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EXHIBIT 1.01
OKLAHOMA GAS AND ELECTRIC COMPANY
(an Oklahoma corporation)
$110,000,000 7.125% Senior Notes, Series due October 15, 2005
PURCHASE AGREEMENT
Dated: October 18, 2000
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TABLE OF CONTENTS
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PAGE
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PURCHASE AGREEMENT.................................................................................................1
SECTION 1. Representations and Warranties.............................................................3
(a) Representations and Warranties by the Company..............................................3
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS.......................................3
(ii) INCORPORATED DOCUMENTS..........................................................4
(iii) INDEPENDENT ACCOUNTANTS.........................................................4
(iv) FINANCIAL STATEMENTS............................................................4
(v) NO MATERIAL ADVERSE CHANGE......................................................4
(vi) GOOD STANDING OF THE COMPANY....................................................5
(vii) NO SUBSIDIARIES.................................................................5
(viii) CAPITALIZATION..................................................................5
(ix) AUTHORIZATION OF AGREEMENT......................................................5
(x) AUTHORIZATION OF THE INDENTURE..................................................5
(xi) AUTHORIZATION OF THE SENIOR NOTES...............................................5
(xii) DESCRIPTION OF THE SENIOR NOTES AND THE INDENTURE...............................5
(xiii) ABSENCE OF DEFAULTS AND CONFLICTS...............................................6
(xiv) ABSENCE OF PROCEEDINGS..........................................................6
(xv) ACCURACY OF EXHIBITS............................................................6
(xvi) REGULATORY APPROVALS; ABSENCE OF FURTHER REQUIREMENTS...........................7
(xvii) POSSESSION OF LICENSES AND PERMITS..............................................7
(xviii) TITLE TO PROPERTY...............................................................7
(b) Officer's Certificates.....................................................................8
SECTION 2. Sale and Delivery to Underwriters; Closing.................................................8
(a) Senior Notes...............................................................................8
(b) Payment....................................................................................8
(c) Denominations; Registration................................................................8
SECTION 3. Covenants of the Company...................................................................9
(a) Compliance with Securities Regulations and Commission Requests.............................9
(b) Filing of Amendments.......................................................................9
(c) Delivery of Registration Statements........................................................9
(d) Delivery of Prospectuses..................................................................10
(e) Continued Compliance with Securities Laws.................................................10
(f) Rule 158..................................................................................10
(g) Use of Proceeds...........................................................................10
(h) Restriction on Sale of Securities.........................................................10
SECTION 4. Payment of Expenses.......................................................................11
(a) Expenses..................................................................................11
(b) Termination of Agreement..................................................................11
SECTION 5. Conditions of Underwriters' Obligations...................................................11
(a) Effectiveness of Registration Statement; Filing of Prospectus.............................11
(b) Opinions of Counsel for Company...........................................................11
(i) OPINION OF OKLAHOMA COUNSEL....................................................12
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TABLE OF CONTENTS
(Continued)
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(ii) OPINION OF ARKANSAS COUNSEL....................................................14
(iii) OPINION OF GARDNER, CARTON & DOUGLAS...........................................14
(c) Opinion of Counsel for Underwriters.......................................................15
(d) Officers' Certificate.....................................................................15
(e) Accountants' Comfort Letter...............................................................16
(f) Bring-down Comfort Letter.................................................................16
(g) Maintenance of Rating.....................................................................16
(h) Additional Documents......................................................................16
(i) Termination of Agreement..................................................................16
SECTION 6. Conditions of Company's Obligations.......................................................17
SECTION 7. Indemnification...........................................................................17
(a) Indemnification of Underwriters...........................................................17
(b) Indemnification of Company, Directors and Officers........................................18
(c) Actions against Parties; Notification.....................................................18
(d) Settlement without Consent if Failure to Reimburse........................................19
SECTION 8. Contribution..............................................................................19
SECTION 9. Representations, Warranties and Agreements to Survive Delivery............................21
SECTION 10. Termination of Agreement..................................................................21
(a) Termination; General......................................................................21
(b) Liabilities...............................................................................21
SECTION 11. Default by One or More of the Underwriters................................................21
SECTION 12. Notices...................................................................................22
SECTION 13. Parties...................................................................................22
SECTION 14. Governing Law and Time....................................................................23
SECTION 15. Effect of Headings........................................................................23
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SCHEDULES
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Schedule A -- List of Underwriters.......................................................................Sch. A-1
Schedule B -- Pricing Information........................................................................Sch. B-1
Schedule C -- Information Provided by Underwriters.......................................................Sch. C-1
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OKLAHOMA GAS AND ELECTRIC COMPANY
(AN OKLAHOMA CORPORATION)
$110,000,000
7.125% SENIOR NOTES, SERIES DUE OCTOBER 15, 2005
PURCHASE AGREEMENT
October 18, 2000
To: Lehman Brothers Inc.
