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Reg. No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
Registration Statement
under
The Securities Act of 1933, as amended
----------------------
OGE ENERGY CORP.
(Exact name of registrant as specified in charter)
OKLAHOMA 73-1481638
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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321 North Harvey, P.O. Box 321, Oklahoma City, Oklahoma 73101-0321
Telephone: (405) 553-3000
(Address of principal executive offices)
OGE ENERGY CORP. DEFERRED COMPENSATION PLAN
(Full title of plan)
PETER D. CLARKE STEVEN E. MOORE
Gardner, Carton & Douglas Chairman of the Board and President
321 North Clark Street OGE Energy Corp.
Suite 3100 321 North Harvey Avenue
Chicago, Illinois 60610 Oklahoma City, Oklahoma 73102
(312) 245-8685 (405) 553-3000
(Name and address of agents for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of each Amount maximum maximum Amount of
class of securities to be offering price aggregate registration
being registered registered(1) per share(2) offering price(2) fee
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Deferred Compensation
Obligations $4,000,000 100% $4,000,000 $1,056
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(1) The Deferred Compensation Obligations are unsecured obligations of OGE Energy Corp. to
pay deferred compensation in the future in accordance with the terms of the OGE Energy Corp.
Deferred Compensation Plan.
(2) Estimated solely for the purpose of calculating the amount of the registration fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, as filed with the Securities and Exchange
Commission, are incorporated herein by reference:
(i) the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(ii) the Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1999, June 30, 1999 and September 30, 1999; and
(iii) the Registrant's Current Reports on Form 8-K filed May 20, 1999,
July 9, 1999, July 13, 1999 (as amended on September 14, 1999), July
16, 1999, October 21, 1999, and December 8, 1999.
In addition, each document filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") after the date hereof, and prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold under
this registration statement, shall be deemed to be incorporated by reference
herein and to be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The securities being offered hereby are Deferred Compensation Obligations
(the "Obligations"). Pursuant to the OGE Energy Corp. Deferred Compensation
Plan, effective as of January 1, 2000 (the "Plan"), the Registrant will provide
individuals selected by the Registrant's Board of Directors ("Participants") the
opportunity to defer payment of a specified portion of their cash compensation.
The amount of compensation to be deferred will be determined by the elections of
Participants in accordance with the Plan. Participants will be able to choose
from a variety of investment options including a phantom stock account which
reflects the performance of the Registrant's Common Stock. In addition, the
Registrant will match certain amounts as specified in the Plan with units of OGE
Energy Corp. Common Stock. These amounts must be held in the phantom stock
account until a Participant reaches age 55. The Registrant will keep a
bookkeeping account of the value of Participants' deferred compensation and the
account will be indexed to the investment options chosen by each Participant.
While the Obligations will not actually be invested, the accounts will reflect
investment earnings, gains and losses of the selected investment options.
The Obligations are payable in cash in accordance with a payment schedule
to be selected by individual Participants in accordance with the Plan. The
Registrant has created a nonqualified grantor trust, or "Rabbi Trust" (the
"Trust"), to provide funds for the payment of the Obligations.
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The Trust will invest in life insurance on the lives of Participants. The assets
of the Trust are subject to the claims of general creditors of the Registrant,
therefore the Obligations will be unsecured obligations of the Registrant
ranking equally with other unsecured, unsubordinated indebtedness of the
Registrant.
The Registrant reserves the right to amend or terminate the Plan at any
time, provided that amendment or termination will not result in a reduction of
the account balances of Participants. If the plan is terminated while a
Participant or Participant's beneficiary is receiving benefits under the Plan,
the balance of Participant's account will be paid out in a lump sum. The Plan
does not provide loans and Participant's rights to the Obligations may not be
used as collateral or assigned.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements and schedules of the Registrant
included in the Registrant's Annual Report for the year ended December 31, 1998,
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated herein by
reference in reliance upon the authority of said firm as experts in giving said
report.
The consolidated financial statements of Tejas Transok Holding, L.L.C.
included in the Registrant's Form 8-K Current Report dated July 13, 1999, as
amended September 14, 1999, to the extent and for the periods indicated in their
report included in said Form 8-K, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated herein by reference in reliance upon the authority
of said firm as experts in giving said reports.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Provisions of the Annotated Oklahoma Statutes provide that the Registrant
may, and in some circumstances must, indemnify the directors and officers of the
Registrant against liabilities and expenses incurred by any such person by
reason of the fact that such person was serving in such capacity subject to
certain limitations and conditions set forth in the statutes. The Registrant's
Restated Certificate of Incorporation contains substantially similar provisions
that require such indemnification. The Restated Certificate of Incorporation is
filed as Exhibit 3.01 to the Registrant's Form 10-K for the Fiscal Year ended
December 31, 1996, File No. 001-12579 and incorporated herein by this reference.
