EXHIBIT 1.01
Preferred Securities
OGE ENERGY CAPITAL TRUST I
UNDERWRITING AGREEMENT
New York, New York
Dated the date set forth
In Schedule I hereto
To the Representatives
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
OGE Energy Capital Trust I, a Delaware statutory business trust (the
"Trust"), proposes to issue and sell to you and the other underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the aggregate liquidation amount
identified in Schedule I hereto of the Trust's preferred securities (the
"Preferred Securities") guaranteed (the "Guarantee"; together with the Preferred
Securities, the "Securities") by the Company (as defined herein) to the extent
set forth in the Guarantee Agreement (the "Guarantee Agreement") identified in
such Schedule I, to be entered into between the Company and the guarantee
trustee (the "Guarantee Trustee") identified therein. OGE Energy Corp., an
Oklahoma corporation (the "Company"), will be the owner of all of the beneficial
ownership interests represented by common securities (the "Common Securities")
of the Trust. Concurrently with the issuance of the Securities and the Company's
purchase of all of the Common Securities of the Trust, the Trust will invest the
proceeds of each in the Company's debt securities identified in Schedule I
hereto (the "Debentures"). The Debentures are to be issued under the indenture
(the "Indenture") identified in such Schedule I, between the Company and the
indenture trustee (the "Indenture Trustee") identified therein. If the firm or
firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives" shall
each be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to each Underwriter that:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations promulgated thereunder (the "Rules"), and
has carefully prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
Form S-3 (the file number of which is set forth in Schedule I hereto),
which has become effective, for the registration of the Securities
under the Securities Act. The registration statement, as amended at the
date of this Agreement, meets the requirements set forth in
Rule 415(a)(1)(x) under the Securities Act and complies in all other
material respects with such rule. The Company proposes to file with the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424") a
supplement to the form of prospectus included in the registration
statement relating to the initial offering of the Securities and the
plan of distribution thereof and has previously advised you of all
further information (financial and other) with respect to the Company
to be set forth therein. A second registration statement (the "462(b)
Registration Statement") may also be prepared by the Company in
conformity with the Securities Act and the Rules and Regulations and if
so prepared, will be filed with the Commission under the Securities Act
pursuant to Rule 462(b) of the Rules and Regulations on the date of
this Agreement. The term "Registration Statement" means the initial
registration statement and any 462(b) Registration Statement, as
amended at the date of this Agreement, including the exhibits thereto,
financial statements, and all documents incorporated therein by
reference pursuant to Item 12 of Form S-3 (the "Incorporated
Documents"), and such prospectus as then amended or supplemented,
including the Incorporated Documents, is hereinafter referred to as the
"Basic Prospectus"; and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to Rule
424 (including the Basic Prospectus as so supplemented), is hereinafter
called the "Final Prospectus." Any preliminary form of the Basic
Prospectus which has heretofore been filed pursuant to Rule 424 is
hereinafter called the "Interim Prospectus." Any reference herein to
the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus shall be deemed to refer to and
include the Incorporated Documents which were filed under the
Securities Exchange Act of 1934 (the "Exchange Act"), on or before the
date of this Agreement or the issue date of the Basic Prospectus, any
Interim Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Interim Prospectus or the Final Prospectus shall be deemed to refer to
and include the filing of any Incorporated Documents under the Exchange
Act after the date of this Agreement or the issue date of the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, as the case
may be, and deemed to be incorporated therein by reference.
(b) (i) As of the date hereof, (ii) when the Final Prospectus
is first filed with the Commission pursuant to Rule 424, (iii) when,
before the Closing Date (hereinafter defined), any amendment to the
Registration Statement becomes effective, (iv) when, before the Closing
Date, any Incorporated Document is filed with the Commission, (v) when
any supplement to the Final Prospectus is filed with the Commission and
(vi) at the Closing Date, the Registration Statement, the Final
Prospectus and any such amendment or supplement will comply in all
material respects with the applicable requirements of the Securities
Act and the Rules, and the Incorporated Documents will comply in all
material respects with the requirements of the Exchange Act or the
Securities Act, as applicable, and the rules and regulations adopted by
the Commission thereunder; on the date hereof and on the Closing Date,
the Indenture shall have been qualified under and will comply in
all material respects with the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"); on the date it became effective, the
Registration Statement did not, and, on the date that any
post-effective amendment to the Registration Statement becomes
effective, the Registration Statement as amended by such post-effective
amendment did not or will not, as the case may be, 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; on the date the Final Prospectus is filed with the
Commission pursuant to Rule 424 and on the Closing Date, the Final
Prospectus, as it may be amended or supplemented, will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; and on said
dates, the Incorporated Documents will comply in all material respects
with the applicable provisions of the Exchange Act and rules and
regulations of the Commission thereunder, and, when read together with
the Final Prospectus, or the Final Prospectus as it may be then amended
or supplemented, 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, in the light of the
circumstances under which they are made, not misleading; PROVIDED THAT
the foregoing representations and warranties in this paragraph (b)
shall not apply to (i) statements or omissions made in reliance upon
and in conformity with written information furnished to the Company by
or through the Representatives on behalf of any Underwriter
specifically for use in connection with the preparation of the
Registration Statement or the Final Prospectus, as they may be amended
or supplemented, (ii) information relating to The Depository Trust
Company, Cedelbank and Euroclear, or (iii) any statements in or
omissions from the statements of eligibility and qualification on Form
T-1 of the Indenture Trustee, the Property Trustee (the "Property
Trustee") identified in Schedule I hereto and the Guarantee Trustee
under the Trust Indenture Act (the "Forms T-1").
(c) The Basic Prospectus and any Interim Prospectus, as of
their respective dates, complied in all material respects with the
requirements of the Securities Act and of the Rules and did not include
any untrue statement of a material fact or 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. The
Commission has not issued an order preventing or suspending the use of
the Basic Prospectus or any Interim Prospectus.
(d) The independent public accountants whose report appears in
the Company's most recent Annual Report on Form 10-K, which is
incorporated by reference in the Final Prospectus, are independent
public accountants as required by the Securities Act and the Rules.
(e) The independent public accountants whose report on the
historical consolidated financial statements of Tejas Transok Holding,
L.L.C. ("Transok") is incorporated by reference in the Final
Prospectus, were independent public accountants, as required by the
Securities Act and the Rules, during the period of their engagement to
examine the financial statements being reported on and at the date of
their report.
(f) The audited consolidated financial statements of the
Company, and the historical consolidated financial statements of
Transok, in the Final Prospectus and the Registration Statement present
fairly on a consolidated basis the financial position, the results of
operations, changes in common stock and other stockholder's equity and
cash flows of the Company and its subsidiaries, or of Transok and its
subsidiaries, as the case may be, as of the respective dates and for
the respective periods indicated, all in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved. The unaudited consolidated financial statements
of the Company and of Transok and its subsidiaries included in the
Final Prospectus and the Registration Statement and the related notes
are true, complete and correct, subject to normally recurring changes
resulting from year-end audit adjustments, and have been prepared in
accordance with the instructions to Form 10-Q or Form 8-K, as the case
may be.
(g) Except as described in or contemplated by the Registration
Statement and the Final Prospectus, there has not been any material
adverse change in or any adverse development which materially affects
the business, properties, financial condition or results of the Company
and its subsidiaries taken as whole, from the dates as of which
information is given in the Registration Statement and Final
Prospectus.