A. G. Edwards & Sons, Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Ladies and Gentlemen:
Oklahoma Gas and Electric Company, an Oklahoma corporation (the
"Company"), confirms its agreement with Lehman Brothers Inc. (the
"Representative"), A.G. Edwards & Sons, Inc. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated (collectively, with the Representative, the "Underwriters,"
which term includes any underwriter substituted as hereinafter provided in
Section 11 hereof), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth in Schedule A hereto of $110,000,000
aggregate principal amount of the Company's 7.125% Senior Notes, Series due
October 15, 2005 (the "Senior Notes"). The Senior Notes are to be issued
pursuant to the Indenture dated as of October 1, 1995 between the Company and
The Bank of New York, as successor trustee (the "Trustee"), as heretofore
amended and supplemented and as amended and supplemented by Supplemental
Indenture No. 4, dated as of October 15, 2000, creating the series in which the
Senior Notes are to be issued. The term "Indenture," as used herein, means such
Indenture dated as of October 1, 1995, as so amended and supplemented, and
includes the Company Order (as defined in the Indenture), if any, establishing
the form and terms of the Senior Notes pursuant to the Indenture.
The Company understands that the Underwriters propose to make a public
offering of the Senior Notes as soon as they deem advisable after this Agreement
has been executed and delivered and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-47598) covering the
registration
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of the Senior Notes under the Securities Act of 1933, as amended (the "1933
Act"), including the related preliminary prospectus or prospectuses. Promptly
after execution and delivery of this Agreement, the Company will either (i)
prepare and file a prospectus in accordance with paragraph (b) of Rule 424
("Rule 424(b)") of the rules and regulations of the Commission under the 1933
Act (the "1933 Act Regulations") or (ii) if the Company elects to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the case may
be, that was omitted from such registration statement at the time it became
effective is referred to as the "Offering Terms." Each prospectus used before
such registration statement became effective, and any prospectus that omitted
the Offering Terms, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto,
schedules thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became
effective and including the Offering Terms, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the 1933
Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus, including
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the form first furnished to the Underwriters for use in
connection with the offering of the Senior Notes is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to the
preliminary prospectus dated October 16, 2000, together with the Term Sheet, and
all references in this Agreement to the date of the Prospectus shall mean the
date of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time (as defined in Section 2(b) hereof), and agrees with each
Underwriter, as follows:
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(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time, the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations"), and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment
or supplement was issued and at the Closing Time, included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this
subsection shall not apply to (A) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee
or (B) statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with the information
furnished to the Company in writing by any Underwriter through the
Representative expressly for use in the Registration Statement or
Prospectus, which information is set forth on Schedule C hereto.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 of the 1933 Act
Regulations ("Rule 424"), complied when so filed in all material
respects with the 1933 Act Regulations, and each preliminary prospectus
and the Prospectus delivered to the Underwriters for use in connection
with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents
incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations or the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations"), as applicable,
and, when read together with the other information in the Prospectus,
at the time the Registration Statement became effective,
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at the time the Prospectus was issued and at the Closing Time, did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(iii) INDEPENDENT ACCOUNTANTS. Arthur Andersen LLP,
the accountants who examined the financial statements and supporting
schedules included in the Registration Statement, are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements
included in the Registration Statement and the Prospectus, together
with the related schedules and notes, present fairly the financial
position of the Company at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved, except
as otherwise stated in the notes thereto. The supporting schedules, if
any, included in the Registration Statement present fairly in
accordance with GAAP the information required to be stated therein. The
selected financial information included in the Prospectus presents
fairly the information shown therein and has been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement. The Company has no material contingent
obligation which is not disclosed in the Prospectus.