The Registrant's Restated Certificate of Incorporation also contains provisions
limiting the liability of the Registrant's directors in certain instances. The
Registrant has an insurance policy covering its directors and officers against
certain personal liability, which may include liabilities under the Securities
Act of 1933, as amended (the "Act").
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS
4 OGE Energy Corp. Deferred Compensation Plan effective as of January 1,
2000.
5 Opinion of counsel regarding legality of securities.
23 Consent of Arthur Andersen LLP.
24 Power of attorney.
ITEM 9. UNDERTAKINGS.
A. UPDATING DISCLOSURE
The undersigned registrant hereby undertakes
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Act;
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
PROVIDED, HOWEVER, That paragraphs (1)(i) and (1)(ii) of this section
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the
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securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
B. SUBSEQUENT EXCHANGE ACT DOCUMENTS.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's Annual
Report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Act of may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in Item 6 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
THE REGISTRANT
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Pursuant to the requirements of the Act, the Registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Oklahoma City, and State of Oklahoma on the 8th day of December, 1999.
OGE ENERGY CORP.
(Registrant)
By: /s/ Donald R. Rowlett
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Donald R. Rowlett
Vice President and Controller
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Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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SIGNATURES TITLE DATE
Steven E. Moore Director and Principal Executive Officer
James R. Hatfield Principal Financial Officer
Donald R. Rowlett Principal Accounting Officer
Herbert H. Champlin Director
Luke R. Corbett Director
William E. Durrett Director
Martha W. Griffin Director
H.L. Hembree, III Director
Robert Kelley Director
Bill Swisher Director
Ronald H. White, M.D. Director
By: /s/ James R. Hatfield December 8, 1999
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James R. Hatfield
(Attorney-in-Fact)
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EXHIBIT INDEX
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4 OGE Energy Corp. Deferred Compensation Plan effective as of
January 1, 2000.
5 Opinion of counsel regarding legality of securities.
23 Consent of Arthur Andersen LLP.
24 Power of attorney.
</TABLE>
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Exhibit 4
OGE ENERGY CORP.
DEFERRED COMPENSATION PLAN
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I. PURPOSE AND EFFECTIVE DATE
1.1. Purpose. The OGE Energy Corp. Deferred Compensation Plan has been
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established by OGE Energy Corp. to attract and retain key
management employees by providing a tax-deferred capital
accumulation vehicle and to supplement such employees' 401(k)
contributions, thereby encouraging savings for retirement.
1.2. Effective Date. The Plan shall be effective January 1, 2000 and
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shall remain in effect until terminated in accordance with
Article 10.
1.3. Continuation of Prior Plan. The Plan is intended to be an
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amendment, restatement and continuation of the OGE Energy Corp.
Restoration of Retirement Savings Plan (the "Supplemental RSP").
II. DEFINITIONS
When used in the Plan and initially capitalized, the following words and
phrases shall have the meanings indicated:
2.1. "Account" means the record keeping account established for each
Participant in the Plan for purposes of accounting for the amount
of Base Salary and Bonus deferred under Article 4 and Matching
and Discretionary Credits, if any, to be credited under Article
5, adjusted periodically to reflect assumed investment return on
such deferrals and credits in accordance with Article 6.
2.2. "Administrator" means the Financial Programs Committee or such
other individual or committee appointed by the Board to
administer the Plan in accordance with Article 9.
2.3. "Affiliate" means (i) any corporation, partnership, joint
venture, trust, association or other business enterprise which is
a member of the same controlled group of corporations, trades or
businesses as the Company within the meaning of Code Section 414,
and (ii) any other entity that is designated as an Affiliate by
the Board.
2.4. "Base Salary" means a Participant's base salary as shown in the
personnel records of the Company.
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2.5. "Beneficiary" means the person or entity designated by the
Participant to receive the Participant's Plan benefits in the
event of the Participant's death. If the Participant does not
designate a Beneficiary, or if the Participant's designated
Beneficiary predeceases the Participant, the Participant's estate
shall be the Beneficiary under the Plan.
2.6. "Board" means the Board of Directors of the Company.
2.7. "Bonus" means the annual bonus payable to a Participant under the
OGE Energy Corp. Annual Incentive Compensation Plan, and any
other bonus which the Administrator, in its sole discretion,
determines is eligible for deferral under the Plan.
