EXHIBIT 1
ONEOK, INC.
Senior Note Offering
UNDERWRITING AGREEMENT
[DATE]
[Name and address of underwriters]
Ladies and Gentlemen:
ONEOK, Inc., an Oklahoma corporation (the "Company"), proposes to issue and
sell to the underwriters named in Schedule I certain of its debt securities
specified in Schedule II (the "Offered Securities") on the terms and conditions
stated herein and in Schedule II. The Offered Securities will be issued
pursuant to an indenture dated as of ___, 1998 (the "Indenture") between the
Company and Chase Bank of Texas National Association, as trustee (the
"Trustee"). As used herein, unless the context otherwise requires, the term
"Underwriters" shall mean the firms named as Underwriters in Schedule I and the
term "you" shall mean the Underwriters, if no underwriting syndicate is
purchasing the Offered Securities, or the representatives of the Underwriters,
if an underwriting syndicate is purchasing the Offered Securities, as indicated
in Schedule I.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333-___),
including a prospectus, relating to certain of its debt securities (including
the Offered Securities) and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "1933 Act").
Such registration statement has been declared effective by the Commission. As
provided in Section 3(a), a prospectus supplement reflecting the terms of the
Offered Securities, the terms of the offering thereof and the other matters set
forth therein has been prepared and will be filed pursuant to Rule 424 under the
1933 Act. Such prospectus supplement, in the form first filed after the date
hereof pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement." Such registration statement, as amended at the date hereof,
including the exhibits thereto and the documents incorporated by reference
therein, is herein called the "Registration Statement," and the basic prospectus
included therein relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement, is herein called the
"Prospectus," except that, if such basic prospectus is amended or supplemented
on or prior to the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to the basic prospectus
as so amended or supplemented and as supplemented by the Prospectus Supplement,
in either case including the documents filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
that are incorporated by reference therein.
Section 1. Representations and Warranties. (a) The Company represents
------------------------------
and warrants to and agrees with each Underwriter that:
(i) On the original effective date of the Registration Statement, on
the effective date of the most recent post-effective amendment thereto, if
any, and on the date of the filing by the Company of any annual report on
Form 10-K after the original filing of the Registration Statement, the
Registration Statement complied in all material respects with the
requirements of the 1933 Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations"), the Trust Indenture Act
of 1939, as amended (the "1939 Act"), and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; on the date hereof and at the Closing Date (as
defined below), the Prospectus, and any amendments thereof and supplements
thereto, complies and will comply in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act and
the 1939 Act Regulations and the Prospectus, and any amendments thereof and
supplements thereto, does not include and will not include an untrue
statement of a material fact and does not omit and will not 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;
provided, however, that the Company makes no representations or warranties
-------- -------
as to statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter through
you expressly for use in the Registration Statement or the Prospectus. At
the Closing Date, the Designated Indenture (as defined below) will comply
in all material respects with the requirements of the 1939 Act and the 1939
Act Regulations.
2
(ii) The documents incorporated by reference in the Prospectus, at the
time they were filed with the Commission, complied in all material respects
with the requirements of the 1934 Act, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and when read together
with the other information included in or incorporated by reference in the
Prospectus, do not and will not, on the date hereof and at the Closing
Date, 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 were made, not misleading.
(iii) KPMG Peat Marwick LLP and Xxxxxx Xxxxxxxx LLP, who have reported
upon the audited financial statements and schedules included or
incorporated by reference in the Registration Statement, are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) This Agreement has been duly authorized, executed and delivered
by the Company, and the Company has full corporate power and authority to
enter into this Agreement.
(v) The consolidated financial statements included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of operations and the consolidated
cash flows of the Company and its subsidiaries for the periods specified.
Except as otherwise stated therein, such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. The
financial statement schedules, if any, included or incorporated by
reference in the Registration Statement present fairly the information
required to be stated therein. The selected financial data included or
incorporated by reference in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited consolidated financial statements included or incorporated by
reference in the Registration Statement.
(vi) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Oklahoma with corporate
power and authority under such laws to own, lease and operate its
properties and conduct its business as described in the Prospectus; and the
Company is duly qualified to transact business as a foreign corporation and
is in good standing in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise (a "Material Adverse Effect").
3
(vii) The Company's only direct and indirect subsidiaries are listed
in Exhibit A (each individually, a "Subsidiary", and collectively, the
"Subsidiaries"). Each Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business; and each
Subsidiary is duly qualified to transact business as a foreign corporation
and is in good standing in each other jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that would
make such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a Material Adverse Effect.
All of the outstanding shares of capital stock of each Subsidiary have been
duly authorized and validly issued and are fully paid and non-assessable
and are owned by the Company, directly or through one or more Subsidiaries,
free and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind.
