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REG. NO. 33-59805
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________________________
Amendment No. 1
to
FORM S-3
Registration Statement
under
The Securities Act of 1933, as amended
__________________________________
OKLAHOMA GAS AND ELECTRIC COMPANY
(Exact name of registrant as specified in charter)
OKLAHOMA 73-0382390
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
101 North Robinson, P.O. Box 321, Oklahoma City, Oklahoma 73101-0321
Telephone: (405) 553-3000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
PETER D. CLARKE, ESQ. JAMES G. HARLOW, JR.
Gardner, Carton & Douglas Chairman of the Board and Chief
Quaker Tower Executive Officer
321 North Clark Street Oklahoma Gas and Electric Company
Chicago, Illinois 60610-4795 101 North Robinson, P.O. Box 321
(312) 245-8685 Oklahoma City, Oklahoma 73101-0321
(405) 553-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENTS FOR SERVICE)
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING:
From time to time after the Registration Statement becomes effective.
_________________________________________________
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.
/ /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box. /X/
_____________________________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(a), MAY DETERMINE.
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SUBJECT TO COMPLETION, DATED AUGUST 18, 1995
PROSPECTUS
OKLAHOMA GAS AND ELECTRIC COMPANY
3,000,000 SHARES
COMMON STOCK
AUTOMATIC DIVIDEND REINVESTMENT
AND STOCK PURCHASE PLAN
Oklahoma Gas and Electric Company (the "Company") hereby offers
participation in its Automatic Dividend Reinvestment and Stock Purchase Plan
(the "Plan"). The Plan is designed to provide investors with a convenient and
economical way to purchase shares of the Company's common stock, par value
$2.50 per share ("Common Stock"), and to reinvest all or a portion of the cash
dividends paid and interest payments made on the Company's Common Stock, all
classes of its cumulative preferred stock and all series of its first mortgage
bonds (the "Eligible Securities") in shares of Common Stock.
PARTICIPANTS IN THE PLAN MAY:
_ Reinvest all or a portion of cash dividends paid or interest
payments made on Eligible Securities registered in their names
or Common Stock credited to their Plan accounts in shares of
Common Stock.
_ Make an initial investment in Common Stock with a cash payment
of at least $250 or, if already a holder of Eligible
Securities, increase their investment in Common Stock by
making optional cash payments at any time of at least $25 for
any single investment, up to a maximum of $100,000 per
calendar year.
_ Receive, upon written request, certificates for whole shares
of Common Stock credited to their Plan accounts.
_ Deposit certificates representing Common Stock into the Plan
for safekeeping.
_ Sell shares of Common Stock credited to their Plan accounts
through the Plan.
_ Establish an IRA to hold their investments in Common Stock and
contribute or roll over amounts to the IRA through a Plan
account.
Shares of Common Stock will be purchased under the Plan, at the option
of the Company, from newly issued shares, shares held in the treasury of the
Company or shares purchased in the open market. Any open market purchases will
be effected through an Independent Agent (as
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hereinafter defined) selected by the Company. The Common Stock is listed on
the New York and Pacific Stock Exchanges. The closing price of the Common
Stock on August 17, 1995 on the New York Stock Exchange was $34.75.
The purchase price of newly issued or treasury shares of Common stock
purchased under the Plan for an Investment Date (as hereinafter defined) will
be the average of the high and low sales prices of the Common Stock reported on
the New York Stock Exchange Composite Tape as published in The Wall Street
Journal for the trading day preceding that Investment Date. The price of
shares of Common Stock purchased in the open market will be the weighted
average price per share of the aggregate number of shares purchased in the open
market for the relevant period. There will be no discount from these purchase
prices offered for shares of Common Stock purchased under the Plan. The
Company, however, will pay all brokerage commissions and service fees relating
to shares of Common Stock purchased or sold in the open market.
To the extent required by applicable law in certain jurisdictions,
including Maine, Nebraska, New Hampshire, North Dakota and Rhode Island shares
of Common Stock offered under the Plan to persons not presently record holders
of Common Stock are offered only through a registered broker/dealer in such
jurisdictions.
This Prospectus is being provided both to present and prospective
participants in the Plan, including participants in the former Customers' Stock
Purchase Plan which has been merged into the Plan. All current Participants in
the Plan and participants in the Customers' Stock Purchase Plan have
automatically been enrolled in the Plan. For present participants in the Plan,
this Prospectus (including the materials incorporated by reference) provides
more current information concerning the Plan and is intended to replace the
Summary dated October 29, 1993. For participants in the former Customers'
Stock Purchase Plan, this Prospectus (including the materials incorporated by
reference) is intended to replace the Prospectus dated October 28, 1992. It
is suggested that this Prospectus be retained for future reference.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
_________________________
The date of this Prospectus is August ______, 1995
SIDE: [Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.]
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OKLAHOMA GAS AND ELECTRIC COMPANY
Oklahoma Gas and Electric Company, an Oklahoma corporation (the
"Company") incorporated in 1902 under the laws of the Territory of Oklahoma, is
primarily an electric public utility company with its principal executive
offices located at 101 North Robinson, Post Office Box 321, Oklahoma City,
Oklahoma 73101-0321. Telephone: (405) 553-3000.
The Company is the largest operating electric utility in Oklahoma,
furnishing retail electric service in communities and contiguous rural and
suburban territories in Oklahoma and western Arkansas. It also sells electric
energy at wholesale for resale in those states. The Company disposed of its
gas utility business in 1928.
On July 19, 1995, the Company announced its intention to create a
holding company to serve as a parent company of the Company. Under this holding
company restructuring, the Company will become a subsidiary of a new holding
company (the "Holding Company") and shares of Company Common Stock will be
exchanged, on a share-for-share basis, for common stock of the Holding Company.
The Company's preferred stock and other outstanding indebtedness will not be
transferred or exchanged in the restructuring and will remain direct
obligations of the Company with the same terms as in effect immediately prior
to the restructuring. Following the restructuring, Enogex Inc. will become a
direct subsidiary of the Holding Company and will cease to be a subsidiary of
the Company. It is expected that the Holding Company will assume the Plan or
adopt a substantially identical plan and that the Plan will continue to operate
essentially unchanged, except that the shares to be issued under the Plan will
be shares of Holding Company Common Stock rather than Company Common Stock. The
holding company restructuring is subject to certain conditions, including
shareowner approval. Further information regarding the Holding Company will be
provided in connection with the shareowner meeting to approve the holding
company restructuring.
INFORMATION INCORPORATED BY REFERENCE
The following documents, as filed by the Company with the Securities
and Exchange Commission, are incorporated herein by reference: (i) Form 10-K
Annual Report of the Company for the year ended December 31, 1994, (ii)
Form 10-Q Quarterly Reports of the Company for the quarters ended March 31,
1995 and June 30, 1995 and (iii) Form 8-K Current Reports of the Company dated
July 26, 1995 and August 3, 1995. The Company periodically includes with its
Annual Report on Form 10-K an exhibit containing a description of its Common
Stock, including a description of the Rights to Purchase Series A Cumulative
Preferred Stock that accompany each share of Common Stock pursuant to a Rights
Agreement, dated December 11, 1990.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
Prospectus and prior to the termination of this offering shall be deemed to be
incorporated by reference in this Prospectus from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained in this Prospectus or in any other subsequently filed document which
also is or is deemed to be incorporated by reference in this Prospectus
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
The Company hereby undertakes to provide without charge to each person
(including any beneficial owner) to whom this Prospectus has been delivered, on
the request of any such person, a copy of any or all of the documents referred
to above which have been or may be incorporated in this Prospectus by
reference, other than certain exhibits to such documents. Written or telephone
requests for such copies should be directed to the Corporate Secretary,
Oklahoma Gas and Electric Company, 101 North Robinson, Post Office Box 321,
Oklahoma City, Oklahoma 73101-0321, Telephone: (405) 553-3211.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended, and in accordance therewith files
reports, proxy statements and other information with the Securities and
Exchange Commission. Such reports, proxy statements and
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other information on file can be inspected at the public reference offices of
the Commission currently at 450 Fifth Street, N.W., Washington, D.C.; 500 West
Madison Street, Chicago, Illinois; and 7 World Trade Center, New York, New
York; and copies of such material can be obtained from the Public Reference
Section of the Commission at its principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. In addition, reports, proxy
material and other information concerning the Company may be inspected at the
Library of the New York Stock Exchange, 20 Broad Street, New York, New York,
and at the office of the Pacific Stock Exchange, 301 Pine Street, San
Francisco, California, on which exchanges the Company's Common Stock is listed.
APPLICATION OF PROCEEDS
Since purchases of Common Stock under the Plan may be satisfied by any
of (i) the purchase of new shares of Common Stock issued by the Company, (ii)
the purchase of shares of Common Stock held in the Company's treasury, or (iii)
the purchase of shares of Common Stock in the open market, the number of shares
of Common Stock, if any, that the Company ultimately will sell under the Plan
is not known. If newly issued or treasury shares of Common Stock are purchased
under the Plan, the proceeds from such sales will be used for general corporate
purposes, including, without limitation, to provide funds for the Company's
construction program, the redemption, repayment or retirement of outstanding
indebtedness of the Company or the advance or contribution of funds to one or
more of the Company's subsidiaries to be used for their general corporate
purposes, including, without limitation, the redemption, repayment or
retirement of indebtedness of one or more of such subsidiaries. The Company
will not receive any proceeds when shares of Common Stock are purchased under
the Plan in the open market.
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OKLAHOMA GAS AND ELECTRIC COMPANY
AUTOMATIC DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
The Board of Directors of Oklahoma Gas and Electric Company (the
"Company") recently approved the amendment and combination of the former
Automatic Dividend Reinvestment and Stock Purchase Plan and Customers' Stock
Purchase Plan into a new, revised Automatic Dividend Reinvestment and Stock
Purchase Plan. Unless otherwise indicated, all references herein to the "Plan"
refer to the revised Automatic Dividend Reinvestment and Stock Purchase Plan.
The following questions and answers summarize the provisions of the Plan as in
effect on the date of this Prospectus.
1. WHAT IS THE PLAN?
The Plan provides existing and potential investors in the Company with
a simple and convenient method of purchasing shares of the Company's Common
Stock without payment of any brokerage commission or service charge. The Plan
also provides participants with a convenient way to reinvest all or a portion
of the cash dividends paid and interest payments made on Eligible Securities in
shares of Common Stock.
2. WHAT IS THE PURPOSE OF THE PLAN AND WHAT ARE SOME OF ITS ADVANTAGES
AND DISADVANTAGES?
Purpose - The purpose of the Plan is to provide existing and potential
investors in the Company with a convenient way to purchase shares of Common
Stock and to reinvest all or a portion of the cash dividends paid and interest
payments made on Eligible Securities in shares of Common Stock.
Advantages
- Interested investors, not already record or registered holders of
Eligible Securities, may become Participants by making an initial
minimum cash investment of at least $250 to purchase Common Stock
through the Plan.
- Record or registered holders of Eligible Securities not already
Participants may become Participants by (i) electing to have dividend
and interest payments on all or a portion of their Eligible Securities
reinvested in Common Stock, (ii) depositing certificates representing
Common Stock into the Plan for safekeeping or (iii) making an initial
minimum cash investment of at least $25 to purchase Common Stock
through the Plan.
- In addition to having their dividend and interest payments on Eligible
Securities reinvested in Common Stock, Participants may invest
additional funds in Common Stock through optional cash investments of
at least $25 for any single investment up to $100,000 per calendar
year. Optional cash investments may be made by check, money order,
wire transfer or electronic funds transfer from a predesignated bank
account. Optional cash investments may be made occasionally or at
regular intervals, as the Participant desires.
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- Funds invested in the Plan are fully invested in Common Stock through
the purchase of whole shares and fractions of shares, and
proportionate cash dividends on fractions of shares of Common Stock
are used to purchase additional shares of Common Stock.
- The Plan offers a "safekeeping" service whereby Participants may
deposit, free of any service charges, certificates representing Common
Stock held in certificate form into the Plan. Shares of Common Stock
so deposited will be credited to the account of the Participant (an
"Account"). This service can be selected by Participants without
participating in any other feature of the Plan.
- Participants may direct the Company, at any time and at no cost to
such Participants, to transfer all or a portion of the shares of
Common Stock credited to their Accounts (including those shares of
Common Stock deposited into the Plan for safekeeping) to the Account
of another Participant (or to set up an Account for a new Participant
in connection with such transfer) or to send certificate(s)
representing such shares to the Participant or another designated
person or entity.
- Quarterly statements ("Statements of Account") will be mailed to each
Participant showing all transactions completed during the year to
date, total shares of Common Stock credited to the Participant's
Account and other information related to each such Participant's
Account. Supplemental Statements of Account also will be mailed to
Participants in the month following transactions in such Participants'
Accounts.
- Participants may direct that all, a portion or none of their dividend
or interest payments on Eligible Securities, including shares of
Common Stock purchased for a Participant under the Plan and shares of
Common Stock deposited into the Plan for safekeeping, be reinvested in
shares of Common Stock. Dividend and interest payments not reinvested
will be paid in the usual manner.
- Participants may sell shares of Common Stock credited to their
Accounts (including those shares of Common Stock deposited into the
Plan for safekeeping) through the Plan.
- Participants may choose to establish an IRA to hold their investment
in Common Stock and contribute or roll over amounts to the IRA through
a Plan Account.
Disadvantages
- PARTICIPANTS HAVE NO CONTROL OVER THE PRICE, AND IN THE CASE OF SHARES
OF COMMON STOCK PURCHASED OR SOLD IN THE OPEN MARKET BY AN INDEPENDENT
AGENT, THE TIME, AT WHICH COMMON STOCK IS PURCHASED OR SOLD,
RESPECTIVELY, FOR THEIR ACCOUNTS. Purchases in the open market
generally will occur within 10 days of the relevant Investment Date.
Funds not invested in Common Stock within 30 days after receipt will
be promptly returned to Participants. Sales by Participants under the
Plan will be made by an Independent Agent as soon as practicable after
processing the sales request. Therefore,
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Participants bear the market risk associated with fluctuations in the
price of the Common Stock. (See the answers to Questions 7, 8, 9, 13
and 16.)
- No interest will be paid on funds held by the Administrator (as
hereinafter defined) pending investment under the Plan.
- Optional and initial cash investments must be received by the
Administrator no later than two business days prior to an Investment
Date to be invested for that Investment Date. Otherwise, the
investment may be held by the Administrator and invested for the next
Investment Date. Optional and initial cash investments need not be
returned to Participants unless a written request is received by the
Administrator no later than two business days prior to the applicable
Investment Date. (See the answer to Question 7.)
3. WHO ADMINISTERS THE PLAN AND WHAT ARE SOME OF THE FUNCTIONS PERFORMED
BY THE ADMINISTRATOR?
Administration of the Plan is conducted by the individual (who may be
an employee of the Company), bank, trust company or other entity (including the
Company) appointed from time to time by the Company to act as administrator of
the Plan (the "Administrator"). Liberty Bank and Trust Company of Oklahoma
City, N.A. will be the initial Administrator. The Administrator is responsible
for administering the Plan, receiving all cash investments made by
Participants, maintaining records of each Participant's Account activities,
issuing Statements of Account and performing other duties required by the Plan.
The Administrator or its nominee, as custodian, will hold one or more
certificates registered in its name representing the aggregate number of whole
shares of Common Stock purchased under, or deposited for safekeeping into, the
Plan and credited to Participants' Accounts. Normally, certificates for shares
purchased under the Plan will not be issued to Participants. The number of
shares credited to your account under the Plan will be shown on your Statement
of Account. However, subject to the conditions in the answers to Questions 10
and 11 regarding withdrawal of shares, certificates for any number of whole
shares credited to your account under the Plan will be issued to you upon your
written request to the Administrator. Any remaining whole and fractional
shares will continue to be credited to your account. Certificates for
fractional shares will not be issued.
The Administrator or another agent selected by the Company (an
"Independent Agent") that is an "agent independent of the issuer," as that term
is defined in the rules and regulations under the Exchange Act, will purchase
shares of Common Stock in the open market. The Independent Agent is
responsible for purchasing and selling shares of Common Stock in the open
market for Participants' Accounts in accordance with the provisions of the
Plan.
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Participants may contact the Administrator by writing:
Liberty Bank and Trust Company of Oklahoma City, N.A.
Stock Transfer Department
P.O. Box 25848
Oklahoma City, Oklahoma 73125-0848
or by telephoning toll-free (800) 395-2662 ext. 6711 or, if calling locally,
(405) 231-6711 between 8 a.m. and 4:30 p.m., Monday through Friday, Central
Time.
4. WHO IS ELIGIBLE TO PARTICIPATE IN THE PLAN?
Any person or entity, whether or not a record holder of Common Stock,
is eligible to participate in the Plan, provided that (i) such person or entity
fulfills the prerequisites for participation described below in the answer to
Question 5 and (ii) in the case of citizens or residents of a country other
than the United States, its territories and possessions, participation would
not violate local laws applicable to the Company, the Plan and the Participant.
5. HOW DOES AN ELIGIBLE PERSON OR ENTITY PARTICIPATE?
HOLDERS OF COMMON STOCK CURRENTLY PARTICIPATING IN THE COMPANY'S
AUTOMATIC DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN OR CUSTOMERS' STOCK
PURCHASE PLAN, WHICH ARE BEING REPLACED BY THE PLAN (BY MEANS OF AMENDMENT AND
RESTATEMENT), WILL AUTOMATICALLY BE PARTICIPANTS IN THE PLAN WITHOUT SENDING IN
A NEW ENROLLMENT FORM ("ENROLLMENT FORM"). HOWEVER, PARTICIPANTS WHO WISH TO
CHANGE THEIR PARTICIPATION IN ANY WAY (E.G., FROM PARTIAL TO FULL REINVESTMENT)
MUST SUBMIT A NEW ENROLLMENT FORM.
After being furnished with a copy of this Prospectus, eligible
applicants may join the Plan at any time by completing and signing an
Enrollment Form in the manner set forth below. REQUESTS FOR COPIES OF
ENROLLMENT FORMS, AS WELL AS COPIES OF OTHER PLAN FORMS AND THIS PROSPECTUS,
SHOULD BE MADE IN WRITING OR BY TELEPHONE TO THE ADMINISTRATOR'S ADDRESS AND
TELEPHONE NUMBERS LISTED IN THE ANSWER TO QUESTION 3 ABOVE. RECORD OR
REGISTERED HOLDERS OF ELIGIBLE SECURITIES SHOULD BE SURE TO SIGN THEIR NAME(S)
ON THE ENROLLMENT FORM EXACTLY AS THEY APPEAR ON THEIR CERTIFICATES OR
INSTRUMENTS.
In order to become a Participant in the Plan, an eligible applicant
must complete and sign an Enrollment Form and return it to the Administrator
and (i) elect to have cash dividends paid or interest payments made on Eligible
Securities (see the answer to Question 6 for a list of Eligible Securities) of
which such applicant is the record or registered holder invested in Common
Stock (see the answer to Question 9), (ii) deposit certificates representing
shares of Common Stock into the Plan for safekeeping (see the answer to
Question 15) or (iii) make an initial cash investment (see the answer to
Question 7).
