<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 for the quarterly period ended May 31, 1999.
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 for the transition period from _____________ to _______________
Commission file number 001-13643
ONEOK, INC.
(Exact name of registrant as specified in its charter)
OKLAHOMA 73-1520922
(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification No.)
100 WEST FIFTH STREET, TULSA, OK 74103
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (918) 588-7000
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
On May 31, 1999, the Company had 31,602,205 shares of common stock outstanding.
<PAGE> 2
ONEOK, INC.
QUARTERLY REPORT ON FORM 10-Q
<TABLE>
<CAPTION>
PART I - FINANCIAL INFORMATION PAGE NO.
<S> <C>
Consolidated Condensed Statements of Income -
Three Months and Nine Months Ended
May 31, 1999 and 1998 3
Consolidated Condensed Balance Sheets -
May 31, 1999 and August 31, 1998 4
Consolidated Condensed Statements of Cash Flows -
Nine Months Ended May 31, 1999 and 1998 5
Notes to Consolidated Condensed Financial Statements 6 - 8
Management's Discussion and Analysis of
Financial Condition and Results of Operations 9 - 19
PART II - OTHER INFORMATION 20 - 22
</TABLE>
2
<PAGE> 3
PART 1 - FINANCIAL INFORMATION
ONEOK, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(Unaudited)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Three Months Ended Nine Months Ended
May 31, May 31,
(Thousands of Dollars, except per share amounts) 1999 1998 1999 1998
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
OPERATING REVENUES
Regulated $ 222,090 $ 256,434 $ 805,058 $ 845,385
Nonregulated 195,990 187,614 580,660 620,233
---------- ---------- ---------- ----------
Total Operating Revenues 418,080 444,048 1,385,718 1,465,618
---------- ---------- ---------- ----------
OPERATING EXPENSES
Cost of gas 259,273 287,633 862,397 971,610
Operations and maintenance 70,540 69,798 197,438 202,433
Depreciation, depletion, and amortization 33,607 26,799 96,542 71,258
General taxes 9,494 9,768 29,039 25,176
---------- ---------- ---------- ----------
Total Operating Expenses 372,914 393,998 1,185,416 1,270,477
---------- ---------- ---------- ----------
Operating income 45,166 50,050 200,302 195,141
---------- ---------- ---------- ----------
Other income -- -- 4,993 14,644
Income taxes 10,985 17,270 64,968 71,319
Interest 12,985 5,844 36,349 25,174
---------- ---------- ---------- ----------
NET INCOME 21,196 26,936 103,978 113,292
Preferred Stock Dividends 9,324 8,983 27,972 17,959
---------- ---------- ---------- ----------
Income Available for Common Stock $ 11,872 $ 17,953 $ 76,006 $ 95,333
========== ========== ========== ==========
Earnings Per Share of Common Stock - Basic $ 0.38 $ 0.57 $ 2.41 $ 3.13
========== ========== ========== ==========
Earnings Per Share of Common Stock - Diluted $ 0.38 $ 0.52 $ 2.01 $ 2.59
========== ========== ========== ==========
Dividends Per Share of Common Stock $ 0.31 $ 0.30 $ 0.93 $ 0.90
========== ========== ========== ==========
</TABLE>
See accompanying notes to consolidated condensed financial statements.
3
<PAGE> 4
ONEOK, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
(Unaudited)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
MAY 31, August 31,
(Thousands of Dollars) 1999 1998
- -------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Property $ 3,010,539 $ 2,601,930
Accumulated depreciation, depletion, & amortization 966,719 915,769
----------- -----------
Total property 2,043,820 1,686,161
----------- -----------
CURRENT ASSETS:
Cash and cash equivalents 6,759 86
Accounts and notes receivable 222,287 177,649
Inventories 102,209 138,380
Other current assets 42,913 21,958
----------- -----------
Total current assets 374,168 338,073
----------- -----------
DEFERRED CHARGES AND OTHER ASSETS:
Regulatory assets, net 246,404 229,543
Goodwill 75,180 77,422
Investments and other 195,591 91,288
----------- -----------
Total deferred charges and other assets 517,175 398,253
----------- -----------
Total assets $ 2,935,163 $ 2,422,487
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
COMMON SHAREHOLDERS' EQUITY:
Common stock with $0.01 par value: authorized 100,000,000 shares;
issued 31,636,305 shares and outstanding 31,602,205 shares at
May 31, 1999 and issued and outstanding 31,576,287 shares
at August 31, 1998 $ 317 $ 316
Premium on capital stock 331,825 329,425
Treasury stock at cost: 34,100 shares at May 31, 1999 (1,012) --
Retained earnings 317,425 270,808
----------- -----------
Total common shareholders' equity 648,555 600,549
Preferred Stock: $0.01 par value, authorized 100,000,000 shares:
Convertible Preferred Stock: Series A authorized 20,000,000 shares;
issued and outstanding 19,946,448 shares at May 31, 1999 and
August 31, 1998 199 199
Convertible Preferred Stock: Series B authorized 30,000,000 shares;
issued and outstanding 125,826 shares at May 31, 1999 and
83,826 at August 31, 1998 1 1
Premium on Preferred Stock 568,870 568,122
----------- -----------
Total shareholders' equity 1,217,625 1,168,871
----------- -----------
LONG-TERM DEBT, EXCLUDING CURRENT PORTION 524,558 312,355
CURRENT LIABILITIES:
Long-term debt 16,817 16,909
Notes payable 397,000 212,000
Accounts payable 166,791 136,601
Accrued taxes 30,144 16,829
Accrued interest 11,304 7,814
Other 65,235 70,660
----------- -----------
Total current liabilities 687,291 460,813
----------- -----------
DEFERRED CREDITS AND OTHER LIABILITIES:
Deferred income taxes 333,069 313,955
Other deferred credits 172,620 166,493
----------- -----------
Total deferred credits and other liabilities 505,689 480,448
----------- -----------
TOTAL LIABILITIES & SHAREHOLDERS' EQUITY $ 2,935,163 $ 2,422,487
=========== ===========
</TABLE>
See accompanying notes to consolidated condensed financial statements.
4
<PAGE> 5
ONEOK, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
MAY 31,
(Thousands of Dollars) 1999 1998
- ------------------------------------------------------------------------------
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 103,978 $ 113,292
Depreciation, depletion, and amortization 96,542 75,353
Gain on sale of assets (4,993) (14,644)
Deferred income taxes (4,606) (2,156)
Income from other investments (2,507) --
Changes in assets and liabilities (14,422) 200,370
--------- ---------
Cash provided by operating activities 173,992 372,215
--------- ---------
INVESTING ACTIVITIES
Changes in other assets (73,461) (3,461)
Capital expenditures, net of salvage (435,744) (201,566)
--------- ---------
Cash used in investing activities (509,205) (205,027)
--------- ---------
FINANCING ACTIVITIES
Issuance (payment) of notes payable, net 185,000 (101,698)
Issuance (payment) of debt, net 212,110 (13,859)
Issuance of stock 3,149 6,055
Acquisition of Treasury stock (1,012) --
Dividends paid (57,361) (45,329)
--------- ---------
Cash provided by (used in) financing activities 341,886 (154,831)
--------- ---------
Change in cash and cash equivalents 6,673 12,357
Cash and cash equivalents at beginning of period 86 14,377
--------- ---------
Cash and cash equivalents at end of period $ 6,759 $ 26,734
========= =========
</TABLE>
See accompanying notes to consolidated condensed financial statements.
5
<PAGE> 6
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
A. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
INTERIM REPORTING. The interim consolidated condensed financial statements
reflect all adjustments which, in the opinion of management, are necessary for a
fair presentation of the results for the interim periods presented. All such
adjustments are of a normal recurring nature. Due to the seasonal nature of the
business, the results of operations for the nine months ended May 31, 1999, are
not necessarily indicative of the results that may be expected for the year
ending August 31, 1999. For further information, refer to the consolidated
financial statements and footnotes thereto included in the Company's Form 10-K
for the year ended August 31, 1998.
RECLASSIFICATION. Certain amounts for 1998 have been reclassified to conform
with the 1999 presentation. In particular, the Company reclassified other
income, including gains on sales of assets, from operating revenue to a separate
caption, and now presents operating income.
B. SIGNIFICANT EVENTS
In April, 1999, ONEOK, Inc. (the Company) amended its merger agreement with
Southwest Gas Corporation (Southwest) agreeing to acquire Southwest common stock
for $30 per share, in cash, compared to its previous offer of $28.50 per share.
The Southwest Board of Directors approved the revised offer. Following approval
of the amendment, Southern Union Company announced that it was increasing its
original unsolicited offer of $32 per share of Southwest common stock to $33.50
per share. Southwest stood firm in its acceptance of the Company's bid, saying
it believed the Company is stronger financially and can obtain regulatory
approval more quickly. The Company has completed the appropriate filings with
the regulatory commissions in Nevada, Arizona, and California, all of the states
requiring approval. In June, the Public Utilities Commission of Nevada approved
the proposed merger between the Company and Southwest. A proxy solicitation in
support of the merger between the Company and Southwest was sent to Southwest
shareholders on July 2, 1999. A vote by the shareholders is scheduled for August
10, 1999. The merger requires approval of the holders of more than 50% of the
shares of Southwest common stock. It is anticipated that the remaining
regulatory approvals will be obtained in the fourth quarter of fiscal 1999 and
the merger will be closed shortly thereafter.
In May 1999, the Company closed the acquisition of the Oklahoma midstream
natural gas gathering and processing assets of Koch Midstream Enterprises (Koch)
for $285 million in cash. The assets acquired include eight natural gas
processing plants and approximately 3,250 miles of gathering pipeline connected
to 1,460 gas wells in Oklahoma.
On November 26, 1997, the Company acquired substantially all of the natural gas
assets of Western Resources, Inc. (Western). The table of unaudited pro forma
information presents a summary of consolidated results of operations of the
Company as if the acquisition had occurred at the beginning of fiscal year 1998.
The results do not necessarily reflect the results which would have been
obtained if the acquisition had actually occurred on the date indicated or the
results which may be expected in the future.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
NINE MONTHS ENDED
MAY 31,
1999 1998
(Thousands of dollars, except per share amounts) (ACTUAL) (Pro Forma)
- -------------------------------------------------------------------------------
<S> <C> <C>
Total operating revenues $1,385,718 $1,663,472
Operating Income $ 200,302 $ 207,520
Net income $ 103,978 $ 116,005
Preferred stock dividends $ 27,972 $ 26,935
Income available for common stock $ 76,006 $ 89,070
Earnings per share of common stock - basic $ 2.41 $ 2.93
Earnings per share of common stock - diluted $ 2.01 $ 2.63
---------- ----------
</TABLE>
6
<PAGE> 7
On May 25, 1999, the Company began buying shares of common stock under a stock
buyback plan authorized in March, 1999. Through May 31, 1999, 34,100 shares of
common stock were purchased on the open market. The Company is authorized to buy
back up to 15 percent of its capital stock.
The Company and the Oklahoma Corporation Commission staff are currently
negotiating the terms of a joint stipulation that sets the stage for possible
deregulation of some assets, consolidates two rate cases into one, and provides
for an interim rate reduction. Under the terms of the agreement, there will be
no interim rate case this summer, but a consolidated rate case will be heard in
early 2000. If approved, the OCC will hold hearings in mid-July to identify the
Company's distribution, transmission, gathering and storage assets and consider
the deregulation of storage and gathering. The hearing on the joint stipulation
is scheduled for July 6, 1999.
C. REGULATORY ASSETS
The table is a summary of regulatory assets, net of amortization, at May 31,
1999, and August 31, 1998.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------
MAY 31, Aug. 31,
(Thousands of dollars) 1999 1998
- ------------------------------------------------------------------
<S> <C> <C>
Recoupable take-or-pay $ 87,225 $ 90,708
Pension costs 21,926 25,061
Postretirement costs other than pension 62,035 59,963
Other 5,051 8,917
Transition costs 23,020 18,447
Reacquired debt costs 22,450 -
Income tax rate change 24,697 26,447
Regulatory Assets, Net $246,404 $229,543
======== ========
</TABLE>
D. SUPPLEMENTAL CASH FLOW INFORMATION
The table is supplemental information relative to the Company's cash flows for
the nine months ended May 31, 1999 and 1998.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------
NINE MONTHS ENDED
MAY 31,
(Thousands of dollars) 1999 1998
- -------------------------------------------------------------------
<S> <C> <C>
Cash paid during the period for:
Interest $ 32,860 $ 19,679
Income taxes $ 56,940 $ 53,272
Noncash transactions:
Gas received as payment in kind $ 135 $ 207
Acquisition of assets and liabilities
Plant, property and equipment -- $ 642,752
Current assets -- $ 232,338
Regulatory assets and goodwill -- $ 120,848
Current liabilities -- ($ 24,468)
Debt assumed -- ($161,698)
Deferred credits -- ($ 54,774)
Deferred income taxes -- ($ 93,468)
Stock -- ($658,701)
--------- ---------
Cash Paid -- $ 2,829
========= =========
</TABLE>
7
<PAGE> 8
E. EARNINGS PER SHARE INFORMATION
The following is a reconciliation of the basic and diluted EPS computations.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
THREE MONTHS ENDED MAY 31, 1999 NINE MONTHS ENDED MAY 31, 1999
PER SHARE PER SHARE
(IN THOUSANDS) INCOME SHARES AMOUNT INCOME SHARES AMOUNT
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS
Income available to common stockholders $ 11,872 31,634 $ 0.38 $ 76,006 31,588 $ 2.41
======= =======
EFFECT OF DILUTIVE SECURITIES
Options -- 6 -- 19
Convertible preferred stock -- -- 27,972 20,072
-------- ------ -------- ------
DILUTED EPS
Net Income + assumed conversions $ 11,872 31,640 $ 0.38 $103,978 51,679 $ 2.01
======== ====== ======= ======== ====== =======
</TABLE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
Three Months Ended May 31, 1998 Nine Months Ended May 31, 1998
Per Share Per Share
(In Thousands) Income Shares Amount Income Shares Amount
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS
Income available to common stockholders $ 17,953 31,536 $ 0.57 $ 95,333 30,424 $ 3.13
======= =======
EFFECT OF DILUTIVE SECURITIES
Options 75 56
Convertible preferred stock 8,983 19,978 17,959 13,248
-------- ------ -------- ------
DILUTED EPS
Net Income + assumed conversions $ 26,936 51,589 $ 0.52 $113,292 43,728 $ 2.59
======== ====== ======= ======== ====== =======
</TABLE>
F. ENVIRONMENTAL
In connection with the Western transaction, the Company acquired 12 manufactured
gas sites located in Kansas which may contain potentially harmful materials that
are classified as hazardous material. Hazardous materials are subject to control
or remediation under various environmental laws and regulations. A consent
agreement with the Kansas Department of Health and Environment (KDHE) presently
governs all future work at these sites. The terms of the consent agreement allow
the Company to investigate these sites and set remediation priorities based upon
the results of the investigations and risk analysis. The prioritized sites will
be investigated over a ten year period. At May 31, 1999, the costs of the
investigations and risk analysis have been minimal. Limited information is
available about the sites and no testing has been performed. Management's best
estimate of the cost of remediation ranges from $100 thousand to $10 million per
site based on a limited comparison of costs incurred to remediate comparable
sites. These estimates do not give effect to potential insurance recoveries,
recoveries through rates or from third parties. The KCC has permitted others to
recover remediation costs through rates. It should be noted that additional
information and testing could result in costs significantly below or in excess
of the amounts estimated above. To the extent that such remediation costs are
not recovered, the costs could be material to the Company's results of
operations and cash flows depending on the remediation done and number of years
over which the remediation is completed.