(viii) The Indenture, each supplement thereto, if any, to the date
hereof and the supplement thereto or board resolution setting forth the
terms of the Offered Securities (the Indenture, as so supplemented by such
supplement or supplements and board resolution, being herein referred to as
the "Designated Indenture"), have been duly authorized by the Company. The
Indenture as executed is or will be substantially in the form filed as an
exhibit to the Registration Statement. The Designated Indenture, when duly
executed and delivered (to the extent required by the Indenture) by the
Company and the Trustee, will constitute a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Designated
Indenture conforms in all material respects to the description thereof in
the Prospectus.
(ix) The Offered Securities have been duly authorized by the Company.
When executed, authenticated, issued and delivered in the manner provided
for in the Designated Indenture and sold and paid for as provided herein,
the Offered Securities will constitute valid and binding obligations of the
Company entitled to the benefits of the Designated Indenture and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Offered Securities
conform in all material respects to the description thereof in the
Prospectus.
4
(x) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, there has not been (A) any material
adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its Subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course
of business (a "Material Adverse Change"), (B) any transaction entered
into by the Company or any Subsidiary, other than in the ordinary course of
business, that is material to the Company and its Subsidiaries, considered
as one enterprise, or (C) any dividend or distribution of any kind
declared, paid or made by the Company on its capital stock, other than the
ordinary quarterly dividend paid or payable by the Company to holders of
its Common Stock.
(xi) Neither the Company nor any Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan 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 properties may be subject
except, in each case, any default which would not have a Material Adverse
Effect. The execution and delivery by the Company of this Agreement and the
Designated Indenture, the issuance and delivery of the Offered Securities,
the consummation by the Company of the transactions contemplated herein and
in the Registration Statement and compliance by the Company with the terms
of this Agreement and the Designated Indenture have been duly authorized by
all necessary corporate action on the part of the Company and do not and
will not result in any violation of the charter or by-laws of the Company
or any Subsidiary, and do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any Subsidiary under (A) any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any Subsidiary is a party
or by which it may be bound or to which any of its properties may be
subject or (B) any existing applicable law, rule, regulation, judgment,
order or decree or determination of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their respective properties.
(xii) No authorization, approval, consent or license of any government,
governmental instrumentality or court, domestic or foreign (other than
under the 1933 Act, the 1939 Act and the securities or blue sky laws of the
various states), is required for the valid authorization, issuance, sale
and delivery of the Offered Securities or for the execution, delivery or
performance of the Designated Indenture by the Company.
(xiii) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting the
5
Company or any Subsidiary that is required to be disclosed in the
Prospectus or that could reasonably be expected to result in any Material
Adverse Change, or that could adversely affect the consummation of the
transactions contemplated in this Agreement; no pending legal or
governmental proceedings that are not described in the Prospectus to which
the Company or any Subsidiary is a party or which affect any of their
respective properties, including ordinary routine litigation incidental to
the business of the Company or any Subsidiary, could reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect.
(xiv) There are no contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described and filed (or
incorporated by reference) as required.
(xv) The Company and the Subsidiaries each has good and marketable
title to all properties and assets described in the Prospectus as owned by
it, free and clear of all liens, charges, encumbrances or restrictions,
except such as (A) are described in the Prospectus or (B) do not materially
affect the value of such property and do not interfere with the use made or
proposed to be made of such property by the Company or such Subsidiary; all
of the real property and buildings held under lease by the Company and the
Subsidiaries are held by them under valid, existing and enforceable leases
with such exceptions as are not material and do not interfere with the use
made or proposed to be made of such property and buildings by the Company
and such Subsidiaries.
(xvi) The Company and its Subsidiaries each owns or possesses all
governmental licenses, permits, certificates, consents, orders, approvals
and other authorizations (collectively, "Governmental Licenses") necessary
to own or lease, as the case may be, and to operate its properties and to
carry on its business as presently conducted, except for those Governmental
Licenses the absence of which would not have a Material Adverse Effect,
and neither the Company nor any Subsidiary has received any notice of
proceedings relating to revocation or modification of any such Governmental
Licenses.
(xvii) The Company and the Subsidiaries each owns or possesses, or
can acquire on reasonable terms, adequate patents, patent licenses,
copyrights, trademarks, service marks, trade names and know-how (including
trade secrets and other unpatented and unpatentable proprietary or
confidential information, systems or procedures), necessary to carry on its
business as presently conducted, and neither the Company nor any Subsidiary
has received any notice of infringement of or conflict with asserted rights
of others with respect to any patents, patent licenses, copyrights,
trademarks, service marks or trade names.