Beneficial owners of Eligible Securities registered in "street name"
(e.g., in the name of a bank, broker or trustee) may participate in the Plan
with respect to such securities by either (i) transferring those Eligible
Securities which they wish to be subject to the Plan into their own
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name and depositing shares of Common Stock into the Plan for safekeeping and/or
electing to reinvest cash dividend or interest payments on such Eligible
Securities in Common Stock (see the answer to Question 17) or (ii) making
arrangements with the record or registered holder (e.g., their bank, broker or
trustee, who will become the Participant) of such securities to participate in
the Plan on the beneficial owner's behalf.
A person will become a Participant after a properly completed
Enrollment Form has been received and accepted by the Administrator. If you
are a holder of Common Stock and your Enrollment Form is received by the
Administrator on or before the record date for payment of a cash dividend on
Common Stock (dividend record dates for Common Stock normally have been the
tenth day of January, April, July and October), that cash dividend and all
future cash dividends payable on your Common Stock will be used by the
Administrator to buy shares of Common Stock for your account under the Plan to
the extent requested by you. See the answer to Question 9. If your Enrollment
Form is not received on or before the record date for a cash dividend on Common
Stock, the dividend will be paid to you in cash and the reinvestment of your
dividends under the Plan will begin with the next cash dividend payment on the
Common Stock. Thus, for example, an October 30 cash dividend will be used to
purchase shares of Common Stock under the Plan only if your Enrollment Form is
received on or before October 10.
If you are a holder of any class of Preferred Stock and your
Enrollment Form is received by the Administrator on or before the record date
for payment of a cash dividend on your Preferred Stock (dividend record dates
for the Preferred Stock normally are the last business day of December, March,
June and September), that cash dividend and all future cash dividends payable
on your Preferred Stock will be used by the Administrator to purchase shares of
Common Stock for your account under the Plan to the extent requested by you.
See the answer to Question 9. Dividend payment dates for the 4% Preferred
Stock normally are the 15th day of January, April, July and October. Dividend
payment dates for all other classes of Preferred Stock normally are the 20th
day of January, April, July and October. If your Enrollment Form is not
received on or before the record date for the applicable dividend payment date,
the dividend will be paid to you in cash and your participation in the Plan
with respect to the reinvestment of dividends on your Preferred Stock will
begin on the next cash dividend payment date on your Preferred Stock. Thus,
for example, an April 15 dividend on the 4% Preferred Stock will be used to
purchase shares of Common Stock under the Plan only if your Enrollment Form is
received on or before March 31.
If you are a holder of any series of first mortgage bonds of the
Company and your Enrollment Form is received by the Administrator on or before
the record date for an interest payment on your first mortgage bonds, that
interest payment and all future interest payments on your first mortgage bonds
will be used by the Administrator to purchase shares of Common Stock for your
account under the Plan to the extent requested by you. See the answer to
Question 9. Interest payments on the Company's first mortgage bonds are
generally made on the 1st or 15th day of the relevant month.
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6. WHAT SECURITIES ARE ELIGIBLE FOR AUTOMATIC DIVIDEND REINVESTMENT UNDER
THE PLAN?
The Company's Common Stock, all classes of its preferred stock and all
series of its first mortgage bonds are "Eligible Securities" under the Plan.
In addition, the Company may from time to time designate, in its sole
discretion, other equity or debt securities of the Company as Eligible
Securities by notifying the Administrator in writing of such designation.
7. HOW DO INTERESTED INVESTORS AND PARTICIPANTS MAKE INITIAL CASH
INVESTMENTS AND OPTIONAL CASH INVESTMENTS?
Initial Investments. Interested investors, whether or not record or
registered holders of Eligible Securities, may become Participants by making an
investment through the Plan as hereinafter described. ELIGIBLE APPLICANTS WHO
ARE NOT RECORD OR REGISTERED HOLDERS OF ELIGIBLE SECURITIES MUST INCLUDE A
MINIMUM INITIAL CASH INVESTMENT OF AT LEAST $250 WITH THEIR COMPLETED
ENROLLMENT FORM. ELIGIBLE APPLICANTS WHO ARE RECORD OR REGISTERED HOLDERS OF
ELIGIBLE SECURITIES WHO DO NOT ELECT TO HAVE DIVIDENDS OR INTEREST PAYMENTS
REINVESTED AND WHO DO NOT DEPOSIT CERTIFICATES REPRESENTING COMMON STOCK IN THE
PLAN FOR SAFEKEEPING MUST INCLUDE A MINIMUM INITIAL CASH INVESTMENT OF AT LEAST
$25 WITH THEIR COMPLETED ENROLLMENT FORM. Such investments may be made by
personal check, money order or wire transfer payable to Liberty Bank and Trust
Company of Oklahoma City, N.A., and must be received no later than two business
days before an Investment Date in order to be invested on that Investment Date.
DO NOT SEND CASH. Interested investors making wire transfers should contact
the Administrator for wire instructions and may be charged fees by the
commercial bank initiating the transfer.
Optional Cash Investments - General. Participants may make optional
cash investments by personal check, money order, wire transfer or electronic
funds transfer from a predesignated bank account, as described below. Optional
cash investments must be at least $25 for any single investment. There is no
obligation to make any optional cash investment and the amount and timing of
such investments may vary from time to time.
Optional cash investments may not exceed $100,000 in the aggregate per
calendar year (the "Maximum Amount"), which amount may be invested all at one
time. In determining whether the Maximum Amount has been reached, initial
investments will be counted as optional cash investments.
Optional Cash Investments - Check, Money Order or Wire Transfer.
Participants may make optional cash investments by delivering to the
Administrator (i) a completed optional cash investment stub which will be
attached to each Participant's quarterly Statement of Account or an Enrollment
Form and (ii) a personal check, money order or wire transfer payable to Liberty
Bank and Trust Company of Oklahoma City, N.A. DO NOT SEND CASH. Participants
making wire transfers should contact the Administrator for wire instructions
and may be charged fees by the commercial bank initiating the transfer.
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In addition, Participants who are customers of the Company may also
make optional cash payments by including with their electric bill an amount
designated as a contribution to the Plan. Such money so received by the
Company will be transferred to the Administrator promptly.
Optional Cash Investments - Electronic Transfer from Bank Account.
Participants may make automatic investments of a specified amount (not less
than $25 per month) by electronic funds transfer from a pre-designated U.S.
bank account.
To initiate automatic deductions, the Participant must complete and
sign an Automatic Deduction Form and return it to the Administrator together
with a voided blank check for the account from which funds are to be drawn.
Automatic Deduction Forms may be obtained from the Administrator. Forms will
be processed and will become effective as promptly as practicable.
Once automatic deduction is initiated, funds will be drawn from the
Participant's designated bank account two business days prior to the relevant
Investment Date and will be invested in Common Stock for that Investment Date.
Participants may change or terminate automatic deduction by completing
and submitting to the Administrator a new Automatic Deduction Form. To be
effective with respect to a particular Investment Date, however, the new
Automatic Deduction Form must be received by the Administrator at least five
business days preceding such Investment Date.
NO INTEREST WILL BE PAID ON AMOUNTS HELD PENDING INVESTMENT.
8. When will initial and optional cash investments be applied to the
purchase of Common Stock?
An Investment Date (as defined below) will occur twice every month.
Optional and initial cash investments will be invested in Common Stock for the
first Investment Date following their receipt by the Administrator; provided,
that such investments must be received by the Administrator no later than two
business days prior to an Investment Date to be invested for that Investment
Date. Otherwise, the investment may be held by the Administrator and invested
for the next Investment Date. NO INTEREST WILL BE PAID ON FUNDS HELD BY THE
ADMINISTRATOR PENDING INVESTMENT. Accordingly, Participants and interested
investors should transmit cash investments so as to reach the Administrator
shortly (but not less than two business days) before an Investment Date. The
Administrator will make every effort to invest funds in Common Stock as soon as
practicable for each Investment Date. To the extent that the funds are
invested to purchase shares of Common Stock in the open market or from private
sources, the Administrator will purchase such shares within 10 days of the
relevant Investment Date, except where and to the extent necessary under any
applicable federal securities laws or other government or stock exchange
regulations. To the extent that the funds are invested to purchase shares of
Common Stock directly from the Company, the Administrator will purchase such
shares for Participants' Accounts as of the close of business on the relevant
Investment Date.
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<PAGE> 13
An "Investment Date" under the Plan will be, (i) the 1st business day
of the month and (ii) the 15th day of the month or, if that day is not a
business day, the business day immediately preceding that day.
Upon a Participant's written request, received by the Administrator no
later than two business days prior to the applicable Investment Date, a cash
investment not already invested in Common Stock will be returned to the
Participant. However, no refund of a check or money order will be made until
the funds from such instruments have been actually collected by the
Administrator. Accordingly, such refunds may be significantly delayed. If the
written request to stop investment is not received by the Administrator at
least two business days prior to an Investment Date, any cash investment then
held by the Administrator will be invested in Common Stock on such Investment
Date.
Optional and initial cash investments, pending investments pursuant to
the Plan, will be credited to a Participant's Account and held in a trust
account which will be separated from any other funds or monies of the Company.
Cash investments not invested in Common Stock within 30 days of receipt will be
promptly returned to the Participant. All cash investments are subject to
collection by the Administrator of full face value in U.S. funds. The method
of delivery of any cash investment is at the election and risk of the
Participant or interested investor and will be deemed received when actually
received by the Administrator. If the delivery is by mail, it is recommended
that the Participant or interested investor use properly insured, registered
mail with return receipt requested, and that the mailing be made sufficiently
in advance of the Investment Date.
CASH DIVIDENDS PAID ON SHARES OF COMMON STOCK CREDITED TO A
PARTICIPANT'S ACCOUNT THAT WERE PURCHASED THROUGH THE PLAN WITH OPTIONAL AND
INITIAL CASH INVESTMENTS WILL AUTOMATICALLY BE REINVESTED IN SHARES OF COMMON
STOCK UNLESS THE PARTICIPANT NOTIFIES THE ADMINISTRATOR OTHERWISE BY NOTATION
ON THE STUB PORTION OF THE PARTICIPANT'S STATEMENT OF ACCOUNT OR COMPLETED
ENROLLMENT FORM, AS THE CASE MAY BE.
Funds payable to a Participant or an interested investor as a result
of the redemption, tender or maturity, including accrued interest and premium,
if any, of any of the Eligible Securities of which such Participant or
interested investor is the record or registered holder may be invested in
Common Stock through the Plan at the request of such holder by delivering a
properly completed Enrollment Form covering such Eligible Securities to the
Administrator. Any amounts invested in Common Stock through the Plan as
described in the previous sentence will be treated as optional cash investments
in determining whether the Maximum Amount has been reached.
9. HOW AND WHEN ARE CASH DIVIDENDS AND INTEREST PAYMENTS ON ELIGIBLE
SECURITIES REINVESTED?
Participants may elect to invest in Common Stock by reinvesting all or
a portion of cash dividends paid and interest payments made on all or a portion
of Eligible Securities registered in their names, Common Stock purchased
through the Plan and credited to their Accounts and Common Stock deposited into
the Plan for safekeeping, by designating such election on their
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<PAGE> 14
Enrollment Form. IF A PARTICIPANT DOES NOT MAKE AN ELECTION, CASH DIVIDENDS
PAID ON SHARES OF COMMON STOCK CREDITED TO A PARTICIPANT'S ACCOUNT THAT WERE
PURCHASED THROUGH THE PLAN OR DEPOSITED INTO THE PLAN FOR SAFEKEEPING WILL
AUTOMATICALLY BE REINVESTED IN SHARES OF COMMON STOCK. Participants electing
partial reinvestment of cash dividends and interest payments on any Eligible
Securities must designate the specific security for which such partial
reinvestment is desired and the whole number of shares or whole dollar amount
of first mortgage bonds for which reinvestment is desired. Once a Participant
elects reinvestment, cash dividends and interest payments made on the
designated Eligible Securities will be reinvested in shares of Common Stock.
THE AMOUNT SO REINVESTED WILL BE REDUCED BY ANY AMOUNT WHICH IS REQUIRED TO BE
WITHHELD UNDER ANY APPLICABLE TAX OR OTHER STATUTES. If the Participant has
specified partial reinvestment, that portion of cash dividends and interest
payments not designated for reinvestment will be sent to the Participant by
check in the usual manner or with regard to the partial reinvestment of cash
dividends on Common Stock credited to the Participant's Account, by electronic
direct deposit, if the Participant has elected the direct deposit option (see
the answer to Question 12).
Dividends and interest payments will be invested in Common Stock for
the first Investment Date following such payment. (See the answers to
Questions 8 and 13.) Dividend and interest payments not invested in Common
Stock within 30 days of receipt will be promptly returned to the Participant.
Cash dividend and interest payment reinvestment amounts, pending investment
pursuant to the Plan, will be credited to a Participant's Account and held in a
trust account which will be separated from any other funds or monies of the
Company. NO INTEREST WILL BE PAID ON SUCH FUNDS HELD BY THE ADMINISTRATOR
PENDING INVESTMENT.
10. HOW DOES A PARTICIPANT CHANGE PARTICIPATION IN, OR WITHDRAW SHARES
FROM, THE PLAN?
Participants may change their reinvestment options, including (i)
changing the reinvestment level (i.e., full, partial or none) of cash dividend
and interest payments on Eligible Securities and (ii) changing the designation
of Eligible Securities on which cash dividend or interest payments are subject
to reinvestment, by delivering written instructions or a new Enrollment Form to
that effect to the Administrator.
Participants may withdraw some or all of the Common Stock credited to
their Accounts from the Plan at any time by delivering withdrawal instructions
to the Administrator. It is suggested that the stub portion of the Statement
of Account be used to notify the Administrator of such withdrawal instructions.
In addition, if the Participant will not be the record holder of the Common
Stock after withdrawal, a stock assignment (stock power) and other necessary
documentation must accompany the stub portion of the Statement of Account.
Upon the Administrator's receipt of the proper documentation, certificates
representing the designated Common Stock will be sent to the Participant, the
Participant's broker or any other person that the Participant has designated.
11. WHEN MAY A PARTICIPANT CHANGE PARTICIPATION IN, OR WITHDRAW SHARES
FROM, THE PLAN?
Any Participant may change participation in, or withdraw from, the
Plan at any time.
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<PAGE> 15
To be effective with respect to a particular cash dividend or interest
payment, any instructions to change reinvestment options must be received by
the Administrator at least five business days prior to the payment date
relating to such cash dividend or interest payment. If such instructions are
not received by the Administrator at least five business days prior to the
payment date, the instructions will not become effective until after such
dividend or interest is paid. The shares of Common Stock purchased with such
funds will be credited to the Participant's Account.
Except as described in the following sentence, if the properly
completed withdrawal instructions with regard to shares of Common Stock
credited to a Participant's Account are received on or after an ex-dividend
date but before the related Dividend Payment Date, the withdrawal will be
processed as described above in the answer to Question 10 and a separate check
for the dividends will be mailed to the Participant following the Dividend
Payment Date. If the properly completed withdrawal instructions with regard to
shares of Common Stock credited to a Participant's Account on which cash
dividends are being reinvested are not received by the Administrator at least
five business days prior to a Dividend Payment Date, the dividends paid on the
Dividend Payment Date will be invested in Common Stock through the Plan, and
(i) if the Participant's withdrawal instructions cover less than all of the
shares of Common Stock credited to such Participant's Account, the newly
purchased shares will be credited to such Participant's Account or (ii) if the
Participant's withdrawal instructions cover all of the shares of Common Stock
credited to such Participant's Account, the withdrawal instructions will not be
processed until after the dividends have been invested in Common Stock through
the Plan, at which time certificates representing all of the shares credited to
such Participant's Account, including the newly purchased shares, will be sent
to the Participant or other designated recipient. (See the answer to Question
18 for the reinvestment level of dividends on shares of Common Stock credited
to a Participant's Account after a withdrawal.)
Certificates representing whole shares of Common Stock withdrawn from
the Plan will be sent to the Participant or designated recipient by First Class
Mail as soon as practicable following the Administrator's receipt of the
required documentation, subject to the provisions of the preceding paragraph.
Alternatively, a Participant may request in writing the Administrator to sell
all or a portion of the Participant's shares, both whole and fractional, that
are held in the Participant's Account under the Plan. Subject to the
conditions expressed herein regarding the processing of withdrawals, such sale
shall be effected by the Independent Agent in accordance with the answer to
Question 16. Withdrawal of shares of Common Stock does not affect reinvestment
of cash dividends on the shares withdrawn unless (i) the Participant is no
longer the record holder of such shares, (ii) the reinvestment is specifically
discontinued by the Participant (see the answer to Question 10) or (iii) the
Participant terminates participation in the Plan (see the answer to Question
20).
12. CAN PARTICIPANTS HAVE A PORTION OF THEIR CASH DIVIDENDS DEPOSITED
DIRECTLY INTO THEIR BANK ACCOUNTS?
Participants who elect not to reinvest all or any portion of cash
dividends on shares of Common Stock credited to their Accounts may receive such
cash dividends by electronic deposit
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<PAGE> 16
to the Participants' predesignated bank, savings, or credit union accounts. To
receive a direct deposit of funds, Participants must complete and sign a Direct
Deposit Authorization Form and return it to the Administrator. Direct deposit
will become effective as promptly as practicable after receipt of a completed
Direct Deposit Authorization Form. Changes in designated direct deposit
accounts may be made by delivering a completed Direct Deposit Authorization
Form to the Administrator.
Cash dividends on shares of Common Stock not designated for
reinvestment and not directly deposited will be paid by check on the applicable
Dividend Payment Date.
13. WHAT IS THE SOURCE OF SHARES PURCHASED UNDER THE PLAN?
Shares of Common Stock purchased for Participants under the Plan will
be either newly issued shares or shares held in the treasury of the Company or,
at the Company's option, shares of Common Stock purchased in the open market by
an Independent Agent. The primary consideration in determining the source of
funds is expected to be the Company's need to increase equity capital. If the
Company does not need to raise funds externally or if financing needs are
satisfied using non-equity sources of funds to maintain the Company's targeted
capital structure, shares of Common Stock purchased for Participants under the
Plan will be purchased in the open market, subject to the limitation discussed
below for changing the source of shares of Common Stock. As of the date of
this Prospectus, shares of Common Stock purchased for Participants under the
Plan are being purchased in the open market by an Independent Agent. The Plan
limits the Company from changing its determination regarding the source of
purchases of the shares (i.e., from the Company or in the open market) more
than once in any 12-month period. At any time that shares of Common Stock are
purchased for Participants under the Plan in the open market, the Company will
not exercise its right to change the source of purchase of shares of Common
Stock absent a determination by the Company's Board of Directors or Chief
Financial Officer that the Company has a need to increase equity capital or
there is another compelling reason for such change. Participants will be
notified of any change in the source of shares.
Purchases of shares of Common Stock from the Company, whether newly
issued or treasury shares, will be made on the relevant Investment Date at the
average of the high and low sales prices of the Common Stock reported on the
New York Stock Exchange Composite Tape as published in The Wall Street Journal
for the trading date preceding the Investment Date. In the event no trading is
reported for the trading day, the purchase price may be determined by the
Company on the basis of such market quotations as it deems appropriate. No
brokerage commissions or service fees will be charged on shares acquired
directly from the Company.