(v) NO MATERIAL ADVERSE CHANGE. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, results of operations, properties,
business affairs or business prospects of the Company, whether or not
arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the
Company, other than those in the ordinary course of business, which are
material with respect to the Company, and (C) except for regular
quarterly dividends on the Common Stock, par value $2.50 per share, of
the Company in amounts consistent with past practice, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has
been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Oklahoma and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect.
(vii) NO SUBSIDIARIES. The Company has no
subsidiaries.
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(viii) CAPITALIZATION. The authorized, issued and
outstanding capital stock of the Company is as stated in the
Prospectus.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has
been duly authorized, executed and delivered by the Company.
(x) AUTHORIZATION OF THE INDENTURE. The Indenture
has been duly authorized by the Company and duly qualified under the
1939 Act and, when duly executed and delivered by the Company and the
Trustee, will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xi) AUTHORIZATION OF THE SENIOR NOTES. The Senior
Notes have been duly authorized and, at the Closing Time, will have
been duly executed by the Company and, when authenticated, issued and
delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this
Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law),
and will be in the form contemplated by, and entitled to the benefits
provided by, the Indenture.
(xii) DESCRIPTION OF THE SENIOR NOTES AND THE
INDENTURE. The Senior Notes and the Indenture will conform in all
material respects to the respective statements relating thereto
contained in the Prospectus and will be in substantially the respective
forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(xiii) ABSENCE OF DEFAULTS AND CONFLICTS. The Company
is not in violation of its Restated Certificate of Incorporation or
By-Laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which it is a party or by
which it may be bound, or to which any of its property or assets is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the Indenture
and the Senior Notes, and the consummation of the transactions
contemplated herein and in the Registration Statement (including the
issuance and sale of the Senior Notes and the use of the proceeds from
the sale of the Senior Notes as described in the Prospectus under the
caption "Use of Proceeds") and compliance by the Company with its
obligations
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hereunder and under the Indenture and the Senior Notes have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the Restated Certificate
of Incorporation or By-Laws of the Company or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its assets, properties
or operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company, other than such events
or conditions that are contemplated by the terms of this Agreement and
the Indenture.
(xiv) ABSENCE OF PROCEEDINGS. Other than as
disclosed in the Registration Statement, there is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company, which is required to be disclosed in the Registration
Statement or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect its properties or assets or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder. The aggregate of all pending
legal or governmental proceedings to which the Company is a party or of
which any of its property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Effect.
(xv) ACCURACY OF EXHIBITS. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xvi) REGULATORY APPROVALS; ABSENCE OF FURTHER
REQUIREMENTS. The Corporation Commission of the State of Oklahoma (the
"Oklahoma Commission") has, to the extent necessary, duly authorized
the issuance and sale of the Senior Notes on terms consistent with this
Agreement. No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection
with the offering, issuance or sale of the Senior Notes hereunder or
the consummation of the transactions contemplated by this Agreement and
the Registration Statement or for the due execution, delivery or
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performance of the Indenture by the Company, except such as have been
already obtained, including from the Oklahoma Commission.
(xvii) POSSESSION OF LICENSES AND PERMITS. The Company
possesses such permits, licenses, approvals, consents and other
authorizations issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct in all
material respects the business now operated by it and as described in
the Registration Statement and Prospectus (collectively, "Governmental
Licenses"); the Company is in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to
comply would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are in full force and effect,
except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and the Company has not
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xviii) TITLE TO PROPERTY. The Company has good and
sufficient title to all real property, principal plants and all other
property owned by it and which is material to the Company's operations,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (a) are described in the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company; and all of the leases and subleases material to the
business of the Company, and under which the Company holds properties
described in the Prospectus, are in full force and effect, and the
Company does not have notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of the Company under any
of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company to the continued possession of the leased or
subleased premises under any such lease or sublease.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company and delivered to any Underwriter or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(a) SENIOR NOTES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the principal amount of Senior Notes set
forth in Schedule A opposite the name of such Underwriter, plus any additional
principal amount of Senior Notes which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 11 hereof.