6
(xviii) No labor problem exists with the Company's employees or with
employees of the Subsidiaries or, to the Company's Knowledge, is imminent,
and the Company is not aware of any existing or imminent labor disturbance
by the employees of any of its or the Subsidiaries' principal suppliers,
contractors or customers that could be expected to have a Material Adverse
Effect.
(xix) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Offered Securities and the Company has not distributed and will not
distribute any prospectus (as such term is defined in the 1933 Act and the
1933 Act Regulations) in connection with the offering and sale of the
Offered Securities other than any preliminary prospectus filed with the
Commission or the Prospectus or other material permitted by the 1933 Act or
the 1933 Act Regulations.
(xx) The Company is not an investment company or a company controlled
by an investment company under the Investment Company Act of 1940.
(xxi) All United States federal income tax returns of the Company and
its Subsidiaries required by law to be filed have been filed, and all other
franchise and income tax returns of the Company and its Subsidiaries
required to be filed pursuant to applicable foreign, state or local law
have been filed, and all taxes shown by such returns or otherwise assessed,
which are due and payable, have been paid, except tax assessments, if any,
as are being contested in good faith and as to which adequate reserves have
been provided. The charges, accruals and reserves on the books of the
Company and its Subsidiaries in respect of any income and corporate
franchise tax liability for any years not finally determined are adequate
to meet any assessments or re-assessments for additional income or
corporate franchise tax for any years not finally determined.
(xxii) The Company and its subsidiaries are implementing a
comprehensive, detailed program to analyze and address the risk that the
computer hardware and software used by them may be unable to recognize and
properly execute date-sensitive functions involving certain dates prior to
and any dates after December 31, 1999 (the "Year 2000 Problem"), and
reasonably believes that such risk will be remedied on a timely basis
without material expense and will not have a Material Adverse Effect; and
the Company believes, after due inquiry, that each supplier, vendor,
customer or financial service organization used or serviced by the Company
and its Subsidiaries has remedied or will remedy on a timely basis the Year
2000 Problem, except to the extent that a failure to remedy by any such
supplier, vendor, customer or financial service organization would not have
a Material Adverse Effect. The Company is in compliance with the
7
Commission's most recent staff legal bulletin related to Year 2000
complaince.
(b) Any certificate signed by any officer of the Company or any
Subsidiary pursuant to this Agreement and delivered to you or to counsel for the
Underwriters in connection with the offering of the Offered Securities shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
Section 2. Purchase and Sale. (a) On the basis of the representations
-----------------
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at the purchase
price to the Underwriters set forth in Schedule II, the principal amount of
Offered Securities set forth opposite the name of such Underwriter in Schedule
I.
(b) Payment of the purchase price for, and delivery of, the Offered
Securities shall be made at the date and time specified in Schedule II, or at
such other date and time as shall be agreed upon by the Company and you, or as
shall otherwise be provided in Section 10 (such date and time of payment and
delivery being herein called the "Closing Date"). Payment shall be made to the
Company by you hereunder by wire transfer payable in immediately available funds
to an account specified by the Company, against delivery to you for the
respective accounts of the several Underwriters of the Offered Securities.
Delivery of the Offered Securities shall be made through the facilities of the
Depository Trust Company unless you shall otherwise instruct.
Section 3. Certain Covenants of the Company. The Company covenants
--------------------------------
with each Underwriter as follows:
(a) If requested by you in connection with the offering of the
Offered Securities, the Company will prepare a preliminary prospectus
supplement containing such information as you and the Company deem
appropriate, and, immediately following the execution of this Agreement,
the Company will prepare a Prospectus Supplement that complies with the
1933 Act and the 1933 Act Regulations and that sets forth the principal
amount of the Offered Securities and their terms not otherwise specified
in the Indenture, the name of each Underwriter participating in the
offering and the principal amount of the Offered Securities that each
severally has agreed to purchase, the name of each Underwriter, if any,
acting as representative of the Underwriters in connection with the
offering, the price at which the Offered Securities are to be purchased
by the Underwriters from the Company, any initial public offering price,
any selling concession and reallowance and any delayed delivery
arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Offered Securities.
The Company will transmit copies of the Prospectus Supplement to
8
the Commission for filing pursuant to and within the time period permitted
by Rule 424 under the 1933 Act and will furnish to the Underwriters as many
copies of any preliminary prospectus supplement and the Prospectus as you
shall reasonably request.