(h) This Agreement has been duly and validly authorized,
executed and delivered by the Company; the Guarantee Agreement has been
duly and validly authorized by the Company and, when duly executed and
delivered by the proper officers of the Company (assuming due execution
and delivery by the Guarantee Trustee) will constitute a valid and
legally binding agreement of the Company enforceable against the
Company in accordance with its terms; the Indenture has been duly and
validly authorized and, when duly executed and delivered by the proper
officers of the Company and (assuming due execution and delivery by the
Indenture Trustee) constitutes a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its
terms; and the Debentures have been duly and validly authorized, and,
when validly authenticated, issued and delivered in accordance with the
Indenture against payment of the purchase price therefor as
contemplated by the Final Prospectus, will be validly issued and
outstanding obligations of the Company entitled to the benefits of the
Indenture; and the Debentures and the Guarantee, when issued and
delivered, will conform to the descriptions thereof contained in the
Final Prospectus.
(i) The Company does not have any direct or indirect
subsidiaries that have business or properties that are material to the
business and properties of the Company and its subsidiaries taken as a
whole except those named on Exhibit A to this Agreement (the "Named
Subsidiaries").
(j) The Company and the Named Subsidiaries have been duly
organized, are validly existing and in good standing under the laws of
their respective jurisdictions of organization, are duly qualified to
do business and in good standing as foreign corporations or limited
liability companies, as the case may be, in each jurisdiction in
which their respective ownership of property or the conduct of their
respective businesses requires such qualification or registration and
in which the failure to qualify or register would be reasonably likely,
individually or in the aggregate, to have a material adverse effect on
the condition, financial or otherwise, or on the earnings, results of
operations, properties, business affairs or business prospects, whether
or not arising in the ordinary course of business, of the Company and
its subsidiaries taken as a whole (a "Material Adverse Effect"). Except
as may be disclosed in the Registration Statement and the Final
Prospectus, all outstanding shares of capital stock or other capital
interests of the Named Subsidiaries are owned by the Company or a
subsidiary of the Company, free and clear of any lien, pledge and
encumbrance or any claim of any third party and are duly authorized,
validly issued and outstanding, fully paid and non-assessable.
(k) None of the Company or the Named Subsidiaries is in
violation of its certificate of incorporation, by-laws or similar
governing instrument 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 Guarantee
Agreement, the Indenture and the Debentures by the Company, the
purchase of the Common Securities by the Company from the Trust, and
the consummation of the transactions contemplated herein and in the
Registration Statement do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries 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
certificate of incorporation, by-laws, or similar governing instrument
of the Company or any of its subsidiaries, 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 subsidiaries or any
of their respective 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.
(l) Other than as disclosed in the Registration Statement,
there is no action, suit, proceeding, inquiry or investigation before
or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its subsidiaries, that is
required to be disclosed in the Registration Statement or that might
reasonably be expected to result
in a Material Adverse Effect, or that 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 or any of its subsidiaries is a party or of which any of
their respective properties 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.
(m) There are no contracts or documents which are required to
be described in the Registration Statement, the Final 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.
(n) Each of the Company and its Named Subsidiaries possess
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
businesses now operated by the Company and its Named Subsidiaries and
as described in the Registration Statement and Prospectus
(collectively, "Governmental Licenses"); each of the Company and its
Named Subsidiaries are 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
when 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.
(o) The Company and its Named Subsidiaries have good and
sufficient title to all real property, principal plants and all other
property owned by them and which is material to their operations, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (i) are described in the Final Prospectus or (ii) 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 or any of its Named Subsidiaries; and all of
the leases and subleases material to the business of the Company and
its Named Subsidiaries, and under which the Company and its Named
Subsidiaries hold properties described in the Prospectus, are in full
force and effect, and none of the Company or any of its Named
Subsidiaries has notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any of its
Named Subsidiaries under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or any of
its Named Subsidiaries to the continued possession of the leased or
subleased premises under any such lease or sublease.
(p) The certificates delivered pursuant to paragraph (i) of
Section 7 hereof and
all other documents delivered by the Company or its representatives in
connection with the issuance and sale of the Securities were on the
dates on which they were delivered, or will be on the dates on which
they are to be delivered, in all material respects true and complete.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
TRUST. The Company and the Trust, jointly and severally, represent, warrant and
agree that:
(a) The Trust has been duly created, is validly existing as a
statutory business trust and in good standing under the Business Trust
Act of the State of Delaware (the "Delaware Business Trust Act") with
the trust power and authority to own property and conduct its business
as described in the Registration Statement and the Final Prospectus,
and has conducted and will conduct no business other than the
transactions contemplated by this Agreement as described in the
Registration Statement and the Final Prospectus; the Trust is not and
will not be a party to or bound by any agreement or instrument other
than this Agreement, the Declaration of Trust of the Trust identified
in Schedule I hereto, among the Company, as Sponsor, and the regular
trustees identified in Schedule I hereto (the "Regular Trustees"), the
Property Trustee and the Delaware Trustee identified in Schedule I
hereto (the "Delaware Trustee" and, together with the Regular Trustees
and the Property Trustee, the "Trustees"), and the Amended and Restated
Declaration of Trust of the Trust (the "Declaration") identified in
Schedule I hereto, among the Company, as Sponsor, and the Trustees; the
Trust has no and will not have any liabilities or obligations other
than those arising out of the transactions contemplated by this
Agreement, such Declaration of Trust and the Declaration and described
in the Final Prospectus; and the Trust is not a party to or subject to
any action, suit or proceeding of any nature.
(b) The Declaration is duly and validly authorized and, when
duly executed and delivered by the Company, as Sponsor, and the
Trustees, and (assuming due authorization, execution and delivery of
the Declaration by the Property Trustee and the Delaware Trustee), will
constitute a valid and legally binding agreement of the Company and the
Trust, and will conform to the description thereof contained in the
Final Prospectus.
(c) All of the outstanding beneficial ownership interests in
the Trust have been, and the Preferred Securities and the Common
Securities, upon issuance and delivery and payment therefor in the
manner described herein, will be, duly authorized, validly issued and
outstanding, fully paid and non-assessable and will conform to the
descriptions of the Preferred Securities and the Common Securities
contained in the Final Prospectus.
(d) This Agreement has been duly and validly authorized,
executed and delivered by the Trust.
(e) The execution, delivery and performance of this Agreement,
the Declaration, the Common Securities and the Preferred Securities by
the Trust, the purchase of the Debentures by the Trust from the
Company, the distribution of the
Debentures upon the liquidation of the Trust in the circumstances
contemplated by the Declaration and described in the Final Prospectus,
and the consummation by the Trust of the transactions contemplated
hereby and by the Declaration (the "Trust Transactions") will not
result in a violation of any order, rule or regulation of any court or
governmental agency having jurisdiction over the Trust or its property.
Except as set forth in the Final Prospectus or as required by the
Securities Act, the Exchange Act, the Trust Indenture Act and
applicable state securities laws, no consent, authorization or order
of, or filing or registration with, any court or governmental agency
is required for the Trust Transactions.
(f) Neither the Company nor the Trust is required to be
registered as an "investment company" under the Investment Company Act
of 1940, as amended.
3. SALE AND PURCHASE OF THE PREFERRED SECURITIES.
(a) The Trust agrees to sell to each Underwriter, and each
Underwriter, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein stated, agrees to purchase from the Trust, at a purchase price
equal to 100% of the liquidation amount of the Preferred Securities
(plus accrued distributions), the number of Preferred Securities set
forth opposite the name of such Underwriter in Schedule II hereto. The
obligations of the Underwriters under this Agreement are several and
not joint.
(b) As compensation to the Underwriters, the Company shall, on
the Closing Date, pay to the Representatives for the accounts of the
several Underwriters commissions (as described in Schedule I hereto) on
the aggregate liquidation amount of the Preferred Securities sold by
the Trust on the Closing Date.