8
<PAGE> 9
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
This Form 10-Q contains statements concerning ONEOK, Inc. (the Company)
expectations or predictions of the future that are "forward-looking statements"
within the meaning of the Private Securities Litigation Reform Act of 1995.
These statements are intended to be covered by the safe harbor provision of the
Securities Act of 1933 and the Securities Exchange Act of 1934. Forward-looking
statements are based on management's beliefs and assumptions based on
information currently available. It is important to note that actual results of
Company earnings could differ materially from those projected in such
forward-looking statements. Factors that may impact forward-looking statements
include, but are not limited to, the following:
o the effects of weather and other natural phenomena;
o increased competition from other energy suppliers as well as alternative
forms of energy;
o the capital intensive nature of the Company's business;
o economic climate and growth in the geographic areas in which the Company
does business;
o the uncertainty of gas and oil reserve estimates;
o the timing and extent of changes in commodity prices for natural gas,
natural gas liquids, electricity, and crude oil;
o the nature and projected profitability of potential projects and other
investments available to the Company;
o conditions of capital markets and equity markets;
o Year 2000 issues;
o the effects of changes in governmental policies and regulatory actions,
including income taxes, environmental compliance, authorized rates, and
deregulation or "unbundling" of natural gas business;
o the pending merger with Southwest; and regulatory delay or conditions
imposed by regulatory bodies in Southwest merger.
Accordingly, while the Company believes these forward-looking statements to be
reasonable, there can be no assurance that they will approximate actual
experience or that the expectations derived from them will be realized. When
used in Company documents, the words "anticipate", "expect", "projection",
"goal", or similar words are intended to identify forward-looking statements.
The Company does not have any intention or obligation to update forward-looking
statements after they distribute this 10-Q even if new information, future
events or other circumstances have made them incorrect or misleading.
A. RESULTS OF OPERATIONS
ONEOK, Inc. provides natural gas and related products and services to its
customers through regulated and nonregulated business units. The regulated
business unit provides natural gas distribution and transmission services to
approximately three-fourths of Oklahoma and two-thirds of Kansas. The Company
is the eighth largest natural gas distribution company in the United States in
terms of number of customers. The nonregulated business unit is primarily
involved in the marketing, gathering and processing, and production of natural
gas and natural gas liquids.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
MAY 31, MAY 31,
(Thousands of dollars) 1999 1998 1999 1998
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
FINANCIAL RESULTS
Operating revenues - regulated $ 222,090 $ 256,434 $ 805,058 $ 845,385
Operating revenues - nonregulated 195,990 187,614 580,660 620,233
---------- ---------- ---------- ----------
Total operating revenues 418,080 444,048 1,385,718 1,465,618
Operating costs 339,307 367,199 1,088,874 1,199,219
Depreciation, depletion and amortization 33,607 26,799 96,542 71,258
---------- ---------- ---------- ----------
Operating Income $ 45,166 $ 50,050 $ 200,302 $ 195,141
========== ========== ========== ==========
</TABLE>
9
<PAGE> 10
CONSOLIDATED OPERATIONS
Operating results continue to be strong despite warmer weather and lower gas
prices compared to one year ago. Operating income was $45.2 million for the
third quarter and $200.3 million for the fiscal year ended May 31, 1999 compared
to $50.1 million and $195.1 million for the same periods in fiscal 1998.
Although gas prices improved in the third quarter, they remain lower for the
1999 fiscal year compared to one year ago resulting in lower revenues and lower
gas costs. Gains on the sale of assets of $5 million in the first quarter of
fiscal 1999 and $14.6 million in the second quarter of fiscal 1998 are reflected
in Other Income on the Consolidated Condensed Statements of Income.
The table reflects the reasons for the changes in earnings per share (EPS) for
the quarter and the fiscal year compared to one year ago. Income available for
common stockholders decreased due to $28.0 million in preferred stock dividends
for the nine months compared to $18.0 million for the same period one year ago.
For the first quarter of fiscal 1998, there were no preferred stock dividends.
The preferred stock upon which the dividends were accrued is the convertible
preferred stock, series A and B, which has been issued to Western Resources,
Inc. (Western) in connection with the strategic alliance. The preferred
dividends and dilutive securities had a negative effect due to the weather
related fluctuations of the gas operations acquired. During quarters when the
calculated diluted EPS exceeds basic EPS, as it does in the third quarter of
fiscal 1999, the basic EPS , being the lower of the two numbers, must be
reported. Interest expense increased over one year ago due to debt assumed in
the strategic alliance with Western and debt incurred to finance other
acquisitions.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------
CHANGES IN EPS
FISCAL YEAR TO DATE MAY 31, 1999 COMPARED TO 1998
QUARTER FISCAL YEAR
BASIC DILUTED BASIC DILUTED
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Number of Shares -- -- $(0.11) $(0.40)
Preferred Dividends (0.01) -- (0.32) --
Net Income (0.18) (0.11) (0.29) (0.18)
Effect of antidilution -- (0.03) -- --
------ ------ ------ ------
Total Change in EPS $(0.19) $(0.14) $(0.72) $(0.58)
====== ====== ====== ======
</TABLE>
Additional information follows in the discussion of the segment operations for
the regulated and nonregulated segments.
YEAR 2000. The Year 2000 (Y2K) issue arose because most computer systems,
including application software (IT applications) and computer technology
embedded in plant and equipment (Embedded Technology) were constructed using a
two digit date field that assumed the first two digits are always "19". On
January 1, 2000, these systems may incorrectly recognize the date as January 1,
1900. Some IT applications and Embedded Technology may incorrectly process
critical financial and operating information or stop processing altogether.
Management, under direction of the Board of Directors, has implemented a program
to proactively address the Y2K challenge. Beginning in 1996, the Company
inventoried existing programs and systems and began the conversion process that
will make the Company Y2K compatible. The Company installed a new IBM Year 2000
compatible mainframe computer in August 1997. The Company believes that it has
fully identified and remediated its critical automated business systems and the
sensitive equipment for Y2K readiness. Testing of the remediated systems and
equipment is underway and will continue throughout the remainder of 1999.
In May 1999, the Company completed the asset acquisition from Koch Midstream
Enterprises. The Company has contracted with an independent third party to
inventory, assess, and remediate the assets acquired. This project is estimated
to be completed in September 1999.
10
<PAGE> 11
The Company has assessed its operational risks related to suppliers and vendors
with whom it conducts business. Based on this assessment, the Company has
completed the process of contacting suppliers and vendors with whom the Company
conducts business concerning their state of readiness and plans to complete Y2K
compatibility of their systems. The Company tests such third-party compliance to
the extent deemed reasonable and necessary to determine compliance.
The primary business risk associated with Y2K is the Company's ability to
continue to transport and distribute gas to its customers without significant
interruption. In the event the Company and/or its suppliers and vendors are
unable to remediate the Y2K problem prior to January 1, 2000, operations of the
Company could be significantly impacted. In order to mitigate this risk, the
Company is developing contingency plans to continue operations through manual
intervention and other procedures. Such procedures may include back-up power
supply for critical pipeline and storage operations and, if necessary,
curtailment of deliveries to customers. The Company's significant gas storage
capacity can be used to supplement system supply in the event gas suppliers
cannot make necessary deliveries. These contingency plans will augment and
supplement the Company's existing emergency plans. The Company expects its
operational Y2K contingency plans to be completed by the end of July 1999.
The Company is currently on schedule to meet its Y2K compatibility goals and
should be able to do so provided the Company is able to retain, or replace if
required, such key personnel as are necessary for conversion and testing of its
remaining programs and applications, and its key vendors and suppliers are Y2K
ready.
There can be no assurance that the Company's systems, or the systems of other
companies on which the Company relies, will be converted in a timely manner or
that any such failure to be Y2K ready would not have a material adverse effect
on the Company operations, liquidity and financial conditions.
The Company's direct cost to date is approximately $1.5 million for Y2K
conversion. This does not include the cost of programs and equipment that are
being replaced in the ordinary course of business that are Y2K compatible. The
Company estimates it will spend an additional $575,000 in direct costs.
REGULATED OPERATIONS
The regulated business unit provides natural gas distribution, transportation,
gas supply, and storage services in Oklahoma and Kansas. The Company's
operations in Oklahoma are conducted through Oklahoma Natural Gas Company
Division, ONEOK Gas Transportation Company Division and three wholly-owned
subsidiaries, ONEOK Gas Transportation, L.L.C., ONG Transmission Company, and
ONEOK Sayre Storage Company, which together form an integrated intrastate
natural gas distribution and transmission business which serves residential,
commercial, and industrial customers in about 75 percent of the state of
Oklahoma. These companies will be collectively referred to herein as ONG.
The Company is now in its second year of operation of the gas assets acquired
through the strategic alliance with Western. This alliance allowed the Company
to extend its regulated operations into the state of Kansas. The Company's
operations in Kansas are conducted through Kansas Gas Service Company Division
(Kansas Gas Service) and Mid Continent Market Center (MCMC), a wholly-owned
transportation company. These companies will be collectively referred to as KGS.
KGS's regulated gas operations are primarily engaged in distribution and
intrastate gas transportation, as well as gas wheeling, parking, balancing and
storage services. Kansas Gas Service serves residential, commercial, and
industrial customers in about 67 percent of Kansas. Kansas Gas Service also
conducts regulated gas distribution operations in northeastern Oklahoma. ONG is
subject to regulatory oversight by the Oklahoma Corporation Commission (OCC).
KGS is subject to regulatory oversight by the Kansas Corporation Commission
(KCC) and the OCC.
11
<PAGE> 12
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
MAY 31, MAY 31,
(Thousands of dollars) 1999 1998 1999 1998
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
FINANCIAL RESULTS
Gas sales $199,350 $230,306 $735,848 $779,197
Cost of gas 107,271 135,270 409,087 477,482
-------- -------- -------- --------
Gross margins on gas sales 92,079 95,036 326,761 301,715
PCL, ECT and transportation margins 16,540 20,915 53,416 51,371
Other revenues 8,312 7,368 22,780 20,362
-------- -------- -------- --------
Net revenues 116,931 123,319 402,957 373,448
Operating expenses 64,937 63,648 181,712 157,286
Depreciation, depletion and amortization 22,500 22,117 67,416 57,402
-------- -------- -------- --------
Operating income $ 29,494 $ 37,554 $153,829 $158,760
======== ======== ======== ========
</TABLE>
Gas sales volumes and gross margins on gas sales decreased for the three months
compared to the same period one year ago. Warmer weather contributed to the
decrease in volumes, and in Kansas, where margins are not temperature adjusted,
the warmer weather reduced gross margins on gas sales. For the nine months, gas
sales volumes and gross margins on gas sales were higher primarily due to the
inclusion of KGS's operations during the first quarter of this fiscal year. KGS
uses derivative instruments to hedge the cost of some anticipated gas purchases
during the winter heating months to protect their customers from upward
volatility in the market price of natural gas. PCL and ECT volumes decreased
compared to the same periods one year ago due to warmer weather and the loss of
some PCL customers.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
MAY 31, MAY 31,
1999 1998 1999 1998
- -----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
GROSS MARGIN PER Mcf
OKLAHOMA
Residential $3.55 $3.42 $2.77 $2.73
Commercial $2.52 $2.46 $2.40 $2.33
Industrial $1.12 $1.07 $1.23 $1.12
Pipeline capacity leases $0.26 $0.27 $0.25 $0.24
KANSAS
Residential $2.33 $2.22 $2.27 $2.04
Commercial $1.82 $1.77 $1.73 $1.68
Industrial $1.95 $1.91 $1.92 $1.90
End-use customer transportation $0.60 $0.55 $0.55 $0.61
===== ===== ===== =====
</TABLE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
MAY 31, MAY 31,
1999 1998 1999 1998
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
VOLUMES (MMcf)
Gas sales
Residential 25,828 28,493 98,040 96,405
Commercial 10,005 11,198 37,817 38,786
Industrial 1,321 1,739 4,676 6,375
Wholesale - As Available 9,425 8,337 25,700 10,655
------ ------ ------- -------
Total Gas Sales 46,579 49,767 166,233 152,221
PCL and ECT 43,239 60,023 137,828 158,795
------ ------ ------- -------
Gas Delivered 89,818 109,790 304,061 311,016
====== ======= ======= =======
</TABLE>
Operating expenses and depreciation, depletion and amortization were higher for
the nine months compared to one year ago also due to inclusion of KGS's
operations for the entire nine month period. On a pro forma basis, assuming the
Western acquisition had occurred at the beginning of fiscal 1998, net revenues
and operating expenses would have been $415 million and $189 million,
respectively, for the nine months ended May 31, 1998.
12
<PAGE> 13
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
MAY 31, MAY 31,
1999 1998 1999 1998
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
OPERATING INFORMATION
Capital expenditures (thousands) $ 35,574 $ 27,883 $ 92,370 $ 72,662
O&M per customer $ 38 $ 38 $ 106 $ 89
---------- ----------
Number of customers 1,424,262 1,412,485
Customers per employee 531 509
Identifiable assets (thousands) $2,068,342 $1,942,762
========== ==========
</TABLE>
The Company and the Oklahoma Corporation Commission staff are currently
negotiating the terms of a joint stipulation that sets the stage for possible
deregulation of some assets, consolidates two rate cases into one, and provides
for an interim rate reduction. Under the terms of the agreement, there will be
no interim rate case this summer, but a consolidated rate case will be heard in
early 2000. If approved, the OCC will hold hearings in mid-July to identify the
Company's distribution, transmission, gathering, and storage assets and consider
the deregulation of storage and gathering. The hearing on the joint stipulation
is scheduled for July 6, 1999.
Certain costs to be recovered through the rate making process have been recorded
as regulatory assets in accordance with Statement of Financial Accounting
Standards No. 71, "Accounting for the Effects of Certain Types of Regulation"
(SFAS 71). If the Company were required to discontinue the application of SFAS
71 due to unbundling and deregulation of upstream services or otherwise not be
able to recover certain regulatory assets through rates, the regulatory assets
would be charged to expense. Based on the present status of unbundling and
deregulation of upstream services, the Company is unable to determine the
financial impact of this process.