2.8. "Change in Control" means the happening of any of the following
events:
(a) an acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934 ("Exchange Act")) (a
"Person")of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of
either (1) the then outstanding shares of common stock of
the Company (the "Outstanding Company Common Stock") or (2)
the combined voting power of the then outstanding voting
securities of the company entitled to vote generally in the
election of directors (the "Outstanding Company Voting
Securities"); excluding however the following: (1) any
acquisition directly from the Company, (2) any acquisition
by the Company, (3) any acquisition by any employee benefit
plan (or related trust) sponsored by or maintained by the
Company or any corporation controlled by the Company or (4)
any acquisition by any corporation pursuant to a transaction
which complies with clauses (1), (2) and (3) of subsection
(iii) of this Section 2.8;
(b) a change in the composition of the Board such that the
individuals who as of January 1, 2000, constitute the Board
(the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, for
purposes of this Section 2.8, that any individual who
becomes a member of the Board subsequent to January 1, 2000,
whose election or nomination for election by the Company's
shareowners was approved by a vote of at least a majority of
those individuals then comprising the Incumbent Board shall
be considered as though such individual were a member of the
Incumbent Board; but provided further, that any such
individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest
with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board
shall not be so considered as a member of the Incumbent
Board; or
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(c) consummation of a reorganization, merger, share exchange or
consolidation or sale or other disposition of all or
substantially all of the assets of the Company (a "Business
Combination"), excluding, however, such a Business
Combination pursuant to which (1) all or substantially all
of the individuals and entities who are the beneficial
owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own,
directly or indirectly, more than 60% of, respectively, the
outstanding shares of common stock and the combined voting
power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may
be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation
which as a result of such transaction owns the Company or
all or substantially all of the Company's assets either
directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the
Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (2) no Person (other
than the corporation resulting from such Business
Combination or any employee benefit plan (or related trust)
of the Company or such corporation resulting from such
Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the outstanding
shares of common stock of the corporation resulting from
such Business Combination or the combined voting power of
the outstanding voting securities of such corporation except
to the extent that such ownership existed prior to the
Business Combination and (3) at least a majority of the
members of the board of directors of the corporation
resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial
agreement, or the action of the Board providing for such
Business Combination; or
(d) the approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
2.9. "Code" means the Internal Revenue Code of 1986, as amended.
2.10. "Company" means OGE Energy Corp. and any successor thereto.
2.11. "Deferral Election" means the election made by an Eligible
Employee to defer Base Salary and/or Bonus in accordance with
Article 4.
2.12. "Disability" shall have the same meaning as permanent disability
under the RSP. A Participant who has ceased active employment
with the Company and its Affiliates because of Disability will be
treated as having terminated employment for purposes of the Plan.
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2.13. "Discretionary Credit" means an amount credited to a
Participant's Account, as determined by the Company in its sole
discretion.
2.14. "Election Period" means the period specified by the Administrator
during which a Deferral Election may be made with respect to Base
Salary or Bonus payable for a Plan Year.
2.15. "Eligible Employee" means, with respect to any Plan Year, unless
determined otherwise by the Board, an employee of the Company or
an Affiliate whose projected compensation (within the meaning of
the RSP) for the preceding Plan Year is at least $100,000.
2.16. "Matching Credit" means the amount credited to a Participant's
Account pursuant to Section 5.1.
2.17. "Participant" means an Eligible Employee who has elected to defer
Base Salary and/or Bonus under the Plan or who has been credited
with a Discretionary Award.
2.18. "Plan" means the OGE Energy Corp. Deferred Compensation Plan, as
amended from time to time.
2.19. "Plan Year" means the calendar year.
2.20. "Retirement" means termination of employment with the Company or
its Affiliates as defined by the OGE Energy Corp. Employees'
Retirement Plan.
2.21. "RSP" means the OGE Energy Corp. Employee Stock Ownership and
Retirement Savings Plan, as amended from time to time.
2.22. "Supplemental RSP" has the meaning ascribed to such term in
Section 1.3.
2.23. "Valuation Date" means a date on which a Participant's Account is
valued, which shall be the last business day of each calendar
month, and such other dates as may be specified by the
Administrator.
III. PARTICIPATION
An Eligible Employee shall become a Participant in the Plan by filing a
Deferral Election with the Administrator in accordance with Article 4. An
Eligible Employee who is not otherwise a Participant in the Plan shall
become a Participant in the Plan on the date he or she is credited with a
Discretionary Credit. If the Administrator determines that participation by
one or more Participants shall cause the Plan to be subject to Part 2, 3 or
4 of Title I of the Employee Retirement Income Security Act of 1974, as
amended, the entire interest of such Participant or Participants under the
Plan shall be paid immediately
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to such Participant or Participants or shall otherwise be segregated from
the Plan in the discretion of the Administrator, and such Participant or
Participants shall cease to have any interest under the Plan.
IV. DEFERRAL OF COMPENSATION
4.1. Deferral of Base Salary. An Eligible Employee may elect to defer
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up to 70% of his or her Base Salary for a Plan Year by filing a
Deferral Election in accordance with Section 4.3.