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(b) PAYMENT. Payment of the purchase price, and delivery of
certificates, for the Senior Notes shall be made at the offices of Gardner,
Carton & Douglas, Chicago, Illinois, or at such other place as shall be agreed
upon by the Representative and the Company, at 9:00 A.M. (Chicago time) on the
third business day after the date hereof (unless postponed in accordance with
the provisions of Section 11), or such other time not later than ten business
days after such date as shall be agreed upon by the Representative and the
Company (such time and date of payment and delivery being herein called "Closing
Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative for the respective accounts of the Underwriters of
certificates for the Senior Notes to be purchased by them. It is understood that
each Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Senior
Notes which it has agreed to purchase. The Representative, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Senior Notes to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(c) DENOMINATIONS; REGISTRATION. One certificate for the Senior Notes
shall be in the amount of $110,000,000 and registered in the name of Cede & Co.,
as nominee of The Depository Trust Company. The Company will make the Senior
Notes, which may be in temporary form, available for examination and packaging
by the Underwriters in New York, New York not later than 10:00 A.M. (New York
time) on the business day prior to the Closing Time.
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants with each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 3(b), will comply with the requirements of Rule 424
or Rule 434, as applicable, and will notify the Underwriters immediately, and
confirm the notice in writing, (i) of the effectiveness of any post-effective
amendment to the Registration Statement, or of the filing of any supplement to
the Prospectus or any amended Prospectus, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Senior Notes for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The
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Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Underwriters notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, will furnish the Representative with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Representative or counsel for the Underwriters reasonably objects.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, in such number as the Representative reasonably requests, and will also
deliver to the Representative, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the
completion of the distribution of the Senior Notes as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Senior Notes, any
event occurs or condition exists as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it is necessary, in
the opinion of such counsel, at any such time to amend the Registration
Statement or amend or
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supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) RULE 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(g) USE OF PROCEEDS. The Company will use the net proceeds received by
it from the sale of the Senior Notes in the manner specified in the Prospectus
under "Use of Proceeds."
(h) RESTRICTION ON SALE OF SECURITIES. During the period beginning on
the date of this Agreement and continuing until the Closing Time, which period
shall in no event exceed 15 business days, the Company will not, without the
prior written consent of the Representative, in its sole discretion, directly or
indirectly, issue, sell, offer or contract to sell, grant any option for the
sale of, or otherwise transfer or dispose of, any debt securities of the Company
which mature more than one year after the Closing Time and which are
substantially similar to the Senior Notes.
SECTION 4. PAYMENT OF EXPENSES
(a) EXPENSES. Whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, the Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters, the Indenture,
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Senior Notes, (iii) all costs, taxes
and expenses incident to the preparation, issuance and delivery of the Senior
Notes to the Underwriters, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectus and any amendments or supplements thereto, (vi) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Senior Notes and (vii) any fees
payable in connection with the rating of the Senior Notes.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5, Section 6 or
Section 10(a)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
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SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS
The obligations of the several Underwriters hereunder are subject to
the accuracy of the representations and warranties of the Company contained in
Section 1 hereof and in certificates of any officer of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder and to the following further
conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT; FILING OF PROSPECTUS. The
Registration Statement, including any Rule 462(b) Registration Statement, has
become effective, and at Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Offering Terms shall have been filed
with the Commission in accordance with Rule 424(b) or, if the Company has
elected to rely upon Rule 434, a Term Sheet shall have been filed with the
Commission in accordance with Rule 424(b).
(b) OPINIONS OF COUNSEL FOR COMPANY. At Closing Time, the
Representative shall have received the favorable opinions, dated as of Closing
Time, of Rainey, Ross, Rice & Binns, Oklahoma City, Oklahoma, Chisenhall,
Nestrud & Julian, P.A., Little Rock, Arkansas, and Gardner, Carton & Douglas,
Chicago, Illinois, each counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed original or
reproduced copies of such opinions for each of the other Underwriters to the
effect set forth below and to such further effect as counsel to the Underwriters
may reasonably request.