4. DELIVERY AND PAYMENT.
(a) Delivery by the Trust of the Preferred Securities to the
Representatives for the respective accounts of the several Underwriters
and payment by the Underwriters therefor by wire transfer in federal
(same day) funds to such account as the Company shall specify on behalf
of the Trust, shall take place at the office, on the date and at the
time specified in Schedule I hereto, which date and time may be
postponed by agreement between the Representatives and the Company or
as provided in Section 10 hereof (such date and time of delivery and
payment for the Preferred Securities being herein called the "Closing
Date").
(b) The Preferred Securities will be in the form of one or
more global Securities registered in the name of Cede & Co., as nominee
of the Depository Trust Company ("DTC").
(c) On the Closing Date, the Company shall pay, or cause to be
paid, the commissions payable on the Closing Date to the
Representatives for the accounts of the Underwriters under Section 3 by
wire transfer in federal (same day) funds to such account
as the Representatives shall specify.
5. OFFERING BY UNDERWRITERS. The Company and the Trust hereby confirm
that the Underwriters and dealers have been authorized to distribute or cause to
be distributed any Interim Prospectus and are authorized to distribute the Final
Prospectus (as from time to time amended or supplemented if the Company
furnishes amendments or supplements thereto to the Underwriters). The
Representatives agree that, as soon as the Representatives believe the offering
of the Preferred Securities has been terminated, the Representatives will so
advise the Company and the Trust.
6. AGREEMENTS. Each of the Company and the Trust agrees with the
several Underwriters:
(a) To prepare the 462(b) Registration Statement, if
necessary, in a form approved by the Representatives and to file such
462(b) Registration Statement with the Commission on the date hereof;
to cause the Final Prospectus to be filed with the Commission pursuant
to Rule 424 as required thereby and promptly to advise the
Representatives (A) when the Final Prospectus shall have been filed
with the Commission pursuant to Rule 424, (B) when any amendment to the
Registration Statement relating to the Securities shall have become
effective, (C) of any request by the Commission for any amendment of
the Registration Statement, the Final Prospectus, the Basic Prospectus
or any Interim Prospectus, or for any additional information, (D) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the qualification of the
Declaration, the Guarantee Agreement or the Indenture or the
institution or threatening of any proceedings for that purpose and (E)
of the receipt by the Company or the Trust of any notification with
respect to the suspension of the qualification of the Securities or the
Debentures for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; after the date of this
Agreement and prior to the termination of the offering of the Preferred
Securities, not to file any amendment of the Registration Statement or
amendment or supplement to the Final Prospectus (except an amendment or
supplement to the Final Prospectus that is deemed to be incorporated by
reference in the Final Prospectus pursuant to Item 12 of Form S-3)
without the consent of the Representatives and to use its best efforts
to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof; prior to receipt of
the advice to be given by the Representatives pursuant to Section 5,
not to file any document that would be deemed to be incorporated by
reference in the Final Prospectus pursuant to Item 12 of Form S-3
without delivering to the Representatives a copy of the document
proposed to be so filed, such delivery to be made at least 24 hours
prior to such filing, and to consult with the Representatives as to any
comments that the Representatives make in a timely manner with respect
to the document so delivered.
(b) Subject to the last sentence of the immediately preceding
paragraph, if, at
any time when a prospectus relating to the Securities is required to be
delivered under the Securities Act, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it shall be necessary at any time to amend or supplement the
Final Prospectus to comply with the Securities Act or the Rules, to
promptly prepare and file with the Commission an amendment or
supplement that will correct such statement or omission or an amendment
that will effect such compliance and to use its best efforts to cause
any amendment of the Registration Statement containing an amended Final
Prospectus to be made effective as soon as possible.
(c) To deliver to the Representatives, without charge, (i)
signed copies of the Registration Statement relating to the Securities
and of any amendments thereto (including all exhibits filed with, or
incorporated by reference in, any such document) and (ii) as many
conformed copies of the Registration Statement and of any amendments
thereto which shall become effective on or before the Closing Date
(excluding exhibits) as the Representatives may reasonably request.
(d) During such period as a prospectus is required by law to
be delivered by an Underwriter or dealer, to deliver, without charge to
the Representatives and to Underwriters and dealers, at such office or
offices as the Representatives may designate, as many copies of the
Basic Prospectus, any Interim Prospectus and the Final Prospectus as
the Representatives may reasonably request.
(e) To make generally available to the Company's security
holders and to the Representatives as soon as practicable an earnings
statement (which need not be audited) of the Company and its
subsidiaries, covering a period of at least 12 months beginning after
the date the Final Prospectus is filed with the Commission pursuant to
Rule 424, which will satisfy the provisions of Section 11(a) of the
Securities Act.
(f) To furnish such information, execute such instruments and
take such actions as may be required to qualify the Securities and the
Debentures for offering and sale under the laws of such jurisdictions
as the Representatives may designate and to maintain such
qualifications in effect so long as required for the distribution of
the Preferred Securities; PROVIDED, HOWEVER, that neither the Company
nor the Trust shall be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to general or unlimited service of process in
any jurisdiction where it is not now so subject.
(g) So long as any Preferred Securities are outstanding, to
furnish or cause to be furnished to the Representatives copies of all
annual reports and current reports filed with the Commission on Forms
10-K, 10-Q and 8-K, or such other similar forms as may be designated by
the Commission.
(h) To use its best efforts to cause the listing of the
Preferred Securities on the
New York Stock Exchange, Inc. (the "NYSE") to be approved as soon as
possible.
(i) For a period beginning at the time of execution of this
Agreement and ending 30 business days thereafter, without the prior
consent of Xxxxxx Brothers Inc., not to directly or indirectly offer,
sell, offer to sell, grant any option for the sale of or otherwise
dispose of any Preferred Securities or Debentures or any securities
convertible or exchangeable into, or exercisable for Preferred
Securities or Debentures, or any debt securities substantially similar
to the Debentures or any equity securities substantially similar to the
Preferred Securities.
(j) To use its best efforts to do and perform all things to be
done and performed hereunder prior to each Closing Date and to satisfy
all conditions precedent to the delivery of the Preferred Securities to
be purchased hereunder.
(k) So long as the Preferred Securities are outstanding, to
take such steps as shall be necessary to ensure that neither the
Company nor the Trust shall become subject to registration as an
"investment company" under the Investment Company Act of 1940, as
amended.
7. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Securities shall be subject to the
accuracy in all material respects of the representations and warranties on
the part of the Company and the Trust contained herein as of the date hereof
and the Closing Date, to the accuracy of any material statements made in any
certificates, opinions, affidavits, written statements or letters furnished
to the Representatives or to Xxxxx, Day, Xxxxxx & Xxxxx ("Underwriters'
Counsel") pursuant to this Agreement, to the performance by the Company and
the Trust of their respective obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 not later than 5:00 p.m., New York City
time, on the second business day following the date of this Agreement
or such later date and time as shall be consented to in writing by the
Representatives.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, or suspending the
qualification of the Declaration, the Guarantee Agreement or the
Indenture, shall be in effect and no proceedings for such purpose shall
be pending before or threatened by the Commission and any requests for
additional information on the part of the Commission (to be included in
the Registration Statement or the Final Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the
Representatives.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there
shall not have been any change or
decrease specified in the letter or letters referred to in paragraph
(k), (l), (m) or (n) of this Section 7 which, in the judgment of the
Representatives, makes it impracticable or inadvisable to proceed with
the offering and delivery of the Preferred Securities as contemplated
by the Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representatives
the opinion of Xxxxxxx, Carton & Xxxxxxx, counsel to the Company, dated
the Closing Date, to the effect that:
(i) The Company has been duly organized and
is legally existing and in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate
power and authority to own and operate its properties and to
conduct its business as described in the Final Prospectus.