Purchases in the open market generally will occur within 10 days of
the relevant Investment Date, except where and to the extent necessary under
any applicable federal securities laws or any other governmental or stock
exchange regulations. Funds not invested in Common Stock within 30 days of
receipt will be promptly returned to Participants. The price of any shares of
Common Stock purchased in the open market for Participants will be the weighted
average price per share of the aggregate number of shares purchased for the
relevant Investment Date.
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<PAGE> 17
All brokerage costs and service fees for shares acquired on the open market
will be paid by the Company.
With regard to open market purchases of shares of Common Stock by an
Independent Agent, none of the Company, the Administrator (if it is not also
the Independent Agent) nor any Participant will have any authority or power to
direct the time or price at which shares may be purchased, the markets on which
the shares are to be purchased (including on any securities exchange, in the
over-the-counter market or in negotiated transactions), or the selection of the
broker or dealer (other than any Independent Agent) through or from whom
purchases may be made. The Independent Agent may commingle each Participant's
funds with those of other Participants for the purpose of executing purchase
and sale transactions and may offset purchases of shares against sales of
shares to be made for Participants under the Plan with respect to the same
Investment Date, resulting in a net purchase or a net sale of shares. Dividend
and voting rights will commence upon settlement, whether shares are purchased
from the Company or any other source.
14. HOW MANY SHARES WILL BE PURCHASED FOR THE PARTICIPANT?
The number of shares (including any fraction of a share rounded to
four decimal places) of Common Stock credited to the Account of a Participant
for a particular Investment Date will be determined by dividing the total
amount of cash dividends, interest payments, optional cash investments and/or
initial cash investments to be invested for such Participant on such Investment
Date by the relevant purchase price per share as determined in the answer to
Question 13 above.
15. CAN A PARTICIPANT DEPOSIT SHARES WITH THE ADMINISTRATOR FOR
SAFEKEEPING?
At the time of enrollment, or at any later time, Participants may take
advantage of the Plan's cost-free safekeeping services. Common Stock held in
certificate form by a Participant may be deposited into the Plan, to be held by
the Administrator or its nominee, by delivering a completed Enrollment Form and
such certificates to the Administrator. Such certificates should not be
endorsed. The Company strongly recommends that certificates be sent by
registered or certified mail, with adequate insurance. However, the method
used to submit certificates to the Administrator is at the option and risk of
the Participant.
The shares of Common Stock so deposited will be transferred into the
name of the Administrator or its nominee, as custodian, and credited to the
Participant's Account. Thereafter, such shares of Common Stock will be treated
in the same manner as shares of Common Stock purchased under the Plan and
credited to the Participant's Account. References herein to shares of Common
Stock credited to a Participant's Account will include shares of Common Stock
deposited into the Plan for safekeeping unless otherwise indicated. CASH
DIVIDENDS PAID ON SHARES OF COMMON STOCK CREDITED TO A PARTICIPANT'S ACCOUNT
THAT WERE DEPOSITED INTO THE PLAN FOR SAFEKEEPING WILL AUTOMATICALLY BE
REINVESTED IN SHARES OF COMMON STOCK UNLESS THE PARTICIPANT NOTIFIES THE
ADMINISTRATOR OTHERWISE ON THE ENROLLMENT FORM.
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<PAGE> 18
16. CAN PARTICIPANTS SELL SHARES OF COMMON STOCK CREDITED TO THEIR
ACCOUNTS?
Participants may request, at any time, that all or a portion of the
shares of Common Stock credited to their Accounts be sold by delivering sale
instructions to the Administrator. It is suggested that the stub portion of
the Statement of Account be used to notify the Administrator of such sale
instructions. ONLY WHOLE SHARES OF COMMON STOCK CREDITED TO A PARTICIPANT'S
ACCOUNT MAY BE SOLD UNDER THE PLAN. The Administrator will forward the sale
instructions to an Independent Agent within five business days of receipt
(except as described in the following paragraph). An Independent Agent will
sell such shares as soon as practicable after processing the request and will
transmit to the Participant the proceeds of the sale. Sale requests may be
accumulated, but sales transactions generally are made at least once a week on
the open market at prevailing market prices. The applicable sales price will
be the average price of all shares sold by the Independent Agent on that day
or, if the sale is to the Plan, the closing price on the date the Participant's
sale request is executed. Proceeds of shares of Common Stock sold through the
Plan will be paid to the Participant by check. The Independent Agent may
commingle each Participant's funds with those of other Participants for the
purpose of executing sale and purchase transactions and may offset sales of
shares against purchases of shares to be made for Participants under the Plan
with respect to the same Investment Date, resulting in a net purchase or a net
sale of shares.
Except as described in the following sentence, if instructions for the
sale of shares of Common Stock are received by the Administrator on or after an
ex-dividend date but before the related Dividend Payment Date, the sale will be
processed as described above and a separate check for the dividends will be
mailed to the Participant following the Dividend Payment Date. If instructions
for the sale of shares of Common Stock on which cash dividends are being
reinvested are not received by the Administrator at least five business days
prior to a Dividend Payment Date, the dividends paid on that Dividend Payment
Date will be invested in Common Stock through the Plan, and (i) if the
Participant's sale instructions cover less than all of the shares of Common
Stock credited to such Participant's Account, the newly purchased shares will
be credited to such Participant's Account or (ii) if the Participant's sale
instructions cover all of the shares of Common Stock credited to such
Participant's Account, the sale instructions will not be processed until after
the dividends have been invested in Common Stock through the Plan at which time
all of the shares credited to such Participant's Account, including the newly
purchased shares, will be sold and the proceeds transmitted to the Participant.
17. HOW DOES A PARTICIPANT TRANSFER ELIGIBLE SECURITIES?
From a Broker -- Owners of Eligible Securities held beneficially in
"street name" may participate in the Plan with respect to such securities by
either (i) transferring those Eligible Securities which they wish to be subject
to the Plan into their own name and depositing shares of Common Stock into the
Plan for safekeeping and/or electing to reinvest cash dividend or interest
payments on such Eligible Securities in Common Stock or (ii) making
arrangements with the record or registered holder (e.g., their bank, broker or
trustee, who will become the Participant) of such securities to participate in
the Plan on the beneficial owner's behalf. In order to transfer such
securities under clause (i), a Participant must instruct the "street name"
holder to transfer the Eligible Securities to the Participant or in the case of
Common Stock to be deposited into the
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<PAGE> 19
Plan for safekeeping, to the Administrator for credit to the Participant's
Account. If the person is already a Participant, the Eligible Securities must
be transferred to the Participant in the same name in which the Participant's
Account is registered. If the person does not have an Account, participation
in the Plan will commence when the Eligible Securities are registered in such
person's name and a properly completed Enrollment Form is received by the
Administrator.
To a Broker -- Participants wishing to transfer all or any part of the
shares of Common Stock credited to their Accounts to a brokerage account may do
so by delivering to the Administrator transfer instructions and a stock
assignment (stock power) and other necessary documents, acceptable to the
Administrator. The transfer instructions must specify the whole number of
shares of Common Stock, if less than all of such shares credited to the
Participant's Account and the name and address of the brokerage firm to which
the shares are to be transferred, including the name of the specific broker
handling the account and the broker's telephone number. It is suggested that
the stub portion of the Statement of Account be used to provide such transfer
instructions. The transfer will be handled as withdrawals described in the
answers to Questions 10 and 11.
Gift or Transfer of Shares of Common Stock Within the Plan -- If a
Participant wishes to transfer, whether by gift, private sale or otherwise,
ownership of all or a part of the shares of Common Stock credited to such
Participant's Account to the Account of another Participant or to establish by
such transfer an Account for a person or entity not already a Participant, the
Participant may do so by delivering to the Administrator transfer instructions
and a stock assignment (stock power) and other necessary documents. It is
suggested that the stub portion of the Statement of Account be used to provide
such transfer instructions. The transfer will be effected as soon as
practicable following the Administrator's receipt of the required
documentation, subject to the provisions of the second paragraph under the
answer to Question 11. No fraction of a share of Common Stock credited to a
Participant's Account may be transferred unless the Participant's entire
Account is transferred. Requests for interaccount transfers are subject to the
same requirements as for the transfer of securities generally, including the
requirement of a guarantee of signature on the stock assignment. Stock power
forms are available at local banks, brokerage firms and from the Administrator.
(See the answer to Question 18 for the reinvestment level of dividends on
shares of Common Stock credited to a Participant's Account after a transfer.)
Shares of Common Stock so transferred will be credited to the
transferee's Account. Unless a transferee who is already a Participant
otherwise directs the Administrator in writing by completion of an Enrollment
Form, the reinvestment of cash dividends on the transferred shares will be made
in proportion to the reinvestment level (i.e., full, partial or none) of the
other shares of Common Stock credited to the transferee's Account. If the
transferee is not already a Participant, an Account will be opened in the
transferee's name and the transferee may make elections with regard to
reinvestment of cash dividends on such transferred shares and other services
provided by the Plan on the Enrollment Form that is provided. If such
transferee does not make a reinvestment election, all dividends on such
transferred shares will be reinvested to purchase shares of Common Stock.
Unless otherwise requested by the transferor, transferees will be sent a
Statement of Account showing the transfer of such shares into their Accounts.
The
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<PAGE> 20
transferor may request that such Statement of Account be returned to the
transferor for personal delivery.
18. FOLLOWING THE WITHDRAWAL, SALE OR TRANSFER OF SHARES UNDER THE PLAN,
HOW WILL DIVIDENDS ON ANY REMAINING SHARES CREDITED TO AN ACCOUNT BE
REINVESTED?
If a Participant is reinvesting cash dividends paid on only a portion
of the shares of Common Stock credited to the Participant's Account through the
Plan and the Participant elects to sell, withdraw or transfer a portion of such
shares, cash dividends on the remainder of the shares credited to the
Participant's Account, up to the number of shares designated for reinvestment
prior to such sale, withdrawal or transfer, will continue to be reinvested
through the Plan, except where the Participant gives specific instructions to
the contrary in connection with such sale, withdrawal or transfer. For
example, if a Participant who had elected to have cash dividends reinvested
through the Plan on 50 shares of a total of 100 shares of Common Stock credited
to the Participant's Account elected to sell, withdraw or transfer 25 shares,
cash dividends on 50 shares of the remaining 75 shares credited to the Account
would be reinvested through the Plan. If instead the Participant elected to
sell, withdraw or transfer 75 shares, cash dividends on the remaining 25 shares
credited to the Account would be reinvested through the Plan.
19. WHAT REPORTS WILL BE SENT TO PARTICIPANTS?
Each Participant will receive a quarterly Statement of Account showing
all transactions for the Participant's Account during the current calendar
year, the number of shares of Common Stock credited to the Account, the amount
of cash held in the Account and other information for the Account.
Supplemental Statements of Account will be provided in months where the
Participant has made an optional cash investment, deposited, transferred or
withdrawn shares of Common Stock or had cash dividend or interest payments
reinvested in Common Stock. PARTICIPANTS SHOULD RETAIN THESE STATEMENTS OF
ACCOUNT IN ORDER TO ESTABLISH THE COST BASIS, FOR TAX PURPOSES, FOR SHARES OF
COMMON STOCK ACQUIRED UNDER THE PLAN.
Participants will receive copies of all communications sent to holders
of Common Stock. This may include annual reports to shareowners, proxy
material, consent solicitation material and Internal Revenue Service
information, if appropriate, for reporting dividend income. All notices,
Statements of Account and other communications from the Administrator to
Participants will be addressed to the latest address of record; therefore, it
is important that Participants promptly notify the Administrator of any change
of address.
20. HOW DOES A PARTICIPANT TERMINATE PARTICIPATION IN THE PLAN?
A Participant may at any time terminate participation in the Plan by
notifying the Administrator. Unless otherwise indicated, a request to
terminate participation will be treated as a withdrawal as described in the
answers to Questions 10 and 11. Upon the Administrator's receipt of such
written notification, the Participant will receive (i) a certificate for all of
the whole shares of Common Stock credited to the Participant's Account, (ii)
any dividends, interest
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<PAGE> 21
payments and cash investments credited to the Participant's Account and (iii) a
check representing the proceeds of the sale of any fraction of a share of
Common Stock credited to the Participant's Account.
Alternatively, a Participant may terminate participation and request
that all of the shares of Common Stock credited to the Participant's Account be
sold by the Administrator. It is suggested that this request be indicated on
the stub portion of the Statement of Account. A request to terminate
participation and sell the shares will be treated as a sale as described in the
answer to Question 16.
21. WHO PAYS THE COSTS FOR ADMINISTERING THE PLAN?
The Company will pay all administrative costs and expenses associated
with the Plan (other than administrative fees associated with maintaining an
IRA account, see the answer to Question 23) and will pay all brokerage
commissions and service fees for shares purchased or sold on the open market.
There will be no brokerage commissions or related service charges for shares
of Common Stock purchased directly from the Company.
22. WHAT HAPPENS IF THE COMPANY ISSUES A STOCK DIVIDEND, DECLARES A STOCK
SPLIT, OR HAS A RIGHTS OFFERING?
Any shares distributed by the Company as a stock dividend on shares
(including fractional shares) credited to a Participant's Account under the
Plan, or upon any split of such shares, will be credited to the Participant's
Account. Stock dividends or splits distributed on all other shares held by a
Participant and registered in the Participant's own name will be mailed
directly to the Participant. In a rights offering, a Participant's entitlement
will be based upon the Participant's total holdings, including those credited
to the Participant's Account under the Plan. Rights applicable to shares
credited to a Participant's Account under the Plan will be sold by the
Independent Agent and the proceeds will be credited to the Participant's
Account under the Plan and applied as an optional cash payment to the purchase
of shares. Any Participant who wishes to exercise, transfer or sell the rights
applicable to the shares credited to the Participant's Account under the Plan
must request, prior to the record date for the issuance of any such rights,
that the whole shares credited to the Participant's Account be transferred from
the Participant's Account and registered in the Participant's name.
23. CAN A PARTICIPANT USE THE PLAN TO ESTABLISH AN IRA?
Participants may use the Plan to establish an Individual Retirement
Account (IRA) and to make contributions to the IRA or to roll over an existing
IRA or other qualified plan distribution. After being furnished with a copy of
this Prospectus, Participants may open an IRA by completing and signing an IRA
Enrollment Form and returning it to the Administrator with an initial
contribution. The minimum initial investment for an IRA Plan account is $250.
For the purpose of rolling over an existing IRA or a qualified plan
distribution into the Plan, the Maximum Amount does not apply. IRA Enrollment
Forms are available upon request from the Administrator. Investments in IRA's
established under the Plan will be limited to shares of Common Stock.
Participants will not be permitted to purchase or deposit other securities,
whether of the Company or other issuers, through such IRA's.
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<PAGE> 22
For maintaining an IRA account, the Administrator will charge the
Participant an annual administrative fee of $20. If not paid separately by
the Participant, the initial $20 fee will be deducted from the initial
investment when the IRA Enrollment Form is mailed to the Administrator.
Thereafter, if not paid separately by the Participant, the annual fee will
be deducted from the Participant's IRA Plan Account at the beginning of each
year by cashing out any shares or fractions of shares sufficient to cover
the amount of the fee. The Company will not pay any part of the administrative
fees for maintaining IRA accounts.
24. HOW WILL A PARTICIPANT'S SHARES HELD UNDER THE PLAN BE VOTED AT
MEETINGS OF SHAREOWNERS?
The shares credited to the Account of a Participant under the Plan
will be voted in accordance with instructions of the Participant given on a
proxy which will be furnished to the Participant or, if such Participant
desires to vote in person at the meeting, a proxy for shares credited to the
Participant's Account under the Plan may be obtained upon written request
received by the Administrator at least 15 days before the meeting. If a
properly signed proxy card is returned without instructions, all of a
Participant's shares credited to the Participant's Account under the Plan will
be voted in accordance with the recommendations of the Company's Board of
Directors in the same manner as for non-participating shareowners who return
signed proxies and do not provide instructions. If the proxy card is not
returned, or is returned unsigned, none of the Participant's Plan shares will
be voted.
25. WHAT IS THE RESPONSIBILITY OF THE COMPANY AND THE ADMINISTRATOR UNDER
THE PLAN?
In taking action in connection with the Plan, neither the Company, the
Administrator, any Independent Agent nor any agent is liable for any act done
in good faith, or for any omission to act in good faith, including, without
limitation, any claim of liability arising out of failure to terminate a
Participant's Account upon such Participant's death prior to the receipt of
notice in writing of such death. Participants should recognize that neither
the Company nor the Administrator can assure them of a profit or protect them
against a loss on shares purchased by them under the Plan.
26. MAY THE PLAN BE AMENDED OR DISCONTINUED?
The Company has the unqualified right to suspend, amend or terminate
the Plan at any time. This right enables the Company to make any change to the
Plan that it deems appropriate. Any suspension, amendment or termination of
the Plan will be announced by the Company to all Participants in the Plan.
27. WHO INTERPRETS AND REGULATES THE PLAN?
The officers of the Company are authorized to take such actions to
carry out the Plan as may be consistent with the Plan's terms and conditions.
The Company reserves the right to interpret and regulate the Plan as the
Company deems desirable or necessary in connection with the Plan's operations.
-21-
<PAGE> 23
28. CAN THE COMPANY TERMINATE A PARTICIPANT'S PARTICIPATION IN THE PLAN?
The Company reserves the right to terminate any Participant's
participation in the Plan after written notice mailed in advance to such
Participant at the address appearing on the Administrator's records. A
Participant whose participation has been terminated will receive (i) a
certificate for all of the whole shares of Common Stock credited to such
Participant's Account, (ii) any dividends, interest payments and cash
investments credited to such Participant's Account and (iii) a check
representing the proceeds of the sale of any fraction of a share of Common
Stock credited to such Participant's Account.
FEDERAL INCOME TAX CONSEQUENCES
The following is a brief summary of certain provisions of the Federal
income tax laws as in effect on the date of this Prospectus. These provisions
of the Federal income tax laws are subject to change. In those states which
have income tax laws, the tax consequences of participation may differ. Since
individual tax situations may vary, each Participant is urged to consult a tax
advisor. The following discussion applies to reinvested dividends and interest
and optional cash payments that are applied on or after January 1, 1986, to
purchase Common Stock pursuant to the Plan. For transactions pursuant to the
Plan prior to January 1, 1986 (including the sale of any Common Stock acquired
pursuant to the Plan prior to January 1, 1986), participants are urged to
consult the Prospectus for the Plan, dated December 7, 1983. The following
rules may not be applicable to certain Participants, such as tax-exempt
entities (e.g., pension funds and IRA's) and foreign shareowners. These
particular Participants are urged to consult their own tax advisors concerning
the tax consequences applicable to their situation.