(b) The Company will comply with the 1933 Act and the 1933 Act
Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit
the completion of the distribution of the Offered Securities as
contemplated in this Agreement and in the Prospectus. If at any time when
the Prospectus is required by the 1933 Act to be delivered in connection
with sales of the Offered Securities any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or counsel for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the
Prospectus 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
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, at any such time to amend the Registration Statement
or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(d),
such amendment or supplement as may be necessary to correct such untrue
statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities, the
Company will, subject to Section 3(d), file promptly all documents required
to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the
1934 Act.
(d) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities, the
Company will inform you of its intention to file any amendment to the
Registration Statement, any supplement to the Prospectus or any document
that would as a result thereof be incorporated by reference in the
Prospectus; will furnish you with copies of any such amendment, supplement
or other document a reasonable time in advance of filing; and will not file
any such amendment, supplement or other document in a form to which you or
your counsel shall reasonably object.
(e) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities, the
Company will notify you immediately, and confirm the notice in writing, (i)
of the effectiveness of any amendment to the Registration Statement, (ii)
of the mailing or the delivery to the Commission for filing of any
supplement to the Prospectus or any document that would as a result thereof
be incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from
9
the Commission with respect to the Registration Statement, the Prospectus
or the Prospectus Supplement, (iv) of any request by the Commission for any
amendment to the Registration Statement or any supplement to the Prospectus
or for additional information relating thereto or to any document
incorporated by reference in the Prospectus and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Offered Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceeding for any of such purposes. The
Company will use its best efforts to prevent the issuance of any such stop
order or of any order suspending such qualification and, if any such order
is issued, to obtain the lifting thereof at the earliest possible moment.
(f) The Company has furnished or will furnish to you as many conformed
copies of the Registration Statement (as originally filed) and of all
amendments thereto, whether filed before or after the Registration
Statement became effective, copies of all exhibits and documents filed
therewith or incorporated by reference therein (through the end of the
period when the Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Offered Securities) and conformed copies of
all consents and certificates of experts, as you may reasonably request,
and has furnished or will furnish to you, for each of the Underwriters, one
conformed copy of the Registration Statement (as originally filed) and of
each amendment thereto (including documents incorporated by reference into
the Prospectus).
(g) The Company will arrange for the qualification of the Offered
Securities for offering and sale under the applicable securities laws of
such states and other jurisdictions as you may designate and will maintain
such qualifications in effect for so long as required for the distribution
of the Offered Securities. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the
Offered Securities have been qualified as above provided. Notwithstanding
the preceding sentences, the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject or file a general consent to
service of process in any jurisdiction.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 45 days after the close of the
period covered thereby (or 90 days, in the case of a period that is also
the Company's fiscal year), an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations),
covering (i) a period of 12 months beginning after the effective date of
the Registration Statement and covering a period of 12 months beginning
after the effective date of any post-effective amendment to the
Registration Statement but not later than the first day of the Company's
fiscal quarter next following such respective effective dates and (ii) a
period of 12 months beginning after the date of this Agreement but not
later
10
than the first day of the Company's fiscal quarter next following the
date of this Agreement.
(i) If and to the extent specified in Schedule II, the Company will
use its best efforts to cause the Offered Securities to be duly authorized
for listing on such exchange specified in Schedule II and to be registered
under the 1934 Act.
(j) For a period of five years after the Closing Date, the Company
will furnish to you and, upon request, to each Underwriter, copies of all
annual reports, quarterly 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, and such other documents, reports and
information as shall be furnished by the Company to its stockholders or
security holders generally.
(k) Between the date hereof and such date as may be specified in
Schedule II, the Company will not, without your prior consent, offer or
sell, enter into any agreement to sell, or announce the offering of, any
debt securities issued or guaranteed by the Company with maturities longer
than one year (other than the Offered Securities). This limitation is not
applicable to such offerings as may be specified in Schedule II.
Section 4. Payment of Expenses. The Company will pay and bear all
-------------------
costs and expenses incident to the performance of its obligations under this
Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, any preliminary prospectus supplements and the
Prospectus and any amendments or supplements thereto, and the cost of furnishing
copies thereof to the Underwriters, (b) the preparation, printing and
distribution of this Agreement, the Designated Indenture, the Offered Securities
and the Blue Sky Survey, (c) the delivery of the Offered Securities to the
Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Offered Securities under the
applicable securities laws in accordance with Section 3(g) and any filing for
review of the offering with the National Association of Securities Dealers,
Inc., including filing fees and reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the Blue Sky
Survey, (f) any fees charged by rating agencies for rating the Offered
Securities, (g) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee, in connection with the Designated
Indenture and the Offered Securities and (h) the listing fees and expenses
incurred in connection with any listing of the Offered Securities on the New
York Stock Exchange or any other exchange. Except as otherwise provided
in this Section 4, the Underwriters shall pay all of their own costs and
expenses.
