt Securities"). The
Debt Securities are to be issued pursuant to the Indenture dated as of ,
between the Company and UMB Bank, N.A., as trustee (the "Trustee"), as amended
and supplemented by Supplemental Indenture No. , dated as of ,
creating the series in which the Debt Securities are to be issued. The term
"Indenture," as used herein, means such Indenture dated as of ,
as so amended and supplemented, and includes the Company Order (as
defined in the Indenture), if any, establishing the form and terms of the Debt
Securities pursuant to the Indenture.
The Company understands that the Underwriters propose to make a public
offering of the Debt Securities as soon as they deem advisable after this
Agreement has been executed and delivered and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333- ) covering the
registration of the Debt Securities under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with paragraph (b) of Rule 424
("Rule 424(b)") of the rules and regulations of the Commission under the 1933
Act (the "1933 Act Regulations") or (ii) if the Company elects to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in
accordance with the provisions of Rule 434 and Rule 424(b). The information
included in such prospectus or in such Term Sheet, as the case may be, that was
omitted from such registration statement at the time it became effective is
referred to as the "Offering Terms." Each prospectus used before such
registration statement became effective, and any prospectus that omitted the
Offering Terms, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto,
schedules thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became
effective and including the Offering Terms, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the 1933
Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus, including
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the form first furnished to the Underwriters for use in
connection with the offering of the Debt Securities is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to the
preliminary prospectus dated , together with the Term Sheet, and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to each Underwriter as of the date hereof and as of the Closing
Time (as defined in Section 2(b) hereof), and agrees with each Underwriter, as
follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of
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the Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective (and, if later, at the time of the filing of the Company's annual
report on Form 10-K) and at the Closing Time, the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations"), and did not and 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 not
misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will 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. If Rule 434 is
used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to (A)
that part of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of
the Trustee, (B) information contained in the Registration Statement or the
Prospectus relating to The Depository Trust Company and its book-entry
system, or (C) statements in or omissions from the Registration Statement
or Prospectus made in reliance upon and in conformity with the information
furnished to the Company in writing by any Underwriter through the
Representative expressly for use in the Registration Statement or
Prospectus, which information is set forth on Schedule C hereto.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 of the 1933 Act Regulations ("Rule
424"), complied when so filed in all material respects with the 1933 Act
Regulations, and each preliminary prospectus and the Prospectus delivered
to the Underwriters for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), as applicable, and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective (and, if later, at the time of the filing of the Company's
annual report on Form 10-K), at the time the Prospectus was issued and at
the Closing Time, did not and 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 not misleading.
3
(iii) INDEPENDENT ACCOUNTANTS. Ernst & Young LLP, the
accountants who examined the financial statements and supporting schedules
included in the Registration Statement, are independent public accountants
as required by the 1933 Act and the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements included
in the Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the results of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved, except as otherwise stated in the notes thereto. The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial information included in the
Prospectus presents fairly the information shown therein and has been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The Company has no
material contingent obligation which is not disclosed in the Prospectus.
(v) NO MATERIAL ADVERSE CHANGE. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, results of operations, properties, business affairs or business
prospects of the Company and its subsidiaries taken as a whole, whether or
not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the Company,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries taken as a whole, and (C)
except for regular quarterly dividends on the Common Stock, par value $0.01
per share, of the Company in amounts consistent with past practice, there
has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Oklahoma and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect.
(vii) GOOD STANDING OF THE COMPANY'S SUBSIDIARIES. Each
subsidiary of the Company named in Exhibit 21.01 to the Company's most
recent Annual Report on Form 10-K ("Significant Subsidiary") has been duly
organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation and is
4
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect. The capital stock
of each subsidiary owned by the Company, directly or through subsidiaries,
is owned free and clear of any pledge, lien, encumbrance, or claim, except
as disclosed in the Registration Statement.
(viii) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company is as stated in the Prospectus. The shares of
issued and outstanding capital stock of the Company have been duly and
validly issued and are fully paid and non-assessable.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has been
duly authorized, executed and delivered by the Company.