4.2. Deferral of Bonus. An Eligible Employee may elect to defer up to
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100% of his or her Bonus for a Plan Year by filing
a Deferral Election in accordance with Section
4.3.
4.3. Deferral Elections. A Participant's Deferral Election shall be in
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writing, and shall be filed with the Administrator at such time
and in such manner as the Administrator shall provide, subject to
the following:
(a) Except as provided in subsection (d) below, a Deferral
Election shall be made during the election period
established by the Administrator which, in the case of Base
Salary, shall end no later than the day preceding the first
day of the Plan Year in which such Base Salary would
otherwise be payable and, in the case of Bonus, shall end no
later than the last day of the Plan Year preceding the Plan
Year to which such Bonus relates.
(b) Deferral Elections may be expressed as a percentage or fixed
dollar amount of Base Salary or Bonus, within the limits
provided under the Plan.
(c) The minimum annual deferral under the Plan shall be $2,500
and any Deferral Election which would provide a lesser
deferral for a Plan Year shall be disregarded for such Plan
Year.
Once made, a Deferral Election shall remain in effect for
subsequent Plan Years unless changed or revoked by the
Participant in accordance with rules established by the
Administrator. Any such modification or revocation shall be
effective for the Plan Year following the Plan Year in which it
is made; provided that such revocation shall become effective as
soon as practicable in the event it is made because of the
Participant's Disability or if the Administrator, in its sole
discretion, determines that the Participant has suffered a severe
financial hardship or a bona fide administrative mistake was
made. If a Deferral Election is revoked in accordance with the
preceding sentence, the Participant may not make a new Deferral
Election until the election period established by the
Administrator for making deferrals for the next Plan Year.
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4.4. Crediting of Deferral Elections. The amount of Base Salary and
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Bonus that a Participant elects to defer under the Plan shall be
credited by the Company to the Participant's Account as of the
first day of the month in which the Base Salary or Bonus would
have been payable absent the Deferral Election.
V. EMPLOYER CREDITS
5.1. Matching Credits. A Participant who has made a Deferral Election
for a Plan Year shall be credited with a "Matching Credit" equal
to the excess of (i) the matching contribution that would have
been made under the RSP for such Plan Year if the first 6% of the
Participant's total compensation deferred under this Plan and the
RSP were treated as Tax-Deferred Contributions under the RSP,
without regard to any limitations on such matching contributions
contained in the RSP due to the application of Sections
401(a)(17), 401(k)(3), 401(m), 402(g) or 415 of the Code, over
(ii) the maximum amount of matching contributions the Participant
is eligible to receive under the RSP (determined taking into
account the provisions of the RSP). Such Matching Credit shall be
credited to the Participant's Account at the same time that the
underlying Base Salary or Bonus deferral is credited to the
Participant's Account.
5.2. Discretionary Credits. The Administrator may award a Participant
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a Discretionary Credit in an amount determined by the
Administrator in its sole discretion. Any such Discretionary
Credit shall be credited to the Participant's Account at the time
determined by the Administrator and shall be subject to such
terms and conditions as the Administrator may establish.
5.3. Vesting. A Participant's Matching Credits shall vest based on the
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Participant's years of service (within the meaning of the RSP)
under the following schedule:
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Percentage of
Years of Service Matching Credits Vested
---------------- -----------------------
Less than 3 0%
3 but less than 4 30%
4 but less than 5 40%
5 but less than 6 60%
6 but less than 7 80%
7 or more 100%
</TABLE>
A Participant's Discretionary Credit, if any, shall vest in accordance with
the terms established by the Administrator at the time it is awarded.
Subject to Section 5.4, any portion of a Participant's Account that is not
vested upon the Participant's termination of employment with the Company
and its Affiliates shall be permanently forfeited.
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5.4. Acceleration of Vesting. Notwithstanding the provisions of this
-----------------------
Section 5.3, a Participant's Matching Credits and Discretionary
Credits, if any, shall become fully vested upon the following
events:
(a) the Participant's Retirement;
(b) the Participant's Disability;
(c) A Change in Control; or
(d) Termination of the Plan under Article 10.
VI. PLAN ACCOUNTS
6.1. Valuation of Accounts. The Administrator shall establish an
-----------------------
Account for each Participant who has filed a Deferral Election to
defer Base Salary and/or Bonus or who has been awarded a
Discretionary Credit. Such Account shall be credited with a
Participant's deferrals, Matching Credits and Discretionary
Credits as set forth in Sections 4.4, 5.1 and 5.2, respectively.
As of each Valuation Date, the Participant's Account shall be
adjusted upward or downward to reflect (i) the investment return
to be credited as of such Valuation Date pursuant to Section 6.2,
(ii) the amount of distributions, if any, to be debited as of
that Valuation Date under Article 7 or Article 8, and (iii) the
amount of forfeitures, if any, to be debited under Sections 5.3
or 7.4.