(ii) The statements made in the Final
Prospectus under the captions "Description of Securities,"
"Certain Terms of the Preferred Securities," "Certain Terms of
the Junior Subordinated Debt Securities," "Description of
Preferred Securities," "Description of the Junior Subordinated
Debt Securities," "Description of the Guarantee" and "Effect
of Obligations Under the Junior Subordinated Debt Securities
and the Guarantee" insofar as such statements purport to
constitute summaries of the terms of the Preferred Securities,
the Debentures and the Guarantee, constitute accurate
summaries of the terms of the Preferred Securities, the
Debentures and the Guarantee in all material respects.
(iii) The Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act and constitutes a legal, valid
and binding instrument enforceable against the Company in
accordance with its terms; and the Debentures have been duly
authorized, executed and issued by the Company, and assuming
due authentication by the Indenture Trustee and upon payment
and delivery as contemplated by the Final Prospectus, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture; and the Guarantee
Agreement has been duly authorized, executed and delivered by
the Company, has been duly qualified under the Trust Indenture
Act and, assuming due authorization, execution and delivery by
the Guarantee Trustee, will constitute a legal, valid and
binding obligation of the Company; provided however, that the
foregoing is subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in
a proceeding in equity or at law) and by an implied covenant
of good faith and fair dealing.
(iv) No consent, approval, authorization or
order of any court or governmental agency or body is required
for the consummation of the transactions contemplated by this
Agreement, except for (1) such consents,
approvals, authorizations or orders as have been obtained
under the Securities Act and such as may be required under the
Exchange Act and the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters, and (2) the qualification of
the Indenture, the Declaration and the Guarantee Agreement
under the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know of any
contracts or other documents which are required to be filed as
exhibits to the Registration Statement by the Securities Act
or by the Rules which have not been filed as exhibits to the
Registration Statement or incorporated therein by reference as
permitted by the Rules.
(vi) To the best of such counsel's knowledge,
neither the Company nor either of its Named Subsidiaries is in
violation of its corporate charter or by-laws, or in default
under any material agreement, indenture or instrument known to
such counsel, the effect of which violation or default would
be material to the Company and its subsidiaries taken as a
whole.
(vii) This Agreement and the Declaration have
been duly authorized, executed and delivered by the Company;
the execution, delivery and performance of this Agreement, the
Declaration, the Indenture and the Guarantee Agreement
(collectively the "Transaction Documents") by the Company and
the Trust will not conflict with, or result in the creation or
imposition of any material lien, charge or encumbrance upon
any of the assets of the Company or its Named Subsidiaries
pursuant to the terms of, or constitute a default under, any
material agreement, indenture or instrument known to such
counsel and to which the Company or either of its Named
Subsidiaries is a party or is bound, or result in a violation
of the corporate charter or by-laws of the Company or either
of its Named Subsidiaries or any order, rule or regulation
known to such counsel of any court or governmental agency
having jurisdiction over the Company, its Named Subsidiaries
or any of their respective properties, the effect of which
would be material to the Company and its subsidiaries taken as
a whole.
(viii) The Registration Statement has become
effective under the Securities Act, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for that purpose is pending or threatened by
the Commission.
(ix) The Registration Statement, the Final
Prospectus and each amendment thereof or supplement thereto
(except that no opinion need be expressed as to the financial
statements or other financial or statistical data or the Forms
T-1 included or incorporated by reference therein) comply as
to form in all material respects with the requirements of the
Securities Act and the Rules.
(x) Authorization for the listing of the
Preferred Securities on the NYSE has been given, subject to
official notice of issuance and evidence of
satisfactory distribution.
(xi) Such counsel does not know of any
litigation or any governmental proceeding pending or
threatened against the Company or any of its subsidiaries
which would affect the subject matter of this Agreement or is
required to be disclosed in the Final Prospectus which is not
disclosed and correctly summarized therein.
(xii) To such counsel's knowledge, the Trust is
not a party to or otherwise bound by any agreement other than
those described in the Final Prospectus.
(xiii) The Trust is not subject to registration
as an "investment company" under the Investment Company Act of
1940, as amended.
Such opinion shall also contain a statement that although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Final Prospectus (except as to those matters
stated in paragraph (ii) of such opinion), such counsel has no reason to believe
that (i) the Registration Statement, as of its effective date, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or (ii) the Final Prospectus contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (except that no opinion need be expressed
as to (a) the financial statements or other financial or statistical data, (b)
information relating to The Depository Trust Company, Cedelbank and Euroclear,
or (c) the Forms T-1 included or incorporated by reference therein).
In rendering such opinion, such counsel may rely upon opinions
of local counsel satisfactory to the Representatives for matters governed by
Oklahoma law and may rely as to matters of fact, to the extent he or she deems
proper, upon certificates or affidavits of officers of the Company, the
Trustees, the Guarantee Trustee or the Indenture Trustee and public officials.
Such counsel may rely on a certificate of the Indenture Trustee and the
Guarantee Trustee with respect to the execution of the Debentures and the
Guarantee, respectively, by the Company, the authentication of the Debentures by
the Indenture Trustee, and the execution of the Guarantee by the Guarantee
Trustee.
(e) The Company shall have furnished to the Representatives
the opinion of Rainey, Ross, Rice & Xxxxx, counsel to the Company,
dated the Closing Date, to the effect that:
(i) The Company has been duly organized and
is legally existing and in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate
power and authority to own and operate
its properties and to conduct its business as described in
the Final Prospectus.
(ii) The statements made in the Final
Prospectus under the captions "Description of Securities,"
"Certain Terms of the Preferred Securities," "Certain Terms
of the Junior Subordinated Debt Securities," "Description of
Preferred Securities," "Description of the Junior Subordinated
Debt Securities," "Description of the Guarantee" and "Effect
of Obligations Under the Junior Subordinated Debt Securities
and the Guarantee" insofar as such statements purport to
constitute summaries of the terms of the Preferred Securities,
the Debentures and the Guarantee, constitute accurate
summaries of the terms of the Preferred Securities, the
Debentures and the Guarantee in all material respects.
(iii) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a legal,
valid and binding instrument enforceable against the Company
in accordance with its terms; and the Debentures have been
duly authorized, executed and issued by the Company, and
assuming due authentication by the Indenture Trustee and upon
payment and delivery as contemplated by the Final Prospectus,
will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture; and the
Guarantee Agreement has been duly authorized, executed and
delivered by the Company, has been duly qualified under the
Trust Indenture Act and, assuming due authorization, execution
and delivery by the Guarantee Trustee, will constitute a
legal, valid and binding obligation of the Company; provided
however, that the foregoing is subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and
by an implied covenant of good faith and fair dealing.
(iv) No consent, approval, authorization or
order of any Oklahoma court or governmental agency or body is
required for the consummation of the transactions contemplated
by this Agreement, except for (1) such consents, approvals,
authorizations or orders as have been obtained under the
Securities Act and such as may be required under the Exchange
Act and the blue sky laws of the State of Oklahoma in
connection with the purchase and distribution of the
Securities by the Underwriters, and (2) the qualification of
the Indenture, the Declaration and the Guarantee Agreement
under the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know of any
contracts or other documents which are required to be filed as
exhibits to the Registration Statement by the Securities Act
or by the Rules which have not been filed as exhibits to the
Registration Statement or incorporated therein by reference as
permitted by the Rules.
(vi) To the best of such counsel's knowledge,
neither the Company nor either of its Named Subsidiaries is in
violation of its corporate charter or by-laws, or in default
under any material agreement, indenture or instrument known to
such counsel, the effect of which violation or default would
be material to the Company and its subsidiaries taken as a
whole.