(x) AUTHORIZATION OF THE INDENTURE. The Indenture has been
duly authorized by the Company and duly qualified under the 1939 Act and,
when duly executed and delivered by the Company and the Trustee, will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xi) AUTHORIZATION OF THE DEBT SECURITIES. The Debt
Securities have been duly authorized and, at the Closing Time, will have
been duly executed by the Company and, when authenticated, issued and
delivered in the manner provided for in the Indenture and delivered against
payment of the purchase price therefor as provided in this Agreement, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits provided by, the Indenture.
(xii) DESCRIPTION OF THE DEBT SECURITIES AND THE INDENTURE.
The Debt Securities and the Indenture will conform in all material respects
to the respective statements relating thereto contained in the Prospectus
and will be in substantially the respective forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration Statement.
(xiii) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company
nor any Significant Subsidiary is in violation of its Restated Certificate
of Incorporation or By-Laws 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
5
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 Indenture
and the Debt Securities, and the consummation of the transactions
contemplated herein and in the Registration Statement (including the
issuance and sale of the Debt Securities and the use of the proceeds from
the sale of the Debt Securities as described in the Prospectus under the
caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and under the Indenture and the Debt Securities have
been duly authorized by all necessary corporate action and 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 Significant Subsidiary 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 Restated
Certificate of Incorporation or By-Laws of the Company or any Significant
Subsidiary 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
Significant Subsidiary or any of their 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 or any Significant Subsidiary, other than such events or conditions
that are contemplated by the terms of this Agreement and the Indenture.
(xiv) ABSENCE OF PROCEEDINGS. 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, which is required to be disclosed in the Registration
Statement or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect 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 its
property 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.
(xv) ACCURACY OF EXHIBITS. There are no contracts or
documents which are required to be described in the Registration Statement,
the Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described or filed as
required.
6
(xvi) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of
the Debt Securities hereunder or the consummation of the transactions
contemplated by this Agreement and the Registration Statement or for the
due execution, delivery or performance of the Indenture by the Company,
except such as have been already obtained.
(xvii) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents,
franchises and other authorizations issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct
in all material respects the business now operated by them and as described
in the Registration Statement and Prospectus, except where the failure so
to possess such permit, license, approval, consent or authorization would
not, singly or in the aggregate, have a Material Adverse Effect
(collectively, "Governmental Licenses"); the Company and each subsidiary is
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 where 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 neither
the Company nor any subsidiary has 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.
(xviii) TITLE TO PROPERTY. The Company and its subsidiaries
have good and sufficient title to all real property, principal plants and
all other property owned by them and which is material to the Company's and
its subsidiaries' operations taken as a whole, in each case, free and clear
of all mortgages, pledges, liens, security interests, claims, restrictions
or encumbrances of any kind except such as (a) are described in the
Prospectus or (b) do not, singly or in the aggregate, materially affect the
value of such property or do not interfere with the use made and proposed
to be made of such property by the Company or its subsidiaries; and all of
the leases and subleases material to the business of the Company and its
subsidiaries taken as a whole, and under which the Company or its
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has notice of
any material claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the
Company or any subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of the
Company and delivered to any Underwriter or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
7
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(a) DEBT SECURITIES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the principal amount of Debt Securities set
forth in Schedule A opposite the name of such Underwriter, plus any additional
principal amount of Debt Securities which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 11 hereof.
(b) PAYMENT. Payment of the purchase price, and delivery of certificates,
for the Debt Securities shall be made at the offices of ▇▇▇▇▇ Day, Chicago,
Illinois, or at such other place as shall be agreed upon by the Representative
and the Company, at 9:00 A.M. (Chicago time) on the third business day after the
date hereof (unless postponed in accordance with the provisions of Section 11),
or such other time not later than ten business days after such date as shall be
agreed upon by the Representative and the Company (such time and date of payment
and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative for the respective accounts of the Underwriters of
certificates for the Debt Securities to be purchased by them. It is understood
that each Underwriter has authorized the Representative, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Debt Securities which it has agreed to purchase. The Representative,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Debt Securities to
be purchased by any Underwriter whose funds have not been received by the
Closing Time, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(c) DENOMINATIONS; REGISTRATION. One certificate for the Debt Securities
shall be in the amount of $ and registered in the name of Cede & Co.,
as nominee of The Depository Trust Company. The Company will make the Debt
Securities, which may be in temporary form, available for examination and
packaging by the Underwriters in
New York,
New York not later than 10:00 A.M.