6.2. Crediting of Investment Return. Subject to such rules and
---------------------------------
limitations as the Administrator may determine, each Participant
shall designate from among the assumed investment alternatives
established by the Administrator under Section 6.3, one or more
assumed investments in which the amounts credited to his or her
Account shall be deemed invested. As of each Valuation Date, a
Participant's Account balance shall be adjusted upward or
downward for increases and decreases in the fair market value of
the investments in which it is deemed invested during the period
since the immediately preceding Valuation Date. On or before the
first day of each month, a Participant may make a new election
with respect to the assumed investments in which his Account
shall be deemed invested in the future. Any such election shall
be made in the form and at the time specified by the
Administrator; provided, however, prior to a Participant's
attainment of age 55, Matching Credits shall be deemed to be
invested in the assumed investment alternative based on the
Company's common stock.
6.3. Assumed Investment Alternatives. The Administrator shall
-----------------------------------
designate the assumed investment alternatives that will be
available from time to time under the Plan for purposes of
measuring a Participant's investment return under Section 6.2.
Such assumed investment alternatives shall include an assumed
investment in Company common stock. The value of deemed
investments in Company
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common stock shall be determined based on the fair market value
of a share of Company common stock as reported on the New York
Stock Exchange composite tape at the close of business on the
last business day of the month preceding the date on which the
amount or value of such investment is being determined.
6.4. Investment Alternatives After Death. For periods after the
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Valuation Date coincident with or following a Participant's
death, the Participant's Account balance shall be treated as if
it were invested in a fixed interest rate account at prevailing
short-term interest rates, as determined by the Administrator.
Beneficiaries shall not be permitted to make elections with
respect to assumed investment alternatives under the Plan.
VII. PAYMENT OF BENEFITS
7.1. Distribution at Specific Future Date. At the time a Participant
--------------------------------------
initially elects to participate in the Plan, the Participant may
elect one or more future Valuation Dates on which all or a
portion of his or her Account as of such date shall be paid. Any
such future date shall be a Valuation Date in a specific future
year which is at least two Plan Years after the Plan Year for
which the initial Deferral Election is made; provided, however,
only one distribution per Plan Year may be elected under this
Section 7.1; provided, further that, if the Participant elects a
distribution at one or more specific future dates and has a
termination of employment prior to any such date, distribution
shall commence pursuant to Sections 7.2, 7.3, 8.1 or 8.2, as
applicable. A distribution election under this Section 7.1 may be
revoked or extended to a Valuation Date in a future Plan Year by
filing a one-time revocation or extension election with the
Administrator at least 12 months prior to the first day of the
Plan Year in which such distribution was scheduled to take place.
7.2. Distribution Upon Retirement or Disability. If a Participant
----------------------------------------------
terminates employment with the Company and Affiliates by reason
of Retirement or Disability, distribution of the Participant's
Account shall be made or commence as of one of the following
dates elected by the Participant in his or her Deferral Election:
(a) the Valuation Date coincident with or next following the
Participant's termination of employment;
(b) the first Valuation Date in the Plan Year immediately
following the Plan Year in which such termination of
employment occurs;
(c) the Valuation Date coincident with or next following the
first anniversary of the Participant's termination of
employment.
8
<PAGE>
Distribution under this Section 7.2 shall be made (i) in a lump
sum, (ii) in substantially equal annual installments of up to 15
years, or (iii) in a combination of (i) and (ii), as elected by
the Participant. A Participant may change the time and form of
his or her distribution election under this Section 7.2 by filing
a new election with the Administrator; provided, however, that
any election that has not been on file with the Administrator at
least 12 months prior to the first day of the Plan Year in which
the Participant's termination of employment occurs shall be void
and disregarded. Notwithstanding the foregoing, a Participant
whose termination of employment occurs by reason of Disability
may request that the Administrator distribute the Participant's
Account in a lump sum payment following such termination of
employment, in which case the Administrator, in its sole
discretion, shall determine whether to make payment in a lump
sum. If the Participant does not have a valid election on file
with the Administrator at the time of Retirement or Disability,
the Participant's Account shall be paid in a single sum under
paragraph (a) next above.
7.3. Distribution On Other Termination of Employment. If a
--------------------------------------------------------
Participant's employment with the Company or Affiliates
terminates for any reason other than Retirement, Disability or
death, the Participant's Account shall be paid in a lump sum
payment as of the Valuation Date coincident with or next
following such termination of employment. Notwithstanding the
foregoing, the Administrator, in its sole discretion, may elect
to distribute the Participant's Account under this Section 7.3 in
up to five substantially equal annual payments commencing as of
the Valuation Date coincident with or next following the
Participant's termination of employment.