In general, Participants in the Plan have the same Federal income tax
obligations with respect to their dividends and interest as do shareowners or
mortgage bond holders who are not participating in the Plan. As a result,
Participants will be treated for Federal income tax purposes as having
received, on the dividend or interest payment date, a dividend equal to the
full amount of the cash dividend payable on such date with respect to the
Participant's shares or an interest payment equal to the full amount of the
cash interest payment payable on such date with respect to the Participant's
first mortgage bonds, as the case may be, even though the amount is not
actually received by the Participant in cash, but, instead, is applied pursuant
to the Plan to the purchase of Common Stock. IN ADDITION, PARTICIPANTS WILL BE
TREATED AS HAVING RECEIVED ADDITIONAL INCOME EQUAL TO THE PARTICIPANT'S SHARE
OF BROKERAGE COMMISSIONS PAID BY THE COMPANY IN CONNECTION WITH THE PURCHASE OF
SHARES ON THE OPEN MARKET. There are no brokerage commissions charged for
shares purchased directly from the Company. Shares acquired with reinvested
dividends or interest will have a tax basis equal to the amount paid for the
shares, increased by any brokerage commissions treated as additional income to
the Participant.
The purchase of Common Stock pursuant to the Plan with optional cash
payments will not result in taxable income to the Participant except to the
extent of any brokerage commissions paid by the Company. There are no
brokerage commissions charged for shares purchased directly from the Company.
Shares purchased with optional cash payments will have a tax basis
-22-
<PAGE> 24
equal to the amount paid for the shares, increased by any brokerage commission
treated as taxable income to the Participant.
A Participant will not realize any taxable income when certificates
for whole shares credited to the Participant's account under the Plan are
issued to the Participant. However, Participants recognize gain or loss when
shares acquired under the Plan (including fractions of a share) are sold at the
request of participants through the Administrator or are sold by Participants
themselves after withdrawal from or termination of the Plan. The amount of
such gain or loss will be the difference between (i) the amount which the
Participant receives for such shares or fraction of a share plus any brokerage
commissions paid by the Company and (ii) the tax basis thereof.
PLAN OF DISTRIBUTION
The Common Stock being offered hereby is offered pursuant to the Plan,
the terms of which provide for the purchase of shares of Common Stock, either
newly issued shares or shares held in the treasury of the Company, directly
from the Company, or, at the Company's option, by an Independent Agent on the
open market. As of the date of this Prospectus, shares of Common Stock
purchased for Participants under the Plan are being purchased in the open
market by an Independent Agent. The Plan provides that the Company may not
change its determination regarding the source of purchases of shares under the
Plan more than once in any 12-month period. The primary consideration in
determining the source of shares of Common Stock to be used for purchases under
the Plan is expected to be the Company's need to increase equity capital. If
the Company does not need to raise funds externally or if financing needs are
satisfied using non-equity sources of funds to maintain the Company's targeted
capital structure, shares of Common Stock purchased for Participants under the
Plan will be purchased in the open market, subject to the aforementioned
limitation on changing the source of shares of Common Stock.
The Company will pay all administrative costs and expenses associated
with the Plan and any brokerage commissions and related service charges
incurred on purchases and sales of shares of Common Stock made in the open
market. There will be no brokerage commissions or related service charges for
shares of Common Stock purchased directly from the Company.
DESCRIPTION OF COMMON STOCK
The authorized capital stock of the Company includes 100,000,000
shares of Common Stock. Each share of Common Stock offered hereby includes an
associated preferred stock purchase right (a "Right"). The shares of Series A
Preferred Stock have been initially reserved for issuance upon exercise of the
Rights. The description of each of the Common Stock and the Rights are
incorporated by reference into this Prospectus. See "Incorporation of Certain
Documents by Reference" for information on how to obtain a copy of these
descriptions. At July 31, 1995, there were 40,354,387 shares of Common Stock
issued and outstanding.
-23-
<PAGE> 25
EXPERTS
The consolidated financial statements and schedules incorporated by
reference in this Prospectus and elsewhere in the registration statement have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in giving said reports.
LEGAL OPINIONS
Certain legal matters in connection with the Common Stock offered
hereby have been passed upon for the Company by Rainey, Ross, Rice & Binns.
-24-
<PAGE> 26
<TABLE>
<S> <C>
=========================================================== ==========================================================
OKLAHOMA GAS
AND ELECTRIC
No dealer, salesman or other person has COMPANY
been authorized to give any information or to make
any representations in connection with this offering 3,000,000 Shares
other than those contained in this Prospectus, and,
if given or made, such information or Common Stock
representations must not be relied upon as having (par value $2.50 per share)
been authorized by the Company. This Prospectus
does not constitute an offer to sell, or a __________
solicitation of an offer to buy, any of the PROSPECTUS
securities offered hereby in any jurisdiction to any __________
person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. Neither the AUTOMATIC DIVIDEND
delivery of this Prospectus nor any sale made REINVESTMENT AND STOCK
hereunder shall, under any circumstances, create any PURCHASE PLAN
implication that there has been no change in the
affairs of the Company or of the Plan since the date
of this Prospectus or that the information set forth
herein is correct as of any time subsequent to the
date.
AUGUST __, 1995
=========================================================== ==========================================================
</TABLE>
<PAGE> 27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate of the approximate amount of fees and
expenses payable by the Registrant in connection with the issuance and sale of
the Common Stock:
<TABLE>
<S> <C>
Registration fee under the Securities Act of 1933, as amended . . . . . . $36,078
State qualification fees and expenses . . . . . . . . . . . . . . . . . . 5,000
Printing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,000
Accounting services . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000
Legal fees to Company counsel . . . . . . . . . . . . . . . . . . . . . . 35,000
Miscellaneous, including travel, telephone tolls, stationery, postage and
other out-of-pocket expenses . . . . . . . . . . . . . . . . . . . . . . 18,922
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150,000
</TABLE>
________________
All items are estimated except the first.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Provisions of the Annotated Oklahoma Statutes provided that the
Company may, and in some circumstances must, indemnify the directors and
officers of the Company against liabilities and expenses incurred by any such
person by reason of the fact that such person was serving in such capacity
subject to certain limitations and conditions set forth in the statutes.
Substantially similar provisions that require such indemnification are
contained in the Company's Restated Certificate of Incorporation, which is
filed herewith and incorporated herein by this reference. The Company's
Restated Certificate of Incorporation also contains provisions limiting the
liability of the Company's directors in certain instances. The Company has an
insurance policy covering its directors and officers against certain personal
liability, which may include liabilities under the Securities Act of 1933.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
4.01 Restated Certificate of Incorporation, as amended.
4.02 By-laws (filed as Exhibit 4.02 to the Registrant's Post-Effective Amendment No. Three to Registration Statement
No. 2-94973 and incorporated by reference herein).
</TABLE>
II - 1
<PAGE> 28
<TABLE>
<S> <C>
4.03 Rights Agreement, dated December 11, 1990 between Oklahoma Gas and Electric Company and Liberty National Bank and
Trust Company of Oklahoma City, as Rights Agent (filed as Exhibit 4.1 to the Registrant's Form 8-K dated December
11, 1990 (file No. 1-1097) and incorporated by reference herein).
5.01 Opinion of counsel as to legality of the Common Stock offered hereby.*
23.01 Consents of legal counsel* and expert.
24.01 Power of attorney.*
</TABLE>
-------------------
* Previously filed
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby also undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
II - 2
<PAGE> 29
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described under Item 15
above, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II - 3
<PAGE> 30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Oklahoma
City, and State of Oklahoma on the 18th day of August, 1995.
OKLAHOMA GAS AND ELECTRIC COMPANY
(Registrant)
By: J.G. Harlow, Jr.
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Amendment No. 1 to the Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
J.G. Harlow, Jr. Chairman of the Board of Directors, Principal August 18, 1995
Executive Officer and Director;
A.M. Strecker Principal Financial Officer; and August 18, 1995
D.L. Young Principal Accounting Officer. August 18, 1995
_________________
HERBERT H. CHAMPLIN Director;
WILLIAM E. DURRETT Director;
MARTHA W. GRIFFIN Director;
HUGH L. HEMBREE, III Director;
JOHN F. SNODGRASS Director;
BILL SWISHER Director;
JOHN A. TAYLOR Director; and
RONALD H. WHITE Director.
By: J.G. HARLOW, JR.
(attorney-in-fact) August 18, 1995
</TABLE>
II - 4
<PAGE> 31
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4.01 Restated Certificate of Incorporation, as amended.
4.02 By-laws (filed as Exhibit 4.02 to the Registrant's Post-Effective Amendment No. Three to Registration Statement No.
2-94973 and incorporated by reference herein).
4.03 Rights Agreement, dated December 11, 1990 between Oklahoma Gas and Electric Company and Liberty National Bank and
Trust Company of Oklahoma City, as Rights Agent (filed as Exhibit 4.1 to the Registrant's Form 8-K dated December 11,
1990 (file No. 1-1097) and incorporated by reference herein).
5.01 Opinion of counsel as to legality of the Common Stock offered hereby.*
23.01 Consents of expert and legal counsel.
24.01 Power of attorney.*
</TABLE>
----------------------
* Previously filed
<PAGE> 1
EXHIBIT 4.01
RESTATED
CERTIFICATE OF INCORPORATION
OF
OKLAHOMA GAS AND ELECTRIC COMPANY
(AS FILED JULY 16, 1991)
The original certificate of incorporation of the undersigned, Oklahoma Gas
and Electric Company (which certificate was designated Patent), was originally
filed with the Secretary of Oklahoma Territory on February 27, 1902. The
undersigned, Oklahoma Gas and Electric Company, pursuant to the provisions of
the General Corporation Act of the State of Oklahoma, does hereby file this
Restated Certificate of Incorporation of said Company (which Restated
Certificate is hereinafter referred to from time to time as the "Amended
Articles of Incorporation"):
I.
That the name of this corporation shall be "Oklahoma Gas and Electric
Company." The address of its Registered Office in the State of Oklahoma is 321
North Harvey Avenue, in the City of Oklahoma City, County of Oklahoma and the
name of its Registered Agent at such address is Irma B. Elliott.
II.
The purposes for which this corporation is formed are:
To manufacture, distribute and sell gas for light, heat and power.
To generate, distribute and sell electricity for light, heat and power.
To construct, purchase, sell, lease, operate and maintain gas and electric
plants, buildings, constructions, machinery appliances, equipments, easements
and appurtenances for the manufacture and distribution and the generation and
distribution of gas and electricity for light, heat and power.
To construct, purchase, lease, operate and maintain pipe lines, pole lines,
underground conductors and conduits, and subways for containing the same, for
transmitting and distributing gas and electricity for light, heat and power.
To purchase, lease and otherwise acquire, hold and use, and to sell, lease
and mortgage or otherwise dispose of, all real property, including coal and
other lands requisite or desirable for carrying out the purposes or any of them
above mentioned.
To contract with cities, towns and other municipalities and with persons,
firms and corporations for the supply of light, heat and power.
To acquire by grant, assignment, license or otherwise and to use and
dispose of, rights to inventions and discoveries relating to any of the
purposes above mentioned.
To acquire by purchase or otherwise, and to own, hold, use, enjoy, enforce,
and to sell, pledge, hypothecate or otherwise dispose of, any governmental,
state, county or municipal bonds, obligations or warrants; also stocks, bonds,
debentures, mortgages, warrants, or other obligations, securities or evidences
of title, interest or indebtedness made or issued by any person, partnership
jointstock company or corporation, private or municipal, with power to endorse
or guarantee the payment thereof.
To grant, bargain, sell, assign, transfer, convey, bond, lease, pledge,
hypothecate, or otherwise encumber or dispose of all or any part of its
franchises and property, real, personal or mixed, and of any right, title or
interest therein or thereto as and whenever its directors may see fit and
determine.
And to do any and all acts and things necessary, expedient or proper,
relating to the aforesaid objects or any of them.
III.
The place where its principal business is to be transacted is at Oklahoma
City, in Oklahoma County, State of Oklahoma.
IV.
The period of duration of this corporation shall be perpetual. (This
article amended by amendment adopted July 8, 1986.)
V.
The number of directors or trustees of this corporation shall be 9. (This
article amended by amendment adopted May 20, 1954.)
VI.
The officers of the corporation shall be as follows: Chairman of the
Board, President, one or more Vice Presidents, Treasurer, one or more Assistant
Treasurers, Secretary, one or more Assistant Secretaries, and such other
officers as the Board of Directors may determine. (This article amended by
amendment adopted May 20, 1954.)
VII.
The amount of capital stock of this corporation shall be $550,000,000 of
which $13,500,000 shall be 4% Cumulative Preferred Stock, hereinafter sometimes
called "Preferred Stock," divided into 675,000 shares of the par value of $20
each; $186,500,000 shall be Cumulative Preferred Stock, hereinafter sometimes
called "Cumulative Preferred Stock," divided into 1,865,000 shares of the par
value of $100 each; $100,000,000 shall be Cumulative Preferred Stock of the
par value of $25 per share, hereinafter sometimes call "$25 Preferred Stock,"
divided into 4,000,000 shares; and $250,000,000 shall be Common Stock divided
into 100,000,000 shares of the par value of $2.50 each. Each share of Common
Stock of the par value of $20 each outstanding at the time (December 13, 1950)
the par value of the shares of the Common Stock was changed to $10, thereupon,
without further action, be-
1
<PAGE> 2
came two shares of Common Stock of the par value of $10 each pending the
exchange of the certificate therefor. Each share of Common Stock of the par
value of $10 each outstanding at the time (November 21, 1958) the par value of
the shares of the Common Stock was changed to $5, thereupon, without further
action, became two shares of Common Stock of the par value of $5 each pending
exchange of the certificate therefor. Each share of Common Stock of the par
value of $5 each outstanding at the time (March 6, 1963) the par value of the
shares of the Common Stock is changed to $2.50, thereupon, without further
action, shall become two shares of Common Stock of the par value of $2.50 each;
and at the close of business on the date of said change the then issued and
outstanding stock certificates for Common Stock of the Company shall thereafter
represent and evidence the same number of shares of $2.50 par value shares of
Common Stock as they theretofore represented and evidenced of $5 par value
shares of Common Stock and each holder of record of Common Stock at said close
of business shall be entitled to receive from the corporation at the earliest
practicable date a stock certificate or certificates for the additional number
of shares of Common Stock, of the par value of $2.50 per share, which such
holder held of record at that time. (This paragraph amended by amendments
adopted December 11, 1950, May 17, 1956, November 18, 1958, March 6, 1963, May
19, 1966, May 16, 1974, May 15, 1975, May 17, 1979, May 15, 1980, May 20, 1982
and June 10, 1986.)
No shares of the Cumulative Preferred Stock after allotment shall, except
in the exercise of conversion rights, be changed from one series or class or
otherwise have their attributes altered by the Board of Directors. The
unallotted Cumulative Preferred Stock may be allotted and issued in series each
of which series shall consist of such number of shares of the unallotted
Cumulative Preferred Stock, and shall have such distinctive designation as may
be established by the Board of Directors of the corporation prior to the
issuance or allotment of any shares of such series, provided that such
designation shall in each case include the words "Cumulative Preferred Stock."
The Board of Directors is hereby authorized, within the limitations and
restrictions herein stated, to establish at such time or times as it sees fit,
in respect of shares of unallotted Cumulative Preferred Stock: (1) the number
and designation of series of shares, (2) the dividend rate or rates thereof,
which may be expressed in terms of a formula or other method by which such rate
or rates shall be calculated from time to time, and the dividend periods,
including the date or dates on which dividends are payable, and (3) the
redemptive price or prices if the shares are redeemable and, if so, the terms
and conditions of redemption. The other designations, preferences and voting
powers of the Cumulative Preferred Stock are hereinafter set forth. (This
paragraph amended by amendments adopted December 11, 1950, May 20, 1954 and May
16, 1991.)
No shares of the $25 Preferred Stock after allotment shall, except in the
exercise of conversion rights, be changed from one series or class or otherwise
have their attributes altered by the Board of Directors. The unallotted $25
Preferred Stock may be allotted and issued in series each of which series shall
consist of such number of shares of the unallotted $25 Preferred Stock, and
shall have such distinctive designation as may be established by the Board of
Directors of the corporation prior to the issuance or allotment of any shares
of such series. The Board of Directors is hereby authorized, within the
limitations and restrictions herein stated, to establish at such time or times
as it sees fit, in respect of shares of unallotted $25 Preferred Stock: (1) the
number and designation of series of shares, (2) the dividend rate or rates
thereof, which may be expressed in terms of a formula or other method by which
such rate or rates shall be calculated from time to time, and the dividend
periods, including the date or dates on which dividends are payable, (3) the
redemptive price or prices if the shares are redeemable and, if so, the terms
and conditions of redemption, and (4) the sinking fund provisions, if any, for
the redemption or purchase of shares of each such series, subject, however, to
such restrictions and limitations as are at the time of issuance of such series
provided by law or contained in the Amended Articles of Incorporation. The
other designations, preferences and voting powers of the $25 Preferred Stock
are hereinafter set forth. (This paragraph added by amendment adopted May 15,
1980 and this paragraph amended by amendments adopted May 16, 1991.)
The designations, preferences and voting powers, restrictions or
qualifications thereof, of the Preferred Stock, the Cumulative Preferred Stock,
the $25 Preferred Stock, and the Common Stock shall be as follows:
(1) The holders of the Preferred Stock shall be entitled to receive, in
respect of each share held, dividends at the rate of 4% per annum upon the par
value thereof, payable quarter-yearly on January 15, April 15, July 15, and
October 15, in each year, commencing July 15, 1946, when and as declared by the
Board of Directors, out of the surplus profits of the corporation. Dividends
on each series of the Cumulative Preferred Stock and on each series of the $25
Preferred Stock shall be payable at such times and at such rates as may be
specified by the Board of Directors at the time of establishment of such
series. All dividends on the Cumulative Preferred Stock and $25 Preferred
Stock shall be paid when and as declared by the Board of Directors out of the
surplus profits of the corporation. Dividends on the Preferred Stock,
Cumulative Preferred Stock, and $25 Preferred Stock shall be cumulative from
the first day of the respective dividend periods in which the respective shares
of such stock shall have been originally issued, except that in the case of the
initial issue of shares of any series of Cumulative Preferred Stock or of any
series of $25 Preferred Stock, dividends on such shares may be made cumulative
from the date of issue thereof by the Board of Directors at the time such
series is established, and shall be paid, or declared and set apart for
payment, before any dividends shall be declared or paid on or set apart for the
Common Stock, so that if for any past dividend period dividends on the
Preferred Stock, Cumulative Preferred Stock, or $25 Preferred Stock shall not
have been paid, or declared and set apart for payment, or if for the current
dividend period dividends on the Preferred Stock, Cumulative Preferred Stock,
or $25 Preferred Stock shall not have been declared, the deficiency shall be
fully paid, or declared and funds set apart for the payment thereof, before any
dividends shall be declared or paid on or set apart for the Common Stock. No
share of Preferred Stock, Cumulative Preferred Stock, or $25 Preferred Stock
shall
2
<PAGE> 3
have any preference or priority in any respect (subject, however, to the
provisions relating to any sinking fund for any shares of $25 Preferred Stock)
over any other share of such stocks and dividends declared for payment to the
holders of such stocks shall always be on a pro rata basis as to each share of
each class and series in accordance with the amount to which such share is
entitled; provided, however, that so long as dividends are not in default in
whole or in part on any shares of Preferred Stock, Cumulative Preferred Stock,
or $25 Preferred Stock for any prior dividend period for such shares, nothing
in this Article VII shall preclude the Company from declaring and paying a
dividend on a series of Cumulative Preferred Stock or $25 Preferred Stock,
which was originally issued after May 1, 1991, without having to simultaneously
declare, pay or set apart for payment a dividend on other outstanding shares of
Preferred Stock, Cumulative Preferred Stock or $25 Preferred Stock. The term
"dividend period," as used herein, in respect of the Preferred Stock refers to
the period from March 1, 1946, to and including July 14, 1946, and thereafter
to each period of three consecutive months ending on the day next preceding
each date on which dividends, if declared, shall be payable, and as used herein
in respect of the Cumulative Preferred Stock and the $25 Preferred Stock refers
to each period of three consecutive months ending on the day next preceding
each date on which dividends, if declared, shall be payable, unless other
dividend payment dates and periods shall have been fixed and determined for any
series of Cumulative Preferred Stock or $25 Preferred Stock by the Board of
Directors at the time of establishment of such series in accordance with this
Article VII in which case the dividend period or periods for such series shall
be as fixed by the Board of Directors and except that the first dividend period
of any series may be for such period as the Board of Directors may designate.