(vii) This Agreement and the Declaration have
been duly authorized, executed and delivered by the Company;
the execution, delivery and performance of this Agreement, the
Declaration, the Indenture and the Guarantee Agreement
(collectively the "Transaction Documents") by the Company and
the Trust will not conflict with, or result in the creation or
imposition of any material lien, charge or encumbrance upon
any of the assets of the Company or its Named Subsidiaries
pursuant to the terms of, or constitute a default under, any
material agreement, indenture or instrument known to such
counsel and to which the Company or either of its Named
Subsidiaries is a party or is bound, or result in a violation
of the corporate charter or by-laws of the Company or either
of its Named Subsidiaries or any order, rule or regulation
known to such counsel of any court or governmental agency
having jurisdiction over the Company, its Named Subsidiaries
or any of their respective properties, the effect of which
would be material to the Company and its subsidiaries taken as
a whole.
(viii) Such counsel does not know of any
litigation or any governmental proceeding pending or
threatened against the Company or any of its subsidiaries
which would affect the subject matter of this Agreement or is
required to be disclosed in the Final Prospectus which is not
disclosed and correctly summarized therein.
(ix) To such counsel's knowledge, the Trust is
not a party to or otherwise bound by any agreement other than
those described in the Final Prospectus.
Such opinion shall also contain a statement that although
such counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Final Prospectus (except as to those matters
stated in paragraph (ii) of such opinion), such counsel has no reason to
believe that (i) the Registration Statement, as of its effective date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or (ii) the Final Prospectus contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that no
opinion need be expressed as to (a) the financial statements or other
financial or statistical data, (b) information relating to The Depository
Trust Company, Cedelbank and Euroclear, or (c) the Forms T-1 included or
incorporated by reference therein).
In rendering such opinion, such counsel may rely as to
matters of fact, to the extent he or she deems proper, upon certificates or
affidavits of officers of the Company, the Trustees, the Guarantee Trustee or
the Indenture Trustee and public officials. Such counsel may rely on a
certificate of the Indenture Trustee and the Guarantee Trustee with respect
to the execution of the Debentures and the Guarantee, respectively, by the
Company, the authentication of the Debentures by the Indenture Trustee, and
the execution of the Guarantee by the Guarantee Trustee.
(f) Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel for
the Company and the Trust, shall have furnished to the Representatives
its opinion, on certain matters of Delaware law relating to the
validity of the Preferred Securities, dated the Closing Date, to the
effect that:
(i) The Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act and, under the Declaration and
the Act, has the trust power and authority to own property and
to conduct its business as described in the Final Prospectus
and to enter into and perform its obligations under each of
this Agreement, the Preferred Securities and the Common
Securities.
(ii) The Common Securities have been duly
authorized by the Declaration and, when issued and delivered
by the Trust to the Company against payment therefor as
described in the Declaration and the Final Prospectus, will be
validly issued and will represent undivided beneficial
ownership interests in the assets of the Trust; under the
Delaware Business Trust Act and the Declaration the issuance
of the Common Securities is not subject to preemptive rights.
(iii) The Preferred Securities have been duly
authorized by the Declaration and, when issued and delivered
against payment of the consideration as set forth in the
Declaration and the Final Prospectus, the Preferred Securities
will be validly issued and (subject to the terms of the
Declaration) will represent fully paid and non-assessable
undivided beneficial ownership interests in the Trust, and the
holders of the Preferred Securities will be entitled to the
benefits of the Declaration (subject to the limitations set
forth in clause (v) below) and will be entitled to the same
limitation of personal liability under Delaware law as
extended to stockholders of private corporations for profit
(such counsel may note that the holders of Preferred
Securities will be required to make payment or provide
indemnity or security as set forth in the Declaration).
(iv) Under the Delaware Business Trust Act and
the Declaration, the execution and delivery by the Trust of
this Agreement has been duly authorized by all requisite trust
action on the part of the Trust.
(v) Assuming the Declaration has been duly
authorized by the Company and has been duly executed and
delivered by the Company and the
Regular Trustees, and assuming due authorization, execution
and delivery of the Declaration by the Property Trustee and
the Delaware Trustee, the Declaration constitutes a valid
and binding obligation of the Company and the Regular
Trustees, enforceable against the Company and the Regular
Trustees in accordance with its terms; provided however,
that the foregoing is subject to the effects of bankruptcy,
insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer, and other
similar laws relating to or affecting creditors' rights
generally, principles of equity, including applicable law
relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law)
and the effect of applicable public policy on the
enforceability of provisions relating to indemnification
and contribution.
(vi) The issuance and sale by the Trust of the
Preferred Securities, the purchase by the Trust of the
Debentures, the execution, delivery and performance by the
Trust of this Agreement, the consummation by the Trust of the
transactions contemplated by this Agreement and compliance by
the Trust with its obligations thereunder will not violate (i)
any of the provisions of the Certificate of Trust or the
Declaration or (ii) any Delaware law or administrative
regulation applicable to the Trust.
(vii) No filing with, or authorization,
approval, consent, license, order, registration,
qualification or decree of, any Delaware court or Delaware
governmental authority or agency is necessary or required
in connection with the due authorization, execution and
delivery of this Agreement or the offering, issuance, sale
or delivery of the Preferred Securities, other than the
filing of the Certificate of Trust with the Secretary of
State.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the law of the State of Delaware.
(g) Xxxxxxx, Carton & Xxxxxxx, special tax counsel to the
Company and the Trust, shall have furnished to the Representatives its
opinion, dated the Closing Date, to the effect that:
(i) Subject to the qualifications set
forth in the opinion and the Final Prospectus, under
current law and assuming full compliance with the terms of
the Declaration and based upon certain facts and
assumptions set forth in such opinion the Trust will be
characterized as a grantor trust for United States federal
income tax purposes and not as an association taxable as a
corporation;
(ii) Subject to the qualifications set
forth in the opinion and the Final Prospectus, under
current law and based on certain representations, facts and
assumptions set forth in the opinion, the Debentures will
be classified as indebtedness for United States federal
income tax purposes; and
(iii) Subject to the qualifications set forth in
the opinion and the
Final Prospectus, the statements made in the Final
Prospectus under the caption "Certain United States Federal
Income Tax Consequences" insofar as they purport to
constitute summaries of matters of United States federal
tax law and regulations or legal conclusions with respect
thereto, constitute accurate summaries of the matters
described therein in all material respects.
(h) The Representatives shall have received from the
Underwriters' Counsel such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Preferred Securities, the
Guarantee, the Debentures, the Registration Statement, the Final
Prospectus and other related matters as the Representatives may
reasonably require, and the Company and the Trust shall have furnished
to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(i) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Vice
President and its Chief Financial Officer or its Treasurer, dated the
Closing Date, to the effect that, to the best of their knowledge after
due inquiry:
(i) The representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date.
(ii) No stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened.
(iii) Insofar as it relates to the Trust,
(x) the Registration Statement does not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, (y) the Final Prospectus
does not contain 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, in
the light of the circumstances under which they were made,
not misleading, and (z) since the effective date of the
Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(j) The Trust shall have furnished to the Representatives a
certificate of its Regular Trustees, dated the applicable Closing Date,
to the effect that, to the best of their knowledge after due inquiry:
(i) The representations and warranties of the
Trust in this Agreement are true and correct in all material
respects on and as of such Closing Date with the same effect
as if made on such Closing Date, and the Trust has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to such
Closing Date.
(ii) No stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened.