(i) OPINION OF OKLAHOMA COUNSEL.
(A) the Company is a legally existing corporation and
is in good standing under the laws of the State of Oklahoma
and has corporate power, right and authority to do business
and to own property in the State of Oklahoma in the manner and
as set forth in the Prospectus;
(B) the Indenture has been duly and validly executed
and delivered by the Company, which has full power and
authority to enter into and perform its obligations
thereunder; and the Indenture constitutes the binding and
enforceable agreement of the Company in accordance with its
terms, except as enforcement of provisions of the Indenture
may be limited by bankruptcy or other applicable laws
affecting the enforcement of creditors' rights;
(C) the Senior Notes are in the form contemplated by
the Indenture, have been duly and validly authorized by the
Company, constitute valid and binding obligations of the
Company and will be entitled to the benefits of the Indenture;
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(D) while, except as otherwise stated in said
opinion, such counsel are not passing upon and do not assume
responsibility for and shall not be deemed to have
independently verified the accuracy, completeness or fairness
of the Registration Statement or the Prospectus, nothing has
come to the attention of such counsel that would lead them to
believe that the Registration Statement at the time it became
effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus at the time it was filed pursuant to Rule
424 and/or Rule 434 under the 1933 Act or at the Closing Time
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(E) the execution and delivery of this Agreement have
been duly authorized by the necessary action on the part of
the Company and this Agreement constitutes the valid and
binding agreement of the Company except to the extent that the
provisions for indemnities or contribution may be held to be
unenforceable as against public policy;
(F) except in localities where the Company has no
franchises, which are relatively few and not of large
population, or where the failure to have such franchises will
not have a material adverse effect on the business or
operations of the Company, the Company has sufficient
authority under statutory provisions or by grant of franchises
or permits by municipalities or counties to conduct its
business in Oklahoma as presently conducted and as described
in the Prospectus;
(G) such counsel does not know of any legal or
governmental proceedings required to be described in the
Prospectus which are not described as required, nor of any
contracts or documents of a character required to be described
in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required;
(H) the Indenture and the Senior Notes conform in all
material respects to the statements concerning them in the
Prospectus;
(I) all statements contained in the Registration
Statement and Prospectus purporting to set forth the advice or
the opinion of such counsel or to be based upon the opinion of
such counsel correctly set forth the opinion of such counsel
on such respective matters;
(J) the execution and delivery of this Agreement and
the issuance of the Senior Notes, and compliance with the
provisions thereof, under the circumstances contemplated
hereby and thereby, do not and will not violate the Restated
Certificate of Incorporation or By-Laws of the Company, or in
any material respect conflict with or constitute on the part
of the Company a breach of or default under any indenture,
lease, mortgage, deed of trust, note, agreement
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or other instrument known to such counsel to which the Company
is a party or any law, regulation, consent decree or
administrative, arbitration or court order known to such
counsel to which the Company is subject;
(K) the Oklahoma Commission has duly issued its order
authorizing the issuance by the Company of the Senior Notes on
terms consistent with this Agreement and, to the best of such
counsel's knowledge, such order is still in force and effect;
the issuance and sale of the Senior Notes to the Underwriters
is in conformity with the terms of such order; and no further
approval, authorization, consent, certificate or order of any
Oklahoma commission or regulatory authority is necessary with
respect to the due authorization, execution and delivery of
this Agreement, the due execution, delivery or performance of
the Indenture by the Company or for the offering, issuance,
sale or delivery of the Senior Notes to the Underwriters as
contemplated in this Agreement; and
(L) to the best of such counsel's knowledge, the
Company does not have any subsidiaries.
(ii) OPINION OF ARKANSAS COUNSEL.