NONREGULATED OPERATIONS
The Company's nonregulated operations are involved in the marketing, gathering
and processing, and production of natural gas and natural gas liquids. The gas
marketing subsidiary conducts its activities in 24 states. The Company's
interest in gas liquids extraction plants and its producing properties are
concentrated principally in Oklahoma, Kansas and New Mexico. The Company also
operates its headquarters office building and a parking garage.
The Company adheres to a prudent risk management strategy of hedging fixed price
or location differential transactions using natural gas contracts or other
derivative agreements to offset potential price risk exposure.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
MAY 31, MAY 31,
(Thousands of dollars) 1999 1998 1999 1998
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
FINANCIAL RESULTS
COMBINED NONREGULATED OPERATIONS
Gas sales $184,957 $174,093 $559,045 $561,089
Cost of gas 178,009 167,948 533,685 545,873
-------- -------- -------- --------
Gross margins on gas sales 6,948 6,145 25,360 15,216
Gas and oil production 18,211 8,776 47,548 28,881
Gas processing, net 4,010 4,532 11,239 18,626
Other 9,079 7,542 23,533 16,174
-------- -------- -------- --------
Net revenues 38,248 26,995 107,680 78,897
Operating expenses 11,765 9,817 32,969 28,660
Depreciation, depletion and amortization 10,811 4,682 28,238 13,856
-------- -------- -------- --------
Operating income $ 15,672 $ 12,496 $ 46,473 $ 36,381
======== ======== ======== ========
</TABLE>
13
<PAGE> 14
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
MAY 31, MAY 31,
(MMcf) 1999 1998 1999 1998
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMBINED NONREGULATED
NATURAL GAS OPERATIONS
Natural gas volumes
Marketing 97,891 89,829 281,369 241,367
Natural gas production 7,786 3,710 20,697 10,989
Residue gas 1,274 1,380 3,957 4,354
------- ------ ------- -------
Total natural gas volumes 106,951 94,919 306,023 256,710
------- ------ ------- -------
Less intersegment sales
Marketing 6,204 2,672 22,117 10,723
Natural gas production 2,274 1,177 5,926 3,646
Residue gas 1,274 1,380 3,957 4,354
------- ------ ------- -------
Total intersegment sales 9,752 5,229 32,000 18,723
------- ------ ------- -------
Net natural gas volumes 97,199 89,690 274,023 237,987
======= ====== ======= =======
</TABLE>
MARKETING
The Company's marketing operation purchases and markets natural gas at both the
retail and wholesale level. The Company continues to develop its niche into new
market areas by arbitraging storage in the day trading market rather than
focusing on the baseload market. Gas volumes increased in 1999 primarily from
the Company's expansion into the Permian/Waha region of the United States. Gas
sales revenues increased for the three months but continued to be down for the
fiscal year due to gas prices being lower for the fiscal year (an industry-wide
trend) than one year ago.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
MAY 31, MAY 31,
(Thousands of dollars) 1999 1998 1999 1998
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
FINANCIAL RESULTS
Natural gas sales $184,957 $174,093 $559,045 $561,089
Cost of gas 178,009 167,948 533,685 545,873
-------- -------- -------- --------
Gross margins on gas sales 6,948 6,145 25,360 15,216
Other 595 772 3,118 3,585
-------- -------- -------- --------
Operating revenues 7,543 6,917 28,478 18,801
Operating costs, net 2,535 2,025 6,560 4,933
Depreciation, depletion and amortization 151 145 354 456
-------- -------- -------- --------
Operating income $ 4,857 $ 4,747 $ 21,564 $ 13,412
======== ======== ======== ========
</TABLE>
14
<PAGE> 15
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
MAY 31, MAY 31,
1999 1998 1999 1998
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
OPERATING INFORMATION
Natural gas volumes (MMcf) 97,891 89,829 281,369 241,367
Capital expenditures (thousands) $ 101 -- $ 725 $ 112
-------- --------
Identifiable assets (thousands) $174,936 $170,384
-------- --------
</TABLE>
The Company has been granted a rate schedule by the Federal Energy Regulatory
Commission (FERC) to trade electricity at market-based wholesale rates and has
begun trading. However, the activity has been minimal and has had little impact
to date.
Construction of a 300 megawatt electric power plant has been approved by the
Company's Board of Directors. The plant, to be located near Oklahoma City and
adjacent to a Company natural gas storage facility, will be configured to supply
electric power during peak periods with four gas-powered turbine generators
manufactured by General Electric. Application has been made with the Oklahoma
Air Quality Board for a permit, and the plant is expected to be operational
during the second quarter of 2001.
GATHERING AND PROCESSING
The Company's sale of its 50 percent interest in the Tonkawa gas processing
plants in the second quarter of fiscal 1998 resulted in the reduction in natural
gas liquids volumes for the three and nine months compared to the same periods
one year ago. However, on April 30, 1999, the Company closed the acquisition of
midstream natural gas gathering and processing assets from Koch Midstream
Enterprises. These assets included 100 percent interest in the Tonkawa gas
processing plants sold in fiscal 1998 and approximately 3,250 miles of gathering
pipeline connected to 1,460 gas wells located in Oklahoma. Total capacity of the
gas processing plants is 515 million cubic feet per day. The Company did not
previously own any portion of the gathering system and the related contracts
behind the processing plants and only owned a 50 percent non-operating interest
in the plants themselves. The addition of the gathering systems and the
Company's recent purchase of significant production along the gathering system
makes these assets financially attractive to the Company.
Revenue from natural gas liquids sales also decreased due to the average price
per gallon decreasing from 27.4 cents and 31.3 cents for the three and nine
month periods in 1998 to 25.1 cents and 23 cents for the same periods in 1999.
Included in Other Income on the Consolidated Condensed Statements of Income are
the gains on the sales of gathering and processing nonstrategic assets sold in
the first quarter of fiscal 1999 and the second quarter of fiscal 1998.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
MAY 31, MAY 31,
(Thousands of dollars) 1999 1998 1999 1998
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
FINANCIAL RESULTS
Gas processing, net $ 4,010 $ 4,352 $11,239 $17,666
Other 4,381 3,703 6,943 3,751
------- ------- ------- -------
Operating revenues 8,391 8,055 18,182 21,417
Operating costs, net 1,956 2,007 5,822 5,717
Depreciation, depletion and amortization 999 550 1,929 1,709
------- ------- ------- -------
Operating income $ 5,436 $ 5,498 $10,431 $13,991
======= ======= ======= =======
</TABLE>
15
<PAGE> 16
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
MAY 31, MAY 31,
1999 1998 1999 1998
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
OPERATING INFORMATION
Residue gas (MMcf) 1,274 1,380 3,957 4,354
Natural gas liquids (MGal) 29,205 30,809 89,456 166,832
Average NGL's price (MGal) $ 0.251 $ 0.274 $ 0.230 $ 0.313
Capital expenditures (thousands) $285,960 $ 12,340 $291,097 $ 14,091
-------- --------
Identifiable assets (thousands) $351,344 $ 70,652
-------- --------
</TABLE>
PRODUCTION
Gas volumes sold increased over the same periods one year ago. Production from a
successful development drilling program and properties acquired during fiscal
1998 and 1999 were the primary reason for the increases in volumes. Gas prices
for the three months increased while gas prices for the fiscal year decreased
compared to one year ago. Decreases in gas prices until this quarter have been
an industry-wide trend. Since the volatility of energy prices has a significant
impact on the profitability of this business unit, the Company utilizes
commodity derivative instruments to offset this risk. Operating costs and
depreciation, depletion, and amortization also increased over the same periods
one year ago due to the Company operating and owning an interest in an increased
number of wells.
The Company announced the termination of the proposed strategic alliance with
Costilla Energy, Inc. in April, 1999.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
MAY 31, MAY 31,
(Thousands of dollars) 1999 1998 1999 1998
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
FINANCIAL RESULTS
Natural gas sales $16,597 $ 7,797 $43,313 $26,041
Oil sales 1,614 1,160 4,235 3,801
Other 1,366 113 2,745 1,028
------- ------- ------- -------
Operating revenues 19,577 9,070 50,293 30,870
Operating costs, net 4,857 3,251 13,306 10,311
Depreciation, depletion and amortization 9,389 3,893 25,140 11,409
------- ------- ------- -------
Operating income $ 5,331 $ 1,926 $11,847 $ 9,150
======= ======= ======= =======
</TABLE>
16
<PAGE> 17
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
MAY 31, MAY 31,
1999 1998 1999 1998
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
OPERATING INFORMATION
Proved reserves
Gas (MMcf) -- -- 249,032 175,327
Oil (MBbls) -- -- 3,792 3,676
-------- -------- -------- --------
Production
Gas (MMcf) 7,786 3,710 20,697 10,989
Oil (MBbls) 122 79 345 221
-------- -------- -------- --------
Average price
Gas (Mcf) $ 2.13 $ 2.05 $ 2.09 $ 2.28
Oil (Bbls) $ 13.25 $ 14.68 $ 12.26 $ 17.20
-------- -------- -------- --------
Capital expenditures (thousands) $ 16,391 $133,750 $ 90,505 $160,184
-------- --------
Identifiable assets (thousands) $223,589 $107,798
-------- --------
</TABLE>
FINANCIAL FLEXIBILITY AND LIQUIDITY
The Company's capitalization structure is 56 percent equity and 44 percent debt
(including short-term debt) at May 31, 1999, compared to 73 percent equity and
27 percent debt at May 31, 1998.
During the first two quarters of fiscal 1999, the Company issued $400 million in
debt securities. These funds were used for general corporate purposes including
acquisitions, repayment of some short term debt and refinancing certain long-
term debt.
Cash provided by operating activities remains strong and continues as the
primary source for meeting day-to-day cash requirements. However, due to
seasonal fluctuations and additional capital requirements, the Company will
continue to periodically access funds through short-term credit agreements, and
if necessary, through long-term borrowings.
OPERATING CASH FLOWS
Operating cash flows for the nine months ended May 31, 1999, as compared to the
same period one year ago are lower primarily due to the liquidation of working
capital acquired in the Western transaction in the prior year. Additionally, the
marketing business unit has increased gas storage inventory to $43 million which
is expected to be liquidated next winter.
INVESTING CASH FLOWS
Capital expenditures include acquisitions of production and processing assets
totaling $379 million for the nine months ended May 31, 1999, and $79 million
one year ago.
For the nine months ended May 31, 1999, the Company invested in preferred equity
securities of an oil and gas company and gas gathering joint ventures.
<TABLE>
<CAPTION>
- -----------------------------------------------
NINE MONTHS ENDED
MAY 31,
(Millions of dollars) 1999 1998
- -----------------------------------------------
<S> <C> <C>
Regulated $ 92.4 $ 72.6
Processing 291.1 14.1
Production 90.5 160.0
Other 5.6 0.7
------- -------
Nonregulated 387.2 174.8
------- -------
Total $ 479.6 $ 247.4
======= =======
</TABLE>
17
<PAGE> 18
FINANCING CASH FLOW
At May 31, 1999, $541 million of long-term debt was outstanding. As of that
date, the Company could have issued $874 million of additional long-term debt
under the most restrictive provisions contained in its various borrowing
agreements. On July 2, 1999, a $600 million credit facility was entered into
with several banks and will close and be effective July 6, 1999. The existing
$200 million credit facility will be terminated as of the effective date of the
new facility. The Company plans to begin issuing commercial paper in July
supported by the new credit facility, some of which will pay off other
higher-interest short term debt.
On March 18, 1999, the Company authorized a stock buyback plan for up to 15
percent of its capital stock. The program authorizes the Company to make
purchases of its common stock on the open market with the timing and terms of
purchases and the number of shares purchased to be determined by management
based on market conditions and other factors. Purchases began May 25, 1999, with
34,100 shares purchased through May 31, 1999. The purchased shares will be held
in treasury and will be available for general corporate purposes, resale at a
future date, or retirement. Purchases will be financed with short-term debt or
made from available funds.
The Company believes that internally generated funds and access to financial
markets will be sufficient to meet its normal debt service, dividend
requirements, and capital expenditures.
LIQUIDITY
The regulated segment continues to face competitive pressure to serve the
substantial market represented by its large volume customers. The loss of a
substantial portion of that load, without recoupment of the revenues from that
loss, could have a materially adverse effect on the Company's financial
condition. However, since 1995, rates in Oklahoma have been structured to reduce
the Company's risk in serving its large volume customers.
ONG is currently in a rate review before the Oklahoma Corporation Commission
(OCC), and a hearing has been scheduled on a joint stipulation agreed to by ONG
and the OCC. A key issue to be addressed is the unbundling of services and the
deregulation of storage and gathering assets in Oklahoma. Should the Company be
unable to recover the stranded costs of any deregulated assets, it could have an
adverse effect on the Company's financial condition.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
RISK MANAGEMENT - The Company, substantially through its nonregulated segments,
is exposed to market risk in the normal course of its business operations to the
impact of market fluctuations in the price of natural gas and oil. Market risk
refers to the risk of loss in cash flows and future earnings arising from
adverse changes in commodity energy prices. The Company's primary exposure
arises from fixed price purchase or sale agreements which extend for periods of
up to 48 months, gas in storage inventories utilized by the gas marketing
operation, and anticipated sales of oil and gas production. To a lesser extent,
the Company is exposed to risk of changing prices or the cost of intervening
transportation resulting from purchasing gas at one location and selling it at
another (hereinafter referred to as basis risk). To minimize the risk from
market fluctuations in the price of natural gas and oil, the Company uses
commodity derivative instruments such as future contracts, swaps and options to
hedge existing or anticipated purchase and sale agreements, existing physical
gas in storage, and basis risk. None of these derivatives are held for
speculative purposes. The Company adheres to policies and procedures which limit
its exposure to market risk from open positions and monitors its exposure to
market risk. The results of the Company's derivative hedging activities continue
to meet its stated objective.
All of the Company's long-term debt is fixed-rate and, therefore, does not
expose the Company to the risk of earnings or cash flow loss due to changes in
market interest rates.
18
<PAGE> 19
Kansas Gas Service uses derivative instruments to hedge the cost of some
anticipated gas purchases during the winter heating months to protect their
customers from upward volatility in the market price of natural gas. The gain or
loss resulting from such derivatives is combined with the physical cost of gas
and recovered from the customer through the gas purchase clause in rates. The
Company has no market risk associated with such activities and, accordingly,
these derivatives have been omitted from the value-at-risk disclosures below.
VALUE-AT-RISK DISCLOSURE OF MARKET RISK - The estimation of potential losses
that could arise from changes in market conditions is typically accomplished
through the use of statistical models that seek to predict risk of loss based on
historical price and volatility patterns. The value-at-risk (VAR) measurement
used by the Company is based on J.P. Morgan's RiskMetrics(TM) model, which
measures recent volatility and correlation in the price of natural gas and oil,
pulls through current price levels and net deltas, and applies estimates made by
management regarding the time required to liquidate positions and the degree of
confidence placed in the accuracy of the volatility and correlation estimates.
