Exhibit 1.01
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OKLAHOMA GAS AND ELECTRIC COMPANY
(an Oklahoma corporation)
$ Senior Notes, Series due
FORM OF
PURCHASE AGREEMENT
Dated:
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TABLE OF CONTENTS
PAGE
SECTION 1. Representations and Warranties..............................................................2
(a) Representations and Warranties by the Company.................................................2
(i) Compliance with Registration Requirements............................................2
(ii) Incorporated Documents...............................................................3
(iii) Independent Accountants..............................................................3
(iv) Financial Statements.................................................................4
(v) No Material Adverse Change...........................................................4
(vi) Good Standing of the Company.........................................................4
(vii) No Subsidiaries......................................................................4
(viii) Capitalization.......................................................................4
(ix) Authorization of Agreement...........................................................4
(x) Authorization of the Indenture.......................................................5
(xi) Authorization of the Senior Notes....................................................5
(xii) Description of the Senior Notes and the Indenture....................................5
(xiii) Absence of Defaults and Conflicts....................................................5
(xiv) Absence of Proceedings...............................................................6
(xv) Accuracy of Exhibits.................................................................6
(xvi) Regulatory Approvals; Absence of Further Requirements................................6
(xvii) Possession of Licenses and Permits...................................................6
(xviii) Title to Property....................................................................7
(b) Officer's Certificates........................................................................7
SECTION 2. Sale and Delivery to Underwriters; Closing..................................................7
(a) Senior Notes..................................................................................7
(b) Payment.......................................................................................7
(c) Denominations; Registration...................................................................8
SECTION 3. Covenants of the Company....................................................................8
(a) Compliance with Securities Regulations and Commission Requests................................8
(b) Filing of Amendments..........................................................................8
(c) Delivery of Registration Statements...........................................................9
(d) Delivery of Prospectuses......................................................................9
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TABLE OF CONTENTS
(Continued)
PAGE
(e) Continued Compliance with Securities Laws.....................................................9
(f) Rule 158......................................................................................9
(g) Use of Proceeds...............................................................................10
(h) Restriction on Sale of Securities.............................................................10
(i) Blue Sky Qualifications.......................................................................10
SECTION 4. Payment of Expenses.........................................................................10
(a) Expenses......................................................................................10
(b) Termination of Agreement......................................................................10
SECTION 5. Conditions of Underwriters' Obligations.....................................................10
(a) Effectiveness of Registration Statement; Filing of Prospectus.................................11
(b) Opinions of Counsel for Company...............................................................11
(i) Opinion of Oklahoma Counsel..........................................................11
(ii) Opinion of Arkansas Counsel..........................................................13
(iii) Opinion of Xxxxx Day.................................................................13
(c) Opinion of Counsel for Underwriters...........................................................14
(d) Officers' Certificate.........................................................................14
(e) Accountants' Comfort Letter...................................................................15
(f) Bring-down Comfort Letter.....................................................................15
(g) Maintenance of Rating.........................................................................15
(h) Additional Documents..........................................................................15
(i) Termination of Agreement......................................................................15
SECTION 6. Conditions of Company's Obligations.........................................................16
SECTION 7. Indemnification.............................................................................16
(a) Indemnification of Underwriters...............................................................16
(b) Indemnification of Company, Directors and Officers............................................17
(c) Actions against Parties; Notification.........................................................17
(d) Settlement without Consent if Failure to Reimburse............................................18
SECTION 8. Contribution................................................................................18
SECTION 9. Representations, Warranties and Agreements to Survive Delivery..............................19
SECTION 10. Termination of Agreement....................................................................19
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TABLE OF CONTENTS
(Continued)
PAGE
(a) Termination; General..........................................................................19
(b) Liabilities...................................................................................20
SECTION 11. Default by One or More of the Underwriters..................................................20
SECTION 12. Notices.....................................................................................21
SECTION 13. Parties.....................................................................................21
SECTION 14. Governing Law and Time......................................................................21
SECTION 15. Effect of Headings..........................................................................21
SCHEDULES
Schedule A -- List of Underwriters................................................................Sch. A-1
Schedule B -- Pricing Information.................................................................Sch. B-1
Schedule C -- Information Provided by Underwriters................................................Sch. C-1
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OKLAHOMA GAS AND ELECTRIC COMPANY
(AN OKLAHOMA CORPORATION)
$
SENIOR NOTES, SERIES DUE
PURCHASE AGREEMENT
,
To:
Ladies and Gentlemen:
Oklahoma Gas and Electric Company, an Oklahoma corporation (the "Company"),
confirms its agreement with (the "Representative"), and
(collectively, with the Representative, the "Underwriters," which term includes
any underwriter substituted as hereinafter provided in Section 11 hereof), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in Schedule A hereto of $ aggregate principal amount of the
Company's Senior Notes, Series due (the "Senior Notes"). The Senior Notes
are to be issued pursuant to the Indenture dated as of October 1, 1995 between
the Company and UMB Bank, N.A., as successor trustee (the "Trustee"), as
heretofore amended and supplemented and as amended and supplemented by
Supplemental Indenture No. , dated as of , creating the series in
which the Senior Notes are to be issued. The term "Indenture," as used herein,
means such Indenture dated as of October 1, 1995, as so amended and
supplemented, and includes the Company Order (as defined in the Indenture), if
any, establishing the form and terms of the Senior Notes pursuant to the
Indenture.