The holders of the Preferred Stock, Cumulative Preferred Stock, and $25
Preferred Stock shall not be entitled to receive any dividends thereon other
than the dividends as specified above. (This paragraph amended by amendments
adopted May 15, 1980 and May 16, 1991.)
When full cumulative dividends as aforesaid upon the Preferred Stock,
Cumulative Preferred Stock, and $25 Preferred Stock then outstanding for all
past dividend periods shall have been paid or declared and set apart for
payment and the full cumulative dividend upon the Preferred Stock, Cumulative
Preferred Stock, and $25 Preferred Stock then outstanding for the current
dividend period shall have been declared, the Board of Directors may declare
dividends on the Common Stock of the corporation, subject to the restrictions
hereinafter contained. It shall also be a condition precedent to the
declaration by the Board of Directors of dividends on the Common Stock and the
payment of any such dividends that all amounts required to be paid or set aside
for any sinking fund for the redemption or purchase of shares of $25 Preferred
Stock of any series, with respect to all preceding sinking fund dates or
periods, shall have been paid or set aside in accordance with the terms of the
shares of such series. (This paragraph amended by amendments adopted May 15,
1980.)
(2) In case of a voluntary liquidation, dissolution or winding up of the
corporation, the holders of the Preferred Stock, Cumulative Preferred Stock,
and $25 Preferred Stock shall be entitled to be paid in full the amounts which
they would be entitled to receive if, on the date of such liquidation,
dissolution or winding up, the shares of Preferred Stock, Cumulative Preferred
Stock, and $25 Preferred Stock held by them had been redeemed by the
corporation in accordance with the provisions of Section (3) of this Article
VII before any amount shall be paid to the holders of the Common Stock. In
case of an involuntary liquidation, dissolution or winding up of the
corporation, the holders of the Preferred Stock, Cumulative Preferred Stock,
and $25 Preferred Stock shall be entitled to be paid in full an amount equal to
the par value of their shares plus the accrued dividends thereon to the date of
payment before any amount shall be paid to the holders of the Common Stock.
All payments made to the holders of the Preferred Stock, Cumulative Preferred
Stock, and $25 Preferred Stock in the event of liquidation, dissolution or
winding up of the corporation, whether voluntary or involuntary, shall always
be on a pro rata basis as to each share of each class and series in accordance
with the amount to which such share is entitled under the provisions of this
paragraph. The holders of the Preferred Stock, Cumulative Preferred Stock, and
$25 Preferred Stock shall in no event be entitled to any further payment.
After payment as aforesaid to the holders of the Preferred Stock,
Cumulative Preferred Stock, and $25 Preferred Stock the holders of the Common
Stock, upon any liquidation, dissolution or winding up of the corporation,
shall be entitled to receive the remaining assets and funds of the corporation
pro rata according to the number of shares of Common Stock held. (Each
paragraph of this Section amended by amendments adopted May 15, 1980.)
(3) The corporation, on the sole authority of the Board of Directors of
the corporation, and in the sole discretion of the Board, shall have the right
at any time or from time to time to redeem and retire all or any part of the
Preferred Stock upon and by the payment to the holders of the shares to be
redeemed, or upon or by the setting aside, as hereinafter provided, for the
benefit of such holders, of the redemption price fixed for the shares to be
redeemed, which shall be an amount equal to $21 per share plus accrued
dividends to the date of redemption if such date of redemption is on or prior
to December 31, 1956 and $20 per share plus accrued dividends to the date of
redemption if such date of redemption is after December 31, 1956. In every
case of the redemption of less than all the outstanding shares of Preferred
Stock, the shares to be redeemed shall be chosen by lot in such manner as may
be prescribed by resolution of the Board of Directors.
The corporation may also, on the sole authority of the Board of Directors
of the corporation, and in the sole discretion of the Board shall have the
right at any time or from time to time to redeem and retire all or any part of
any series of Cumulative Preferred Stock which may be established out of the
unallotted shares of Cumulative Preferred Stock and all or any part of any
series of $25 Preferred Stock which may be established out of the unallotted
shares of $25 Preferred Stock, in each case upon and by the payment to the
holders of the shares to be redeemed, or upon or by the setting aside, as
hereinafter provided, for the benefit of such holders, of such redemption price
or prices as may be fixed for such
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shares by the Board of Directors at the time of the establishment of such
series. In every case of the redemption of less than all of the shares of any
series of outstanding Cumulative Preferred Stock which may be established out
of the unallotted shares of Cumulative Preferred Stock or of any series of
outstanding $25 Preferred Stock which may be established out of the unallotted
shares of $25 Preferred Stock, such shares to be redeemed shall be chosen by
lot or pro rata in such manner as may be prescribed by resolution of the Board
of Directors. (This paragraph amended by amendment adopted May 15, 1980.)
Provided, however, that: (i) the corporation gives notice of redemption as
such time, in such form and in such manner as may have been determined and
fixed for such series of shares by the Board of Directors at the time of
establishment of such series in accordance with this Article VII or (ii) if
such matters shall not have been so fixed by the Board of Directors, not less
than 30 days previous to the date fixed for redemption, notice of the intention
of the corporation to redeem such stock, specifying the shares to be redeemed
if less than all of such stock then outstanding, and the date and place of
redemption, (a) shall be published in a newspaper of general circulation
published in Oklahoma City, Oklahoma, and also in a newspaper of general
circulation published in the City of Chicago, Illinois, and in a newspaper of
general circulation published in the Borough of Manhattan, City and State of
New York, and (b) shall be deposited in a United States post office or mail
box, postage prepaid, at any place in the United States addressed to each
holder of record of the shares to be redeemed at his address as the same
appears upon the records of the corporation; but in mailing such notice,
unintentional omissions or errors in names or addresses shall not impair the
validity of the notice of redemption. The corporation may deposit with a bank
or trust company, which shall be named in the notice of redemption, shall be
located in Oklahoma City, Oklahoma, or in Chicago, Illinois, or in the Borough
of Manhattan, City and State of New York, and shall have, according to its last
published statement, capital, surplus and undivided profits of at least
$1,000,000, the aggregate redemption price of the shares to be redeemed, in
trust for the payment on or before the redemption date to or upon the order of
the holders of such shares, upon surrender of the certificates for such shares.
Such deposit in trust may, at the option of the corporation, be upon terms
whereby in case the holder of any shares of Preferred Stock, Cumulative
Preferred Stock, or $25 Preferred Stock called for redemption shall not, within
five years after the date fixed for redemption of such shares, claim the amount
on deposit with any bank or trust company for the payment of the redemption
price of said shares, such bank or trust company shall on demand pay to or upon
the written order of the corporation or its successors the amount so deposited
and thereupon such bank or trust company shall be released from any and all
further liability with respect to the payment of such redemption price and the
holder of said shares shall be entitled to look only to the corporation or its
successor for the payment thereof. Upon the giving of notice of redemption and
upon the deposit of the redemption price, as aforesaid, or, if no such deposit
is made, upon the redemption date, unless the corporation defaults in making
payment of the redemption price as set forth in such notice, such holders shall
cease to be stockholders with respect to said shares, and from and after the
making of said deposit and the giving of said notice, or, if no such deposit is
made, after the redemption date, the corporation not having defaulted in making
payment of the redemption price as set forth in such notice, said shares shall
no longer be transferable on the books of the corporation, and the said holders
shall have no interest in or claim against the corporation with respect to said
shares, but shall be entitled only to receive said moneys on the date fixed for
redemption as aforesaid from said bank or trust company, if such deposit has
been made, or from the corporation, if no such deposit has been made, without
interest thereon, upon surrender of the certificates as aforesaid. (This
paragraph amended by amendments adopted May 15, 1980 and May 16, 1991.)
The foregoing provisions in this Section relating to the redemption of
shares of $25 Preferred Stock shall apply also the redemptions or purchases
pursuant to any sinking fund provisions contained in the terms of such shares,
except that the corporation shall not be required to publish notice of any such
redemption or purchase. (This paragraph added by amendments adopted May 15,
1980.)
The term "accrued dividends" for the purposes of this Article VII shall be
deemed to mean, in respect of any share of the Preferred Stock, any share of
Cumulative Preferred Stock, or any share of $25 Preferred Stock as of any given
date, the amount of dividends payable on such shares, computed, at the dividend
rate or rates fixed for such shares, from the date on which dividends thereon
became cumulative to and including such given date, less the aggregate amount
of all dividends which have been paid or which have been declared and set apart
for payment on such share. Accumulations of dividends shall not bear interest.
(This paragraph amended by amendments adopted May 15, 1980 and May 16, 1991.)
Nothing herein contained shall limit any legal right of the corporation to
purchase any shares of the Preferred Stock, any shares of Cumulative Preferred
Stock, or any shares of $25 Preferred Stock. (This paragraph amended by
amendment adopted May 15, 1980.)
(4) (A) So long as any shares of Preferred Stock are outstanding, the
corporation shall not, without the affirmative vote, given at a stockholders'
meeting whereat the Preferred Stock shall vote separately as a class, or the
written consent of the record holders of two-thirds of the outstanding shares
of Preferred Stock,
(a) Amend the provisions of the Amended Articles of Incorporation so as to
create or authorize any stock ranking prior in any respect to the Preferred
Stock; or to issue any such stock; or
(b) Change, by amendment to the Amended Articles of Incorporation, or
otherwise, the terms and provisions of the Preferred Stock so as to affect
adversely the rights and preferences of the holders thereof; or
(c) Issue any shares of the Preferred Stock or shares of any stock ranking
pari passu with the Preferred Stock as to dividends or liquidation rights,
other than in exchange for, or for the purpose of effecting the redemption or
other retirement of, not less than an equal number of shares of Preferred Stock
or shares of any stock ranking pari passu with the Cumulative Preferred
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<PAGE> 5
Stock as to dividends or liquidation rights, at the time outstanding, unless
(1) The gross income, determined in accordance with accepted
accounting principles, of the corporation available for the payment of
interest charges shall, for a period of twelve consecutive calendar months
within the fifteen calendar months next preceding the issue of such shares,
have been at least 1 1/2 times the sum of (i) the interest for one year on
all funded indebtedness, and notes payable of the corporation maturing more
than twelve months after the date of issue of such shares which will be
outstanding at the date of the issue of said shares, and (ii) an amount
equal to the dividend requirement for one year on all shares of the
Preferred Stock and on all other shares of stock, if any, ranking prior to
or pari passu with the Preferred Stock as to dividends or liquidation
rights, which will be outstanding after the issue of the shares proposed to
be issued; and
(2) The capital represented by the Common Stock and the surplus
accounts of the corporation shall be not less than the aggregate amount
payable on the involuntary dissolution, liquidation or winding up of the
corporation, in respect of all shares of Preferred Stock and all shares of
stock, if any, ranking prior thereto, or pari passu with the Preferred
Stock as to dividends or liquidation rights, which will be outstanding
after the issue of the shares proposed to be issued.
No vote or consent of the holders of Preferred Stock shall be required in
respect of any transaction enumerated in this Section (4) (A) if at or prior to
the time when such transaction is to take effect provision is made for the
redemption or other retirement of all shares of Preferred Stock at the time
outstanding.
(B) So long as any shares of Cumulative Preferred Stock are outstanding,
the corporation shall not, without the affirmative vote, given at a
stockholders' meeting whereat the Cumulative Preferred Stock shall vote
separately as a class, or the written consent of the record holders of
two-thirds of the outstanding shares of Cumulative Preferred Stock,
(a) Amend the provision of the Amended Articles of Incorporation so as to
create or authorize any stock ranking prior in any respect to the Cumulative
Preferred Stock; or to issue any such stock; or
(b) Change, by amendment to the Amended Articles of Incorporation, or
otherwise, the terms and provisions of the Cumulative Preferred Stock so as to
affect adversely the rights and preferences of the holders thereof; or
(c) Issue any shares of the Cumulative Preferred Stock or shares of any
stock ranking pari passu with the Cumulative Preferred Stock as to dividends
or liquidation rights, other than in exchange for, or for the purpose of
effecting the redemption or other retirement of, not less than an equal number
of shares of Cumulative Preferred Stock or shares of any stock ranking pari
passu with the Cumulative Preferred Stock as to dividends or liquidation
rights, at the time outstanding, unless
(1) The gross income, determined in accordance with accepted
accounting principles, of the corporation available for the payment of
interest charges shall, for a period of twelve consecutive calendar months
within the fifteen calendar months next preceding the issue of such shares,
have been at least 1 1/2 times the sum of (i) the interest for one year on
all funded indebtedness, and notes payable of the corporation maturing more
than twelve months after the date of issue of such shares which will be
outstanding at the date of the issue of said shares, and (ii) an amount
equal to the dividend requirement for one year on all shares of the
Cumulative Preferred Stock and on all other shares of stock, if any,
ranking prior to or pari passu with the Cumulative Preferred Stock as to
dividends, or liquidation rights, which will be outstanding after the issue
of the shares proposed to be issued; and
(2) The capital represented by the Common Stock and the surplus
accounts of the corporation shall be not less than the aggregate amount
payable on the involuntary dissolution, liquidation or winding up of the
corporation, in respect of all shares of Cumulative Preferred Stock and all
shares of stock, if any, ranking prior thereto, or pari passu with the
Cumulative Preferred Stock as to dividends or liquidation rights, which
will be outstanding after the issue of the shares proposed to be issued.
No such vote or consent of the holders of any shares of the Cumulative
Preferred Stock shall be required in respect of any transaction enumerated in
the Section (4) (B) if at or prior to the time when such transaction is to take
effect provision is made for the redemption or other retirement of such shares.
(C) So long as any shares of $25 Preferred Stock are outstanding, the
corporation shall not, without the affirmative vote, given at a stockholders'
meeting whereat the $25 Preferred Stock shall vote separately as a class, or
the written consent of the record holders of two-thirds of the outstanding
shares of $25 Preferred Stock,
(a) Amend the provision of the Amended Articles of Incorporation so as to
create or authorize any stock ranking prior in any respect to the $25 Preferred
Stock; or to issue any such stock; or
(b) Change, by amendment to the Amended Articles of Incorporation, or
otherwise, the terms and provisions of the $25 Preferred Stock so as to affect
adversely the rights and preferences of the holders thereof; or
(c) Issue any shares of the $25 Preferred Stock or shares of any stock
ranking pari passu with the $25 Preferred Stock as to dividends or liquidation
rights, other than in exchange for, or for the purpose of effecting the
redemption or other retirement of, not less than an equal number of shares of
$25 Preferred Stock or shares of any stock ranking pari passu with the $25
Preferred Stock as to dividends or liquidation rights, at the time outstanding,
unless
(1) The gross income, determined in accordance with accepted
accounting principles, of the corporation available for the payment of
interest charges shall, for a period of twelve consecutive calendar months
within the fifteen calendar months next preceding the issue of such shares,
have been at least 1 1/2 times the sum of (i) the interest for one year on
all funded indebtedness, and notes payable of the corporation maturing more
than twelve months after the date of issue of such shares which will be
outstanding at the date of the issue of said
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shares, and (ii) an amount equal to the dividend requirement for one year
on all shares of the $25 Preferred Stock and on all other stares of stock,
if any, ranking prior to or pari passu with the $25 Preferred Stock as to
dividends or liquidation rights, which will be outstanding after the issue
of the shares proposed to be issued; and
(2) The capital represented by the Common Stock and the surplus
accounts of the corporation shall be not less than the aggregate amount
payable on the involuntary dissolution, liquidation or winding up of the
corporation, in respect of all shares of $25 Preferred Stock and all shares
of stock, if any, ranking prior thereto, or pari passu with the $25
Preferred Stock as to dividends or liquidation rights, which will be
outstanding after the issue of the shares proposed to be issued.
No such vote or consent of the holders of any shares of the $25 Preferred
Stock shall be required in respect of any transaction enumerated in this
Section (4) (C) if at or prior to the time when such transaction is to take
effect provision is made for the redemption or other retirement of such shares.
(This Section (4) (C) added by amendments adopted May 15, 1980.)
(D) For purposes of calculating the dividend requirements pursuant to
Section (4)(A)(c)(1), Section (4)(b)(c)(1) and Section (4)(C)(c)(1) for one
year applicable to any series of preferred stock proposed to be issued which
will have dividends determined according to an adjustable, floating or variable
rate, the dividend rate used shall be the higher of (A) the dividend rate
applicable to such series of preferred stock on the date of such calculation or
(B) the average dividend rate payable on all series of preferred stock
described in Section (4)(A)(c)(1)(ii), Section (4)(B)(c)(1)(ii) or Section
(4)(C)(c)(1)(ii), during the twelve-month period immediately preceding the date
of such calculation. For purposes of calculating the dividend or interest
requirements pursuant to Section (4)(A)(c)(1), Section (4)(B)(c)(1) and Section
(4)(C)(c)(1) for one year applicable to any series of preferred stock or
indebtedness outstanding at the date of such proposed issue and having
dividends or interest determined according to an adjustable, floating or
variable rate, the dividend or interest rate used shall be: (A) if such series
of preferred stock or indebtedness has been outstanding for at least twelve
months, the actual amount of dividends or interest paid on account of such
series of preferred stock or indebtedness for the twelve-month period
immediately preceding the date of such calculation, or (B) if such series of
preferred stock or indebtedness has been outstanding for less than twelve
months, the higher of, in the case of preferred stock (1) the dividend rate
applicable to such series of preferred stock on the date of such calculation or
(2) the average dividend rate payable on all series of preferred stock
described in Section (4)(A)(c)(1)(ii), Section (4)(B)(c)(1)(ii) or Section
(4)(C)(c)(1)(ii), during the twelve-month period immediately preceding the date
of such calculation or, the higher of, in the case of indebtedness (1) the
interest rate applicable to such indebtedness on the date of such calculation
or (2) the average interest rate payable on all indebtedness described in
Section (4)(A)(c)(1)(i), Section (4)(B)(c)(1)(i) or Section (4)(C)(c)(1)(i)
during the twelve-month period immediately preceding the date of such
calculation. (This Section 4 (D) added by amendments adopted May 16, 1991.)