The Company's VAR calculation presents a comprehensive market risk disclosure by
combining its commodity derivative portfolio used to hedge price and basis risk
together with the current portfolio of firm physical purchase and sale contracts
and nonregulated gas-in-storage inventory. At May 31, 1999, the Company's
estimated potential one-day favorable or unfavorable impact on future earnings,
as measured by the VAR, using a 95 percent confidence level, diversified
correlation and assuming three days to liquidate positions is immaterial.
The Company's calculated VAR exposure represents an estimate of potential losses
that would be recognized for its portfolio of derivative financial instruments
and firm physical contracts and nonregulated gas-in-storage assuming
hypothetical movements in future market rates and are not necessarily indicative
of actual results that may occur. It does not represent the maximum possible
loss nor any expected loss that may occur, because actual future gains and
losses will differ from those estimated, based on actual fluctuations in the
market rates, operating exposures, and the timing thereof, and changes in the
Company's portfolio of derivative financial instruments and firm physical
contracts.
19
<PAGE> 20
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
UNITED STATES OF AMERICA, EX REL. JACK J. GRYNBERG V. ONEOK, INC., ET
AL., No. CIV-97-1006-R, in the United States District Court for the Western
District of Oklahoma. The Complaint asserts essentially the same claims that the
same plaintiff relator, Jack J. Grynberg ("Grynberg"), asserted in a previous
action (United States et rel. Jack J. Grynberg v. Alaska Pipeline Company, et
al., No. 95-725-TFH, in the United States District Court for the District of
Columbia [hereinafter "Grynberg I"]) against ONEOK and approximately sixty-five
other pipeline companies. This case is one of 77 similar cases filed by
Grynberg. Many of the allegations in the Complaint are virtually identical in
all 77 cases, and they appear to be "beefed-up" versions of the same allegations
made in the Second Amended Complaint in Grynberg I. In addition, Grynberg has
asserted claims for underpayment of royalties based upon generalized allegations
of use of a portable chromatograph, affiliate transactions, use of storage
facilities to purchase gas in summer months, and improper deduction of costs. On
May 6, 1999, Grynberg filed a motion with the Judicial Panel on Multidistrict
Litigation (the "Judicial Panel") asking that all cases pending be transferred
and consolidated into a single district court in either Colorado or Wyoming. The
Judicial Panel accepted Grynberg's motion for filing on June 7, 1999. ONEOK
responded to the motion by June 28, 1999.
JOINT APPLICATION OF OKLAHOMA NATURAL GAS COMPANY, A DIVISION OF ONEOK,
INC., ONEOK GAS TRANSPORTATION COMPANY, A DIVISION OF ONEOK, INC., AND KANSAS
GAS SERVICE COMPANY, A DIVISION OF ONEOK, INC., FOR APPROVAL OF THEIR UNBUNDLING
PLAN FOR NATURAL GAS SERVICES UPSTREAM OF THE CITY GATES OR AGGREGATION POINTS,
Cause PUD No. 980000177, before the Oklahoma Corporation Commission. On June 4,
1999, the Company and the Oklahoma Corporation Commission filed a Joint Motion
in the Oklahoma Supreme Court to stay further appellate proceedings and for
leave to proceed before the Commission. The Joint Motion is the result of a
joint stipulation between the Company and the Commission Staff orally approved
by the Commission on May 26, 1999, in Case PUD No. 98-0000683. However, when the
matter came up on the signing agenda on June 16, 1999, Commissioner Apple
reversed his decision which resulted in the Joint Stipulation being disapproved
by the Commission. A new joint stipulation has been entered into (see below).
APPLICATION OF MICHAEL EDWARD MCADAMS AND JOHN POWELL WALKER FOR RELIEF
FROM IMPROPER AND EXCESSIVE GAS COSTS, Cause PUD No. 980000188, before the
Oklahoma Corporation Commission. On May 13, 1999, the Administrative Law Judge
issued a Report on the Company's Motion to Determine Scope of Hearing. The
Administrative Law Judge found first that the case is an adjudicative matter. As
to the issue of prospective versus retroactive relief, she found that the
Commission had previously stated that it "can only consider the issues of the
refund and cease and desist." According to the Report, if the impact of the
Dynamic contract is determined to be imprudent, unfair or unreasonable to the
ratepayers, evidence should be taken as to the past overcharges and the Company
should be ordered to cease and desist. Finally, as to the issue of whether a
class action proceeding may be brought before the Commission, the Administrative
Law Judge found that the responsibility of the Commission is to protect the rate
paying public as a whole, and allowing all similarly situated customers to be
represented would prevent discriminatory rebates or charges. It would be
discriminatory to order the "cease and desist" to apply only to the Applicants.
The Company did not appeal the Report.
APPLICATION OF ERNEST G. JOHNSON, DIRECTOR OF THE PUBLIC UTILITY
DIVISION, OKLAHOMA CORPORATION COMMISSION, TO REVIEW THE RATES, CHARGES,
SERVICES AND SERVICE TERMS OF OKLAHOMA NATURAL GAS COMPANY, A DIVISION OF ONEOK,
INC., AND ALL AFFILIATED COMPANIES AND ANY AFFILIATE OR NONAFFILIATE TRANSACTION
RELEVANT TO SUCH INQUIRY, Cause PUD No. 980000683, Oklahoma Corporation
Commission. The Commission has ordered the Company's Request for Affirmative
Relief to be held in abeyance until completion of the Commission Staff's rate
review (the Commission can, sua sponte, revisit the issue if it is determined to
be in the public interest to do so). The Commission also scheduled the interim
rate hearing to be heard by an Administrative
20
<PAGE> 21
Law Judge on June 22-24, 1999. On May 13, 1999, the Company and the Commission
Staff entered into a Joint Stipulation, which was orally approved by the
Commission on May 26, 1999. Pursuant to the Joint Stipulation, the rates to
customers of Oklahoma Natural Gas Company and Kansas Gas Service Company would
be reduced by $5 million, which would be in lieu of the interim hearing. The
Joint Stipulation also set up a process for the resolution of other issues
presented in this case and Oklahoma Natural Gas Company's rate case (Cause PUD
No. 990000166), which is consolidated with this case, including whether utility
rate regulation for gathering and storage services should be discontinued if
competition is determined to exist. Oklahoma Natural Gas Company will
competitively bid for gas supply for the 1999-2000 heating season, and will
competitively bid for upstream transportation services this fall, with service
to commence November 1, 2000. On June 16, 1999, however, the Joint Stipulation
was rejected by the Commission. On July 1, 1999, the Company and the Commission
Staff filed a joint motion to approve a new Joint Stipulation. The principal
difference between the new Joint Stipulation and the prior Joint Stipulation is
that the $5 million interim rate reduction would be credited to residential
customers only on September 1999 billings. The new Joint Stipulation is being
presented to the other parties to the proceedings for consideration and
negotiation of the final terms and conditions. The hearing is set for July 6,
1999.
W. A. DREW EDMONDSON, ATTORNEY GENERAL OF OKLAHOMA V. OKLAHOMA NATURAL
GAS COMPANY, A DIVISION OF ONEOK, INC., ONEOK GAS TRANSPORTATION COMPANY, A
DIVISION OF ONEOK, INC., AND KANSAS GAS SERVICE COMPANY, A DIVISION OF ONEOK,
INC. AND THE CORPORATION COMMISSION OF THE STATE OF OKLAHOMA, Oklahoma Supreme
Court, Case No. 93162. On June 7, 1999, the Attorney General of the State of
Oklahoma filed an appeal from the May 26, 1999, oral decision of the Oklahoma
Corporation Commission approving the Joint Stipulation entered into by the
Company and the Staff of the Commission's Public Utility Division in Case PUD
No. 980000683 (consolidated with ONG's rate case in Cause PUD No. 990000166).
The Attorney General challenged, inter alia, the stipulated $5,000,000 interim
rate reduction and the stipulated agreement that the Commission would conduct a
hearing to identify ONEOK's distribution, transmission, gathering and storage
assets to determine if competition exists for gathering and storage services
such that utility regulation may be discontinued. The Attorney General also
challenged the impartiality of one of the Commissioners and contends he was
denied due process by the Commissioner's actions. The Attorney General stated
his office will also file a writ of prohibition in the Oklahoma Supreme Court,
Case No. 93182, challenging the Commission's jurisdiction to conduct the
contemplated hearings regarding ONEOK assets. The writ was set for hearing
before a supreme court referee on June 22, 1999. The Commission filed a Motion
to Dismiss the appeal on June 9, and the Company filed a Motion to Dismiss on
June 14, 1999. This matter was dismissed on June 17, 1999.
ONEOK, INC. V. SOUTHERN UNION COMPANY, Case Number 99-CV-0345-H(M), United
States District Court for the Northern District of Oklahoma, on appeal of
preliminary injunction, United States Court of Appeals for the Tenth Circuit,
Case Number 99-5103. On May 5, 1999, the Company filed a complaint against
Southern Union Company ("Southern Union") for breaching the February 21, 1999
confidentiality and standstill agreement between Southern Union and Southwest
Gas Corporation ("Southwest"). The Company is a third party beneficiary. ONEOK
also sought to enjoin Southern Union from breaching the confidentiality and
standstill agreement and from taking any other wrongful actions to disrupt the
proposed merger of the Company with Southwest.
On May 11, 1999, the Court granted the Company's requested injunction
and issued a temporary restraining order enjoining Southern Union from any
future violation of the confidentiality and standstill agreement, including
soliciting proxies from Southwest's shareholders. ONEOK and Southern Union then
stipulated that the temporary restraining order could be entered as a
preliminary injunction and that Southern Union would be deemed to have sought
and been denied a stay of the injunction. The Court entered the parties'
stipulation and Southern Union filed a Notice of Appeal and Request for a Stay
of the injunction with the Tenth Circuit on May 17, 1999. The Tenth Circuit
received Southern Union's filing on May 18, 1999 and has issued an order staying
the injunction for the sole purpose of permitting Southern Union the opportunity
to oppose Southwest's motion to transfer a related California lawsuit to the
Northern District of Oklahoma and to file a motion to remand the same California
lawsuit to the San Diego Superior Court. Southern Union subsequently filed
supplements to its motion for stay seeking the opportunity to
21
<PAGE> 22
participate in ongoing administrative proceedings before state public utility
commissions, including proceedings in Arizona, California and Nevada. On June
10, 1999, the Tenth Circuit Court of Appeals denied Southern Union's request for
a stay of the District Court's injunction insofar as it pertains to state public
utility commission proceedings.
On June 9, 1999, Southern Union filed a motion with the Northern
District of Oklahoma to dismiss the lawsuit on the grounds of lack of personal
jurisdiction and improper venue and a motion to transfer the Oklahoma action to
the District of Nevada (where Southwest is asserting claims against Southern
Union similar to those being asserted against Southern Union by the Company), or
alteratively to stay the Oklahoma action pending the final disposition of the
Nevada action. ONEOK will file responses to these motions on July 2, 1999. of
these motions.
In a related matter, on December 15, 1998, the case of KLEIN V.
SOUTHWEST GAS CORPORATION, Superior Court of San Diego County, California, Case
No. 726615, was filed as a class action against Southwest and its directors. The
amended complaint alleges breach of fiduciary duty, duty of loyalty, due care,
candor, good faith and fair dealing seeking to enjoin the merger between the
Company and Southwest, a rescission of the merger agreement, the implementation
of an auction or similar process for sale of Southwest and the voiding of the
$30 million termination fee under the merger agreement. On May 4, 1999, Southern
Union intervened seeking a decision that it was entitled to solicit Southwest's
shareholders concerning approval of its proposed merger, rescission of a portion
of the confidentiality and standstill agreement and a temporary restraining
order and preliminary injunction to prevent Southwest from conducting a proxy
solicitation in support of the merger during the pendency of the litigation. The
case has been removed to the United States District Court for the Southern
District of California (Case No. 99-1004-IEG(CGA)). Southwest has filed motions
to dismiss the shareholder and Southern Union cases or alternatively to transfer
the case to the Northern District of Oklahoma. The Shareholders' motions are set
for hearing on September 7, 1999 and August 23, 1999, respectively. Southern
Union has filed a motion to remand which is set for hearing August 2, 1999. On
June 9, 1999, Southwest signed a Memorandum of Understanding with shareholders'
plaintiff counsel to settle the case with all plaintiffs except Southern Union.
The Memorandum of Understanding sets forth the parties' agreement in principle
settling all shareholders' claims and is subject to several conditions,
including consummation of the merger and entry of final judgment of dismissal
with prejudice that is binding on all shareholders.
On June 25, 1999, the Klein plaintiffs filed a third Amended Complaint
and withdrew the Motion to Remand the case back to state court. On the same day,
Southwest withdrew its Motion to Dismiss the Klein plaintiffs' claims and Motion
to Transfer the case to Oklahoma as to the Klein plaintiffs.
22
<PAGE> 23
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K AND 8-K/A.
(a) DOCUMENTS FILED AS PART OF THIS REPORT
10(m) Commercial Paper Dealer Agreement dated June 9, 1999, between ONEOK,
Inc. and Banc of America Securities L.L.C.
10(n) Commercial Paper Dealer Agreement dated June 9, 1999, between ONEOK,
Inc. and Bank One Capital Markets, Inc.
27 Financial Data Schedule
(b) REPORTS
April 15, 1999 - Filed pro forma financial information relating to the
merger of the Company and Southwest Gas Corporation.
April 19, 1999 - Announced that the ONEOK, Inc. KGS Thrift Plan had been
merged with and into the Thrift Plan for Employees of ONEOK, Inc. and
Subsidiaries.
April 22, 1999 - Announced that the strategic alliance between the Company
and Costilla Energy, Inc. had been terminated.
April 26, 1999 - Announced amendment to merger agreement between the
Company and Southwest Gas Corporation.
April 29, 1999 - Amended the 8-K filed on April 15, 1999.
May 3, 1999 - Announced the closing of the asset acquisition from Koch
Midstream Enterprises.
May 13, 1999 - Announced that the Company had filed an application with the
Missouri Public Service Commission asking for a review of Southern Union
Company's proposal to purchase the stock of Southwest Gas Corporation.
June 22, 1999 - Announced that the Public Utilities Commission of Nevada
had approved the merger between the Company and Southwest Gas Corporation.
23
<PAGE> 24
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized, on the 2nd day of July
1999.
ONEOK, Inc.
Registrant
By: /s/ JIM KNEALE
-------------------------------------
Jim Kneale
Vice President, Chief Financial
Officer, and Treasurer
24
<PAGE> 25
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
10(m) Commercial Paper Dealer Agreement dated June 9, 1999, between ONEOK,
Inc. and Banc of America Securities L.L.C.
10(n) Commercial Paper Dealer Agreement dated June 9, 1999, between ONEOK,
Inc. and Bank One Capital Markets, Inc.