7.4. Unscheduled Withdrawal. A Participant may request a withdrawal of
----------------------
all or a portion of his or her Account by filing an election with
the Administrator specifying the amount of the Account to be
withdrawn. Payment of such amount, adjusted by the amount
forfeited in subsection (a) below, shall be made as of the first
Valuation Date administratively practicable after such request is
received, and shall be subject to the following:
(a) An amount equal to 10% of the withdrawal requested shall
be debited to the Participant's Account and permanently
forfeited.
(b) Any Deferral Election in effect at the time of such
withdrawal shall be void for periods after such withdrawal.
(c) The Participant shall not be eligible to file a new
Deferral Election until the election period for the
Plan Year commencing at least one year after such
withdrawal.
7.5. Unforeseeable Emergency. Prior to the date otherwise scheduled
------------------------
for payment under the Plan, upon showing an unforeseeable
emergency, a Participant may request that the Administrator
accelerate payment of all or a portion of his or her
9
<PAGE>
Account in an amount not exceeding the amount necessary to meet
the unforeseeable emergency. For purposes of the Plan, an
unforeseeable emergency means an unanticipated emergency that is
caused by an event beyond the control of the Participant and that
would result in severe financial hardship to the Participant if
early withdrawal were not permitted. The determination of an
unforeseeable emergency shall be made by the Administrator in its
sole discretion, based on such information as the Administrator
shall deem to be necessary.
7.6. Time and Form of Elections. All distribution and withdrawal
----------------------------
elections under this Article 7 shall be made at the time and in
the form established by the Administrator and shall be subject to
such other rules and limitations that the Administrator, in its
sole discretion, may establish.
VIII. DEATH BENEFITS
8.1. Death Prior to Commencement of Benefits. If a Participant dies
----------------------------------------
prior to commencement of payment of his or her Account, the
Participant's Beneficiary shall receive a survivor benefit in an
amount equal to the sum of:
(a) the Participant's Account balance,
plus
(b) the Participant's total Base Salary and Bonus deferrals
under the Plan, multiplied by two.
Such survivor benefit shall be paid in a single lump sum as soon
as practicable following the Participant's death.
8.2. Death After Commencement of Benefits. Subject to Section 8.3, if
------------------------------------
a Participant terminates employment due to Retirement or
Disability, and dies prior to the time his or her Account balance
has been fully distributed, the Participant's Beneficiary shall
receive the remaining portion of the Participant's Account at the
regularly-scheduled date of payment for any remaining installment
payments of the Participant's Account.
8.3. Post-Retirement Survivor Benefit. If a Participant terminates
----------------------------------
employment by reason of Retirement and dies with an Eligible
Spouse (defined below), then in addition to the remaining
installments payable to the Participant's Beneficiary under
Section 8.2, if any, the Participant's Eligible Spouse shall be
entitled to a "Supplemental Retirement Benefit." The Supplemental
Retirement Benefit shall be payable in the form of an annual
annuity for the life of the Eligible Spouse. The amount of the
annuity shall be the amount that would be payable if 50% of the
Participant's Account balance as of the Valuation Date coincident
with or next
10
<PAGE>
following the Participant's Retirement had been used to purchase
an annual annuity for the life of the spouse, determined using
interest and actuarial factors established by the Administrator.
For purposes of this Section 8.3, the term "Eligible Spouse"
means the person to whom the Participant was married on the date
of his or her Retirement.
If such Participant does not have an Account balance under the
Plan at the time of his or her death, payment of the annual
Supplemental Retirement Benefit shall commence in the month
following the Participant's death. If the Participant has an
Account balance at the time of death, payment of the annual
Supplemental Retirement Benefit shall commence in the month that
is 12 months after the month in which the last installment
payment of the Participant's Account is made.
8.4. Other Conditions. Notwithstanding the foregoing provisions of
-----------------
this Article 8, if the Participant's death occurs within two
years of initial Plan participation, and such death occurs by
reason of suicide (as reported on the Participant's death
certificate or determined by the Administrator in good faith),
the Participant's Beneficiary shall receive the Participant's
Account balance as of the date of his or her death in full
satisfaction of the Company's obligations under the Plan.
8.5. Administrator Discretion Regarding Form. Notwithstanding the
------------------------------------------
foregoing provisions of this Article 8, a Beneficiary may request
that the Administrator approve an alternate form of payment of
survivor benefits under this Article 8 which request may be
granted in the sole discretion of the Administrator.
IX. ADMINISTRATION
9.1. Authority of Administrator. The Administrator shall have full
---------------------------
power and authority to carry out the terms of the Plan. The
Administrator's interpretation, construction and administration
of the Plan, including any adjustment of the amount or recipient
of the payments to be made, shall be binding and conclusive on
all persons for all purposes. Neither the Company, including its
officers, employees or directors, nor the Administrator or the
Board or any member thereof, shall be liable to any person for
any action taken or omitted in connection with the
interpretation, construction and administration of the Plan.