(5) So long as any shares of the Preferred Stock, Cumulative Preferred
Stock, or $25 Preferred Stock are outstanding, the corporation shall not,
without the affirmative vote, given at a stockholders' meeting whereat the
Preferred Stock shall vote separately as a class, the Cumulative Preferred
Stock shall vote separately as a class, and the $25 Preferred Stock shall vote
separately as a class, or written consent of the record holders of a majority
of the total number of shares of the Preferred Stock, a majority of the total
number of shares of Cumulative Preferred Stock and a majority of the total
number of shares of $25 Preferred Stock, then outstanding
(a) Issue or assume any unsecured notes, debentures or other
securities representing unsecured indebtedness for any purpose other than
the refunding of secured or unsecured indebtedness theretofore created or
assumed by the corporation and then outstanding, or the retiring, by
redemption or otherwise, of shares of the Preferred Stock, shares of the
Cumulative Preferred Stock, shares of the $25 Preferred Stock, or shares of
any stock ranking prior thereto or pari passu with the Preferred Stock,
Cumulative Preferred Stock, or $25 Preferred Stock as to dividends or
liquidation rights, if immediately after such issue or assumption the total
principal amount of all unsecured notes, debentures or other securities
representing unsecured indebtedness issued or assumed by the corporation
and then outstanding would exceed 20% of the aggregate of (i) the total
principal amount of all bonds or other securities representing secured
indebtedness issued or assumed by the corporation and then outstanding, and
(ii) the total of the capital and surplus of the corporation, as then
recorded on its books; or
(b) Merge or consolidate with any other corporation or corporations
or sell all of substantially all of the assets of the corporation unless
such merger, consolidation or sale or the issue or assumption of all
securities to be issued or assumed in connection therewith shall have been
ordered, approved or permitted by a commission or regulatory authority of
the United States of America, or a state thereof, then having jurisdiction
in the premises. (This paragraph amended by amendment adopted May 15,
1980.)
No such vote or consent of the holders of any shares of the Preferred
Stock, Cumulative Preferred Stock, or $25 Preferred Stock shall be required,
however, if, at or prior to the issue of any such securities representing
unsecured indebtedness, or such consolidation, merger or sale, provision is
made for the redemption or other retirement of such shares. (This paragraph
amended by amendment adopted May 15, 1980.)
The provisions set forth in the foregoing Section (4) and in this Section
(5) of this Article VII are in addition to any other vote required by any
provision of the Amended Articles of Incorporation or applicable statute and
shall be so construed.
(6) So long as any shares of the Preferred Stock, Cumulative Preferred
Stock, or $25 Preferred Stock are outstanding, the corporation shall not pay
any dividends on its Common Stock, other than dividends payable in
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Common Stock, or make any distribution on or purchase or otherwise acquire for
value any of its Common Stock, each such payment, distribution, purchase and/or
acquisition being herein referred to as a "Common Stock dividend," except to
the extent permitted by the following provisions of this Section (6). (This
paragraph amended by amendment adopted May 15, 1980.)
(a) No Common Stock dividend shall be declared or paid in an amount
which, together with all other Common Stock dividends declared in the year
ending on, and including, the date of the declaration of such Common Stock
dividend, would in the aggregate exceed 50% of the net income of the
corporation for the period consisting of the twelve consecutive calendar
months ending on the last day of the calendar month next preceeding the
declaration of such Common Stock dividend after deducting from such net
income dividends accruing on any preferred stock of the corporation during
such period, if at the end of such period the ratio, herein referred to as
the "capitalization ratio," of the sum of (i) the capital represented by
the Common Stock, including premiums on capital stock, and (ii) the
surplus accounts, of the corporation, to the sum of (I) the total capital
and (II) the surplus accounts, of the corporation, after adjustment of the
surplus accounts to reflect payment of such Common Stock dividend, would be
less than 20%;
(b) If such capitalization ratio, determined as aforesaid, shall be
20% or more, but less than 25%, no Common Stock dividend shall be declared
or paid in an amount which, together with all other Common Stock dividends
declared in the year ending on, and including, the date of the declaration
of such Common Stock dividend, would in the aggregate exceed 75% of the net
income of the corporation for the period consisting of the twelve
consecutive calendar months ending on the last day of the calendar month
next preceding the declaration of such Common Stock dividend after
deducting from such net income, dividends accruing on any preferred stock
of the corporation during such period; and
(c) If such capitalization ratio, determined as aforesaid, shall be
in excess of 25%, no Common Stock dividend shall be declared or paid which
would reduce such capitalization ratio to less than 25% except to the
extent permitted by the next preceding paragraphs (a) and (b) hereof.
The total capital of the corporation for the purposes of the provisions of
this Section (6) shall be deemed to consist of the aggregate of (i) the
principal amount of all outstanding indebtedness of the corporation, but not
Serial Notes maturing within the succeeding year, maturing more than one year
after the date of issue thereof, and (ii) the par or stated value of all
outstanding capital stock, including premiums on capital stock, of all classes
of the corporation. All indebtedness and capital stock owned by the
corporation shall be excluded in determining total capital. Surplus accounts
shall be deemed to include all earned surplus, paid-in surplus, capital surplus
or any other surplus of the corporation. Purchases or other acquisitions of
Common Stock shall be deemed, for the purpose of this Section (6), to have been
declared as of the date on which such purchases or acquisitions are
consummated.
(7) (a) Each holder of the Preferred Stock and each holder of the Common
Stock shall have one vote for each $2.50 of par value of such stock held by
such holder at every meeting of stockholders, except as hereinafter stated in
this Section (7) in respect of any period during which dividends on the
Preferred Stock may be in default. The holders of shares of the Cumulative
Preferred Stock and of the $25 Preferred Stock shall have no voting rights
whatsoever except as may be granted by the provisions of Section (4) (B),
Section (4) (C), Section (5) and Section (7) (f) hereof and as expressly
provided by law. (This paragraph amended by amendments adopted December 11,
1950, November 18, 1958, March 6, 1963, May 15, 1975 and May 15, 1980.)
(b) If and when dividends, payable on the Preferred Stock, shall be in
default in an amount equivalent to four full quarter-yearly dividends on all
shares of Preferred Stock then outstanding and until all dividends then in
default on the Preferred Stock shall have been paid, the record holders of the
shares of Preferred Stock, voting separately as one class, shall be entitled,
at each meeting of the stockholders at which directors are elected to elect the
smallest number of directors necessary to constitute a majority of the full
Board of Directors, and the record holders of the shares of Common Stock,
voting separately as a class, shall be entitled at any such meeting to elect
the remaining directors of the corporation. The term of office of each
director of the corporation shall terminate upon the election of his successor.
At each election of directors by a class vote pursuant to the provisions of
this paragraph, the class first electing the directors which it is entitled to
elect shall name the directors who are to be succeeded by the directors then
elected by such class, and upon such election the term of office of the
directors named as provided above shall terminate. The term of office of the
directors not so named shall terminate upon the election by the other class of
the directors which it is entitled to elect.
(c) If and when all dividends then in default on the Preferred Stock then
outstanding shall be paid, the holders of the shares of the preferred Stock
shall thereupon be divested of the special right with respect to the election
of directors provided in clause (b) of this Section (7), and the voting power
of holders of shares of the Preferred Stock and the Common Stock shall revert
to the status existing before the occurrence of such default, but always
subject to the same provision for vesting such special right in the Preferred
Stock in case of further like default or defaults in dividends thereon.
Dividends shall be deemed to have been paid, as that term is used in this
clause (c) of Section (7), whenever such dividends shall have been declared and
paid, or declared and provision made for the payment thereof, or whenever there
shall be surplus and net profits of the corporation legally available for the
payment thereof which shall have accrued since the date of the default giving
rise to such special voting right.
(d) In case of any vacancy in the Board of Directors occurring among the
directors elected by the holders of the shares of the Preferred Stock, as a
class, pursuant to clause (b) of this Section (7), the holders of the shares of
the Preferred Stock then outstanding and entitled to vote may elect a successor
to hold office for the unexpired term of the director whose place shall be
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vacant. In case of a vacancy in the Board of Directors occurring among the
directors elected by the holders of the shares of the Common Stock, as a class,
pursuant to clause (b) of this Section (7), the holders of the shares of the
Common Stock then outstanding and entitled to vote may elect a successor to
hold office for the unexpired term of the director whose place shall be vacant.
In all other cases, any vacancy occurring among the directors shall be filled
by the vote of a majority of the remaining directors.
(e) Whenever the holders of the shares of the Preferred Stock, as a
class, become entitled to elect directors of the corporation pursuant to clause
(b) or (d) of this Section (7), or whenever the holders of the shares of the
Common Stock, as a class, become entitled to elect directors of the corporation
pursuant to clause (b) or (d) of this Section (7), a special meeting of the
holders of the shares of the Preferred Stock or of the holders of the shares
of Common Stock, as the case may be, for the election of such directors, shall
be held at any time thereafter upon call by the holders of not less than 1,000
shares of the Preferred Stock or of the Common Stock, as the case may be, or
upon call by the Secretary of the corporation at the request in writing of any
stockholder addressed to him at the principal office of the corporation. If no
such special meeting be called or requested to be called, the election of the
directors to be elected by the holders of the shares of the Preferred Stock,
voting as a class, and of those to be elected by the holders of the shares of
the Common Stock, voting as a class, shall take place at the next annual
meeting of the stockholders of the corporation next succeeding the accrual of
such special voting right. At all meetings of stockholders at which directors
are elected during such times as the holders of shares of the Preferred Stock
shall have the special right, voting separately as one class, to elect
directors pursuant to clause (b) of this Section (7), the presence in person or
by proxy of the holders of a majority of the outstanding shares of the Common
Stock shall be required to constitute a quorum of such class for the election
of directors, and the presence in person or by proxy of the holders of a
majority of the outstanding shares of the Preferred Stock shall be required to
constitute a quorum of such class for the election of directors; provided,
however, that the absence of a quorum of the holders of stock of either such
class shall not prevent the election at any such meeting or adjournment
thererof of directors by the other class if the necessary quorum of the holders
of stock of such class is present in person or by proxy at such meeting; and
provided further that in the absence of a quorum of the holders of stock of
either such class, a majority of those holders of the stock of such class who
are present in person or by proxy shall have power to adjourn the election of
the directors to be elected by such class from time to time without notice
other than announcement at the meeting until the requisite amount of holders of
such class shall be present in person or by proxy.
(f) If at any time after April 1, 1948, there shall be no shares of 4%
Cumulative Preferred Stock outstanding, then and thereafter and without further
action of any kind, the holders of shares of preferred stock of the
corporation, irrespective of class or series, shall be vested, as one class,
with the same special voting rights, upon default in an amount equivalent to
dividends for the immediately preceding twelve months on the shares of any
class or series of preferred stock then outstanding and until all dividends
then in default on all classes and series of preferred stock then outstanding
shall have been paid, as are now vested in the holders of the 4% Cumulative
Preferred Stock and as are set forth in paragraphs (b) to (e) inclusive, of
this Section (7), and the holder of each share of preferred stock shall for
such purpose be entitled to one vote for each $20 of par value. In
consideration of the issue by the corporation, and the acceptance by the
holders thereof, of shares of the capital stock of the corporation, each and
every present and future holder of shares of the Preferred Stock, the
Cumulative Preferred Stock, the $25 Preferred Stock, the Common Stock, and of
any stock hereafter authorized of the corporation shall be conclusively deemed,
by acquiring or holding such shares, to have expressly consented to all and
singular the terms and provisions of this Article VII and to have agreed that
the voting rights of such holder and the restrictions and qualifications
thereof shall be as set forth in this Article. (This paragraph amended by
amendments adopted May 15, 1980 and May 16, 1991.)
(8) No share of stock or evidence of indebtedness shall be deemed to be
"outstanding," as that term is used in these Amended Articles of Incorporation
if, prior to or concurrently with the event in reference to which a
determination as to the amount thereof outstanding is to be made, the requisite
funds for the redemption thereof shall be deposited in trust for that purpose
and the requisite notice for the redemption thereof shall be given or the
depository of such funds shall be irrevocably authorized and directed to give
or complete such notice of redemption.
(9) The corporation reserves the right to increase or decrease its
authorized capital stock, or any class thereof, or to reclassify the same, and
to amend, alter, change or repeal any provision contained in the Amended
Articles of Incorporation of the corporation, or in any amendment thereto, in
the manner now or hereafter prescribed by law, but subject to such conditions
and limitations as are hereinbefore prescribed, and in case of an amendment to
Article VII of the Amended Articles of Incorporation to the affirmative vote
given at a stockholders' meeting whereat the Common Stock shall vote separately
as a class, or the written consent, of the holders of a majority of the
outstanding shares of Common Stock, and all rights conferred in the Amended
Articles of Incorporation of this corporation, or any amendment thereto, upon
the holders of the Preferred Stock, the Cumulative Preferred Stock, the $25
Preferred Stock, the Common Stock, or of any stock hereafter authorized are
granted to them subject to this reservation. (This paragraph amended by
amendment adopted May 15, 1980.)
(10) Any preemptive right to purchase the capital stock of this
corporation of any class now or hereafter authorized shall be vested only in
the holders of stock of that class and shall exist only when such stock is
issued for cash, provided, however, that (a) the holders of the Cumulative
Preferred Stock, of the $25 Preferred Stock, and of the Common Stock shall have
no preemptive right, (b) the holders of the Preferred Stock of this corporation
shall have the preemptive right to purchase pro rata any additional stock of
the particular class held by them offered for sale for cash prior to any sale
of such stock to others, and (c) the time within which any pre-
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emptive rights shall be exercised may be limited by the Board of Directors to
such time as said Board may deem proper, no less, however, than ten days after
mailing of notice that such stock rights are available and may be exercised.
(This paragraph amended by amendments adopted November 15, 1977 and May 15,
1980.)
(11) The Board of Directors of the corporation may allot and issue shares
of any class or any series of any class for such consideration not less than
the par value thereof, as it may from time to time determine.
(12) The corporation shall not, without the affirmative vote of at least a
majority of the total voting power of the outstanding shares of stock of the
corporation entitled to vote, given at a stockholders' meeting duly called and
held as prescribed by law and the By-laws of the corporation, merge or
consolidate with any other corporation or corporations or sell all or
substantially all of the assets of the corporation unless such merger,
consolidation or sale or the issue or assumption of all securities to be issued
or assumed in connection therewith shall have been ordered, approved or
permitted by a commission or regulatory authority of the United States of
America, then having jurisdiction in the premises. (This paragraph added by
amendment adopted September 30, 1952.)
(13) No funds shall be paid into or set aside for any sinking fund for the
redemption or purchase of shares of $25 Preferred Stock of any series unless
all dividends on the 4% Preferred Stock, the Cumulative Preferred Stock, and
the $25 Preferred Stock, for all past dividend periods, shall have been fully
paid or declared and funds set apart for the payment thereof. (This Section
added by amendment adopted May 15, 1980.)
VIII.
A. VOTE REQUIRED FOR CERTAIN BUSINESS COMBINATIONS.
1. In addition to any affirmative vote required by law or this Article
VIII or any other Article hereof, and except as otherwise expressly provided in
Section B of this Article VIII:
(a) any merger or consolidation of the corporation or any Subsidiary (as
hereinafter defined) with (i) any Interested Shareholder (as hereinafter
defined) or (ii) any other corporation (whether or not itself an Interested
Shareholder) which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested Shareholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Shareholder or any Affiliate of any Interested Shareholder of
any assets of the corporation or any Subsidiary having an aggregate Fair
Market Value of $25,000,000 or more; or
(c) the issuance or transfer by the corporation or any Subsidiary (in one
transaction or a series of transactions) of any securities of the
corporation or any Subsidiary to any Interested Shareholder or any
Affiliate of any Interested Shareholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market
Value of $25,000,000 or more, other than the issuance of securities upon
the conversion of convertible securities of the corporation or any
Subsidiary which were not acquired by such Interested Shareholder (or such
Affiliate) from the corporation or a Subsidiary; or
(d) the adoption of any plan or proposal for the liquidation or
dissolution of the corporation proposed by or on behalf of an Interested
Shareholder or any Affiliate of any Interested Shareholder; or
(e) any reclassification of securities (including any reverse stock
split), or recapitalization of the corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an
Interested Shareholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
or series of stock or securities convertible into stock of the corporation
or any Subsidiary which is directly or indirectly owned by any Interested
Shareholder or any Affiliate of any Interested Shareholder;
Affiliate of any Interested Shareholder; shall require the affirmative vote
of the holders of at least 80% of the voting power of the then outstanding
shares of stock of the corporation entitled to vote generally in the election
of directors (the "Voting Stock"), voting together as a single class (it being
understood that for purposes of this Article VIII, each share of the Voting
Stock shall have the number of votes granted to it pursuant to Article VII
hereof). Such affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage may be specified, by law,
by any provision hereof, or in any agreement with any national securities
exchange or otherwise.
2. The term "Business Combination" as used in this Article VIII shall mean
any transaction which is referred to in any one or more subparagraphs (a)
through (e) of paragraph 1 of this Section A.
B. WHEN HIGHER VOTE IS NOT REQUIRED.
The provisions of Section A of this Article VIII shall not be applicable to any
particular Business Combination, and such Business Combination shall require
only such affirmative vote as is required by law and any other provision of any
Article hereof, if all of the conditions specified in either of the following
paragraphs 1 and 2 are met:
1. The Business Combination shall have been approved by a majority of the
Disinterested Directors (as hereinafter defined).
2. All of the following conditions shall have been met:
(a) The aggregate amount of the cash and the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the Business
Combination of any consideration other than cash to be received per share
by holders of Common Stock in such Business Combination shall be at least
equal to the higher of the following:
I. (if applicable) the Highest Per Share Price (as
hereinafter defined) (including the brokerage commissions, transfer
taxes and soliciting dealers' fees) paid in order to acquire any
shares of Common Stock beneficially owned by the Interested
Shareholder which were acquired beneficially by such Interested
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Shareholder (X) within the two-year period immediately prior to the
first public announcement of the proposal of the Business Combination
(the "Announcement Date") or (Y) in the transaction in which it became
an Interested Shareholder, whichever is higher; and
II. the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested Shareholder
became an Interested Shareholder (such later date is referred to in
this Article VIII as the "Determination Date"), whichever is higher.
(b) The aggregate amount of the cash and the Fair Market Value as of the
date of the consummation of the Business Combination of consideration other
than cash to be received per share by holders of shares of any class or
series of outstanding Voting Stock other than the Common Stock shall be at
least equal to the highest of the following (it being intended that the
requirements of this subparagraph (b) shall be required to be met with
respect to every such class or series of outstanding Voting Stock, whether
or not the Interested Shareholder beneficially owns any shares of a
particular class or series of Voting Stock):
I. (if applicable) the Highest Per Share Price (as
hereinafter defined) (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid in order to acquire any
shares of such class or series of Voting Stock beneficially owned by
the Interested Shareholder which were acquired beneficially by such
Interested Shareholder (X) within the two-year period immediately
prior to the Announcement Date or (Y) in the transaction in which it
became an Interested Shareholder, whichever is higher;
II. (if applicable) the highest preferential amount per share
to which the holders of shares of such class or series of Voting Stock
are entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the corporation; and
III. the Fair Market Value per share of such class or series
of Voting Stock on the Announcement Date or on the Determination Date,
whichever is higher.