(
New York time) on the business day prior to the Closing Time.
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants with each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 3(b), will comply with the requirements of Rule 424
or Rule 434, as applicable, and will notify the Underwriters immediately, and
confirm the notice in writing, (i) of the effectiveness of any post-effective
amendment to the Registration Statement, or of the filing of any supplement to
the Prospectus or any amended Prospectus, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional
8
information, and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Debt Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings for any
of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Underwriters notice of
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, will furnish the Representative with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Representative or counsel for the Underwriters reasonably objects.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or will
deliver to the Representative and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, in such number as the Representative reasonably requests, and will also
deliver to the Representative, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the
completion of the distribution of the Debt Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Debt
9
Securities, any event occurs or condition exists as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company, to
amend the Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include 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 not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it is
necessary, in the opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) RULE 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(g) USE OF PROCEEDS. The Company will use the net proceeds received by it
from the sale of the Debt Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(h) RESTRICTION ON SALE OF SECURITIES. During the period beginning on the
date of this Agreement and continuing until the Closing Time, which period shall
in no event exceed __ business days, the Company will not, without the prior
written consent of the Representative, in its sole discretion, directly or
indirectly, issue, sell, offer or contract to sell, grant any option for the
sale of, or otherwise transfer or dispose of, any debt securities of the Company
which mature more than one year after the Closing Time and which are
substantially similar to the Debt Securities.
(i) BLUE SKY QUALIFICATIONS. The Company will furnish such information,
execute such instruments and take such action as may be required to qualify the
Shares for sale under the laws of such jurisdictions as the Representative may
designate and will maintain such qualifications in effect so long as required
for the distribution of the Shares; provided that the Company shall not 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.
SECTION 4. PAYMENT OF EXPENSES
(a) EXPENSES. Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters, the Indenture,
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or
10
delivery of the Debt Securities, (iii) all costs, taxes and expenses incident to
the preparation, issuance and delivery of the Debt Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectus and any amendments or supplements thereto, (vi) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Debt Securities, (vii) any fees
payable in connection with the rating of the Debt Securities and (viii) all
costs and expenses (including reasonable fees and expenses of counsel) incurred
in connection with "blue sky" qualifications.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 10(a)(i)
hereof or in accordance with Section 6 hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof and in certificates of any officer of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder and to the following further
conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT; FILING OF PROSPECTUS. The
Registration Statement, including any Rule 462(b) Registration Statement, has
become effective, and at Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Offering Terms shall have been filed
with the Commission in accordance with Rule 424(b) or, if the Company has
elected to rely upon Rule 434, a Term Sheet shall have been filed with the
Commission in accordance with Rule 424(b).
(b) OPINIONS OF COUNSEL FOR COMPANY. At Closing Time, the Representative
shall have received the favorable opinions, dated as of Closing Time, of Rainey,
Ross, Rice & ▇▇▇▇▇, Oklahoma City, Oklahoma, and ▇▇▇▇▇ Day, Chicago, Illinois,
each counsel for the Company, in form and substance satisfactory to counsel for
the Underwriters, together with signed original or reproduced copies of such
opinions for each of the other Underwriters to the effect set forth below and to
such further effect as counsel to the Underwriters may reasonably request.
(i) OPINION OF OKLAHOMA COUNSEL.