27 Financial Data Schedule
</TABLE>
<PAGE> 1
Exhibit 10(m)
COMMERCIAL PAPER DEALER AGREEMENT
between
ONEOK, INC., as Issuer
and
BANC OF AMERICA SECURITIES LLC, as Dealer
Concerning Notes to be issued pursuant to an Issuing
and Paying Agency Agreement dated as of June 9,
1999 between the Issuer and The First National Bank
of Chicago, as Issuing and Paying Agent
Dated As of
June 9, 1999
<PAGE> 2
COMMERCIAL PAPER DEALER AGREEMENT
This agreement ("Agreement") sets forth the understandings between the
Issuer and the Dealer in connection with the issuance and sale by the Issuer of
its short-term promissory notes through the Dealer (the "Notes").
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described
in this Agreement or such Addendum, are hereby incorporated into this Agreement
and made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for
the account of the Issuer, and (ii) the Dealer has and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold by the Dealer in reliance on the
representations, warranties, covenants and agreements of the Issuer contained
herein or made pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, and in addition
to the limitations contained in Section 1.7 hereof, the Issuer shall not,
without the consent of the Dealer, offer, solicit or accept offers to purchase,
or sell, any Notes except (a) in transactions with one or more dealers which may
from time to time after the date hereof become dealers with respect to the Notes
by executing with the Issuer one or more agreements which contain provisions
substantially identical Section 1 of this Agreement, of which the Issuer hereby
undertakes to provide the Dealer prompt notice or (b) in transactions with the
other dealers listed on the Addendum hereto, which are executing agreements with
the Issuer which contain provisions substantially identical to Section 1 of this
Agreement contemporaneously herewith. In no event shall the Issuer offer,
solicit or accept offers to purchase, or sell, any Notes directly on its own
behalf in transactions with persons other than broker-dealers as specifically
permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination of $250,000 or
integral multiples of $1,000 in excess thereof, will bear such interest rates,
if interest bearing, or will be sold at such discount from their face amounts,
as shall be agreed upon by the Dealer and the Issuer, shall have a maturity not
exceeding 270 days from the date of issuance (exclusive of days of grace) and
shall not contain any provision for extension, renewal or automatic "rollover."
1.4 The authentication and issuance of, and payment for, the Notes
shall be effected in accordance with the Issuing and Paying Agency Agreement and
the Notes shall be either individual physical certificates or book-entry notes
evidenced by a Master Note registered in the name of DTC or its nominee, in the
form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the
1
<PAGE> 3
Dealer or the sale of any Note arranged by the Dealer (including, but not
limited to, agreement with respect to the date of issue, purchase price,
principal amount, maturity and interest rate (in the case of interest-bearing
Notes) or discount thereof (in the case of Notes issued on a discount basis),
and appropriate compensation for the Dealer's services hereunder) pursuant to
this Agreement, the Issuer shall cause such Note to be issued and delivered in
accordance with the terms of the Issuing and Paying Agency Agreement and payment
for such Note shall be made by the purchaser thereof, either directly or through
the Dealer, to the Issuing and Paying Agent, for the account of the Issuer.
Except as otherwise agreed, in the event that the Dealer is acting as an agent
and a purchaser shall either fail to accept delivery of or make payment for a
Note on the date fixed for settlement, the Dealer shall promptly notify the
Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the
Issuer will promptly return such funds to the Dealer against its return of the
Note to the Issuer, in the case of a certificated Note, and upon notice of such
failure in the case of a book-entry Note. If such failure occurred for any
reason other than default by the Dealer, the Issuer shall reimburse the Dealer
on an equitable basis for the Dealer's loss of the use of such funds for the
period such funds were credited to the Issuer's account.
1.6 All offers and sales of the Notes by the Issuer shall be effected
pursuant to the exemption from the registration requirements of the Securities
Act provided by Section 4(2) thereof, which exempts transactions by an issuer
not involving any public offering. The Dealer and the Issuer hereby establish
and agree to observe the following procedures in connection with offers, sales
and subsequent resales or other transfers of the Notes:
(a) Offers and sales of the Notes shall be made only to: (i)
investors reasonably believed by the Dealer to be Qualified
Institutional Buyers, Institutional Accredited Investors or
Sophisticated Individual Accredited Investors, and (ii) non-bank
fiduciaries or agents that will be purchasing Notes for one or more
accounts, each of which is reasonably believed by the Dealer to be an
Institutional Accredited Investor or Sophisticated Individual Accredit
Investor.
(b) Resales and other transfers of the Notes by the holders
thereof shall be made only in accordance with the restrictions in the
legends described in clause (e) below.
(c) No general solicitation or general advertising shall be
used in connection with the offering of the Notes. Without limiting the
generality of the foregoing, without the prior written approval of the
Dealer, the Issuer shall not issue any press release or place or
publish any "tombstone" or other advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for less
than $250,000 principal or face amount, and no Note shall be issued in
a smaller principal or face amount. If the purchaser is a non-bank
fiduciary acting on behalf of others, each person for whom such
purchaser is acting must purchase at least $250,000 principal or face
amount of Notes.
(e) Offers and sales of the Notes by the Issuer through the
Dealer acting as agent for the Issuer shall be made in accordance with
Rule 506 under the Securities Act, and shall be subject to the
restrictions described in the legend appearing on Exhibit A hereto. A
legend substantially to the effect of such Exhibit A shall appear as
part of the Private Placement Memorandum used in connection with offers
and sales of Notes hereunder, as well as on each
2
<PAGE> 4
individual certificate representing a Note and each Master Note
representing book-entry Notes offered and sold pursuant to this
Agreement.
(f) Dealer shall furnish or shall have furnished to each
purchaser of Notes for which it has acted as the Dealer a copy of the
then-current Private Placement Memorandum unless such purchaser has
previously received a copy of the Private Placement Memorandum as then
in effect. The Private Placement Memorandum shall expressly state that
any person to whom Notes are offered shall have an opportunity to ask
questions of, and receive information from, the Issuer and the Dealer
and shall provide the names, addresses and telephone numbers of the
persons from whom information regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and each
of the holders and prospective purchasers from time to time of the
Notes that, if at any time the Issuer shall not be subject to Section
13 or 15(d) of the Exchange Act, the Issuer will furnish, upon request
and at its expense, to the Dealer and to holders and prospective
purchasers of Notes information required by Rule 144A(d)(4)(i) in
compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by the
Dealer would be ineligible for resale under Rule 144A, the Issuer shall
immediately notify the Dealer (by telephone, confirmed in writing) of
such fact and shall promptly prepare and deliver to the Dealer an
amendment or supplement to the Private Placement Memorandum describing
the Notes that are ineligible, the reason for such ineligibility and
any other relevant information relating thereto.
(i) The Issuer represents that it intends to issue, and
expects to continue to issue, commercial paper in the United States
market in reliance upon, and in compliance with, the exemption provided
by Section 3(a)(3) of the Act. In that connection, the Issuer agrees
that (a) the proceeds from the sale of the Notes will be segregated
from the proceeds of the sale of any such commercial paper by being
placed in a separate account; (b) the Issuer will institute appropriate
corporate procedures to ensure that the offers and sales of notes
issued by the Issuer pursuant to the Section 3(a)(3) exemption are not
integrated with offerings and sales of Notes hereunder; and (c) the
Issuer will comply with each of the requirements of Section 3(a)(3) of
the Act in selling commercial paper or other short-term debt securities
other than the Notes in the United States.
1.7 The Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as follows:
(a) Issuer hereby confirms to the Dealer that (except as
permitted by Section 1.6(i)) within the preceding six months neither
the Issuer nor any person other than the Dealer or the other dealers
named in the Addendum hereto acting on behalf of the Issuer has offered
or sold any Notes, or any substantially similar security of the Issuer
(including, without limitation, medium-term notes issued by the
Issuer), to, or solicited offers to buy any such security from, any
person other than the Dealer or the other dealers named in the Addendum
hereto. The Issuer also agrees that (except as permitted by Section
1.6(i)), as long as the Notes are being offered for sale by the Dealer
and the other dealers named in the Addendum hereto as contemplated
hereby and until at least six months after the offer of Notes hereunder
has been terminated, neither the Issuer nor any person other than the
Dealer or the other dealers named in the Addendum hereto (except
3
<PAGE> 5
as contemplated by Section 1.2 hereof) will offer the Notes or any
substantially similar security of the Issuer for sale to, or solicit
offers to buy any such security from, any person other than the Dealer,
it being understood that such agreement is made with a view to bringing
the offer and sale of the Notes within the exemption provided by
Section 4(2) of the Securities Act and Rule 506 thereunder and shall
survive any termination of this Agreement. The Issuer hereby represents
and warrants that it has not taken or omitted to take, and will not
take or omit to take, any action that would cause the offering and sale
of Notes hereunder to be integrated with any other offering of
securities, whether such offering is made by the Issuer or some other
party or parties.
(b) The Issuer represents and agrees that the proceeds of the
sale of the Notes are not currently contemplated to be used for the
purpose of buying, carrying or trading securities within the meaning of
Regulation T and the interpretations thereunder by the Board of
Governors of the Federal Reserve System. In the event that the Issuer
determines to use such proceeds for the purpose of buying, carrying or
trading securities, whether in connection with an acquisition of
another company or otherwise, the Issuer shall give the Dealer at least
five business days' prior written notice to that effect. The Issuer
shall also give the Dealer prompt notice of the actual date that it
commences to purchase securities with the proceeds of the Notes.
Thereafter, in the event that the Dealer purchases Notes as principal
and does not resell such Notes on the day of such purchase, to the
extent necessary to comply with Regulation T and the interpretations
thereunder, the Dealer will sell such Notes (i) only to offerees it
reasonably believes to be QIBs or to QIBs it reasonably believes are
acting for other QIBs, in each case in accordance with Rule 144A or
(ii) in a manner which would not cause a violation of Regulation T and
the interpretations thereunder.
Section 2. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all the requisite power and authority to execute, deliver and perform its
obligations under the Notes, this Agreement and the Issuing and Paying Agency
Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have
been duly authorized, executed and delivered by the Issuer and constitute legal,
valid and binding obligations of the Issuer enforceable against the Issuer in
accordance with their terms subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued and delivered
as provided in the Issuing and Paying Agency Agreement, will be duly and validly
issued and delivered and will constitute legal, valid and binding obligations of
the Issuer enforceable against the Issuer in accordance with their terms subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally, and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law).
4
<PAGE> 6
2.4 The offer and sale of Notes in the manner contemplated hereby do
not require registration of the Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2) thereof, and no indenture
in respect of the Notes is required to be qualified under the Trust Indenture
Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured
and unsubordinated indebtedness of the Issuer.
2.6 No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the SEC, is
required to authorize, or is otherwise required in connection with the
execution, delivery or performance of, this Agreement, the Notes or the Issuing
and Paying Agency Agreement, except as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Notes.
2.7 Neither the execution and delivery of this Agreement and the
Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance
with the Issuing and Paying Agency Agreement, nor the fulfillment of or
compliance with the terms and provisions hereof or thereof by the Issuer, will
(i) result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Issuer, or (ii) violate or result in a breach or default under any of the terms
of the Issuer's charter documents or by-laws, any contract or instrument to
which the Issuer is a party or by which it or its property is bound, or any law
or regulation, or any order, writ, injunction or decree of any court or
government instrumentality, to which the Issuer is subject or by which it or its
property is bound, which breach or default might have a material adverse effect
on the condition (financial or otherwise), operations or business prospects of
the Issuer or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or governmental proceeding pending, or to
the knowledge of the Issuer threatened, against or affecting the Issuer or any
of its subsidiaries which might result in a material adverse change in the
condition (financial or otherwise), operations or business prospects of the
Issuer or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an entity "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company
Information contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b)
amendment or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such date have been duly and
5
<PAGE> 7
validly issued and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and (iii) in the case of an issuance of Notes, since the date of the
most recent Private Placement Memorandum, there has been no material adverse
change in the condition (financial or otherwise), operations or business
prospects of the Issuer which has not been disclosed to the Dealer in writing.
6
<PAGE> 8
Section 3. Covenants and Agreements of Issuer.
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but in any event
prior to any subsequent issuance of Notes hereunder) of any amendment to,
modification of, or waiver with respect to, the Notes or the Issuing and Paying
Agency Agreement, including a complete copy of any such amendment, modification
or waiver.
3.2 The Issuer shall, whenever there shall occur any change in the
Issuer's condition (financial or otherwise), operations or business prospects or
any development or occurrence in relation to the Issuer that would be material
to holders of the Notes or potential holders of the Notes (including any
downgrading or receipt of any notice of intended or potential downgrading or any
review for potential change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical rating organization which
has published a rating of the Notes), promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the Dealer (by telephone,
confirmed in writing) of such change, development, or occurrence.
3.3 The Issuer shall from time to time furnish to the Dealer such
information as the Dealer may reasonably request, including, without limitation,
any press releases or material provided by the Issuer to any national securities
exchange or rating agency, regarding (i) the Issuer's operations and financial
condition, (ii) the due authorization and execution of the Notes, and (iii) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will comply with
any applicable state Blue Sky laws; provided, that the Issuer shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer will not be in default of any of its obligations
hereunder, under the Notes or under the Issuing and Paying Agency Agreement, at
any time that any of the Notes are outstanding.
3.6 The Issuer shall not issue Notes hereunder until the Dealer shall
have received (a) an opinion of counsel to the Issuer, addressed to the Dealer,
satisfactory in form and substance to the Dealer, (b) a copy of the executed
Issuing and Paying Agency Agreement as then in effect, (c) a copy of resolutions
adopted by the Board of Directors of the Issuer, satisfactory in form and
substance to the Dealer and certified by the Secretary or similar officer of the
Issuer, authorizing execution and delivery by the Issuer of this Agreement, the
Issuing and Paying Agency Agreement and the Notes and consummation by the Issuer
of the transactions contemplated hereby and thereby, (d) prior to the issuance
of any Notes represented by a book-entry note registered in the name of DTC or
its nominee, a copy of the executed Letter of Representations among the Issuer,
the Issuing and Paying Agent and DTC and (e) such other certificates, opinions,
letters and documents as the Dealer shall have reasonably requested.
3.7 The Issuer shall reimburse the Dealer for all of the Dealer's
reasonable out-of-pocket expenses related to this Agreement, including expenses
incurred in connection with its preparation and
7
<PAGE> 9
negotiation, and the transactions contemplated hereby (including, but not
limited to, the printing and distribution of the Private Placement Memorandum),
and, if applicable, for the reasonable fees and out-of-pocket expenses of the
Dealer's counsel.
Section 4. Disclosure.
4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees promptly to furnish the Dealer the Company
Information as it becomes available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly upon
the occurrence of any event relating to or affecting the Issuer that would cause
the Company Information then in existence to include an untrue statement of
material fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading.