The Company understands that the Underwriters propose to make a public
offering of the Senior Notes as soon as they deem advisable after this Agreement
has been executed and delivered and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333- ) covering the
registration of the Senior Notes under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with paragraph (b) of Rule 424
("Rule 424(b)") of the rules and regulations of the Commission under the 1933
Act (the "1933 Act Regulations") or (ii) if the Company elects to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such
prospectus or in such Term Sheet, as the case may be, that was omitted from such
registration statement at the time it became effective is referred to as the
"Offering Terms." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Offering Terms, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Offering
Terms, is herein called the "Registration Statement." Any registration statement
filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to
as the "Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The final prospectus, including the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first furnished
to the Underwriters for use in connection with the offering of the Senior Notes
is herein called the "Prospectus." If Rule 434 is relied on, the term
"Prospectus" shall refer to the preliminary prospectus dated together with the
Term Sheet and all references in this Agreement to the date of the Prospectus
shall mean the date of the Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
Prospectus or any Term Sheet or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time (as defined in Section 2(b) hereof), and agrees with each
Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
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At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective (and, if later, at the time of filing of the Company's annual report
on Form 10-K) and at the Closing Time, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act Regulations"),
and did not and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment or
supplement was issued and at the Closing Time, included or will include an
untrue statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is used,
the Company will comply with the requirements of Rule 434. The representations
and warranties in this subsection shall not apply to (A) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee, (B)
information contained in the Registration Statement or the Prospectus relating
to The Depository Trust Company and its book-entry system, or (C) statements in
or omissions from the Registration Statement or Prospectus made in reliance upon
and in conformity with the information furnished to the Company in writing by
any Underwriter through the Representative expressly for use in the Registration
Statement or Prospectus, which information is set forth on Schedule C hereto.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 of the 1933 Act Regulations ("Rule 424"), complied
when so filed in all material respects with the 1933 Act Regulations, and each
preliminary prospectus and the Prospectus delivered to the Underwriters for use
in connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), as applicable, and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective (and, if later, at the time of filing of the Company's
annual report on Form 10-K), at the time the Prospectus was issued and at
the Closing Time, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iii) INDEPENDENT ACCOUNTANTS. Ernst & Young LLP, the accountants
who examined the financial statements and supporting schedules included in
the Registration
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Statement, are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements included in
the Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company
at the dates indicated and the results of operations, stockholders' equity
and cash flows of the Company for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved, except as otherwise stated in the notes thereto. The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial information included in the
Prospectus presents fairly the information shown therein and has been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The Company has no
material contingent obligation which is not disclosed in the Prospectus.
(v) NO MATERIAL ADVERSE CHANGE. Since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, results of operations, properties, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company, other than those in the ordinary course of
business, which are material with respect to the Company, and (C) except
for regular quarterly dividends on the Common Stock, par value $2.50 per
share, of the Company in amounts consistent with past practice, there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Oklahoma and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect.
(vii) NO SUBSIDIARIES. The Company has no subsidiaries.
(viii) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company is as stated in the Prospectus.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
4
(x) AUTHORIZATION OF THE INDENTURE. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and, when
duly executed and delivered by the Company and the Trustee, will constitute
a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(xi) AUTHORIZATION OF THE SENIOR NOTES. The Senior Notes have
been duly authorized and, at the Closing Time, will have been duly executed
by the Company and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the purchase
price therefor as provided in this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law),
and will be in the form contemplated by, and entitled to the benefits
provided by, the Indenture.
(xii) DESCRIPTION OF THE SENIOR NOTES AND THE INDENTURE. The
Senior Notes and the Indenture will conform in all material respects to the
respective statements relating thereto contained in the Prospectus and will
be in substantially the respective forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration Statement.
(xiii) ABSENCE OF DEFAULTS AND CONFLICTS. The Company is not in
violation of its Restated Certificate of Incorporation or By-Laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound, or to which
any of its property or assets is subject (collectively, "Agreements and
Instruments") except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement, the Indenture and the Senior Notes, and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Senior Notes and the use of the
proceeds from the sale of the Senior Notes as described in the Prospectus
under the caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and under the Indenture and the Senior Notes have
been duly authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches, defaults or liens, charges or encumbrances that would not result
in a Material Adverse Effect), nor will such action result in any violation
of the provisions of the Restated Certificate of
5
Incorporation or By-Laws of the Company or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company, other than such events or conditions that are
contemplated by the terms of this Agreement and the Indenture.