If this Agreement is terminated by you in accordance with the provisions of
Section 5 or 9(a), the Company shall reimburse the Underwriters for all their
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
11
Section 5. Conditions of Underwriters' Obligations. Except as
---------------------------------------
otherwise provided in Schedule II, the obligations of the Underwriters to
purchase and pay for the Offered Securities pursuant to this Agreement are
subject to the accuracy of the representations and warranties of the Company
contained herein or in certificates of any officer of the Company or any
Subsidiary delivered pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder, and to the following further
conditions:
(a) At the Closing Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act and
no proceedings for that purpose shall have been instituted or shall be
pending or, to your knowledge or the knowledge of the Company, shall be
contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
satisfaction of counsel for the Underwriters.
(b) At the Closing Date, you shall have received a signed opinion of
Xxxxx and Xxxxxxx, counsel for the Company, dated as of the Closing Date,
together with signed or reproduced copies of such opinion for each of the
other Underwriters, in form and substance satisfactory to counsel for the
Underwriters, to the effect stated in Schedule III hereto.
(c) At the Closing Date, you shall have received signed opinions of
Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the Underwriters, dated the
Closing Date, together with signed or reproduced copies of such opinions
for each of the other Underwriters, with respect to the issuance and sale
of the Offered Securities, the Indenture, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other related
matters as you may reasonably require, and the Company shall have furnished
to Cleary, Gottlieb, Xxxxx & Xxxxxxxx such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) You shall have received a certificate of the President or a
Vice President, and the Treasurer or the Controller, of the Company, dated
as of the Closing Date, to the effect that (i) there has not been, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, any Material Adverse Change, (ii) the Company
has complied with all agreements and satisfied all conditions on its part
to be performed and satisfied at or prior to the Closing Date and (iii) the
representations and warranties of the Company set forth in Section 1(a) are
true and correct in all material respects as though expressly made at and
as of the Closing Date.
(e) You shall have received on the Closing Date a letter from each of
KPMG Peat Marwick LLP and Xxxxxx Xxxxxxxx LLP, independent public
accountants (or other independent public accountants acceptable to you),
dated as of the Closing Date, in form and substance satisfactory to you,
containing statements and information of the type ordinarily included in
accountants'
12
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained or incorporated by reference in
the Registration Statement or the Prospectus.
(f) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading, nor
any notice given of any intended or potential downgrading or of a possible
change that does not indicate the direction of the possible change, in the
rating accorded any of the Company's securities, including the Offered
Securities, by any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under the 1933 Act.
(g) At the Closing Date, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
request for the purpose of enabling them to pass upon the issuance and sale
of the Offered Securities as herein contemplated and the other matters to
be addressed in the opinion referred to in Section 5(c) and in order to
evidence the accuracy and completeness of any of the representations,
warranties or statements of the Company, the performance of any of the
covenants of the Company, or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Company at or prior to
the Closing Date in connection with the authorization, issuance and sale of
the Offered Securities as herein contemplated shall be satisfactory in form
and substance to the Underwriters and to counsel for the Underwriters.
If any of the conditions specified in this Section 5 shall not have been
fulfilled when and as required by this Agreement, this Agreement may be
terminated by you on notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party, except as provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 4, 6, 7 and 8 shall remain in effect.
The documents required to be delivered by this Section 5 shall be
delivered on the Closing Date at the time and location specified in Schedule II.
Section 6. Indemnification. (a) The Company agrees to indemnify and
---------------
hold harmless each Underwriter, and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever (including but not limited to attorneys' fees and disbursements
and the allocated costs of in-house counsel), as incurred, arising out of
an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto),
including all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to
13
make the statements therein not misleading or arising out of an untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever (including but not limited to attorneys' fees and
disbursements), as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever (including but not
limited to attorneys' fees and disbursements), as incurred, reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that 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 or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
specifically for inclusion therein provided, further, that such indemnity with
-------- -------
respect to the preliminary prospectus or preliminary prospectus supplement shall
not inure to the benefit of any Underwriter (or any persons controlling such
Underwriter) from whom the person asserting such loss, claim, damage or
liability purchased the Offered Securities which are the subject thereof if such
person did not receive a copy of the final prospectus or prospectus supplement
(or the final prospectus supplement as amended or supplemented at or prior to
the confirmation of the sale of such Offered Securities to such person and any
such untrue statement or omission or alleged untrue statement or omission of a
material fact contained in such preliminary prospectus or preliminary prospectus
supplement (or any amendment or supplement thereto) was corrected in the final
prospectus or final prospectus supplement (or the final prospectus supplement as
amended or supplemented).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 6(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus supplement or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but
14
failure to so notify an indemnifying party shall not relieve it from any
liability which it may have otherwise than on account of this indemnity
agreement. If it so elects within a reasonable time after receipt of such
notice, an indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with counsel chosen
by it and approved by the indemnified parties defendant in such action, unless
such indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying party shall not be liable
for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action unless (i) the use of the counsel
chosen by the indemnifying party to represent the indemnified parties would
present such counsel with a conflict of interest, (ii) the actual or potential
defendants in any such action include both the indemnified parties and the
indemnifying party and the indemnified parties shall have reasonably concluded
that there may be legal defenses available to them which are different from or
additional to those available to the indemnifying party, (iii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified parties,
or (iv) the indemnifying party shall authorize the indemnified parties to employ
separate counsel at the expense of the indemnifying party. The indemnifying
party shall not be liable for any settlement of any such action or proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified parties from and against any loss or liability by
reason of such settlement or judgment. The indemnifying party will not settle
any action or proceeding without the written consent of the indemnified parties
unless such settlement includes an unconditional release of such indemnified
parties from all liability arising out of such claim, action, suit or
proceeding.