(b) In the event the Issuer gives the Dealer notice pursuant to
Section 4.3(a) and the Dealer notifies the Issuer that it then has Notes it is
holding in inventory, the Issuer agrees promptly to supplement or amend the
Private Placement Memorandum so that such Private Placement Memorandum, as
amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Issuer shall make such supplement or amendment available to
the Dealer and prospective holders of the Notes.
(c) In the event that (i) the Issuer gives the Dealer notice
pursuant to Section 4.3(a), (ii) the Dealer does not notify the Issuer that it
is then holding Notes in inventory and (iii) the Issuer chooses not to promptly
amend or supplement the Private Placement Memorandum in the manner described in
clause (b) above, then all solicitations and sales of Notes shall be suspended
until such time as the Issuer has so amended or supplemented the Private
Placement Memorandum, and made such amendment or supplement available to the
Dealer and prospective holders of the Notes.
8
<PAGE> 10
Section 5. Indemnification and Contribution.
5.1 The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other entity
controlling the Dealer, any affiliate of the Dealer or any such controlling
entity and their respective directors, officers, employees, partners,
incorporators, shareholders, servants, trustees and agents (hereinafter the
"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including, without
limitation, fees and disbursements of counsel) or judgments of whatever kind or
nature (each a "Claim"), imposed upon, incurred by or asserted against the
Indemnitees arising out of or based upon (i) any allegation that the Private
Placement Memorandum, the Company Information or any information provided by the
Issuer to the Dealer included (as of any relevant time) or includes an untrue
statement of a material fact or omitted (as of any relevant time) or omits to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading or (ii) arising out
of or based upon the breach by the Issuer of any agreement, covenant or
representation made in or pursuant to this Agreement. This indemnification shall
not apply to the extent that the Claim arises out of or is based upon Dealer
Information.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by the Dealer in connection
with any Claim in the proportion of the respective economic interests of the
Issuer and the Dealer; provided, however, that such contribution by the Issuer
shall be in an amount such that the aggregate costs incurred by the Dealer do
not exceed the aggregate of the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of Notes to which such Claim
relates. The respective economic interests shall be calculated by reference to
the aggregate proceeds to the Issuer of the Notes issued hereunder and the
aggregate commissions and fees earned by the Dealer hereunder.
Section 6. Definitions.
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable, (i) the Issuer's
most recent report on Form 10-K filed with the SEC and each report on Form 10-Q
or 8-K filed by the Issuer with the SEC since the most recent Form 10-K, (ii)
the Issuer's most recent annual audited financial statements and each interim
financial statement or report prepared subsequent thereto, if not included in
item (i) above, (iii) the Issuer's and its affiliates' other publicly available
recent reports, including, but not limited to, any publicly available filings or
reports provided to their respective shareholders, (iv) any other information or
disclosure prepared pursuant to Section 4.3 hereof and (v) any information
prepared or approved by the Issuer for dissemination to investors or potential
investors in the Notes.
6.3 "Dealer Information" shall mean material concerning the Dealer and
provided by the Dealer in writing expressly for inclusion in the Private
Placement Memorandum.
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<PAGE> 11
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934,
as amended.
6.6 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party designated as such
on the cover page of this Agreement, as issuing and paying agent under the
Issuing and Paying Agency Agreement, or any successor thereto in accordance with
the Issuing and Paying Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or agent
other than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or
(b) a savings and loan association, as defined in Section 3(a)(5)(A) of the
Securities Act.
6.11 "Private Placement Memorandum" shall mean offering materials
prepared in accordance with Section 4 (including materials referred to therein
or incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" or "QIB" shall have the meaning
assigned to that term in Rule 144A under the Securities Act.
6.13 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.14 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.15 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
6.16 "Sophisticated Individual Accredited Investor" shall mean an
individual who (a) is an accredited investor within the meaning of Regulation D
under the Securities Act and (b) based on his or her pre-existing relationship
with the Dealer, is reasonably believed by the Dealer to be a sophisticated
investor (i) possessing such knowledge and experience (or represented by a
fiduciary or agent possessing such knowledge and experience) in financial and
business matters that he or she is capable of evaluating and bearing the
economic risk of an investment in the Notes and (ii) having a net worth of at
least $5 million.
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<PAGE> 12
Section 7. General.
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its conflict of laws
provisions.
7.3 The Issuer agrees that any suit, action or proceeding brought by
the Issuer against the Dealer in connection with or arising out of this
Agreement or the Notes or the offer and sale of the Notes shall be brought
solely in the United States federal courts located in the borough of Manhattan
or the courts of the State of New York located in the Borough of Manhattan. EACH
OF THE DEALER AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT,
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer, upon
one business day's prior notice to such effect to the Dealer, or by the Dealer
upon one business day's prior notice to such effect to the Issuer. Any such
termination, however, shall not affect the obligations of the Issuer under
Sections 3.7, 5 and 7.3 hereof or the respective representations, warranties,
agreements, covenants, rights or responsibilities of the parties made or arising
prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either party hereto without the
written consent of the other party; provided, however, that the Dealer may
assign its rights and obligations under this Agreement to any wholly-owned
subsidiary of the ultimate parent company of the Dealer.
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties hereto,
and their respective permitted successors and assigns hereunder, and shall not
be deemed to give any legal or equitable right, remedy or claim to any other
person whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
ONEOK, INC., as Issuer
By:
---------------------------------
Name: Jim Kneale
Title: Vice President & CFO
11
<PAGE> 13
BANC OF AMERICA SECURITIES LLC,
as Dealer
By:
---------------------------------
Name: Robert Porter
Title: Managing Director
12
<PAGE> 14
ADDENDUM
The following additional clauses shall apply to the Agreement and be
deemed a part thereof when the respective parties have placed their initials in
the left margin beside the respective paragraph number.
1. The other dealers referred to in clause (b) of Section 1.2 of the
Agreement are Banc One Capital Markets, Inc.
2. The following changes are hereby made to the agreement.
(a) Section 1.6(j) is hereby added to the agreement as follows:
(j) The issuer hereby agrees that, not later 15 days after the
first sale of Notes as contemplated by this agreement, it will
file with the SEC a notice on Form D in accordance with Rule
503 under the Securities Act and that it will thereafter file
such amendments to such notice as Rule 503 may require.
(b) Section 2.4 of the Agreement is amended by adding the words "and
Regulation D thereunder" after the words "Section 4(2) thereof" on
the third line of such Section.
(c) A new Section 6.17 is hereby added to the Agreement, as follows:
6.17 "Regulation D" shall mean Regulation D (Rules 501 et seq.) under
the Securities Act.
3. The following Section 3.8 is hereby added to the Agreement:
3.8 Without limiting any obligation of the Issuer pursuant to this
Agreement to provide the Dealer with credit and financial information,
the Issuer hereby acknowledges and agrees that the Dealer may share the
Company Information and any other information or matters relating to
the Issuer or the transactions contemplated hereby with affiliates of
the Dealer, including, but not limited to, Bank of America National
Trust and Savings Association, and that such affiliates may likewise
share information relating to the Issuer or such transactions with the
Dealer.
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<PAGE> 15
4. The addresses of the respective parties for purposes of notices under
Section 7.1 are as follows:
For the Issuer:
Address: 100 West Fifth Street
Tulsa, OK 74103
Attention: Jim Kneale
Telephone number: (918) 588-7912
Fax number: (918) 588-7960
For the Dealer: Banc of America Securities LLC
Address: 1455 Market Street
13th Floor
San Francisco, CA 94103
Attention: Money Market Finance Unit #8826
Telephone number: (415) 953-7881
Fax number: (415) 622-3934
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<PAGE> 16
EXHIBIT A
FORM OF LEGEND FOR
PRIVATE PLACEMENT MEMORANDUM AND NOTES
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY OTHER APPLICABLE SECURITIES LAW, AND OFFERS
AND SALES THEREOF MAY BE MADE ONLY IN COMPLIANCE WITH AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS. BY ITS ACCEPTANCE OF A NOTE, THE
PURCHASER WILL BE DEEMED TO REPRESENT THAT IT HAS BEEN AFFORDED AN
OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE ISSUER AND THE
NOTES, THAT IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW TO ANY
DISTRIBUTION THEREOF AND THAT IT IS EITHER (A) AN INSTITUTIONAL
INVESTOR OR HIGHLY SOPHISTICATED INDIVIDUAL INVESTOR THAT IS AN
ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a) UNDER THE ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR" OR "SOPHISTICATED INDIVIDUAL
ACCREDITED INVESTOR", RESPECTIVELY) AND THAT EITHER IS PURCHASING NOTES
FOR ITS OWN ACCOUNT, IS A U.S. BANK (AS DEFINED IN SECTION 3(a)(2) OF
THE ACT) OR A SAVINGS AND LOAN ASSOCIATION OR OTHER INSTITUTION (AS
DEFINED IN SECTION 3(a)(5)(a) OF THE ACT) ACTING IN ITS INDIVIDUAL OR
FIDUCIARY CAPACITY OR IS A FIDUCIARY OR AGENT (OTHER THAN A U.S. BANK
OR SAVINGS AND LOAN) PURCHASING NOTES FOR ONE OR MORE ACCOUNTS EACH OF
WHICH IS SUCH AN INSTITUTIONAL ACCREDITED INVESTOR OR SOPHISTICATED
INDIVIDUAL ACCREDITED INVESTOR (i) WHICH ITSELF POSSESSES SUCH
KNOWLEDGE AND EXPERIENCE OR (ii) WITH RESPECT TO WHICH SUCH PURCHASER
HAS SOLE INVESTMENT DISCRETION; OR (B) A QUALIFIED INSTITUTIONAL BUYER
("QIB") WITHIN THE MEANING OF RULE 144A UNDER THE ACT WHICH IS
ACQUIRING NOTES FOR ITS OWN ACCOUNT OR FOR ONE OR MORE ACCOUNTS, EACH
OF WHICH IS A QIB AND WITH RESPECT TO EACH OF WHICH THE PURCHASER HAS
SOLE INVESTMENT DISCRETION; AND THE PURCHASER ACKNOWLEDGES THAT IT IS
AWARE THAT THE SELLER MAY RELY UPON THE EXEMPTION FROM THE REGISTRATION
PROVISIONS OF SECTION 5 OF THE ACT PROVIDED BY RULE 144A. BY ITS
ACCEPTANCE OF A NOTE, THE PURCHASER THEREOF ALSO SHALL ALSO BE DEEMED
TO AGREE THAT ANY RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY
(A) IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE ACT, EITHER (1)
TO THE ISSUER OR TO BANC OF AMERICA SECURITIES LLC OR ANOTHER PERSON
DESIGNATED BY THE ISSUER AS A PLACEMENT AGENT FOR THE NOTES
(COLLECTIVELY, THE "PLACEMENT AGENTS"), NONE OF WHICH SHALL HAVE ANY
OBLIGATION TO ACQUIRE SUCH NOTE, (2) THROUGH A PLACEMENT AGENT TO AN
INSTITUTIONAL ACCREDITED INVESTOR, SOPHISTICATED INDIVIDUAL ACCREDITED
INVESTOR OR A QIB, OR (3) TO A QIB IN A TRANSACTION THAT MEETS THE
REQUIREMENTS OF RULE 144A AND (B) IN MINIMUM AMOUNTS OF $250,000.
A-1
<PAGE> 17
EXHIBIT B
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION
(a) The Issuer agrees to reimburse each Indemnitee for all expenses
(including reasonable fees and disbursements of internal and external counsel)
as they are incurred by it in connection with investigating or defending any
loss, claim, damage, liability or action in respect of which indemnification may
be sought under Section 5 of the Agreement (whether or not it is a party to any
such proceedings).
(b) Promptly after receipt by an Indemnitee of notice of the existence
of a Claim, such Indemnitee will, if a claim in respect thereof is to be made
against the Issuer, notify the Issuer in writing of the existence thereof;
provided that (i) the omission so to notify the Issuer will not relieve the
Issuer from any liability which it may have hereunder unless and except to the
extent it did not otherwise learn of such Claim and such failure results in the
forfeiture by the Issuer of substantial rights and defenses, and (ii) the
omission so to notify the Issuer will not relieve it from liability which it may
have to an Indemnitee otherwise than on account of this indemnity agreement. In
case any such Claim is made against any Indemnitee and it notifies the Issuer of
the existence thereof, the Issuer will be entitled to participate therein, and
to the extent that it may elect by written notice delivered to the Indemnitee,
to assume the defense thereof, with counsel reasonably satisfactory to such
Indemnitee; provided that if the defendants in any such Claim include both the
Indemnitee and the Issuer and the Indemnitee shall have concluded that there may
be legal defenses available to it which are different from or additional to
those available to the Issuer, the Issuer shall not have the right to direct the
defense of such Claim on behalf of such Indemnitee, and the Indemnitee shall
have the right to select separate counsel to assert such legal defenses on
behalf of such Indemnitee. Upon receipt of notice from the Issuer to such
Indemnitee of the Issuer's election so to assume the defense of such Claim and
approval by the Indemnitee of counsel, the Issuer will not be liable to such
Indemnitee for expenses incurred thereafter by the Indemnitee in connection with
the defense thereof (other than reasonable costs of investigation) unless (i)
the Indemnitee shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the Issuer shall not be liable for
the expenses of more than one separate counsel (in addition to any local counsel
in the jurisdiction in which any Claim is brought), approved by the Dealer,
representing the Indemnitee who is party to such Claim), (ii) the Issuer shall
not have employed counsel reasonably satisfactory to the Indemnitee to represent
the Indemnitee within a reasonable time after notice of existence of the Claim
or (iii) the Issuer has authorized in writing the employment of counsel for the
Indemnitee. The indemnity, reimbursement and contribution obligations of the
Issuer hereunder shall be in addition to any other liability the Issuer may
otherwise have to an Indemnitee and shall be binding upon and inure to the
benefit of any successors, assigns, heirs and personal representatives of the
Issuer and any Indemnitee. The Issuer agrees that without the Dealer's prior
written consent, it will not settle, compromise or consent to the entry of any
judgment in any Claim in respect of which indemnification may be sought under
the indemnification provision of the Agreement (whether or not the Dealer or any
other Indemnitee is an actual or potential party to such Claim), unless such
settlement, compromise or consent includes an unconditional release of each
Indemnitee from all liability arising out of such Claim.
B-1
<PAGE> 1
Exhibit 10(n)
COMMERCIAL PAPER DEALER AGREEMENT
between
ONEOK, INC., as Issuer
and
BANK ONE CAPITAL MARKETS, INC. as Dealer
Concerning Notes to be issued pursuant to an Issuing
and Paying Agency Agreement dated as of June 9,
1999 between the Issuer and The First National Bank
of Chicago, as Issuing and Paying Agent
Dated As of
June 9, 1999
<PAGE> 2
COMMERCIAL PAPER DEALER AGREEMENT
This agreement ("Agreement") sets forth the understandings between the
Issuer and the Dealer in connection with the issuance and sale by the Issuer of
its short-term promissory notes through the Dealer (the "Notes").