9.2. Participant's Duty to Furnish Information. Each Participant shall
-----------------------------------------
furnish to the Administrator such information as it may from time
to time request for the purpose of the proper administration of
this Plan.
9.3. Claims Procedure. If a Participant or Beneficiary ("Claimant") is
----------------
denied all or a portion of an expected benefit under this Plan
for any reason, he or she may file a claim with the
Administrator. The Administrator shall notify the Claimant within
90 days of allowance or denial of the claim, unless the Claimant
receives written notice from the Administrator prior to the end
of the 90-day period stating that
11
<PAGE>
special circumstances require an extension (of up to 90
additional days) of the time for decision. The notice of the
decision shall be in writing, sent by mail to Claimant's last
known address, and if a denial of the claim, shall contain the
following information: (a) the specific reasons for the denial;
(b) specific reference to pertinent provisions of the Plan on
which the denial is based; and (c) if applicable, a description
of any additional information or material necessary to perfect
the claim, an explanation of why such information or material is
necessary, and an explanation of the claims review procedure. A
Claimant is entitled to request a review of any denial of his or
her claim by the Board. The request for review must be submitted
within 60 days of mailing of notice of the denial. Absent a
request for review within the 60-day period, the claim shall be
deemed to be conclusively denied. The Claimant or his or her
representatives shall be entitled to review all pertinent
documents, and to submit issues and comments orally and in
writing. The Board shall render a review decision in writing
within 60 days after receipt of a request for a review, provided
that, in special circumstances the Board may extend the time for
decision by not more than 60 days upon written notice to the
Claimant. The Claimant shall receive written notice of the
Board's review decision, together with specific reasons for the
decision and reference to the pertinent provisions of the Plan.
X. AMENDMENT AND TERMINATION
The Board may amend or terminate the Plan at any time; provided, however,
that no such amendment or termination shall have a material adverse effect
on any Participant's rights under the Plan accrued as of the date of such
amendment or termination. Upon termination of the Plan, the Board shall
cause a lump-sum payment of all benefits for all Participants at
substantially the same time.
XI. MISCELLANEOUS
11.1. No Implied Rights; Rights on Termination of Service. Neither the
---------------------------------------------------
establishment of the Plan nor any amendment thereof shall be
construed as giving any Participant, Beneficiary or any other
person any legal or equitable right unless such right shall be
specifically provided for in the Plan or conferred by specific
action of the Board or the Administrator in accordance with the
terms and provisions of the Plan. Except as expressly provided in
this Plan, neither the Company nor any of its Affiliates shall be
required or be liable to make any payment under the Plan.
11.2. No Employment Rights. Nothing herein shall constitute a contract
--------------------
of employment or of continuing service or in any manner obligate
the Company or any Affiliate to continue the services of any
Participant, or obligate any Participant to continue in the
service of the Company or Affiliates, or as a
12
<PAGE>
limitation of the right of the Company or Affiliates to discharge
any of their employees, with or without cause.
11.3. Unfunded Plan. No funds shall be segregated or earmarked for any
--------------
current or former Participant, Beneficiary or other person under
the Plan. However, the Company may establish one or more trusts
to assist in meeting its obligations under the Plan, the assets
of which shall be subject to the claims of the Company's general
creditors. No current or former Participant, Beneficiary or other
person, individually or as a member of a group, shall have any
right, title or interest in any account, fund, grantor trust, or
any asset that may be acquired by the Company in respect of its
obligations under the Plan (other than as a general creditor of
the Company with an unsecured claim against its general assets).
The Company may also choose to use life insurance to assist it in
meeting its obligations under the Plan. As a condition of
participation in the Plan, each Participant agrees to execute any
documents that may be required in connection with obtaining such
insurance and to cooperate with any life insurance underwriting
requirements; provided, however, that a Participant shall not be
required to undergo a medical examination in connection
therewith.
11.4. Nontransferability. Prior to payment thereof, no benefit under
------------------
the Plan shall be assignable or subject to any manner of
alienation, sale, transfer, claims of creditors, pledge,
attachment or encumbrances of any kind, except pursuant to a
domestic relations order awarding benefits to an "alternate
payee" (within the meaning of Code Section 414(p)(8)) that the
Administrator determines satisfies the criteria set forth in
paragraphs (1), (2) and (3) of Code Section 414(p) (a "DRO").
Notwithstanding any provision of the Plan to the contrary, the
Plan benefits awarded to an alternate payee under a DRO shall be
paid in a single lump sum to the alternate payee as soon as
administratively practicable following the date the Administrator
determines the order is a DRO.