Section 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances under which the indemnity provided for in Section
6 is for any reason unavailable or insufficient to hold harmless an indemnified
party, the Company and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity incurred by the Company and one or more of the Underwriters, as
incurred, in such proportions as to reflect the relative benefits to the Company
on the one hand and to the Underwriters on the other of the offering of the
Offered Securities. The relative benefits to the Company on the one hand and to
the Underwriters on the other shall be deemed to be in the same proportions as
the initial public offering price for the Offered Securities bears to the
underwriting discount hereunder with respect to the offering of the Offered
Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then the Company and the
Underwriters shall contribute to such amount paid or payable in such proportion
as is appropriate to reflect not only the relative benefits but also the
relative fault of the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
15
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. The Underwriters' obligations to contribute
pursuant to this Section 7 shall be several in proportion to their respective
underwriting obligations and not joint. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act, shall
have the same rights to contribution as such Underwriter, and each director of
the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
Section 8. Survival of Certain Provisions. The representations,
------------------------------
warranties, indemnities, agreements and other statements of the Company or its
officers set forth in or made pursuant to this Agreement will remain operative
and in full force and effect regardless of any investigation made by or on
behalf of the Company, any Underwriter or any person who controls the Company or
any Underwriter within the meaning of Section 15 of the 1933 Act and will
survive delivery of and payment for the Offered Securities. The provisions of
Sections 4, 6, 7 and 8 shall survive the termination or cancellation of this
Agreement.
Section 9. Termination of Agreement. (a) You may terminate this
------------------------
Agreement, by notice to the Company, at any time at or prior to the Closing
Date (i) if there has been, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any Material Adverse
Change, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or any outbreak of hostilities or
escalation thereof or other calamity or crisis the effect of which is such as to
make it, in your judgment, impracticable or inadvisable to market the Offered
Securities or enforce contracts for the sale of the Offered Securities or (iii)
if trading in any securities of the Company has been suspended by the Commission
or a national securities exchange, or if trading generally on the New York Stock
Exchange shall have been suspended or limited or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or
16
by order of the Commission, the New York Stock Exchange or any other
governmental authority or (iv) if a banking moratorium has been declared by
either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 4, 6, 7 and 8 shall remain in effect.
Section 10. Default. If one or more of the Underwriters shall fail
-------
at the Closing Date to purchase the Offered Securities that it or they are
obligated to purchase pursuant to this Agreement (the "Defaulted Offered
Securities"), you shall have the right, within 36 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted Offered
Securities in such amounts as may be agreed upon and upon the terms set forth in
this Agreement; if, however, you have not completed such arrangements within
such 36-hour period, then:
(a) if the aggregate principal amount of Defaulted Offered Securities
does not exceed 10% of the aggregate principal amount of the Offered
Securities to be purchased, the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof in the proportions that their
respective underwriting obligations bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Offered Securities
exceeds 10% of the aggregate principal amount of the Offered Securities to
be purchased, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination
of this Agreement, either you or the Company shall have the right to postpone
the Closing Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications shall be in
-------
writing and effective only on receipt, and, if sent to you or the Underwriters,
will be mailed, delivered or telefaxed to [ADDRESS OF UNDERWRITERS]; or, if sent
to the Company, will be mailed, delivered or telefaxed to it at 000 Xxxx 0xx
Xxxxxx, Xxxxx, XX 00000, Attention: Chief Financial Officer, (telecopier no.:
(000) 000-0000), with a copy to Xxxxx and Xxxxxxx, 000 Xxxx 0xx Xxxxxx, Xxxxx,
XX 00000, Attention: Xxxxxx X. Xxxxx (telecopier no.: (000) 000-0000).