(c) The consideration to be received by holders of a particular class or
series of outstanding Voting Stock (including Common Stock) shall be in
cash or in the same form as was previously paid in order to acquire
beneficially shares of such class or series of Voting Stock that are
beneficially owned by the Interested Shareholder and, if the Interested
Shareholder beneficially owns shares of any class or series of Voting Stock
that were acquired with varying forms of consideration, the form of
consideration to be received by holders of such class or series of Voting
Stock shall be either cash or the form used to acquire beneficially the
largest number of shares of such class or series of Voting Stock
beneficially acquired by it prior to the Announcement Date.
(d) After such Interested Shareholder has become an Interested Shareholder
and prior to the consummation of such Business Combination: (i) except as
approved by a majority of the Disinterested Directors, there shall have
been no failure to declare and pay at the regular dates therefor the full
amount of any dividends (whether or not cumulative) payable on any class or
series of stock having a preference over the Common Stock as to dividends
or upon liquidation; (ii) there shall have been (x) no reduction in the
annual rate of dividends paid on the Common Stock (except as necessary to
reflect any subdivision of the Common Stock), except as approved by a
majority of the Disinterested Directors, and (y) an increase in such annual
rate of dividends (as necessary to prevent any such reduction) in the event
of any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which has the
effect of reducing the number of outstanding shares of the Common Stock,
unless the failure so to increase such annual rate was approved by a
majority of the Disinterested Directors; and (iii) such Interested
Shareholder shall have not become the beneficial owner of any additional
shares of Voting Stock except as part of the transaction which results in
such Interested Shareholder becoming an Interested Shareholder.
(e) After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received the
benefit, directly or indirectly (except proportionally as a stockholder),
of any loans, advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantages provided by the corporation,
whether in anticipation of or in connection with such Business Combination
or otherwise.
(f) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange
Act of 1934 and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall be mailed to
public stockholders of the corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions).
C. CERTAIN DEFINITIONS. For the purposes of this Article VIII:
1. A "person" shall mean any individual, firm, corporation or other entity.
2. "Interested Shareholder" shall mean any person (other than the
corporation or any Subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly, of more than 10% of
the voting power of the outstanding Voting Stock; or
(b) is an Affiliate of the corporation and at any time within the two-year
period immediately prior to the date in question was the beneficial owner,
directly or indirectly, of 10% or more of the voting power of the then
outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any shares of Voting
Stock that were at any time within the two-year period immediately prior to
the
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date in question beneficially owned by any Interested Stockholder, if such
assignment or succession shall have occurred in the course of a transaction
or series of transactions not involving a public offering within the
meaning of the Securities Act of 1933.
3. A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates has (i) the
right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote or direct the
vote pursuant to any agreement, arrangement or understanding; or
(c) which are beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purposes of acquiring,
holding, voting or disposing of any shares of Voting Stock.
4. For the purposes of determining whether a person is an Interested
Shareholder pursuant to paragraph 2 of this Section C, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of paragraph 3 of this Section C but shall not include any other
shares of Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding or upon exercise of conversion rights, warrants or
options, or otherwise.
5. "Affiliate" or "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations, under the
Securities Exchange Act of 1934, as in effect on April 1, 1986.
6. "Subsidiary" means any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the corporation or by a
Subsidiary of the corporation or by the corporation and one or more
Subsidiaries; provided, however, that for the purposes of the definition of
Interested Shareholder set forth in paragraph 2 of this Section C, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the corporation.
7. "Disinterested Director" means any member of the Board of Directors of
the corporation who is unaffiliated with, and not a nominee or representative
of, the Interested Shareholder and was a member of the Board of Directors prior
to the time that the Interested Shareholder became an Interested Shareholder,
and any successor of a Disinterested Director who is unaffiliated with, and not
a nominee or representative of, the Interested Shareholder and who is
recommended to succeed a Disinterested Director by a majority of Disinterested
Directors then on the Board of Directors.
8. "Fair Market Value" means: (a) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape
on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing sales price or
bid quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then in use, or if no
such quotations are available, the fair market value on the date in question of
a share of such stock as determined by a majority of the Disinterested
Directors in good faith, in each case with respect to any class of stock,
appropriately adjusted for any dividend or distribution in shares of such stock
or any stock split or reclassification of outstanding shares of such stock or
any combination or reclassification of outstanding shares of such stock into a
smaller number of shares of such stock; and (b) in the case of stock of any
class or series which is not traded on any United States registered securities
exchange nor in the over-the-counter market or in the case of property other
than cash or stock, the fair market value of such property on the date in
question as determined by a majority of the Disinterested Directors in good
faith.
9. References to "Highest Per Share Price" shall in each instance, with
respect to any class of stock, reflect an appropriate adjustment for any
dividend or distribution in shares of such stock or any stock split or
reclassification of outstanding shares of such stock into a greater number of
shares of such stock or any combination or reclassification of outstanding
shares of such stock into a smaller number of shares of such stock.
10. In the event of any Business Combination in which the corporation
survives, the phrase "consideration other than cash to be received" as used in
subparagraphs (a) and (b) of paragraph 2 of Section B of this Article VIII
shall include the shares of Common Stock and/or the shares of any other class
of outstanding Voting Stock retained by the holders of such shares.
D. POWERS OF THE BOARD OF DIRECTORS. A majority of the Disinterested
Directors of the corporation shall have the power and duty to determine, on the
basis of information known to them after reasonable inquiry, all facts
necessary to determine compliance with this Article VIII, including without
limitation, (a) whether a person is an Interested Shareholder, (b) the number
of shares of Voting Stock beneficially owned by any person, (c) whether a
person is an Affiliate or Associate of another, (d) whether the assets which
are the subject of any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market Value of
$25,000,000 or more and (e) whether the requirements of Section B of the
Article VIII have been met.
E. NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED SHAREHOLDERS. Nothing
contained in this Article VIII shall be construed to relieve any Interested
Shareholder from any fiduciary obligation imposed by law.
F. AMENDMENT OR REPEAL. Notwithstanding any other provisions of this
Article VIII or of any other Article hereof, or of the By-laws of the
corporation (and notwithstanding the fact that a lesser percentage may be
specified from time to time by law, this Article VIII, any other Article
hereof, or the By-laws of the corporation),
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the provisions of this Article VIII may be altered, amended or repealed in any
respect, nor may any provision inconsistent therewith be adopted, unless such
alteration, amendment, repeal or adoption is approved by the affirmative vote
of the holders of at least 80% of the combined voting power of the then
outstanding Voting Stock, voting together as a single class. (This article
added by amendment adopted June 10, 1986.)
IX.
A. ELECTION AND TERMS OF DIRECTORS. Except as otherwise provided in or
fixed by or pursuant to the provisions of Article VII hereof relating to the
rights of the holders of any class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation to elect directors under
specified circumstances, the directors shall be classified, with respect to the
time for which they severally hold office, into three classes, as nearly equal
in number as possible, as shall be provided in the manner specified in the
By-laws of the corporation, one class to be originally elected for a term
expiring at the annual meeting of stockholders to be held in 1987, another
class to be originally elected for a term expiring at the annual meeting of
stockholders to be held in 1988, and another class to be originally elected for
a term expiring at the annual meeting of stockholders to be held in 1989, with
each class to hold office until its successor is elected and qualified. At
each annual meeting of stockholders of the corporation and except as otherwise
provided in or fixed by or pursuant to the provisions of Article VII hereof
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, the successors of the class of
directors whose term expires at that meeting shall be elected to hold office
for a term expiring at the annual meeting of stockholders held in the third
year following the year of their election.
B. STOCKHOLDER NOMINATION OF DIRECTOR CANDIDATES AND INTRODUCTION OF
BUSINESS. Advance notice of stockholder nominations for the election of
directors, and advance notice of business to be brought by stockholders before
an annual meeting of stockholders, shall be given in the manner provided in the
By-laws of the corporation.
C. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as otherwise
provided in or fixed by or pursuant to the provisions of Article VII hereof
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances: (i) newly created directorships
resulting from any increase in the number of directors and any vacancies on the
Board of Directors resulting from death, resignation, disqualification, removal
or other cause shall be filled by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the Board
of Directors; (ii) any director elected in accordance with the preceding clause
(i) shall hold office for the remainder of the full term of the class of
directors in which the new directorship was created or the vacancy occurred and
until such director's successor shall have been elected and qualified; and
(iii) no decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
D. REMOVAL. Except as otherwise provided in or fixed by or pursuant to
the provisions of Article VII hereof relating to the rights of the holders of
any class or series of stock having a preference over the Common Stock as to
dividends upon liquidation to elect directors under specified circumstances,
any director may be removed from office, with or without cause, only by the
affirmative vote of the holders of at least 80% of the combined voting power of
the then outstanding shares of the corporation's stock entitled to vote
generally, voting together as a single class. Whenever in this Article IX or
in Article X hereof or in Article XI hereof, the phrase "the then outstanding
shares of the corporation's stock entitled to vote generally" is used, such
phrase shall mean each then outstanding share of Common Stock and Preferred
Stock and of any other class or series of the corporation's stock that is
entitled to vote generally in the election of directors and whose voting
privileges are not generally restricted by any of the provisions of any Article
hereof.
E. AMENDMENT OR REPEAL. Notwithstanding any other provisions of this
Article IX or of any other Article hereof or of the By-laws of the corporation
(and notwithstanding the fact that a lesser percentage may be specified from
time to time by law, this Article IX, any other Article hereof, or the By-laws
of the corporation), the provisions of this Article IX may not be altered,
amended or repealed in any respect, nor may any provision inconsistent
therewith be adopted, unless such alternation, amendment, repeal or adoption is
approved by the affirmative vote of the holders of at least 80% of the combined
voting power of the then outstanding shares of the corporation's stock entitled
to vote generally, voting together as a single class. (This article added by
amendment adopted June 10, 1986.)
X.
Any action required or permitted to be taken by the stockholders of the
corporation must be effected at a duly called annual or special meeting of such
holders and, except as otherwise mandated by Oklahoma law, may not be effected
without such a meeting by any consent in writing by such holders. Except as
otherwise mandated by Oklahoma law and except as otherwise provided in or fixed
by or pursuant to the provisions of Article VII hereof relating to the rights
of the holders of any class or series of stock having a preference over the
Common Stock as to dividends or upon liquidation to elect directors under
specified circumstances, special meetings of stockholders of the corporation
may be called only by the Board of Directors pursuant to a resolution approved
by a majority of the entire Board of Directors or by the President of the
corporation. Notwithstanding any other provisions of this Article X or of any
other Article hereof or of the By-laws of the corporation (and notwithstanding
the fact that a lesser percentage may be specified from time to time by law,
this Article X, any other Article hereof, or the By-laws of the corporation),
the provisions of this Article X may not be altered, amended or repealed in any
respect, nor may any provision inconsistent therewith be adopted, unless such
alteration, amendment, repeal or adoption is approved by the affirmative vote
of the holders of at least 80% of the combined voting power of the then
outstand-
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ing shares of the corporation's stock entitled to vote generally, voting
together as a single class. (This article added by amendment adopted June 10,
1986.)
XI.
The Board of Directors shall have power to adopt, amend and repeal the
By-laws of the corporation to the maximum extent permitted from time to time by
Oklahoma law; provided, however, that any By-laws adopted by the Board of
Directors under the powers conferred hereby may be amended or repealed by the
Board of Directors or by the stockholders having voting power with respect
thereto, except that, and notwithstanding any other provisions of this Article
XI or of any other Article hereof or of the By-laws of the corporation (and
notwithstanding the fact that a lesser percentage may be specified from time to
time by law, this Article XI, any other Article hereof or the By-laws of the
corporation), no provision of Section 2, Section 9 or Section 10 of Article III
of the By-laws, or of Section 1 of Section 2 of Article IV of the By-laws or of
Article XIV of the By-laws may be altered, amended or repealed in any respect,
nor may any provision inconsistent therewith be adopted, unless such
alteration, amendment, repeal or adoption is approved by the affirmative vote
of the holders of at least 80% of the combined voting power of the then
outstanding shares of the corporation's stock entitled to vote generally,
voting together as a single class. Notwithstanding any other provisions of
this Article XI or of any other Article hereof or of the By-laws of the
corporation (and notwithstanding the fact that a lesser percentage may be
specified from time to time by law, this Article XI, any other Article hereof
or the By-laws of the corporation), the provisions of this Article XI may not
be altered, amended or repealed in any respect, nor may any provision
inconsistent therewith be adopted, unless such alteration, amendment, repeal or
adoption is approved by the affirmative vote of the holders of at least 80% of
the combined voting power of the then outstanding shares of the corporation's
stock entitled to vote generally, voting together as a single class. (This
article added by amendment adopted June 10, 1986.)
XII.
Of the then unallotted shares of Cumulative Preferred Stock described in
Article VII hereof, 65,000 shares were on February 3, 1954, established and
designated by the Board of Directors as shares of "Cumulative Preferred Stock,
4.44% Series," the holders of which are entitled to receive in respect of each
share held, dividends at the rate of 4.44% per annum upon the par value thereof
payable quarter-yearly on January 20, April 20, July 20, and October 20, in
each year commencing April 20, 1954, when and as declared by the Board of
Directors out of the surplus profits of the Company, cumulative from the date
of issue of said shares; and said Cumulative Preferred Stock, 4.44% Series, or
any part thereof may be redeemed or retired at any time on the sole authority
of the Board of Directors and in the sole discretion of the Board upon the
notice provided in Article VII hereof with respect to redemption of stock and
upon and by payment to the holders of the shares of said Cumulative Preferred
Stock, 4.44% Series, to be redeemed, or upon or by setting aside as provided in
Article VII hereof for the benefit of such holders, in case of redemption on or
prior to March 31, 1958, of an amount equal of $104.50 per share; in case of
redemption subsequent to March 31, 1958, and on or prior to March 31, 1959, of
an amount equal of $104 per share; in case of redemption subsequent to March
31, 1959, and on or prior to March 31, 1960, of an amount equal to $103.50 per
share; in case of redemption subsequent to March 31, 1960, and on or prior to
March 31, 1961, of an amount equal to $103 per share; in case of redemption
subsequent to March 31, 1961, and on or prior to March 31, 1962, of an amount
equal to $102.50 per share; and in case of redemption subsequent to March 31,
1962, of an amount equal to $102 per share; in each case plus accrued dividends
to the date of redemption. (This paragraph added by amendment adopted February
3, 1954.)
Of the then unallotted shares of Cumulative Preferred Stock described in
Article VII hereof, 75,000 shares were on September 14, 1954, established and
designated by the Board of Directors as shares of "Cumulative Preferred Stock,
4.24% Series," the holders of which are entitled to receive in respect of each
share held, dividends at the rate of 4.24% per annum upon the par value thereof
payable quarter-yearly on January 20, April 20, July 20, and October 20, in
each year commencing October 20, 1954, when and as declared by the Board of
Directors out of the surplus profits of the Company, cumulative from the date
of issue of said shares; and said Cumulative Preferred Stock, 4.24% Series, or
any part thereof may be redeemed or retired at any time on the sole authority
of the Board of Directors and in the sole discretion of the Board upon the
notice provided in Article VII hereof with respect to redemption of stock and
upon and by payment to the holders of the shares of said Cumulative Preferred
Stock, 4.24% Series, to be redeemed, or upon or by setting aside as provided in
Article VII hereof for the benefit of such holders, in case of redemption on or
prior to December 31, 1959, of an amount equal to $105.875 per share; in case
of redemption subsequent to December 31, 1959, and on or prior to December 31,
1964, of an amount equal to $104.875 per share; in case of redemption
subsequent to December 31, 1964, and on or prior to December 31, 1969, of an
amount equal to $103.875 per share; and in case of redemption subsequent to
December 31, 1969, of an amount equal to $102.875 per share; in each case plus
accrued dividends to the date of redemption. (This paragraph added by
amendment adopted September 14, 1954.)
Of the then unallotted shares of Cumulative Preferred Stock described in
Article VII hereof, 50,000 shares were on July 20, 1955, established and
designated by the Board of Directors as shares of "Cumulative Preferred Stock,
4.20% Series," the holders of which are entitled to receive in respect of each
share held, dividends at the rate of 4.20% per annum upon the par value thereof
payable quarter-yearly on January 20, April 20, July 20, and October 20, in
each year commencing October 20, 1955, when and as declared by the Board of
Directors out of the surplus profits of the Company, cumulative from the date
of issue of said shares; and said Cumulative Preferred Stock, 4.20% Series, or
any part thereof may be redeemed or retired at any time on the sole authority
of the Board of Directors and in the sole discretion of the Board upon the
notice provided in Article VII hereof with respect to redemption of stock and
upon and by payment to the
13
<PAGE> 14
holders of the shares of said Cumulative Preferred Stock, 4.20% Series, to be
redeemed, or upon or by setting aside as provided in Article VII hereof for the
benefit of such holders, in case of redemption on or prior to August 31, 1960,
of an amount equal to $104.25 per share; in case of redemption subsequent to
August 31, 1960, and an or prior to August 31, 1965, of an amount equal to
$103.25 per share; in case of redemption subsequent to August 31, 1965, and on
or prior to August 31, 1970, of an amount equal to $102.25 per share; and in
case of redemption subsequent to August 31, 1970, of an amount equal to $102
per share; in each case plus accrued dividends to the date of redemption.
(This paragraph added by amendment adopted July 20, 1955.)
Of the then unallotted shares of Cumulative Preferred Stock described in
Article VII hereof, 75,000 shares were on January 20, 1958, established and
designated by the Board of Directors as shares of "Cumulative Preferred Stock,
4.80% Series," the holders of which are entitled to receive in respect of each
share held, dividends at the rate of 4.80% per annum upon the par value thereof
payable quarter-yearly on January 20, April 20, July 20, and October 20, in
each year commencing April 20, 1958, when and as declared by the Board of
Directors out of the surplus profits of the Company, cumulative from the date
of issue of said shares; and said Cumulative Preferred Stock, 4.80% Series, or
any part thereof may be redeemed or retired at any time on the sole authority
of the Board of Directors and in the sole discretion of the Board upon the
notice provided in Article VII hereof with respect to redemption of stock and
upon and by payment to the holders of the shares of said Cumulative Preferred
Stock, 4.80% Series, to be redeemed, or upon or by setting aside as provided in
Article VII hereof for the benefit of such holders, (i) in case of redemption
on or prior to February 28, 1963, of an amount equal to $107 per share, (ii) in
case of redemption subsequent to February 28, 1963, and on or prior to February
29, 1968, of an amount equal to $105 per share, (iii) in case of redemption
subsequent to February 29, 1968, and on or prior to February 28, 1973, of an
amount equal to $103 per share, and (iv) in case of redemption subsequent to
February 28, 1973, of an amount equal to $102 per share, in each case plus
accrued dividends to the date of redemption; provided, however, that no shares
of the Cumulative Preferred Stock, 4.80% Series, shall be redeemed prior to
February 28, 1963, through refunding, directly or indirectly, by or in
anticipation of the incurring of any debt by the Company or the issuance of any
class or series of Preferred Stock of the Company or any other stock of the
Company ranking prior to or on a parity with such Preferred Stock, if such debt
has an interest cost to the Company, or such shares have a dividend cost to the
Company (computed in each case in accordance with generally accepted financial
practice), less than 4.80% per annum. (This paragraph added by amendment
adopted January 20, 1958.)