(A) the Company is duly qualified as a foreign
corporation and is in good standing under the laws of the
State of Arkansas and has corporate power, right and authority
to do business and to own property in the State of Arkansas in
the manner and as set forth in the Prospectus;
(B) except in localities where the Company has no
franchises, which are relatively few and not of large
population, or where the failure to have such franchises will
not have a material adverse effect on the business or
operations of the Company, the Company has sufficient
authority under statutory provisions or by grant of franchises
or permits by municipalities or counties to conduct its
business in Arkansas as presently conducted and as described
in the Prospectus;
(C) No approval, authorization, consent, certificate
or order of the Arkansas Public Service Commission or any
other governmental or regulatory authority is necessary with
respect to the due authorization, execution and delivery of
this Agreement, the due execution, delivery or performance of
the Indenture by the Company or for the offering, issuance,
sale and delivery of the Senior Notes by the Company to the
Trustee as contemplated in this Agreement; and
(D) such counsel is not handling any litigation
relating to the Company except as set forth in a schedule
attached to such opinion.
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(iii) OPINION OF GARDNER, CARTON & DOUGLAS.
(A) such opinion shall cover the matters set forth in
subdivisions (A), (B), (C), (D), (E), (G), (H), (J) and (L) of
paragraph (b)(i) of this Section 5;
(B) the Registration Statement, including any Rule
462(b) Registration Statement, has become effective under the
1933 Act, the Prospectus has been filed pursuant to Rule
424(b) and/or Rule 434 of the 1933 Act Regulations, and, to
the best knowledge of said counsel, no proceedings for a stop
order in respect thereof are pending or threatened under
Section 8(d) or 8(e) of the 1933 Act;
(C) the Registration Statement, including any Rule
462(b) Registration Statement, the Offering Terms and the
Prospectus (except as to the financial statements and
financial or statistical data contained therein, with respect
to which said counsel need express no opinion) comply as to
form, in all material respects, with the requirements of the
1933 Act, the 1934 Act and the 1939 Act and the rules and
regulations of the Commission under such Acts; and the
documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus
(except as to the financial statements and financial or
statistical data contained therein, with respect to which said
counsel need express no opinion) as of their respective dates
of filing with the Commission complied as to form in all
material respects with the 1934 Act and the 1934 Act
Regulations;
(D) the Indenture has been qualified under the 1939
Act as and to the extent required by the provisions of the
1939 Act; and
(E) all approvals, authorizations, consents,
certificates or orders of any state or federal commission or
regulatory authority that are necessary with respect to the
issuance and sale of the Senior Notes by the Company as
contemplated in this Agreement have been obtained.
Such opinion may be subject to the reservation that,
in giving such opinion, said counsel has relied on the opinion
of Oklahoma counsel as to all matters of Oklahoma law and on
the opinion of Arkansas counsel as to all matters of Arkansas
law (including without limiting the foregoing all opinions as
to the validity and sufficiency of franchises and permits, and
the validity and sufficiency of the order described in
subdivision (K) of subsection (b)(i) of this Section 5 and the
lack of necessity of the order described in subdivision (C) of
subsection (b)(ii) of this Section 5), provided that such
opinion shall state that said counsel believes that the
Underwriters and they are justified in relying on the opinions
of Oklahoma counsel and of Arkansas counsel.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Jones, Day, Reavis & Pogue, Chicago, Illinois, counsel for the
Underwriters, together with signed original or reproduced
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copies of such letter for each of the other Underwriters with respect to such
matters related to the issuance and sale of the Senior Notes as the Underwriters
may reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon
such matters. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of
Illinois and the federal law of the United States, upon the opinions of Oklahoma
counsel, Arkansas counsel or other counsel satisfactory to the Underwriters.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, results of operations, properties, business
affairs or business prospects of the Company, whether or not arising in the
ordinary course of business, and the Underwriters shall have received a
certificate of the chief executive officer or a vice president of the Company
and of the chief financial or chief accounting officer of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in this Agreement are true and
correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to their knowledge, are contemplated by the
Commission.
(e) ACCOUNTANTS' COMFORT LETTER. At the time of the execution of this
Agreement, the Representative shall have received from Arthur Andersen LLP a
letter, dated such date, in form and substance satisfactory to the Underwriters,
together with signed original or reproduced copies of such letter for each of
the other Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the Representative
shall have received from Arthur Andersen LLP a letter, dated as of Closing Time,
together with signed original or reproduced copies of such letter for each of
the other Underwriters, to the effect that Arthur Andersen LLP reaffirms the
statements made in the letter furnished pursuant to subsection (f) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
(g) MAINTENANCE OF RATING. At Closing Time, the Senior Notes shall be
rated at least A1 by Moody's Investors Service, Inc. and A+ by Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc. Since the date
of this Agreement, there shall not have occurred a downgrading in the rating
assigned to any of the Company's securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall
have publicly announced that it has under surveillance or review its rating of
the Senior Notes or any of the Company's other securities.