(A) the Company is a legally existing corporation and
is in good standing under the laws of the State of Oklahoma and has
corporate power, right and authority to do business and to own
property in the State of Oklahoma in the manner and as set forth in
the Prospectus;
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(B) each Significant Subsidiary is a legally existing
corporation and is in good standing under the laws of the jurisdiction
of its incorporation and has the corporate power, right and authority
to do business and to own property in their in their respective
jurisdictions in the manner and as set forth in the Prospectus;
(C) the Indenture has been duly and validly executed
and delivered by the Company, which has full power and authority to
enter into and perform its obligations thereunder; and the Indenture
constitutes the binding and enforceable agreement of the Company in
accordance with its terms, except as enforcement of provisions of the
Indenture may be limited by bankruptcy or other applicable laws
affecting the enforcement of creditors' rights;
(D) the Debt Securities are in the form contemplated
by the Indenture, have been duly and validly authorized by the
Company, constitute valid and binding obligations of the Company and
will be entitled to the benefits of the Indenture;
(E) while, except as otherwise stated in said opinion,
such counsel are not passing upon and do not assume responsibility for
and shall not be deemed to have independently verified the accuracy,
completeness or fairness of the Registration Statement or the
Prospectus, nothing has come to the attention of such counsel that
would lead them to believe that the Registration Statement at the time
it became effective contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus at the time it was filed pursuant to Rule 424 and/or Rule
434 under the 1933 Act or at the Closing Time contained an untrue
statement of a material fact or omitted 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;
(F) the execution and delivery of this Agreement have
been duly authorized by the necessary action on the part of the
Company and this Agreement constitutes the valid and binding agreement
of the Company except to the extent that the provisions for
indemnities or contribution may be held to be unenforceable as against
public policy;
(G) such counsel does not know of any legal or
governmental proceedings required to be described in the Prospectus
which are not described as required, nor of any contracts or documents
of a character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement
which are not described or filed as required;
(H) the Indenture and the Debt Securities conform in
all material respects to the statements concerning them in the
Prospectus;
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(I) all statements contained in the Registration
Statement and Prospectus purporting to set forth the advice or the
opinion of such counsel or to be based upon the opinion of such
counsel correctly set forth the opinion of such counsel on such
respective matters;
(J) the execution and delivery of this Agreement and
the issuance of the Debt Securities, and compliance with the
provisions thereof, under the circumstances contemplated hereby and
thereby, do not and will not violate the Restated Certificate of
Incorporation or By-Laws of the Company or any Significant Subsidiary,
or in any material respect conflict with or constitute on the part of
the Company or any Significant Subsidiary a breach of or default under
any indenture, lease, mortgage, deed of trust, note, agreement or
other instrument known to such counsel to which the Company or such
Significant Subsidiary is a party or any law, regulation, consent
decree or administrative, arbitration or court order known to such
counsel to which the Company or such Significant Subsidiary is
subject;
(K) no approval, authorization, consent, certificate
or order of any Oklahoma commission or regulatory authority is
necessary with respect to the offering, issuance, sale or delivery of
the Debt Securities to the Underwriters as contemplated in this
Agreement; and
(ii) OPINION OF ▇▇▇▇▇ DAY.
(A) such opinion shall cover the matters set forth in
subdivisions (E), (G), (H) and (J) of paragraph (b)(i) of this Section
5;
(B) the Registration Statement, including any Rule
462(b) Registration Statement, has become effective under the 1933
Act, the Prospectus has been filed pursuant to Rule 424(b) and/or Rule
434 of the 1933 Act Regulations, and, to the best knowledge of said
counsel, no proceedings for a stop order in respect thereof are
pending or threatened under Section 8(d) or 8(e) of the 1933 Act;
(C) the Registration Statement, including any Rule
462(b) Registration Statement, the Offering Terms and the Prospectus
(except as to the financial statements and financial or statistical
data contained therein, with respect to which said counsel need
express no opinion) comply as to form, in all material respects, with
the requirements of the 1933 Act, the 1934 Act and the 1939 Act and
the rules and regulations of the Commission under such Acts; and the
documents incorporated or deemed to be incorporated by reference in
the Registration Statement and the Prospectus (except as to the
financial statements and financial or statistical data contained
therein, with respect to which said counsel need express no opinion)
as of their respective dates of filing with the Commission complied as
to form in all material respects with the 1934 Act and the 1934 Act
Regulations;
13
(D) the Indenture has been qualified under the 1939
Act as and to the extent required by the provisions of the 1939 Act;
and
(E) all approvals, authorizations, consents,
certificates or orders of any state or federal commission or
regulatory authority that are necessary with respect to the issuance
and sale of the Debt Securities by the Company as contemplated in this
Agreement have been obtained.