(iii) (x) The Registration Statement does not
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (y)
the Final Prospectus does not contain 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, in the light of the circumstances under which they
were made, not misleading, and (z) since the effective date of
the Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(k) At the date of execution of this Agreement, a nationally
recognized firm of independent public accountants shall have furnished
to the Representatives a letter, dated the date of this Agreement, in
form and substance satisfactory to the Representatives, which states in
effect that:
(i) In their opinion, any consolidated
financial statements of the Company and its subsidiaries, and
the supporting schedules, included in the Registration
Statement and the Final Prospectus and audited by them comply
as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange
Act and the related published rules and regulations
thereunder.
(ii) On the basis of a reading of the
unaudited consolidated financial statements of the Company
and its subsidiaries, if any, included in the Registration
Statement and the Final Prospectus and of the latest
unaudited consolidated financial statements made available
by the Company, carrying out certain specified procedures
(but not an audit in accordance with generally accepted
auditing standards), a reading of the minutes of the
meetings of the directors of the Company, and inquiries of
certain officials of the Company and its subsidiaries, who
have responsibility for financial and accounting matters of
the Company and its subsidiaries, as to transactions and
events subsequent to the date of the most recent audited
consolidated financial statements included in the
Registration Statement and the Final Prospectus, nothing
came to their attention that caused them to believe that:
(A) any material modifications should be
made to the unaudited
consolidated financial statements of the Company and
its subsidiaries included in the Registration
Statement and the Final Prospectus for them to be
in conformity with generally accepted accounting
principles; and such financial statements do not
comply as to form in all material respects with the
applicable accounting requirements of the
Securities Act and the published instructions,
rules and regulations thereunder.
(B) the unaudited capsule information of
the Company and its subsidiaries included in the
Registration Statement and the Final Prospectus does
not agree with the amounts set forth in the unaudited
consolidated financial statements of the Company from
which it was derived or was not determined on a basis
substantially consistent with that of the
corresponding financial information in the latest
audited financial statements of the Company included
in the Registration Statement and the Final
Prospectus.
(C) (I) as of the latest date as of which
the Company and its subsidiaries have monthly
financial statements, there was any decrease in the
capital stock, additional paid-in capital or retained
earnings, or increase in long-term indebtedness of
the Company and its subsidiaries, as compared with
the amounts shown in the most recent consolidated
statement of financial condition of the Company and
its subsidiaries included in the Registration
Statement and the Final Prospectus or (II) with
respect to the period subsequent to the date of the
most recent financial statements included in the
Registration Statement and the Final Prospectus and
extending through the latest date as of which the
Company and its subsidiaries have monthly financial
statements, there was any decline in consolidated
revenues or net income as compared with the
comparable period of the prior fiscal year;
(D) as of a specified date not more than
three business days prior to the date of the letter,
there was any decrease in the capital stock or
additional paid-in capital, or increase in long-term
indebtedness of the Company and its subsidiaries as
compared with the amounts shown in the most recent
consolidated statement of financial condition of the
Company and its subsidiaries included in the
Registration Statement and the Final Prospectus;
except in all instances for increases or decreases set forth in such
letter, in which case the letter shall be accompanied by an explanation
by the Company as to the significance thereof, unless said explanation
is not deemed necessary by the Representatives.
(iii) (x) They have read the pro
forma financial statements included in the
Registration Statement and the Final Prospectus,
(y) they have made inquiries of certain officials
of the Company who have responsibility for
financial and accounting matters of the Company as
to the basis for their
determination of the pro forma adjustments and
whether such pro forma financial statements comply
as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X and (z) they have proved the
arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts; and as
a result thereof, nothing came to their attention
that caused them to believe that such pro forma
financial statements do not so comply with Rule
11-02 of Regulation S-X and that such pro forma
adjustments have not been properly applied to the
historical amounts in the compilation of those
statements.
(iv) They have performed certain
other specified procedures as a result of which
they determined that certain information of an
accounting, financial or statistical nature (which
is expressed in dollars, or percentages derived
from dollar amounts, and has been obtained from the
general accounting records of the Company) set
forth in the Registration Statement, as amended,
and the Final Prospectus, as amended or
supplemented, and in Exhibit 12 to the Registration
Statement, including specified information, if any,
included or incorporated from the Company's Annual
Report on Form 10-K incorporated therein or
specified information, if any, included or
incorporated from any of the Company's Quarterly
Reports on Form 10-Q or its Current Reports on Form
8-K incorporated therein, agrees with the
accounting records of the Company and its
subsidiaries or computations made therefrom,
excluding any questions of legal interpretation.
(l) At the Closing Date, the nationally recognized firm of
independent public accountants that furnished the letter referred to in
paragraph (k) of this Section 7 shall have furnished to the
Representatives a letter dated the Closing Date, which shall confirm,
on the basis of a review in accordance with the procedures set forth in
the letter, that nothing has come to their attention that would require
any change in the letter referred to in paragraph (k) of this Section 7
if it were required to be dated and delivered at the Closing Date.
(m) At the date of execution of this Agreement, a nationally
recognized firm of independent public accountants shall have furnished
to the Representatives a letter, dated the date of this Agreement, in
form and substance satisfactory to the Representatives, which states in
effect that:
(i) In their opinion, any consolidated
financial statements of Transok and its subsidiaries, and the
supporting schedules, included in the Registration Statement
and the Final Prospectus and audited by them comply as to form
in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the related published rules and regulations thereunder.
(ii) On the basis of a reading of the
unaudited consolidated financial statements of Transok and
its subsidiaries, if any, included in the Registration
Statement and the Final Prospectus and of the latest
unaudited consolidated financial statements made available
by Transok, carrying out certain specified procedures (but
not an audit in accordance with generally accepted auditing
standards), a reading of the minutes of the meetings of the
members of Transok, and inquiries of certain officials of
Transok and its subsidiaries, who have responsibility for
financial and accounting matters of Transok and its
subsidiaries, as to transactions and events subsequent to
the date of the most recent audited consolidated financial
statements included in the Registration Statement and the
Final Prospectus, nothing came to their attention that
caused them to believe that:
(A) any material modifications should be
made to the unaudited consolidated financial
statements of Transok and its subsidiaries included
in the Registration Statement and the Final
Prospectus for them to be in conformity with
generally accepted accounting principles; and such
financial statements do not comply as to form in all
material respects with the applicable accounting
requirements of the Securities Act and the published
instructions, rules and regulations thereunder.
(B) any unaudited capsule information of
Transok and its subsidiaries included in the
Registration Statement and the Final Prospectus does
not agree with the amounts set forth in the unaudited
consolidated financial statements of Transok from
which it was derived or was not determined on a basis
substantially consistent with that of the
corresponding financial information in the latest
audited financial statements of Transok included in
the Registration Statement and the Final Prospectus.
(C) (I) as of the latest date as of which
Transok and its subsidiaries have monthly financial
statements, there was any decrease in the capital
stock, additional paid-in capital or retained
earnings, or increase in long-term indebtedness of
Transok and its subsidiaries, as compared with the
amounts shown in the most recent consolidated
statement of financial condition of Transok and its
subsidiaries included in the Registration Statement
and the Final Prospectus or (II) with respect to the
period subsequent to the date of the most recent
financial statements included in the Registration
Statement and the Final Prospectus and extending
through the latest date as of which Transok and its
subsidiaries have monthly financial statements, there
was any decline in consolidated revenues or net
income as compared with the comparable period of the
prior fiscal year;
(D) as of a specified date not more than
three business days
prior to the date of the letter, there was any
decrease in the capital interests or additional
paid-in capital, or increase in long-term
indebtedness of Transok and its subsidiaries as
compared with the amounts shown in the most recent
consolidated statement of financial condition of
Transok and its subsidiaries included in the
Registration Statement and the Final Prospectus;
except in all instances for increases or decreases set forth in such
letter, in which case the letter shall be accompanied by an explanation
by the Company as to the significance thereof, unless said explanation
is not deemed necessary by the Representatives.