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(h) ADDITIONAL DOCUMENTS. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Senior Notes as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Senior Notes as herein contemplated
shall be satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
(i) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company at any
time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 7, 8 and 9 shall survive any such termination and remain
in full force and effect.
In giving the opinions contemplated by paragraphs (b) and (c) of this
Section 5, counsel may rely upon certificates of state officials as to the
Company's good standing and upon certificates of officers of the Company as to
matters of fact relevant to such opinions. In giving such opinions, counsel may
assume (i) that the Senior Notes have been executed on behalf of the Company by
the manual or facsimile signatures of the President or a Vice President and the
Secretary or an Assistant Secretary of the Company and have been manually
authenticated by an authorized official of the Trustee, (ii) that the signatures
on all documents examined by them are genuine, and (iii) that the written
information supplied by the Underwriters expressly for use in the Registration
Statement or the Prospectus is adequate.
SECTION 6. CONDITIONS OF COMPANY'S OBLIGATIONS
The obligation of the Company to deliver the Senior Notes upon payment
therefor shall be subject to the following conditions:
At the Closing Time, (a) the order of the Oklahoma Commission referred
to in subparagraph (a)(xvi) of Section 1 hereof shall be in full force and
effect substantially in the form in which originally entered and (b) no stop
order suspending the effectiveness of the Registration Statement shall be in
effect and no proceedings for that purpose shall then be pending before, or
threatened by, the Commission.
In case any of the conditions specified above in this Section 6 shall
not have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Underwriters. Any such
termination shall be without liability of any party to any other party except to
the extent provided in Section 4 hereof.
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SECTION 7. INDEMNIFICATION
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Offering Terms, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with the written information furnished to the Company by
any Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto), including the Offering Terms, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), which information is set forth on Schedule C hereto. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Underwriter or to any controlling person of that
Underwriter.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the
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Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Offering Terms, or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with the written information furnished to the Company by such
Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), which information is set
forth on Schedule C hereto. The foregoing indemnity is in addition to any
liability which any Underwriter may otherwise have to the Company or any such
director, officer or controlling person.
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 7(a) above,
counsel to the indemnified parties shall be selected by the Representative, and,
in the case of parties indemnified pursuant to Section 7(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action; PROVIDED,
HOWEVER, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 or Section
8 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability (including
any obligation to pay any amounts in settlements) arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such
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indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 8. CONTRIBUTION
If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Senior Notes pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Senior
Notes pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Senior Notes
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet, bear to the aggregate initial public
offering price of the Senior Notes as set forth on such cover or corresponding
location, as the case may be.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
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Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Senior Notes underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are several in
proportion to the principal amount of Senior Notes set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Senior Notes to the Underwriters.
SECTION 10. TERMINATION OF AGREEMENT
(a) TERMINATION; GENERAL. The Underwriter may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any loss sustained by
the Company by strike, fire, flood, accident or other calamity of such character
as to interfere materially with the conduct of the business and operations of
the Company regardless of whether or not such loss shall have been insured, or
any material adverse change in the condition, financial or otherwise, or in the
earnings, results of operations, properties, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representative, impracticable to market the Senior Notes
or to enforce contracts for the sale of the Senior Notes, or (iii) if trading in
any securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially
20
<PAGE>
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been declared by either federal, New York or Oklahoma authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 7, 8 and 9 shall survive such termination and remain in full force and
effect.