Such opinion may be subject to the reservation that, in giving
such opinion, said counsel has relied on the opinion of Oklahoma
counsel as to all matters of Oklahoma law, provided that such opinion
shall state that said counsel believes that the Underwriters and they
are justified in relying on the opinion of Oklahoma counsel.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, counsel for the Underwriters, together with signed
original or reproduced copies of such letter for each of the other Underwriters
with respect to such matters related to the issuance and sale of the Debt
Securities as the Underwriters may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of Illinois and the federal law of the United States, upon the
opinions of Oklahoma counsel or other counsel satisfactory to the Underwriters.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, results of operations, properties, business
affairs or business prospects of the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, and the
Underwriters shall have received a certificate of the chief executive officer or
a vice president of the Company and of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in this Agreement are true and correct with the same force and effect
as though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or, to their
knowledge, are contemplated by the Commission.
(e) ACCOUNTANTS' COMFORT LETTER. At the time of the execution of this
Agreement, the Representative shall have received from Ernst & Young LLP a
letter, dated such date, in form and substance satisfactory to the Underwriters,
together with signed original or reproduced copies of such letter for each of
the other Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
14
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the Representative shall
have received from Ernst & Young LLP a letter, dated as of Closing Time,
together with signed original or reproduced copies of such letter for each of
the other Underwriters, to the effect that Ernst & Young LLP reaffirms the
statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
(g) MAINTENANCE OF RATING. At Closing Time, the Debt Securities shall be
rated at least by ▇▇▇▇▇'▇ Investors Service, Inc. and by Standard & Poor's
Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. Since the date
of this Agreement, there shall not have occurred a downgrading in the rating
assigned to any of the Company's securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall
have publicly announced that it has under surveillance or review its rating of
the Debt Securities or any of the Company's other securities.
(h) ADDITIONAL DOCUMENTS. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the Debt
Securities as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Debt Securities as herein
contemplated shall be satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
(i) TERMINATION OF AGREEMENT. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company at any
time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 7, 8 and 9 shall survive any such termination and remain
in full force and effect.
In giving the opinions contemplated by paragraphs (b) and (c) of this
Section 5, counsel may rely upon certificates of state officials as to the
Company's and its Significant Subsidiaries good standing and upon certificates
of officers of the Company as to matters of fact relevant to such opinions. In
giving such opinions, counsel may assume (i) that the Debt Securities have been
executed on behalf of the Company by the manual or facsimile signatures of the
President or a Vice President and the Secretary or an Assistant Secretary of the
Company and have been manually authenticated by an authorized official of the
Trustee, (ii) that the signatures on all documents examined by them are genuine,
and (iii) that the written information supplied by the Underwriters expressly
for use in the Registration Statement or the Prospectus is adequate.
SECTION 6. CONDITIONS OF COMPANY'S OBLIGATIONS
The obligation of the Company to deliver the Debt Securities upon payment
therefor shall be subject to the following conditions:
15
At the Closing Time, no stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for that purpose
shall then be pending before, or threatened by, the Commission.
In case any of the conditions specified above in this Section 6 shall not
have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Underwriters. Any such
termination shall be without liability of any party to any other party except to
the extent provided in Section 4 hereof and except that Sections 1, 7, 8 and 9
shall survive any such termination and remain in full force and effect.
SECTION 7. INDEMNIFICATION
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Offering Terms, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
7(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with the written information furnished to the Company by
any Underwriter through the Representative expressly for use in
16
the Registration Statement (or any amendment thereto), including the Offering
Terms, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), which information is set forth on Schedule C hereto. The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to any Underwriter or to any controlling person of that
Underwriter.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each Underwriter,
severally and not jointly, agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Offering Terms,
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with the written information
furnished to the Company by such Underwriter through the Representative
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), which information is set forth on Schedule C hereto. The foregoing
indemnity is in addition to any liability which any Underwriter may otherwise
have to the Company or any such director, officer or controlling person.