(iii) They have performed certain other
specified procedures as a result of which they determined
that certain information of an accounting, financial or
statistical nature (which is expressed in dollars, or
percentages derived from dollar amounts, and has been
obtained from the general accounting records of Transok)
set forth in the Registration Statement, as amended, and
the Final Prospectus, as amended or supplemented, and in
Exhibit 12 to the Registration Statement, including
specified information, if any, included or incorporated
from the Company's Annual Report on Form 10-K incorporated
therein or specified information, if any, included or
incorporated from any of the Company's Quarterly Reports on
Form 10-Q or its Current Reports on Form 8-K incorporated
therein, agrees with the accounting records of the Company
and its subsidiaries or computations made therefrom,
excluding any questions of legal interpretation.
(n) At the Closing Date, the nationally recognized firm of
independent public accountants that furnished the letter referred to in
paragraph (m) of this Section 7 shall have furnished to the
Representatives a letter dated the Closing Date, which shall confirm,
on the basis of a review in accordance with the procedures set forth in
the letter, that nothing has come to their attention that would require
any change in the letter referred to in paragraph (m) of this Section 7
if it were required to be dated and delivered at the Closing Date.
(o) Subsequent to the execution of this Agreement, there
shall not have been any decrease in or suspension of the ratings of
any of the Company's debt securities by Xxxxx'x Investors Service,
Inc. or Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
(p) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives or Underwriters'
Counsel may reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates or opinions furnished to the Representatives or Underwriters'
Counsel pursuant to this Section 7 shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and to
Underwriters' Counsel, this Agreement and all obligations of the Underwriters
hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing, or by
telegraph confirmed in writing.
8. EXPENSES.
(a) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company
will pay all costs and expenses incident to the performance of the
obligations of the Company and the Trust hereunder, including, without
limiting the generality of the foregoing, all costs, taxes and expenses
incident to the issuance, sale and delivery of the Preferred Securities
to the Underwriters, all fees and expenses of the Company's counsel and
accountants, all costs and expenses incident to the preparing, printing
and filing of the Registration Statement (including all exhibits
thereto), any Interim Prospectus, the Basic Prospectus, the Final
Prospectus and any amendments thereof or supplements thereto and the
Declaration, the Guarantee Agreement and the Indenture, and the rating
of the Preferred Securities by one or more rating agencies, all costs
and expenses (including fees of Underwriters' Counsel and their
disbursements) incurred in connection with blue sky qualifications,
advising on the legality of the Securities for investment, the filing
requirements, if any, of the National Association of Securities
Dealers, Inc. in connection with its review of corporate financings,
the fee for listing the Securities on the NYSE, the fees and expenses
of the Property Trustee, the Guarantee Trustee and the Indenture
Trustee and all costs and expenses of the printing and distribution of
all documents in connection with such offering. Except as provided in
this Section 8, the Company will have no responsibility to the
Underwriters for the Underwriters' own costs and expenses, including
the fees of Underwriters' Counsel and any advertising expenses in
connection with any offer the Underwriters may make.
(b) If the sale of the Preferred Securities provided for
herein is not consummated because any condition to the obligations of
the Underwriters set forth in Section 7 hereof is not satisfied or
because of any refusal, inability or failure on the part of the
Company or the Trust to perform any agreement herein or comply with
any provision hereof, the Company will, subject to demand by the
Representatives, reimburse the Underwriters for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed
purchase and sale of the Preferred Securities.
9. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls such Underwriter within the
meaning of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or
otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or in any amendment
thereof, or in any Interim Prospectus, the Basic Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees
to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability
or action; PROVIDED, HOWEVER, that (i) the Company will not be
liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement made therein or omission or
alleged omission therefrom (a) in reliance upon and in conformity
with written information furnished to the Company as herein stated
by the Representatives on behalf of any Underwriter specifically for
use in connection with the preparation thereof or (b) relating to
The Depository Trust Company, Cedelbank and Euroclear, and (ii) such
indemnity with respect to the Basic Prospectus or any Interim
Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting
any such loss, claim, damage or liability purchased the Securities
which are the subject thereof if such person did not receive a copy
of the Final Prospectus at or prior to the confirmation of the sale
of such Securities to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission
of a material fact contained in the Basic Prospectus or any Interim
Prospectus was corrected in the Final Prospectus, unless such
failure to deliver the Final Prospectus was a result of
noncompliance by the Company with Section 6(d) hereof. This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, the Trust and each Trustee, and each
person, if any, who controls the Company or the Trust within the
meaning of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
the same was made therein in reliance upon and in conformity with
written information furnished to the Company as herein stated by the
Representatives on behalf of such Underwriter specifically for use in
the preparation thereof, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity agreement will be in
addition to any liability
which any Underwriter may otherwise have. The names of the
underwriters set forth on the cover page and in the second, sixth,
seventh, eighth (last two sentences only), tenth, eleventh and
twelfth paragraphs under the heading "Underwriting" in the Final
Prospectus constitute the only information furnished to the Company
in writing by or on behalf of the several Underwriters for inclusion
in the Registration Statement and the Final Prospectus, as the case
may be, and you, as the Representatives, confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 9.
In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; PROVIDED, HOWEVER, if the
defendants in any such action include both the indemnified party and
the indemnifying party and either (i) the indemnifying party or parties
and the indemnified party or parties mutually agree or (ii)
representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, the indemnified party or parties
shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election
so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
counsel in connection with the assumption of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a) representing the
indemnified parties under subparagraph (a), as the case may be, who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement
of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party.
(d) In order to provide for just and equitable
contribution in circumstances in
which the indemnification provided for in subparagraph (a) of this
Section 9 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company on grounds of
policy or other similar grounds, the Company and the Underwriters
shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the
Company, the Trust and one or more of the Underwriters may be
subject in such proportion so that the Underwriters are responsible
for that portion represented by the percentage that the underwriting
commission appearing on the cover page of the Final Prospectus bears
to the public offering price appearing thereon and the Company is
responsible for the balance; PROVIDED, HOWEVER, that (i) in no case
shall any Underwriter (except as may be provided in any agreement
among underwriters) be responsible for any amount in excess of the
underwriting commission applicable to the Preferred Securities
purchased by such Underwriter hereunder and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 9, each person who controls an Underwriter
within the meaning of the Securities Act shall have the same rights
to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Securities Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement each director of the Company, the Trust and
each Trustee shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of this
subparagraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
subparagraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party
or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this subparagraph (d).
10. DEFAULT BY AN UNDERWRITER. If, on the Closing Date, any one or
more Underwriters shall fail to purchase and pay for all of the Preferred
Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the aggregate liquidation amount of Preferred
Securities set forth opposite their names in Schedule II hereto bear to the
aggregate liquidation amount of Firm Securities set opposite the names of the
remaining Underwriters) the Firm Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase on the Closing Date; PROVIDED,
HOWEVER, that in the event that the aggregate liquidation amount of Preferred
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase on the Closing Date shall exceed 10% of the aggregate liquidation
amount of Preferred Securities, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any,
of the Preferred Securities, and if such non-defaulting Underwriters do not
purchase all the Preferred Securities, this Agreement will terminate without
liability to any non-defaulting Underwriters or the Company or the Trust. In
the event of a default by any
Underwriter as set forth in this Section 10, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration
Statement and the Final Prospectus or in any other documents or arrangements
may be effected. Nothing herein contained shall relieve any defaulting
Underwriter of its liability, if any, to the Company or the Trust and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
11. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the
Company at or prior to delivery of and payment for all of the Preferred
Securities, if, prior to such time (i) trading in securities generally on the
NYSE or the over-the-counter market shall have been suspended or limited or
minimum prices shall have been established on the NYSE or the NASDAQ Stock
Market, (ii) a banking moratorium shall have been declared either by federal,
New York State or Oklahoma authorities, (iii any new restriction materially
affecting the distribution of the Preferred Securities shall have become
effective; (iv) trading in any securities of the Company shall have been
suspended or halted by any national securities exchange, the National
Association of Securities Dealers, Inc. or the Commission, (v) the United
States becomes engaged in hostilities or there is an escalation in
hostilities involving the United States or there is a declaration of a
national emergency or war by the United States, or (vi) there shall have been
such a material adverse change in national or international political,
financial or economic conditions, national or international equity markets or
currency exchange rates or controls as to make it, in the judgment of the
Representatives, inadvisable or impracticable to proceed with the payment for
and delivery of the Preferred Securities.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers (as such officers) or the Trust and
of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of any Underwriter or the Company or the Trust or any of their
respective officers, directors or trustees or any controlling person within
the meaning of the Securities Act, and will survive delivery of the payment
for the Preferred Securities.