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described
in this Agreement or such Addendum, are hereby incorporated into this Agreement
and made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for
the account of the Issuer, and (ii) the Dealer has and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold by the Dealer in reliance on the
representations, warranties, covenants and agreements of the Issuer contained
herein or made pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, and in addition
to the limitations contained in Section 1.7 hereof, the Issuer shall not,
without the consent of the Dealer, offer, solicit or accept offers to purchase,
or sell, any Notes except (a) in transactions with one or more dealers which may
from time to time after the date hereof become dealers with respect to the Notes
by executing with the Issuer one or more agreements which contain provisions
substantially identical Section 1 of this Agreement, of which the Issuer hereby
undertakes to provide the Dealer prompt notice or (b) in transactions with the
other dealers listed on the Addendum hereto, which are executing agreements with
the Issuer which contain provisions substantially identical to Section 1 of this
Agreement contemporaneously herewith. In no event shall the Issuer offer,
solicit or accept offers to purchase, or sell, any Notes directly on its own
behalf in transactions with persons other than broker-dealers as specifically
permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination of $250,000 or
integral multiples of $1,000 in excess thereof, will bear such interest rates,
if interest bearing, or will be sold at such discount from their face amounts,
as shall be agreed upon by the Dealer and the Issuer, shall have a maturity not
exceeding 270 days from the date of issuance (exclusive of days of grace) and
shall not contain any provision for extension, renewal or automatic "rollover."
1.4 The authentication and issuance of, and payment for, the Notes
shall be effected in accordance with the Issuing and Paying Agency Agreement and
the Notes shall be either individual physical certificates or book-entry notes
evidenced by a Master Note registered in the name of DTC or its nominee, in the
form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the
1
<PAGE> 3
Dealer or the sale of any Note arranged by the Dealer (including, but not
limited to, agreement with respect to the date of issue, purchase price,
principal amount, maturity and interest rate (in the case of interest-bearing
Notes) or discount thereof (in the case of Notes issued on a discount basis),
and appropriate compensation for the Dealer's services hereunder) pursuant to
this Agreement, the Issuer shall cause such Note to be issued and delivered in
accordance with the terms of the Issuing and Paying Agency Agreement and payment
for such Note shall be made by the purchaser thereof, either directly or through
the Dealer, to the Issuing and Paying Agent, for the account of the Issuer.
Except as otherwise agreed, in the event that the Dealer is acting as an agent
and a purchaser shall either fail to accept delivery of or make payment for a
Note on the date fixed for settlement, the Dealer shall promptly notify the
Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the
Issuer will promptly return such funds to the Dealer against its return of the
Note to the Issuer, in the case of a certificated Note, and upon notice of such
failure in the case of a book-entry Note. If such failure occurred for any
reason other than default by the Dealer, the Issuer shall reimburse the Dealer
on an equitable basis for the Dealer's loss of the use of such funds for the
period such funds were credited to the Issuer's account.
1.6 All offers and sales of the Notes by the Issuer shall be effected
pursuant to the exemption from the registration requirements of the Securities
Act provided by Section 4(2) thereof, which exempts transactions by an issuer
not involving any public offering. The Dealer and the Issuer hereby establish
and agree to observe the following procedures in connection with offers, sales
and subsequent resales or other transfers of the Notes:
(a) Offers and sales of the Notes shall be made only to: (i)
investors reasonably believed by the Dealer to be Qualified
Institutional Buyers, Institutional Accredited Investors or
Sophisticated Individual Accredited Investors, and (ii) non-bank
fiduciaries or agents that will be purchasing Notes for one or more
accounts, each of which is reasonably believed by the Dealer to be an
Institutional Accredited Investor or Sophisticated Individual Accredit
Investor.
(b) Resales and other transfers of the Notes by the holders
thereof shall be made only in accordance with the restrictions in the
legends described in clause (e) below.
(c) No general solicitation or general advertising shall be
used in connection with the offering of the Notes. Without limiting the
generality of the foregoing, without the prior written approval of the
Dealer, the Issuer shall not issue any press release or place or
publish any "tombstone" or other advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for less
than $250,000 principal or face amount, and no Note shall be issued in
a smaller principal or face amount. If the purchaser is a non-bank
fiduciary acting on behalf of others, each person for whom such
purchaser is acting must purchase at least $250,000 principal or face
amount of Notes.
(e) Offers and sales of the Notes by the Issuer through the
Dealer acting as agent for the Issuer shall be made in accordance with
Rule 506 under the Securities Act, and shall be subject to the
restrictions described in the legend appearing on Exhibit A hereto. A
legend substantially to the effect of such Exhibit A shall appear as
part of the Private Placement Memorandum used in connection with offers
and sales of Notes hereunder, as well as on each
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<PAGE> 4
individual certificate representing a Note and each Master Note
representing book-entry Notes offered and sold pursuant to this
Agreement.
(f) Dealer shall furnish or shall have furnished to each
purchaser of Notes for which it has acted as the Dealer a copy of the
then-current Private Placement Memorandum unless such purchaser has
previously received a copy of the Private Placement Memorandum as then
in effect. The Private Placement Memorandum shall expressly state that
any person to whom Notes are offered shall have an opportunity to ask
questions of, and receive information from, the Issuer and the Dealer
and shall provide the names, addresses and telephone numbers of the
persons from whom information regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and each
of the holders and prospective purchasers from time to time of the
Notes that, if at any time the Issuer shall not be subject to Section
13 or 15(d) of the Exchange Act, the Issuer will furnish, upon request
and at its expense, to the Dealer and to holders and prospective
purchasers of Notes information required by Rule 144A(d)(4)(i) in
compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by the
Dealer would be ineligible for resale under Rule 144A, the Issuer shall
immediately notify the Dealer (by telephone, confirmed in writing) of
such fact and shall promptly prepare and deliver to the Dealer an
amendment or supplement to the Private Placement Memorandum describing
the Notes that are ineligible, the reason for such ineligibility and
any other relevant information relating thereto.
(i) The Issuer represents that it intends to issue, and
expects to continue to issue, commercial paper in the United States
market in reliance upon, and in compliance with, the exemption provided
by Section 3(a)(3) of the Act. In that connection, the Issuer agrees
that (a) the proceeds from the sale of the Notes will be segregated
from the proceeds of the sale of any such commercial paper by being
placed in a separate account; (b) the Issuer will institute appropriate
corporate procedures to ensure that the offers and sales of notes
issued by the Issuer pursuant to the Section 3(a)(3) exemption are not
integrated with offerings and sales of Notes hereunder; and (c) the
Issuer will comply with each of the requirements of Section 3(a)(3) of
the Act in selling commercial paper or other short-term debt securities
other than the Notes in the United States.
1.7 The Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as follows:
(a) Issuer hereby confirms to the Dealer that (except as
permitted by Section 1.6(i)) within the preceding six months neither
the Issuer nor any person other than the Dealer or the other dealers
named in the Addendum hereto acting on behalf of the Issuer has offered
or sold any Notes, or any substantially similar security of the Issuer
(including, without limitation, medium-term notes issued by the
Issuer), to, or solicited offers to buy any such security from, any
person other than the Dealer or the other dealers named in the Addendum
hereto. The Issuer also agrees that (except as permitted by Section
1.6(i)), as long as the Notes are being offered for sale by the Dealer
and the other dealers named in the Addendum hereto as contemplated
hereby and until at least six months after the offer of Notes hereunder
has been terminated, neither the Issuer nor any person other than the
Dealer or the other dealers named in the Addendum hereto (except
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<PAGE> 5
as contemplated by Section 1.2 hereof) will offer the Notes or any
substantially similar security of the Issuer for sale to, or solicit
offers to buy any such security from, any person other than the Dealer,
it being understood that such agreement is made with a view to bringing
the offer and sale of the Notes within the exemption provided by
Section 4(2) of the Securities Act and Rule 506 thereunder and shall
survive any termination of this Agreement. The Issuer hereby represents
and warrants that it has not taken or omitted to take, and will not
take or omit to take, any action that would cause the offering and sale
of Notes hereunder to be integrated with any other offering of
securities, whether such offering is made by the Issuer or some other
party or parties.
(b) The Issuer represents and agrees that the proceeds of the
sale of the Notes are not currently contemplated to be used for the
purpose of buying, carrying or trading securities within the meaning of
Regulation T and the interpretations thereunder by the Board of
Governors of the Federal Reserve System. In the event that the Issuer
determines to use such proceeds for the purpose of buying, carrying or
trading securities, whether in connection with an acquisition of
another company or otherwise, the Issuer shall give the Dealer at least
five business days' prior written notice to that effect. The Issuer
shall also give the Dealer prompt notice of the actual date that it
commences to purchase securities with the proceeds of the Notes.
Thereafter, in the event that the Dealer purchases Notes as principal
and does not resell such Notes on the day of such purchase, to the
extent necessary to comply with Regulation T and the interpretations
thereunder, the Dealer will sell such Notes (i) only to offerees it
reasonably believes to be QIBs or to QIBs it reasonably believes are
acting for other QIBs, in each case in accordance with Rule 144A or
(ii) in a manner which would not cause a violation of Regulation T and
the interpretations thereunder.
Section 2. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all the requisite power and authority to execute, deliver and perform its
obligations under the Notes, this Agreement and the Issuing and Paying Agency
Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have
been duly authorized, executed and delivered by the Issuer and constitute legal,
valid and binding obligations of the Issuer enforceable against the Issuer in
accordance with their terms subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued and delivered
as provided in the Issuing and Paying Agency Agreement, will be duly and validly
issued and delivered and will constitute legal, valid and binding obligations of
the Issuer enforceable against the Issuer in accordance with their terms subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally, and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law).
4
<PAGE> 6
2.4 The offer and sale of Notes in the manner contemplated hereby do
not require registration of the Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2) thereof, and no indenture
in respect of the Notes is required to be qualified under the Trust Indenture
Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured
and unsubordinated indebtedness of the Issuer.
2.6 No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the SEC, is
required to authorize, or is otherwise required in connection with the
execution, delivery or performance of, this Agreement, the Notes or the Issuing
and Paying Agency Agreement, except as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Notes.
2.7 Neither the execution and delivery of this Agreement and the
Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance
with the Issuing and Paying Agency Agreement, nor the fulfillment of or
compliance with the terms and provisions hereof or thereof by the Issuer, will
(i) result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Issuer, or (ii) violate or result in a breach or default under any of the terms
of the Issuer's charter documents or by-laws, any contract or instrument to
which the Issuer is a party or by which it or its property is bound, or any law
or regulation, or any order, writ, injunction or decree of any court or
government instrumentality, to which the Issuer is subject or by which it or its
property is bound, which breach or default might have a material adverse effect
on the condition (financial or otherwise), operations or business prospects of
the Issuer or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or governmental proceeding pending, or to
the knowledge of the Issuer threatened, against or affecting the Issuer or any
of its subsidiaries which might result in a material adverse change in the
condition (financial or otherwise), operations or business prospects of the
Issuer or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an entity "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company
Information contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b)
amendment or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such date have been duly and
5
<PAGE> 7
validly issued and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and (iii) in the case of an issuance of Notes, since the date of the
most recent Private Placement Memorandum, there has been no material adverse
change in the condition (financial or otherwise), operations or business
prospects of the Issuer which has not been disclosed to the Dealer in writing.
6
<PAGE> 8
Section 3. Covenants and Agreements of Issuer.
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but in any event
prior to any subsequent issuance of Notes hereunder) of any amendment to,
modification of, or waiver with respect to, the Notes or the Issuing and Paying
Agency Agreement, including a complete copy of any such amendment, modification
or waiver.
3.2 The Issuer shall, whenever there shall occur any change in the
Issuer's condition (financial or otherwise), operations or business prospects or
any development or occurrence in relation to the Issuer that would be material
to holders of the Notes or potential holders of the Notes (including any
downgrading or receipt of any notice of intended or potential downgrading or any
review for potential change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical rating organization which
has published a rating of the Notes), promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the Dealer (by telephone,
confirmed in writing) of such change, development, or occurrence.
3.3 The Issuer shall from time to time furnish to the Dealer such
information as the Dealer may reasonably request, including, without limitation,
any press releases or material provided by the Issuer to any national securities
exchange or rating agency, regarding (i) the Issuer's operations and financial
condition, (ii) the due authorization and execution of the Notes, and (iii) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will comply with
any applicable state Blue Sky laws; provided, that the Issuer shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer will not be in default of any of its obligations
hereunder, under the Notes or under the Issuing and Paying Agency Agreement, at
any time that any of the Notes are outstanding.
3.6 The Issuer shall not issue Notes hereunder until the Dealer shall
have received (a) an opinion of counsel to the Issuer, addressed to the Dealer,
satisfactory in form and substance to the Dealer, (b) a copy of the executed
Issuing and Paying Agency Agreement as then in effect, (c) a copy of resolutions
adopted by the Board of Directors of the Issuer, satisfactory in form and
substance to the Dealer and certified by the Secretary or similar officer of the
Issuer, authorizing execution and delivery by the Issuer of this Agreement, the
Issuing and Paying Agency Agreement and the Notes and consummation by the Issuer
of the transactions contemplated hereby and thereby, (d) prior to the issuance
of any Notes represented by a book-entry note registered in the name of DTC or
its nominee, a copy of the executed Letter of Representations among the Issuer,
the Issuing and Paying Agent and DTC and (e) such other certificates, opinions,
letters and documents as the Dealer shall have reasonably requested.
3.7 The Issuer shall reimburse the Dealer for all of the Dealer's
reasonable out-of-pocket expenses related to this Agreement, including expenses
incurred in connection with its preparation and
7
<PAGE> 9
negotiation, and the transactions contemplated hereby (including, but not
limited to, the printing and distribution of the Private Placement Memorandum),
and, if applicable, for the reasonable fees and out-of-pocket expenses of the
Dealer's counsel.
Section 4. Disclosure.
4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees promptly to furnish the Dealer the Company
Information as it becomes available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly upon
the occurrence of any event relating to or affecting the Issuer that would cause
the Company Information then in existence to include an untrue statement of
material fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading.
(b) In the event the Issuer gives the Dealer notice pursuant to
Section 4.3(a) and the Dealer notifies the Issuer that it then has Notes it is
holding in inventory, the Issuer agrees promptly to supplement or amend the
Private Placement Memorandum so that such Private Placement Memorandum, as
amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Issuer shall make such supplement or amendment available to
the Dealer and prospective holders of the Notes.
(c) In the event that (i) the Issuer gives the Dealer notice
pursuant to Section 4.3(a), (ii) the Dealer does not notify the Issuer that it
is then holding Notes in inventory and (iii) the Issuer chooses not to promptly
amend or supplement the Private Placement Memorandum in the manner described in
clause (b) above, then all solicitations and sales of Notes shall be suspended
until such time as the Issuer has so amended or supplemented the Private
Placement Memorandum, and made such amendment or supplement available to the
Dealer and prospective holders of the Notes.