Of the then unallotted shares of Cumulative Preferred Stock described in
Article VII hereof, 150,000 shares were on January 24, 1967, established and
designated by the Board of Directors as shares of "Cumulative Preferred Stock,
5.34% Series," the holders of which are entitled to receive in respect of each
share held, dividends at the rate of 5.34% per annum upon the par value thereof
payable quarter-yearly on January 20, April 20, July 20, and October 20, in
each year, when and as declared by the Board of Directors out of the surplus
profits of the Company, cumulative from the date of issue of said shares; and
said Cumulative Preferred Stock, 5.34% Series, or any part thereof may be
redeemed or retired at any time on the sole authority of the Board of Directors
and in the sole discretion of the Board upon the notice provided in Article VII
hereof with respect to redemption of stock and upon and by payment to the
holders of the shares of said Cumulative Preferred Stock, 5.34% Series, to be
redeemed, or upon or by setting aside as provided in Article VII hereof for the
benefit of such holders, (i) in case of redemption on or prior to February 28,
1974, of an amount equal to $108 per share, (ii) in case of redemption
subsequent to February 28, 1974, and on or prior to February 28, 1977, of an
amount equal to $105 per share, (iii) in case of redemption subsequent to
February 28, 1977, and on or prior to February 28, 1982, of an amount equal to
$103 per share, and (iv) in case of redemption subsequent to February 28, 1982,
of an amount equal to $101 per share, in each case plus accrued dividends to
the date of redemption; provided, however, that no shares of the Cumulative
Preferred Stock, 5.34% Series, shall be redeemed prior to February 28, 1974,
through refunding, directly or indirectly, by or in anticipation of the
incurring of any debt by the Company or the issuance of any class or series of
Preferred Stock of the Company or any other stock of the Company ranking prior
to or on a parity with such Preferred Stock, if such debt has an interest cost
to the Company, or such shares have a dividend cost to the Company (computed in
each case in accordance with generally accepted financial practice), less than
5.34% per annum. (This paragraph added by amendment adopted January 24, 1967.)
Of the then unallotted shares of $25 Preferred Stock described in Article
VII hereof, the Board of Directors on December 11, 1990, established a series
of $25 Preferred Stock in the amount and with the designation, voting powers,
preferences and relative, participating, optional or other special rights and
the qualifications, limitations or restrictions as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated "Series A Cumulative Preferred Stock" and the number of shares
constituting such series shall be 1,000,000. Shares of Series A Cumulative
Preferred Stock shall have a par value of $25 per share.
Section 2. DIVIDENDS AND DISTRIBUTIONS. (A) Each holder of Series A
Cumulative Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for that
purpose: (i) quarterly dividends payable in cash on January 20, April 20, July
20 and October 20 in each year (each such date being a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of such share of Series A Cumulative Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a)
$5.00 or (b) subject to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends declared on shares
of the Common Stock of the Company, par value $2.50 per share (the "Common
Stock"), since the im-
14
<PAGE> 15
mediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of a share of
Series A Cumulative Preferred Stock, and (ii) subject to the provision for
adjustment hereinafter set forth, quarterly distributions (payable in kind) on
each Quarterly Dividend Payment Date in an amount per share equal to 100 times
the aggregate per share amount of all non-cash dividends or other distributions
(other than a dividend payable in shares of Common Stock or a subdivision of
the outstanding shares of Common Stock, by reclassification or otherwise)
declared on shares of Common Stock since the immediately preceding Quarterly
Dividend Payment Date, or with respect to the first Quarterly Dividend Payment
Date, since the first issuance of a share of Series A Cumulative Preferred
Stock. If the Quarterly Dividend Payment Date is a Saturday, Sunday or legal
holiday, then such Quarterly Dividend Payment Date shall be the first
immediately preceding calendar day which is not a Saturday, Sunday or legal
holiday. In the event that the Company shall at any time after December 11,
1990 (the "Rights Declaration Date") (i) declare any dividend on outstanding
shares of Common Stock payable in shares of Common Stock, (ii) subdivide
outstanding shares of Common Stock, or (iii) combine outstanding shares of
Common Stock into a smaller number of shares, then in each such case, the
amount to which the holder of a share of Series A Cumulative Preferred Stock
was entitled immediately prior to such event pursuant to the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator of
which shall be the number of shares of Common Stock that are outstanding
immediately after such event, and the denominator of which shall be the number
of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The Company shall declare a dividend or distribution on shares of
Series A Cumulative Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the shares of
Common Stock (other than a dividend payable in shares of Common Stock);
provided, however, that, in the event no dividend or distribution shall have
been declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date,
a dividend of $5.00 per share on the Series A Cumulative Preferred Stock shall
nevertheless by payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and shall be cumulative on each
outstanding share of Series A Cumulative Preferred Stock from the date of
issuance of such share of Series A Cumulative Preferred Stock. Accrued but
unpaid dividends shall not bear interest.
(D) Dividends payable on the Series A Cumulative Preferred Stock for the
initial dividend period and for any period less than a full quarterly period,
shall be computed on the basis of a 360-day year of 30-day months.
Section 3. VOTING RIGHTS. Except as provided in Article VII, Section
(4)(C), Section (5) and Section (7)(f) of the Restated Certificate of
Incorporation and as expressly provided by law, the holders of shares of Series
A Cumulative Preferred Stock shall have no voting rights.
Section 4. REACQUIRED SHARES. Any shares of Series A Cumulative Preferred
Stock purchased or otherwise acquired by the Company in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but unissued
Cumulative Preferred Stock, par value $25 per share, and may be reissued as
part of a new series of Cumulative Preferred Stock, par value $25 per share,
subject to the conditions and restrictions on issuance set forth in the
Restated Certificate of Incorporation of the Company creating a series of
Cumulative Preferred Stock, par value $25 per share, or any similar shares or
as otherwise required by law.
Section 5. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any voluntary or
involuntary liquidation, dissolution or winding up of the Company, no
distribution shall be made to the holders of the Common Stock unless the
holders of Series A Cumulative Preferred Stock shall have received the amounts
set forth in Article VII, Section (2) of the Restated Certificate of
Incorporation.
Section 6. CONSOLIDATION, MERGER, ETC. In case the Company shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or converted into other stock or
securities, cash and/or any other property, then in any such case, each share
of Series A Cumulative Preferred Stock shall at the same time be similarly
exchanged for or converted into an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 100 times the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is converted or
exchanged. In the event the Company shall at any time after the Rights
Declaration Date (i) declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock, or (iii) combine outstanding shares of Common Stock into a smaller
number of shares, then in each such case, the amount set forth in the
immediately preceding sentence with respect to the exchange or conversion of
shares of Series A Cumulative Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which shall be the number of shares
of Common Stock that are outstanding immediately after such event, and the
denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. REDEMPTION. The shares of Series A Cumulative Preferred Stock
shall be redeemable at any time in whole and not in part on the sole authority
of the Board of Directors and in the sole discretion of the Board upon the
notice provided in Article VII of the Restated Certificate of Incorporation
with respect to redemption of stock and upon payment to the holders of the
shares of said Series A Cumulative Preferred Stock to be redeemed, or upon or
by setting aside as provided in said Article VII for the benefit of such
holders:
(A) in case of redemption on a date other than the date of the
voluntary liquidation, dissolution or winding up of the Company within the
meaning of Article VII, Section (2) of the Restated Certificate of
Incorporation, an amount equal to $9,500 per
15
<PAGE> 16
share plus accrued dividends to the date of such redemption; or
(B) in case of redemption on the date of the voluntary liquidation,
dissolution or winding up of the Company within the meaning of said Article
VII, Section (2), an amount per share equal to 100 times the aggregate per
share amount to be distributed to holders of shares of Common Stock upon
such voluntary liquidation, dissolution or winding up of the Company.
In the event the Company shall at any time after December 11, 1990, (i)
declare any dividend on outstanding shares of Common Stock payable in shares of
Common Stock, (ii) subdivide outstanding shares of Common Stock, or (iii)
combine outstanding shares of Common Stock into a smaller number of shares,
then in each such case, the aggregate amount to which holders of Series A
Cumulative Preferred Stock were entitled immediately prior to such event
pursuant to clause (B) of this Section 7 shall be adjusted by multiplying such
amount by a fraction, the numerator of which shall be the number of shares of
Common Stock that are outstanding immediately after such event, and the
denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. FRACTIONAL SHARES. The Series A Cumulative Preferred Stock may
be issued in fractions of a share, which fractions shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions, and to have the benefit of all
other rights of holders of Series A Cumulative Preferred Stock. (The
immediately preceding thirteen paragraphs were added by amendment adopted
December 11, 1990.)
XIII.
A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts of
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 1053 of the Oklahoma General
Corporation Act, or (iv) for any transaction from which the director derived
any improper personal benefit. If the Oklahoma General Corporation Act is
amended after approval by the stockholders of this Article to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the corporation shall be
eliminated or limited to the fullest extent permitted by the Oklahoma General
Corporation Act, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the corporation shall not adversely affect any right or protection of a
director of the corporation existing at the time of such repeal or
modification. (This article added by amendment adopted May 19, 1988.)
XIV.
A. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director, officer or employee of the corporation or is or was serving at the
request of the corporation as a director, officer of employee of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or employee or in any other capacity
while serving as a director, officer of employee, shall be indemnified and held
harmless by the corporation to the fullest extent authorized by the Oklahoma
General Corporation Act, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such amendment
permits the corporation to provide broader indemnification rights than such law
permitted the corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred
or suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer or
employee and shall inur to the benefit of the indemnitee's heirs, executor and
administrators; provided, however, that, except as provided in Section B of
this Article XIV with respect to proceedings to enforce rights to
indemnification, the corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the corporation. Any person who is or was a director or officer
of a subsidiary of the corporation shall be deemed to be serving in such
capacity at the request of the corporation for purposes of this Article XIV.
The right to indemnification conferred in this Article shall include the right
to be paid by the corporation the expenses incurred in defending any such
proceeding in advance of its final disposition (hereinafter an "advancement of
expenses"); provided, however, that, if the Oklahoma General Corporation Act
requires, an advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation,
service with respect to an employee benefit plan) shall be made only upon
delivery to the corporation of an undertaking (hereinafter an "undertaking"),
by or on behalf of such indemnitee, to repay all amounts so advanced if it
shall ultimately be determined by final judicial decision from which there is
no further right to appeal (hereinafter, a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Article or otherwise. The rights to indemnification and advancement of
expenses conferred in this Section A shall be a contract right.
B. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section A of the
Article XIV is not paid in full by the corporation within sixty days after a
written claim has been received by the corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty days, the indemnitee may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the
16
<PAGE> 17
claim. If successful in whole or in part in any such suit or in a suit brought
by the corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the indemnitee also shall be entitled to be paid the expense
of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and in (ii) any suit by the corporation to recover an
advancement of expenses pursuant to the terms of an undertaking the corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met the applicable standard of conduct set forth in the
Oklahoma General Corporation Act. Neither the failure of the corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Oklahoma General Corporation Act, nor an actual determination by the
corporation (including its Board of Directors, independent legal counsel, or
its stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee
to enforce a right to indemnification or to an advancement of expenses
hereunder, or by the corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the burden of proving that the indemnitee is
not entitled to be indemnified or to such advancement of expenses under this
Article XIV or otherwise shall be on the corporation.
C. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to the
advancement of expenses conferred in this Article XIV shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, these Articles of Incorporation, any By-law, any agreement, any vote
of stockholders or disinterested directors or otherwise.
D. INSURANCE. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense, liability or loss
under the Oklahoma General Corporation Act.
E. INDEMNIFICATION OF AGENTS. The corporation may, to the extent
authorized from time to time by the Board of Directors, grant rights to
indemnification and to the advancement of expenses to any agent of the
corporation and to any person serving at the request of the corporation as an
agent of another corporation or of a partnership, joint venture, trust or other
enterprise to the fullest extent of the provisions of this Article XIV with
respect to the indemnification and advancement of expenses of directors,
officers and employees of the corporation.
F. REPEAL OR MODIFICATION. Any repeal or modification of any provision of
this Article XIV by the stockholders of the corporation shall not adversely
affect any rights to indemnification and to advancement of expenses that any
person may have at the time of such repeal or modification with respect to any
acts or omissions occurring prior to such repeal or modification. (This
article added by amendment adopted May 19, 1988.)
17
<PAGE> 18
____________________________________________
This Restated Certificate of Incorporation of Oklahoma Gas and Electric
Company was duly adopted in accordance with the provisions of 18 O.S. 1080 by
the Board of Directors of said corporation without a vote of shareholders.
This Restated Certificate of Incorporation only restates and integrates and
does not further amend the provisions of the certificate of incorporation of
Oklahoma Gas and Electric Company as amended or supplemented to the date hereof
and there is no discrepancy between those provisions and the provisions of this
Restated Certificate.
____________________________________________
IN WITNESS WHEREOF, Oklahoma Gas and Electric Company has caused this
Restated Certificate of Incorporation to be duly executed by its President and
attested by its Secretary this 16th day of July, 1991.
OKLAHOMA GAS AND ELECTRIC COMPANY
By:
------------------------------
President
James G. Harlow, Jr.
---------------------------------
(Please Print Name)
ATTEST:
By:
-----------------------------------
Secretary
Irma B. Elliott
--------------------------------------
(Please Print Name)
STATE OF OKLAHOMA
SS.
COUNTY OF OKLAHOMA
Before me, Jimmye Coachman, a Notary Public in and for said County and
State, on this 16th day of July, 1991, personally appeared James G. Harlow, Jr.,
President, and Irma B. Elliott, Secretary of Oklahoma Gas and Electric Company,
known to me to be the identical persons who subscribed the written and
foregoing instrument and severally acknowledged to me that they executed the
same as their free and voluntary act and deed on behalf of Oklahoma Gas and
Electric Company, for their uses and purposes therein set forth, and that the
facts stated herein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year first above written.
Notary Public
SEAL
My Commission expires:
May 10, 1994
18
<PAGE> 19
<TABLE>
<S> <C> <C>
FEE: $50.00
(MINIMUM)
AMENDED
CERTIFICATE OF INCORPORATION
FILE IN DUPLICATE (AFTER RECEIPT OF PAYMENT OF STOCK)
PRINT CLEARLY
SOS CORP. KEY: FOR OFFICE USE ONLY
</TABLE>
PLEASE NOTE: This form MUST be filed with a letter from the Oklahoma Tax
Commission stating the franchise tax has been paid for the current fiscal year.
If the authorized capital is increased in excess of fifty thousand dollars
($50,000.00), the filing fee shall be an amount equal to one-tenth of one
percent (1/10 of 1%) of such increase.
TO THE SECRETARY OF STATE OF THE STATE OF OKLAHOMA, 101 State Capitol Bldg.,
Oklahoma City, OK 73105:
The undersigned Oklahoma corporation, for the purpose of amending its
certificate of incorporation as provided by Section 1077 of the Oklahoma
General Corporation Act, hereby certifies:
<TABLE>
<S> <C> <C>
1. A. The name of the corporation is: Oklahoma Gas and Electric
Company
B. As amended: The name of the corporation has been changed to:
--------------------------------------------------------------------------------
2. A. No change, as filed
B. As amended: The address of the registered office in the State
of Oklahoma and the name of the registered agent at such
address is:
Ms. Irma B. Elliott 101 North Robinson Oklahoma City Oklahoma 73101
--------------------------------------------------------------------------------
NAME STREET ADDRESS CITY COUNTY ZIP CODE
(P.O. BOXES ARE NOT ACCEPTABLE)
3. A. No Change, as filed 7/18/91
B. As amended: The duration of the corporation is:________________
4. A. No change, as filed 7/18/91
B. As amended: The purpose or purposes for which the corporation
is formed are:
5. A. No change, as filed ________________.
B. As amended: The aggregate number of the authorized shares,
itemized by class, par value of shares, shares without par
value, and series, if any, within a class is:
</TABLE>
<TABLE>
<S> <C> <C>
NUMBER OF SHARES SERIES PAR VALUE PER SHARE
Common______________________ ______________________
Preferred___________________ ______________________
TOTAL NO. SHARES:___________ TOTAL AUTHORIZED CAPITAL:____________
</TABLE>
PLEASE SEE ATTACHMENT A FOR AMENDMENTS.
<PAGE> 20
That at a meeting of the Board of Directors, a resolution was duly
adopted setting forth the foregoing proposed amendment(s) to the Certificate of
Incorporation of said corporation, declaring said amendment(s) to be advisable
and calling a meeting of the shareholders of said corporation for consideration
thereof.
That thereafter, pursuant to said resolution of its Board of
Directors, a meeting of the shareholders of said corporation was duly called
and held, at which meeting the necessary number of shares as required by
statute were voted in favor of the amendment(s).
SUCH AMENDMENT(S) WAS DULY ADOPTED IN ACCORDANCE WITH 18 O.S., Section
1077.
IN WITNESS WHEREOF, said corporation has caused this certificate to be
signed by its ____ President and attested by its ______ Secretary, this 21st day
of July 1995.
By /s/ STEVEN E. MOORE, President
----------------------------------------
Steven E. Moore
----------------------------------------
(PLEASE PRINT NAME)
ATTEST:
/s/ IRMA B. ELLIOTT, Secretary
----------------------------------------
Irma B. Elliott
----------------------------------------
(PLEASE PRINT NAME)
<PAGE> 21
ATTACHMENT A
Section (5) of Article VII of the Restated Certificate of Incorporation of
Oklahoma Gas and Electric Company is hereby amended so as to read in its
entirety as follows:
(5) So long as any shares of the Preferred Stock, Cumulative
Preferred Stock, or $25 Preferred Stock are outstanding, the
corporation shall not, without the affirmative vote, given at a
stockholders' meeting whereat the Preferred Stock shall vote
separately as a class, the Cumulative Preferred Stock shall vote
separately as a class, and the $25 Preferred Stock shall vote
separately as a class, or written consent of the record holders of a
majority of the total number of shares of the Preferred Stock, a
majority of the total number of shares of Cumulative Preferred Stock
and a majority of the total number of shares of $25 Preferred Stock,
then outstanding merge or consolidate with any other corporation or
corporations or sell all or substantially all of the assets of the
corporation unless such merger, consolidation or sale or the issue or
assumption of all securities to be issued or assumed in connection
therewith shall have been ordered, approved or permitted by a
commission or regulatory authority of the United States of America, or
a state thereof, then having jurisdiction in the premises.
No such vote or consent of the holders of any shares of the
Preferred Stock, Cumulative Preferred Stock, or $25 Preferred Stock
shall be required, however, if, at or prior to such consolidation,
merger or sale, provision is made for the redemption or other
retirement of such shares.
The provisions set forth in the foregoing Section (4) and in
this Section (5) of this Article VII are in addition to any other vote
required by any provision of the Amended Articles of Incorporation or
applicable statute and shall be so construed.
<PAGE> 1
EXHIBIT 23.01
CONSENT
As independent public accountants, we hereby consent to the
incorporation by reference in this Amendment No. 1 to Registration Statement
of our reports dated January 26, 1995, included in the Oklahoma Gas and
Electric Company Form 10-K for the year ended December 31, 1994 and to all
references to our Firm included in this Registration Statement No. 33-59805.
ARTHUR ANDERSEN LLP
Oklahoma City, Oklahoma
August 16, 1995