13. NOTICES. All communications hereunder will be in writing, and,
if sent to the Representatives will be mailed, delivered, telegraphed or
telexed and confirmed to them, at the address specified in Schedule I hereto;
or, if sent to the Trust or the Company, will be mailed, delivered,
telegraphed or telexed and confirmed to the Trust or the Company at OGE
Energy Corp., 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, Attention:
President.
14. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their successors and, to the extent and
only to the extent stated in Section 9 hereof, the officers and directors and
controlling persons referred to in Section 9 hereof, and except as provided
in Section 9 hereof, no person other than the parties hereto and their
respective successors will have any right or obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of Oklahoma.
[SIGNATURE PAGE FOLLOWS]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
OGE ENERGY CAPITAL TRUST I
By: /s/ A.M. Xxxxxxxx
-----------------------------------------
A.M. Xxxxxxxx, as Regular Trustee
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxx, as Regular Trustee
OGE ENERGY CORP.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxx
Vice President and Treasurer
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Acting on behalf of the Representatives named in
Schedule I annexed hereto and the several
Underwriters named in Schedule II annexed hereto.
EXHIBIT A
Subsidiaries of the Company
Enogex Inc.
Oklahoma Gas and Electric Company
SCHEDULE I
Date of Underwriting Agreement: October 18, 1999
Registration Statement No. 333-88415
Representative and Address: Xxxxxx Brothers Inc.
c/x Xxxxxx Brothers Inc.
3 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Declaration of Trust, Declaration, Title, Purchase Price and Description of
Preferred Securities:
Declaration of Trust:
Declaration of Trust, dated September 29, 1999
Declaration:
The Amended and Restated Declaration of Trust dated as of
October 21, 1999, among the Company and the Trustees.
Title:
8.375% Preferred Securities of OGE Energy Capital Trust I.
Number of Preferred Securities:
8,000,000.
Liquidation amount per Preferred Security:
$25.
Aggregate liquidation amount of Preferred Securities:
$200,000,000.
Price to public:
100% of liquidation amount (plus accrued distributions).
Distribution rate:
8.375%.
Distribution Payment Dates:
January 15, April 15, July 15 and October 15 of each year
beginning on January 15, 2000.
Redemption provisions:
As set forth in the Final Prospectus.
Indenture, Title, Purchase Price and Description of Debentures:
Indenture:
Indenture, dated as of October 20, 1999, between the Company
and Bank of Oklahoma, National Association, as Trustee, as
supplemented by First Supplemental Indenture dated as of
October 21, 1999.
Title:
8.375% Junior Subordinated Debentures due 2039.
Principal Amount:
$200,000,000.
Price to Trust:
100% of principal amount (plus accrued distributions).
Interest rate:
8.375%
Interest Payment Dates:
January 15, April 15, July 15 and October 15 of each year
beginning January 15, 2000.
Maturity:
October 15, 2039.
Redemption provisions:
As set forth in the Final Prospectus.
Guarantee Agreement:
Guarantee Agreement, dated as of October 21, 1999, between the
Company and Wilmington Trust Company, as Trustee.
Commission payable by Company on Preferred Securities:
$.7875 per Preferred Security (except that, with respect to
sales of Preferred Securities to certain institutions, the
commission will be $.50 per Preferred Security).
Closing Date, Time and Location:
Date: October 21, 1999
Time: 10:00 a.m.
Location: Xxxxxxx, Carton & Xxxxxxx
Suite 3400
Quaker Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
SCHEDULE II
NUMBER OF
PREFERRED
UNDERWRITERS SECURITIES
------------ ----------
1. Xxxxxx Brothers Inc. 1,035,000
2. X.X. Xxxxxxx & Sons, Inc. 1,033,000
3. CIBC World Markets Corp. 1,033,000
4. Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated 1,033,000
5. Xxxxxx Xxxxxxx & Co. Incorporated 1,033,000
6. Prudential Securities Incorporated 1,033,000
7. ABN AMRO Incorporated 60,000
8. Banc of America Securities LLC 60,000
9. Banc One Capital Markets, Inc. 60,000
10. Bear, Xxxxxxx & Co. Inc. 60,000
11. Xxxx Xxxxxxxx Incorporated 60,000
12. Deutsche Bank Securities Inc. 60,000
13. Fidelity Capital Markets, a division of National Financial Services Corp. 60,000
14. First Union Securities, Inc. 60,000
15. Xxxxxxx, Sachs & Co. 60,000
16. HSBC Securities (USA) Inc. 60,000
17. ING Barings LLC. 60,000
18. Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 60,000
19. XX Xxxxx Securities Corporation 60,000
20. U.S. Bancorp Xxxxx Xxxxxxx Inc. 60,000
21. Warburg Dillon Read LLC 60,000
22. Advest, Inc. 30,000
23. BB&T Capital Markets, a Division of Xxxxx & Xxxxxxxxxxxx 30,000
24. Xxxxxx X. Xxxxx & Co. Incorporated 30,000
25. X.X. Xxxxxxxx & Co. 30,000
26. Commerzbank Capital Markets Corp. 30,000
27. Xxxxxxxxx & Company LLC 30,000
28. Xxxxxxxxxx & Co. Inc. 30,000
29. Fifth Third Securities, Inc. 30,000
30. First Albany Corporation 30,000
31. JWGenesis Securities, Inc. 30,000
32. Gilbraltar Securities Co. 30,000
33. Gruntal & Co., L.L.C. 30,000
34. J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. 30,000
35. Xxxxxx Xxxxxxxxxx Xxxxx Inc. 30,000
36. McDonald Investments Inc., a KeyCorp Company 30,000
37. XxXxxx, Xxxxx & Co., Inc. 30,000
38. Mesirow Financial, Inc. 30,000
39. Xxxxxx Xxxxxx & Company, Inc. 30,000
40. Olde Discount Corporation 30,000
41. Xxxxxx/Hunter Incorporated 30,000
42. Xxxxxxx Xxxxx & Associates, Inc. 30,000
43. Xxxxxxx Xxxxxx & Co. Inc. 30,000
44. Southwest Securities, Inc. 30,000
45. Xxxxxxxx Inc. 30,000
46. Sterne, Agee & Xxxxx, Inc. 30,000
47. The Xxxxxxxx-Xxxxxxxx Company, LLC 30,000
48. Xxxxxx Xxxxxxx Xxxxxx Gull 30,000
49. U.S. Clearing Corp. 30,000
50. Wachovia Securities, Inc. 30,000
51. The Xxxxxxxx Capital Group, L.P. 30,000
---------
TOTAL 8,000,000
---------
---------