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 7(a) above,
counsel to the indemnified parties shall be selected by the Representative, and,
in the case of parties indemnified pursuant to Section 7(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action; PROVIDED,
HOWEVER, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 or Section
8 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability (including
any obligation to pay any amounts in settlements) arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
17
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 8. CONTRIBUTION
If the indemnification provided for in Section 7 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Debt Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Debt
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Debt
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the Debt Securities as set forth on such cover or
corresponding location, as the case may be.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 shall be deemed to
include any legal or
18
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Debt Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are several in
proportion to the principal amount of Debt Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company or any of its subsidiaries
submitted pursuant hereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Debt Securities to the Underwriters.
SECTION 10. TERMINATION OF AGREEMENT
(a) TERMINATION; GENERAL. The Representative may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any loss sustained by
the Company by strike, fire, flood, accident or other calamity of such character
as to interfere materially with the conduct of the business and operations of
the Company regardless of whether or not such loss shall have been insured, or
any material adverse change in the condition, financial or otherwise, or in the
earnings, results of operations, properties, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representative, impracticable to market the
19
Debt Securities or to enforce contracts for the sale of the Debt Securities, or
(iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the
New York Stock Exchange, or if
trading generally on the American Stock Exchange or the
New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by either federal,
New York or Oklahoma authorities or there is a
material disruption in securities settlement or clearance services in the United
States. (b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 7, 8 and 9 shall survive such termination and remain in full force and
effect.
SECTION 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
If one or more of the Underwriters fails at Closing Time to purchase the
Debt Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Debt Securities"), the remaining Underwriter or Underwriters
will have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriter or
underwriters, to purchase all, but not less than all, of the Defaulted Debt
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the remaining Underwriter or Underwriters do not complete
such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Debt Securities does not exceed 10%
of the aggregate principal amount of the Debt Securities to be purchased
hereunder, each of the non-defaulting Underwriters will be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Debt Securities exceeds 10% of the
aggregate principal amount of the Debt Securities to be purchased
hereunder, this Agreement will terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section will relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the remaining Underwriter or Underwriters or the Company
will have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 11.
20
SECTION 12. NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to
; each with a copy to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇. Notices to the Company shall be
directed to it at
OGE Energy Corp., 321 North ▇▇▇▇▇▇, P. O. Box 321, Oklahoma
City, Oklahoma, Attention: President and Chief Executive Officer, with a copy to
▇▇▇▇▇ Day, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq.
SECTION 13. PARTIES
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Debt Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF
NEW YORK. Except as otherwise set forth herein, specified
times of day refer to
New York City time.
SECTION 15. EFFECT OF HEADINGS
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
[This space intentionally left blank]
21
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
OGE
ENERGY CORP.
By:
-------------------------------------
Title:
----------------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
BY:
By:
----------------------------------
Title:
-------------------------------
SCHEDULE A.
Principal
Amount of Debt
Name of Underwriter Securities
----------------------------------------------------------------------------------------- ----------------------
..................................................................................... $
..................................................................................... $
..................................................................................... $
----------------------
Total................................................................................ $
======================
Sch. A-1
SCHEDULE ▇.
▇▇▇ ENERGY CORP.
$ % _________, Series due
1. The initial public offering price of the Debt Securities is %
of the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Debt
Securities is % of the principal amount thereof.
3. The interest rate on the Debt Securities is % per annum.
4. [The Debt Securities may not be redeemed prior to maturity.] [The
Company, at its option, may redeem on any date all or, from time to time, any
part of the Debt Securities at a redemption price equal to the greater of (i)
100% of the principal amount of such Debt Securities to be redeemed and (ii) the
sum of the present values of the remaining scheduled payments of principal and
interest thereon from and after the date of redemption discounted to the
redemption date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined in the Indenture) plus
_______ basis points, plus in each case accrued and unpaid interest thereon to
the date of redemption, as more fully described in the Prospectus.]
Sch. B-1
SCHEDULE C.
The information set forth below constitutes the only information furnished
to the Company by any Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or preliminary prospectus or the Prospectus
(or any amendment or supplement thereto):
Sch. C-1