17
Section 12. Parties. The agreement herein set forth is made solely
-------
for the benefit of the several Underwriters, the Company and, to the extent
expressed, any person who controls the Company or any of the Underwriters within
the meaning of Section 15 of the 1933 Act, the directors of the Company, its
officers who have signed the Registration Statement, and their respective
executors, administrators, successors and assigns and, subject to the provisions
of Section 10, no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include
any purchaser, as such purchaser, from any Underwriter of the Offered
Securities. If there are two or more Underwriters, all of their obligations
hereunder are several and not joint.
Section 13. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED
----------------------
BY THE LAWS OF THE STATE OF NEW YORK. Specified times of day refer to
New York City time.
Section 14. Counterparts. This Agreement may be executed in one or
------------
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
18
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement among the Company and the several Underwriters
in accordance with its terms.
Very truly yours,
ONEOK, Inc.
By _________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
[Underwriters]
By:
By: __________________________
Name:
Title:
For themselves and as Representatives of the
--------------------------------------------
other Underwriters named in Schedule I.
---------------------------------------
19
EXHIBIT A
SUBSIDIARIES OF ONEOK, INC.
20
SCHEDULE I
ONEOK, Inc.
Senior Note Offering
21
SCHEDULE II
ONEOK, Inc.
Senior Note Offering
Principal amount to be issued: $.
Current ratings:
Interest rate: , payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Initial public offering price: % of the principal amount plus accrued
interest[, or amortized original issue discount, if any,] from
Purchase price: % of the principal amount plus accrued interest[, or
amortized of original issue discount, if any,] from
Closing Date, Time and Location: , 19 at 10:00 a.m. at . .
Listing requirement:
Expiration date of lock-up as contemplated by Section 3(k) and any additional
exceptions referred to in Section 3(k):
Other terms and conditions:
22
SCHEDULE III
MATTERS TO BE COVERED BY OPINION OF COUNSEL TO THE COMPANY
Xxxxx and Xxxxxxx shall have furnished to you an opinion letter to the
following effect (in form and substance satisfactory to you):
1. The Company and each of its subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly licensed or qualified to do business
and is in good standing as a foreign corporation in all jurisdictions in which
the nature of the activities conducted by it or the character of the assets
owned or leased by it makes such license or qualification necessary, has full
power and authority to conduct all the activities conducted by it, to own or
lease all the assets owned or leased by it and to conduct its business as
described in the Registration Statement and the Prospectus and, to the best of
our knowledge, has all governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to carry on its business as
contemplated in the Prospectus.
2. No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Offered Securities, in connection with the execution, delivery and performance
of the Agreement by the Company or in connection with the taking by the Company
of any action contemplated thereby, except such as have been obtained under the
1933 Act, the 1934 Act, the 1933 Act Regulations, the 1934 Act Regulations, the
1939 Act and the 1939 Act Regulations and such as may be required by the by-laws
and rules of the NASD in connection with the purchase and distribution by the
Underwriters of the Offered Securities.
3. The Company has an authorized and outstanding capitalization as
set forth in the Registration Statement and the Prospectus. The Designated
Indenture conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus.
4. The Registration Statement and the Prospectus (including any
documents incorporated by reference into the Prospectus, at the time filed)
comply and complied at the Effective Date in all material respects as to form
with the requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act,
the 1934 Act Regulations, the 1939 Act and the 1939 Act Regulations (except that
we express no opinion as to financial statements,
23
schedules and other financial and statistical data contained in the Registration
Statement or the Prospectus or incorporated by reference therein) .
5. We have participated in the preparation of the Registration
Statement and the Prospectus. Given the limitations inherent in the
independent verification of factual matters and the character of determinations
involved in the registration process, we are not passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus. Subject to the
foregoing and on the basis of the information gained in the performance of the
services referred to above, including information obtained from officers and
other representatives of, and the independent public accountants for, the
Company, and relying as to materiality as to matters of fact to a large extent
on the statements of officers of the Company, nothing has come to our
attention which has caused us to believe that, both as of the Effective Date and
as of the Closing Date, either the Registration Statement or the Prospectus, or
any amendment or supplement thereto including any documents incorporated by
reference into the Prospectus, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances in which they were made (except that we express no opinion as
to the Form T-1 filed as an exhibit to the Registration Statement and as to the
financial statements, schedules and other financial or statistical data
contained in the Registration Statement or the Prospectus or incorporated by
reference therein).
