EXHIBIT 4.10
DECLARATION OF TRUST
OF
OGE ENERGY CAPITAL TRUST I
DECLARATION OF TRUST, dated as of September 29, 1999, between OGE
Energy Corp., an Oklahoma corporation, as Sponsor, Wilmington Trust Company,
as the initial Delaware Trustee, and A. M. Xxxxxxxx, and Xxxxx X. Xxxxxxxx,
as Regular Trustees (collectively with the Delaware Trustee, the "Trustees").
The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"OGE Energy Corp Capital Trust I", in which name the Trustees, or the Sponsor
to the extent provided herein, may conduct the business of the Trust, make
and execute contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of Ten Dollars ($10.00). The Trustees hereby
acknowledge receipt of such amount in trust from the Sponsor, which amount
shall constitute the initial trust estate. The Trustees hereby declare that
they will hold the trust estate in trust for the Sponsor. It is the intention
of the parties hereto that the Trust created hereby constitute a business
trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del C. Section
3801 et seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware
Secretary of State in the form attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party (and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below)), to provide for the contemplated operation of
the Trust created hereby and the issuance of preferred securities (the
"Preferred Securities") and common securities by the Trust as such securities
will be described therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any
duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior
to such execution and delivery and licenses, consents or approvals required
by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct
the Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i)
to prepare for filing with the Securities and Exchange Commission (the
"Commission") (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating
to the registration of the Preferred Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with the New York
Stock Exchange or any other national stock exchange or The Nasdaq National
Market (each, an "Exchange") and execute on behalf of the Trust one or more
listing applications
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and all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on any of the Exchanges; (iii) to negotiate and
execute an underwriting agreement among the Trust, the Sponsor and the
underwriter(s) thereto relating to the offer and sale of the Preferred
Securities, substantially in the form included or to be incorporated as an
exhibit to the 1993 Act Registration Statement and (iv) to execute and file
such applications, reports, surety bonds, irrevocable consents, appointments
of attorneys for service of process and other papers and documents as shall
be necessary or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf
of the Trust, may deem necessary or desirable.
5. It is hereby acknowledged and agreed that in connection
with any document referred to in clauses (i), (ii) and (iv) above, (A) any
Regular Trustee (or his agent or the Sponsor as permitted herein) is
authorized to execute such document on behalf of the Trust, provided that the
1933 Act Registration Statement and the 1934 Act Registration Statement shall
be signed by the Regular Trustees, and (B) Wilmington Trust Company, in its
capacity as Trustee of the Trust, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, the Exchanges or state
securities or blue sky laws, and in such case only to the extent so required.
6. This Declaration of Trust may be executed in one or more
counterparts.
7. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase
or decrease the number of Trustees; provided that, to the extent required by
the Business Trust Act, one Trustee shall be an entity that has its principal
place of business in the State of Delaware. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty days prior notice to the Sponsor.
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration
of Trust to be duly executed as of the day and year first above written.
OGE ENERGY CORP.,
as Sponsor
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Trustee
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Officer
/s/ A. M. Xxxxxxxx
----------------------------------------
A. M. Xxxxxxxx, as Regular Trustee
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxx, as Regular Trustee
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