11.5. Successors and Assigns. The rights, privileges, benefits and
------------------------
obligations under the Plan are intended to be, and shall be
treated as legal obligations of and binding upon the Company, its
successors and assigns, including successors by merger,
consolidation, reorganization or otherwise.
11.6. Applicable Law. This Plan is established under and will be
---------------
construed according to the laws of the State of Oklahoma, to the
extent not preempted by the laws of the United States.
13
<PAGE>
* * *
IN WITNESS WHEREOF, the undersigned has caused this Plan to be executed
this ______ day of _________________, 1999.
OGE ENERGY CORP.
By_____________________________
14
Exhibit 5
December 8, 1999
OGE Energy Corp.
321 North Harvey
Oklahoma City, Oklahoma 73102
RE: 4,000,000 DEFERRED COMPENSATION OBLIGATIONS ISSUED PURSUANT TO OGE
ENERGY CORP. DEFERRED COMPENSATION PLAN
Ladies and Gentlemen:
We have acted as counsel for OGE Energy Corp. (the "Company") in connection
with the proposed issuance of the Deferred Compensation Obligations referred to
above (the "Obligations") pursuant to the OGE Energy Corp. Deferred Compensation
Plan. The Obligations are the subject of the Company's Registration Statement on
Form S-8 under the Securities Act of 1933, as amended, to which this opinion,
with our consent, is attached as an exhibit.
As to certain questions of fact, we have relied upon statements and
certificates of certain officers of the Company and other professionals retained
by the company. We have assumed the authenticity of all documents submitted to
us as originals, the genuineness of all signatures, the legal capacity of all
natural persons and the conformity to the originals of all documents submitted
to us as copies. We have all records, instruments and documents which we have
deemed necessary for the purpose of this opinion.
Based upon the foregoing and upon our general familiarity with the
properties and affairs of the Company, we are the opinion that:
1. The Company is a validly organized and legally existing corporation
under the law of the State of Oklahoma.
2. Upon completion of the actions being taken or contemplated to be taken
in administering the Plan, the Obligations will be valid and binding
obligations of the Company, enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
garnishment or other creditors' rights.
Respectfully,
RAINEY, ROSS, RICE & BINNS
By: /s/ Hugh D. Rice
-----------------------
Hugh D. Rice
Exhibit 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our reports dated
January 21, 1999 and August 27, 1999, respectively, included in the OGE Energy
Corp. Form 10-K for the year ended December 31, 1998 and Form 8-K Current Report
dated July 13, 1999, as amended September 14, 1999, and to all references to our
Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
------------------------
Arthur Andersen LLP
Oklahoma City, Oklahoma
December 6, 1999
Exhibit 24
POWER OF ATTORNEY
WHEREAS, OGE ENERGY CORP., an Oklahoma corporation (herein referred to as
the "Company") is to file with the Securities and Exchange Commission, under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-8 relating to the deferral of up to $4,000,000 of compensation to be
offered under the Deferred Compensation Plan; and
WHEREAS, each of the undersigned holds the office or offices in the Company
herein below set forth opposite his or her name, respectively.
NOW, THEREFORE, each of the undersigned hereby constitutes and appoints
James R. Hatfield and Steven E. Moore and each of them individually, his or her
attorney, with full power to act for him or her and in his or her name, place
and stead, to sign his or her name in the capacity or capacities set forth below
to the Form S-8 Registration Statement relating to the deferral of up to
$4,000,000 of compensation to be offered under the Deferred Compensation Plan
and to any and all amendments (including post-effective amendments) to such
Registration Statement, and hereby ratifies and confirms all that said attorney
may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands this 17th
day of November, 1999.
<TABLE>
<CAPTION>
<S> <C>
Steven E. Moore, Director and
Principal Executive Officer /s/ Steven E. Moore
------------------------------------
Herbert H. Champlin, Director /s/ H. H. Champlin
------------------------------------
Luke R. Corbett, Director /s/ Luke R. Corbett
------------------------------------
William E. Durrett, Director /s/ W. E. Durrett
------------------------------------
Martha W. Griffin, Director /s/ Martha W. Griffen
------------------------------------
Hugh L. Hembree, III, Director /s/ Hugh L. Hembree, III
------------------------------------
Robert Kelley, Director /s/ Robert Kelley
------------------------------------
Bill Swisher, Director /s/ Bill Swisher
------------------------------------
Ronald H. White, M.D., Director /s/ Ronald H. White, M.D.
------------------------------------
Donald R. Rowlett, Principal Accounting
Officer /s/ Donald R. Rowlett
------------------------------------
James R. Hatfield, Principal Financial
Officer /s/ James R. Hatfield
------------------------------------
</TABLE>