SECTION 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
If one or more of the Underwriters fails at Closing Time to purchase
the Senior Notes which it or they are obligated to purchase under this Agreement
(the "Defaulted Senior Notes"), the remaining Underwriter or Underwriters will
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriter or underwriters, to
purchase all, but not less than all, of the Defaulted Senior Notes in such
amounts as may be agreed upon and upon the terms herein set forth; if, however,
the remaining Underwriter or Underwriters do not complete such arrangements
within such 24-hour period, then:
(a if the number of Defaulted Senior Notes does not exceed
10% of the aggregate principal amount of the Senior Notes to be
purchased hereunder, each of the non-defaulting Underwriters will be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b if the number of Defaulted Senior Notes exceeds 10% of the
aggregate principal amount of the Senior Notes to be purchased
hereunder, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section will relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the remaining Underwriter or Underwriters or the
Company will have the right to postpone Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 11.
21
<PAGE>
SECTION 12. NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to
Lehman Brothers Inc., 3 World Financial Center, 9th Floor, New York, New York
10285-0900, Attention: Debt Capital Markets; A.G. Edwards & Sons, Inc., One
North Jefferson Avenue, St. Louis, Missouri 63103, Attention: Lester Krone;
Merrill Lynch, Pierce, Fenner & Smith Incorporated, World Financial Center, 27th
Floor, 250 Vesey Street, North Tower, New York, New York 10281-1327, Attention:
Mary Ryan and Karl Newlin; each with a copy to Jones, Day, Reavis & Pogue, 77
West Wacker, Chicago, Illinois 60601, Attention: Robert A. Yolles, Esq. Notices
to the Company shall be directed to it at Oklahoma Gas and Electric Company, 321
North Harvey, P. O. Box 321, Oklahoma City, Oklahoma, Attention: President, with
a copy to Gardner, Carton & Douglas, Quaker Tower, Suite 3100, 321 North Clark
Street, Chicago, Illinois 60610, Attention: Peter D. Clarke, Esq.
SECTION 13. PARTIES
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF OKLAHOMA. Except as otherwise set forth herein,
specified times of day refer to New York City time.
SECTION 15. EFFECT OF HEADINGS
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
[This space intentionally left blank]
22
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
OKLAHOMA GAS AND ELECTRIC COMPANY
By: /s/ James R. Hatfield
--------------------------
Title: Senior Vice President and Chief Financial
Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
LEHMAN BROTHERS INC.
A.G. EDWARDS & SONS, INC.
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
BY: LEHMAN BROTHERS INC.
By: /s/ Allen Cutler
------------------------
Title: Managing Director
23
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Principal
Amount of
Name of Underwriter Senior Notes
---------------------------------------------------------------------------- -------------------
<S> <C>
Lehman Brothers Inc......................................................... $ 66,000,000
A.G. Edwards & Sons, Inc.................................................... 22,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated.......................... 22,000,000
-------------------
Total....................................................................... $110,000,000
===================
</TABLE>
Sch. A-1
<PAGE>
SCHEDULE B
OKLAHOMA GAS AND ELECTRIC COMPANY
$110,000,000 7.125% Senior Notes, Series due October 15, 2005
1. The initial public offering price of the Senior Notes is 99.443% of
the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Senior
Notes is 98.843% of the principal amount thereof.
3. The interest rate on the Senior Notes is 7.125% per annum.
4. The Company, at its option, may redeem on any date all or, from time
to time, any part of the Senior Notes at a redemption price equal to the greater
of (i) 100% of the principal amount of such Senior Notes to be redeemed and (ii)
the sum of the present values of the remaining scheduled payments of principal
and interest thereon from and after the date of redemption discounted to the
redemption date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined in the Indenture) plus 25
basis points, plus in each case accrued and unpaid interest thereon to the date
of redemption.
Sch. B-1
<PAGE>
SCHEDULE C
The information set forth below constitutes the only information
furnished to the Company by any Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or preliminary prospectus or
the Prospectus (or any amendment or supplement thereto):
The names of the Underwriters on the outside front cover page, outside
back cover page and in the first paragraph under the caption "UNDERWRITING" on
page S-5 of the Prospectus Supplement dated October 18, 2000 (the "Prospectus
Supplement") and the information in the third paragraph and the fifth paragraph
(excluding the first sentence of the fifth paragraph) under the caption
"UNDERWRITING" on page S-5 of the Prospectus Supplement.
Sch. C-1