6. The Registration Statement has become effective under the Act and,
to the best of our knowledge, no order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or is threatened, pending or contemplated.
7. We have reviewed all contracts or other documents referred to in
the Registration Statement and the Prospectus and such contracts or other
documents are fairly summarized or disclosed therein and filed as exhibits
thereto as required, and, after due inquiry, we do not know of any contracts or
other documents required to be so summarized or disclosed or required to be
filed under the Exchange Act if upon such filing they would be incorporated, in
whole or in part, by reference therein which have not been so summarized or
disclosed or filed.
8. All descriptions in the Prospectus of the Offered Securities, the
Designated Indenture, statutes, regulations or legal or governmental proceedings
are accurate and fairly present the information required to be shown in all
material respects.
9. The Company has full corporate power and authority to enter into
this Agreement, and the Agreement has been duly authorized, executed and
delivered by the Company.
10. The Company has full corporate power and authority to enter into
the Designated Indenture and to issue the Offered Securities, and the Designated
Indenture has been duly authorized, executed and delivered by the Company and
duly qualified under the Trust Indenture Act; the Offered Securities have been
duly authorized, executed and delivered by the Company and duly authorized,
executed, authenticated (assuming due authentication by or on behalf of the
Trustee), issued and delivered and are entitled to the benefits of the
Designated Indenture; and, subject to applicable bankruptcy, insolvency,
reorganization, fraudulent transfer or conveyance and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles, whether such principles are considered in a proceeding at law or
equity, each of the Designated Indenture and the Offered Securities are legal,
valid and binding
24
obligations of the Company and are enforceable against the Company in accordance
with their respective terms.
11. The execution and delivery of the Agreement and the Designated
Indenture by the Company, the consummation by the Company of the transactions
therein contemplated and the compliance by the Company with the terms of the
Agreement, the Designated Indenture and the Offered Securities do not and will
not result in the creation or imposition of any lien, charge or encumbrance upon
any of the assets of the Company or any of its subsidiaries pursuant to the
terms or provisions of, or result in a breach or violation of any of the terms
or provisions of or constitute a default or result in the acceleration of any
obligation under, the Certificate of Incorporation or By-laws of the Company or
any of its subsidiaries, any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument known to us to
which the Company or any of its subsidiaries is a party or by which it or any of
its properties is bound or affected, or any judgment, ruling, decree, order,
statute, rule or regulation of any court or other governmental agency or body
applicable to the business or properties of the Company or any of its
subsidiaries (except that we express no opinion as to the securities or Blue Sky
laws of any jurisdiction other than the United States).
12. Except as disclosed in the Prospectus, we know of no action, suit
or proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Subsidiary that is required
to be disclosed in the Prospectus or that could reasonably be expected to result
in any Material Adverse Change, or that could adversely affect the consummation
of the transactions contemplated in this Agreement; to the best of our
knowledge, no pending legal or governmental proceedings that are not described
in the Prospectus to which the Company or any Subsidiary is a party or which
affect any of their respective properties, including ordinary routine litigation
incidental to the business of the Company or any Subsidiary, could reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
13. To the best of our knowledge, neither the Company nor any of its
subsidiaries is in violation of its certificate of incorporation, by-laws or
other charter documents or in default (nor has an event occurred which with
notice or lapse of time or both would constitute a default or acceleration) in
the performance of any obligation, agreement or condition contained in any
indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument known to us to which the Company or
any of its subsidiaries is a party
25
or by which it or its properties is bound or affected and neither the Company
nor any of its subsidiaries is in violation of any judgment, ruling, decree,
order, franchise, license or permit known to us or any statute, rule or
regulation of any court or other governmental agency or body applicable to the
business or properties of the Company or any of its subsidiaries, where such
violation or default might have a Material Adverse Effect.
14. The Company is not an investment company or a company controlled
by an investment company under the Investment Company Act of 1940.
In rendering the foregoing opinion, counsel may rely, to the extent
they deem such reliance proper, on the opinions of other counsel as to matters
governed by the laws of jurisdictions other than the United States and the State
of Oklahoma, and as to matters of fact, upon certificates of officers of the
Company and of government officials; provided that such counsel shall state that
--------
in such counsel's opinion that such counsel and the Underwriters are justified
in relying on such opinions of other counsel. Copies of all such opinions and
certificates shall be furnished to counsel to the Underwriters on the Closing
Date. For purposes of paragraph 2 above, we have reviewed only those statutes,
rules and regulations, including regulatory rules and regulations, that in our
experience are applicable to transactions of the type contemplated by the
Underwriting Agreement or the Indenture or for the offering, issuance, sale or
delivery of the Offered Securities.
Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Underwriting Agreement.
26