8
<PAGE> 10
Section 5. Indemnification and Contribution.
5.1 The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other entity
controlling the Dealer, any affiliate of the Dealer or any such controlling
entity and their respective directors, officers, employees, partners,
incorporators, shareholders, servants, trustees and agents (hereinafter the
"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including, without
limitation, fees and disbursements of counsel) or judgments of whatever kind or
nature (each a "Claim"), imposed upon, incurred by or asserted against the
Indemnitees arising out of or based upon (i) any allegation that the Private
Placement Memorandum, the Company Information or any information provided by the
Issuer to the Dealer included (as of any relevant time) or includes an untrue
statement of a material fact or omitted (as of any relevant time) or omits to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading or (ii) arising out
of or based upon the breach by the Issuer of any agreement, covenant or
representation made in or pursuant to this Agreement. This indemnification shall
not apply to the extent that the Claim arises out of or is based upon Dealer
Information.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by the Dealer in connection
with any Claim in the proportion of the respective economic interests of the
Issuer and the Dealer; provided, however, that such contribution by the Issuer
shall be in an amount such that the aggregate costs incurred by the Dealer do
not exceed the aggregate of the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of Notes to which such Claim
relates. The respective economic interests shall be calculated by reference to
the aggregate proceeds to the Issuer of the Notes issued hereunder and the
aggregate commissions and fees earned by the Dealer hereunder.
Section 6. Definitions.
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable, (i) the Issuer's
most recent report on Form 10-K filed with the SEC and each report on Form 10-Q
or 8-K filed by the Issuer with the SEC since the most recent Form 10-K, (ii)
the Issuer's most recent annual audited financial statements and each interim
financial statement or report prepared subsequent thereto, if not included in
item (i) above, (iii) the Issuer's and its affiliates' other publicly available
recent reports, including, but not limited to, any publicly available filings or
reports provided to their respective shareholders, (iv) any other information or
disclosure prepared pursuant to Section 4.3 hereof and (v) any information
prepared or approved by the Issuer for dissemination to investors or potential
investors in the Notes.
6.3 "Dealer Information" shall mean material concerning the Dealer and
provided by the Dealer in writing expressly for inclusion in the Private
Placement Memorandum.
9
<PAGE> 11
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934,
as amended.
6.6 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party designated as such
on the cover page of this Agreement, as issuing and paying agent under the
Issuing and Paying Agency Agreement, or any successor thereto in accordance with
the Issuing and Paying Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or agent
other than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or
(b) a savings and loan association, as defined in Section 3(a)(5)(A) of the
Securities Act.
6.11 "Private Placement Memorandum" shall mean offering materials
prepared in accordance with Section 4 (including materials referred to therein
or incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" or "QIB" shall have the meaning
assigned to that term in Rule 144A under the Securities Act.
6.13 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.14 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.15 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
6.16 "Sophisticated Individual Accredited Investor" shall mean an
individual who (a) is an accredited investor within the meaning of Regulation D
under the Securities Act and (b) based on his or her pre-existing relationship
with the Dealer, is reasonably believed by the Dealer to be a sophisticated
investor (i) possessing such knowledge and experience (or represented by a
fiduciary or agent possessing such knowledge and experience) in financial and
business matters that he or she is capable of evaluating and bearing the
economic risk of an investment in the Notes and (ii) having a net worth of at
least $5 million.
10
<PAGE> 12
Section 7. General.
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its conflict of laws
provisions.
7.3 The Issuer agrees that any suit, action or proceeding brought by
the Issuer against the Dealer in connection with or arising out of this
Agreement or the Notes or the offer and sale of the Notes shall be brought
solely in the United States federal courts located in the borough of Manhattan
or the courts of the State of New York located in the Borough of Manhattan. EACH
OF THE DEALER AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT,
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer, upon
one business day's prior notice to such effect to the Dealer, or by the Dealer
upon one business day's prior notice to such effect to the Issuer. Any such
termination, however, shall not affect the obligations of the Issuer under
Sections 3.7, 5 and 7.3 hereof or the respective representations, warranties,
agreements, covenants, rights or responsibilities of the parties made or arising
prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either party hereto without the
written consent of the other party; provided, however, that the Dealer may
assign its rights and obligations under this Agreement to any wholly-owned
subsidiary of the ultimate parent company of the Dealer.
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties hereto,
and their respective permitted successors and assigns hereunder, and shall not
be deemed to give any legal or equitable right, remedy or claim to any other
person whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
ONEOK, INC., as Issuer
By:
---------------------------------
Name: Jim Kneale
Title: Vice President & CFO
11
<PAGE> 13
BANK ONE CAPITAL MARKETS, INC.
as Dealer
By:
---------------------------------
Name: Edward Austin
Title: Managing Director
12
<PAGE> 14
ADDENDUM
The following additional clauses shall apply to the Agreement and be
deemed a part thereof when the respective parties have placed their initials in
the left margin beside the respective paragraph number.
1. The other dealers referred to in clause (b) of Section 1.2 of the
Agreement are Banc One Capital Markets, Inc.
2. The following changes are hereby made to the agreement.
(a) Section 1.6(j) is hereby added to the agreement as follows:
(j) The issuer hereby agrees that, not later 15 days after
the first sale of Notes as contemplated by this
agreement, it will file with the SEC a notice on Form D
in accordance with Rule 503 under the Securities Act and
that it will thereafter file such amendments to such
notice as Rule 503 may require.
(b) Section 2.4 of the Agreement is amended by adding the words "and
Regulation D thereunder" after the words "Section 4(2) thereof"
on the third line of such Section.
(c) A new Section 6.17 is hereby added to the Agreement, as follows:
6.17 "Regulation D" shall mean Regulation D (Rules 501 et seq.) under
the Securities Act.
3. The following Section 3.8 is hereby added to the Agreement:
3.8 Without limiting any obligation of the Issuer pursuant to this
Agreement to provide the Dealer with credit and financial information,
the Issuer hereby acknowledges and agrees that the Dealer may share the
Company Information and any other information or matters relating to
the Issuer or the transactions contemplated hereby with affiliates of
the Dealer, including, but not limited to, Bank of America National
Trust and Savings Association, and that such affiliates may likewise
share information relating to the Issuer or such transactions with the
Dealer.
1
<PAGE> 15
4. The addresses of the respective parties for purposes of notices under
Section 7.1 are as follows:
For the Issuer:
Address: 100 West Fifth Street
Tulsa, OK 74103
Attention: Jim Kneale
Telephone number: (918) 588-7912
Fax number: (918) 588-7960
For the Dealer: Bank One Capital Markets, Inc.
Address: 1 First National Plaza
Chicago, IL 60670
Attention: Edward Austin
Telephone number: (312) 732-1690
Fax number: (312) 732-4172
2
<PAGE> 16
EXHIBIT A
FORM OF LEGEND FOR
PRIVATE PLACEMENT MEMORANDUM AND NOTES
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY OTHER APPLICABLE SECURITIES LAW, AND OFFERS
AND SALES THEREOF MAY BE MADE ONLY IN COMPLIANCE WITH AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS. BY ITS ACCEPTANCE OF A NOTE, THE
PURCHASER WILL BE DEEMED TO REPRESENT THAT IT HAS BEEN AFFORDED AN
OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE ISSUER AND THE
NOTES, THAT IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW TO ANY
DISTRIBUTION THEREOF AND THAT IT IS EITHER (A) AN INSTITUTIONAL
INVESTOR OR HIGHLY SOPHISTICATED INDIVIDUAL INVESTOR THAT IS AN
ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a) UNDER THE ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR" OR "SOPHISTICATED INDIVIDUAL
ACCREDITED INVESTOR", RESPECTIVELY) AND THAT EITHER IS PURCHASING NOTES
FOR ITS OWN ACCOUNT, IS A U.S. BANK (AS DEFINED IN SECTION 3(a)(2) OF
THE ACT) OR A SAVINGS AND LOAN ASSOCIATION OR OTHER INSTITUTION (AS
DEFINED IN SECTION 3(a)(5)(a) OF THE ACT) ACTING IN ITS INDIVIDUAL OR
FIDUCIARY CAPACITY OR IS A FIDUCIARY OR AGENT (OTHER THAN A U.S. BANK
OR SAVINGS AND LOAN) PURCHASING NOTES FOR ONE OR MORE ACCOUNTS EACH OF
WHICH IS SUCH AN INSTITUTIONAL ACCREDITED INVESTOR OR SOPHISTICATED
INDIVIDUAL ACCREDITED INVESTOR (i) WHICH ITSELF POSSESSES SUCH
KNOWLEDGE AND EXPERIENCE OR (ii) WITH RESPECT TO WHICH SUCH PURCHASER
HAS SOLE INVESTMENT DISCRETION; OR (B) A QUALIFIED INSTITUTIONAL BUYER
("QIB") WITHIN THE MEANING OF RULE 144A UNDER THE ACT WHICH IS
ACQUIRING NOTES FOR ITS OWN ACCOUNT OR FOR ONE OR MORE ACCOUNTS, EACH
OF WHICH IS A QIB AND WITH RESPECT TO EACH OF WHICH THE PURCHASER HAS
SOLE INVESTMENT DISCRETION; AND THE PURCHASER ACKNOWLEDGES THAT IT IS
AWARE THAT THE SELLER MAY RELY UPON THE EXEMPTION FROM THE REGISTRATION
PROVISIONS OF SECTION 5 OF THE ACT PROVIDED BY RULE 144A. BY ITS
ACCEPTANCE OF A NOTE, THE PURCHASER THEREOF ALSO SHALL ALSO BE DEEMED
TO AGREE THAT ANY RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY
(A) IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE ACT, EITHER (1)
TO THE ISSUER OR TO BANC OF AMERICA SECURITIES LLC OR ANOTHER PERSON
DESIGNATED BY THE ISSUER AS A PLACEMENT AGENT FOR THE NOTES
(COLLECTIVELY, THE "PLACEMENT AGENTS"), NONE OF WHICH SHALL HAVE ANY
OBLIGATION TO ACQUIRE SUCH NOTE, (2) THROUGH A PLACEMENT AGENT TO AN
INSTITUTIONAL ACCREDITED INVESTOR, SOPHISTICATED INDIVIDUAL ACCREDITED
INVESTOR OR A QIB, OR (3) TO A QIB IN A TRANSACTION THAT MEETS THE
REQUIREMENTS OF RULE 144A AND (B) IN MINIMUM AMOUNTS OF $250,000.
A-1
<PAGE> 17
EXHIBIT B
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION
(a) The Issuer agrees to reimburse each Indemnitee for all expenses
(including reasonable fees and disbursements of internal and external counsel)
as they are incurred by it in connection with investigating or defending any
loss, claim, damage, liability or action in respect of which indemnification may
be sought under Section 5 of the Agreement (whether or not it is a party to any
such proceedings).
(b) Promptly after receipt by an Indemnitee of notice of the existence
of a Claim, such Indemnitee will, if a claim in respect thereof is to be made
against the Issuer, notify the Issuer in writing of the existence thereof;
provided that (i) the omission so to notify the Issuer will not relieve the
Issuer from any liability which it may have hereunder unless and except to the
extent it did not otherwise learn of such Claim and such failure results in the
forfeiture by the Issuer of substantial rights and defenses, and (ii) the
omission so to notify the Issuer will not relieve it from liability which it may
have to an Indemnitee otherwise than on account of this indemnity agreement. In
case any such Claim is made against any Indemnitee and it notifies the Issuer of
the existence thereof, the Issuer will be entitled to participate therein, and
to the extent that it may elect by written notice delivered to the Indemnitee,
to assume the defense thereof, with counsel reasonably satisfactory to such
Indemnitee; provided that if the defendants in any such Claim include both the
Indemnitee and the Issuer and the Indemnitee shall have concluded that there may
be legal defenses available to it which are different from or additional to
those available to the Issuer, the Issuer shall not have the right to direct the
defense of such Claim on behalf of such Indemnitee, and the Indemnitee shall
have the right to select separate counsel to assert such legal defenses on
behalf of such Indemnitee. Upon receipt of notice from the Issuer to such
Indemnitee of the Issuer's election so to assume the defense of such Claim and
approval by the Indemnitee of counsel, the Issuer will not be liable to such
Indemnitee for expenses incurred thereafter by the Indemnitee in connection with
the defense thereof (other than reasonable costs of investigation) unless (i)
the Indemnitee shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the Issuer shall not be liable for
the expenses of more than one separate counsel (in addition to any local counsel
in the jurisdiction in which any Claim is brought), approved by the Dealer,
representing the Indemnitee who is party to such Claim), (ii) the Issuer shall
not have employed counsel reasonably satisfactory to the Indemnitee to represent
the Indemnitee within a reasonable time after notice of existence of the Claim
or (iii) the Issuer has authorized in writing the employment of counsel for the
Indemnitee. The indemnity, reimbursement and contribution obligations of the
Issuer hereunder shall be in addition to any other liability the Issuer may
otherwise have to an Indemnitee and shall be binding upon and inure to the
benefit of any successors, assigns, heirs and personal representatives of the
Issuer and any Indemnitee. The Issuer agrees that without the Dealer's prior
written consent, it will not settle, compromise or consent to the entry of any
judgment in any Claim in respect of which indemnification may be sought under
the indemnification provision of the Agreement (whether or not the Dealer or any
other Indemnitee is an actual or potential party to such Claim), unless such
settlement, compromise or consent includes an unconditional release of each
Indemnitee from all liability arising out of such Claim.
B-1
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED CONDENSED STATEMENT OF INCOME FOR THE 1999 FISCAL YEAR'S NINE
MONTHS ENDED MAY 31, 1999, AND THE CONSOLIDATED CONDENSED BALANCE SHEET AT MAY
31, 1999 FOR ONEOK, INC. AND SUBSIDIARIES AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> AUG-31-1999
<PERIOD-START> SEP-01-1998
<PERIOD-END> MAY-31-1999
<CASH> 6,759
<SECURITIES> 0
<RECEIVABLES> 222,287
<ALLOWANCES> 0
<INVENTORY> 102,209
<CURRENT-ASSETS> 374,168
<PP&E> 3,010,539
<DEPRECIATION> 966,719
<TOTAL-ASSETS> 2,935,163
<CURRENT-LIABILITIES> 687,291
<BONDS> 0
0
569,070
<COMMON> 648,555
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 2,935,163
<SALES> 0
<TOTAL-REVENUES> 1,385,718
<CGS> 0
<TOTAL-COSTS> 862,397
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 36,349
<INCOME-PRETAX> 168,946
<INCOME-TAX> 64,968
<INCOME-CONTINUING> 103,978
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 103,978
<EPS-BASIC> 2.41
<EPS-DILUTED> 2.01
</TABLE>