(xiv) ABSENCE OF PROCEEDINGS. Other than as disclosed in the
Registration Statement, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company, which is required to
be disclosed in the Registration Statement or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder. The aggregate of all pending legal or
governmental proceedings to which the Company is a party or of which any of
its property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
its business, could not reasonably be expected to result in a Material
Adverse Effect.
(xv) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described or filed as
required.
(xvi) REGULATORY APPROVALS; ABSENCE OF FURTHER REQUIREMENTS. The
Corporation Commission of the State of Oklahoma (the "Oklahoma Commission")
has, to the extent necessary, duly authorized the issuance and sale of the
Senior Notes on terms consistent with this Agreement. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of
the Senior Notes hereunder or the consummation of the transactions
contemplated by this Agreement and the Registration Statement or for the
due execution, delivery or performance of the Indenture by the Company,
except such as have been already obtained, including from the Oklahoma
Commission.
(xvii) POSSESSION OF LICENSES AND PERMITS. The Company possesses
such permits, licenses, approvals, consents, franchises and other
authorizations issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct in all material respects
the business now operated by it and as described in the Registration
Statement and Prospectus, except where the failure so to possess such
permit, license, approval, consent or authorization would not, singly or in
the aggregate, have a Material Adverse Effect (collectively, "Governmental
Licenses"); the Company is
6
in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in the
aggregate, have a Material Adverse Effect; all of the Governmental Licenses
are in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and the
Company has not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xviii) TITLE TO PROPERTY. The Company has good and sufficient
title to all real property, principal plants and all other property owned
by it and which is material to the Company's operations, in each case, free
and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described
in the Prospectus or (b) do not, singly or in the aggregate, materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company; and all of the
leases and subleases material to the business of the Company, and under
which the Company holds properties described in the Prospectus, are in full
force and effect, and the Company does not have notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of
the Company under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company and delivered to any Underwriter or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(a) SENIOR NOTES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the principal amount of Senior Notes set
forth in Schedule A opposite the name of such Underwriter, plus any additional
principal amount of Senior Notes which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 11 hereof.
(b) PAYMENT. Payment of the purchase price, and delivery of
certificates, for the Senior Notes shall be made at the offices of Xxxxx Day,
Chicago, Illinois, or at such other place as shall be agreed upon by the
Representative and the Company, at 9:00 A.M. (Chicago time) on the third
business day after the date hereof (unless postponed in accordance with the
provisions of Section 11), or such other time not later than ten business days
after such date as shall be agreed upon by the Representative and the Company
(such time and date of payment and delivery being herein called "Closing Time").
7
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative for the respective accounts of the Underwriters of
certificates for the Senior Notes to be purchased by them. It is understood that
each Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Senior
Notes which it has agreed to purchase. The Representative, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Senior Notes to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(c) DENOMINATIONS; REGISTRATION. One certificate for the Senior Notes
shall be in the amount of $ and registered in the name of Cede & Co., as nominee
of The Depository Trust Company. The Company will make the Senior Notes, which
may be in temporary form, available for examination and packaging by the
Underwriters in
New York,
New York not later than 10:00 A.M. (
New York time) on
the business day prior to the Closing Time.
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants with each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 3(b), will comply with the requirements of Rule 424
or Rule 434, as applicable, and will notify the Underwriters immediately, and
confirm the notice in writing, (i) of the effectiveness of any post-effective
amendment to the Registration Statement, or of the filing of any supplement to
the Prospectus or any amended Prospectus, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Senior Notes for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Underwriters notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, will furnish the Representative with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Representative or counsel for the Underwriters reasonably objects.
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(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, in such number as the Representative reasonably requests, and will also
deliver to the Representative, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the
completion of the distribution of the Senior Notes as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Senior Notes, any
event occurs or condition exists as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it is necessary, in
the opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) RULE 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
9
(g) USE OF PROCEEDS. The Company will use the net proceeds received by
it from the sale of the Senior Notes in the manner specified in the Prospectus
under "Use of Proceeds."
(h) RESTRICTION ON SALE OF SECURITIES. During the period beginning on
the date of this Agreement and continuing until the Closing Time, which period
shall in no event exceed 15 business days, the Company will not, without the
prior written consent of the Representative, in its sole discretion, directly or
indirectly, issue, sell, offer or contract to sell, grant any option for the
sale of, or otherwise transfer or dispose of, any debt securities of the Company
which mature more than one year after the Closing Time and which are
substantially similar to the Senior Notes.
(i) BLUE SKY QUALIFICATIONS. The Company will furnish such information,
execute such instruments and take such action as may be required to qualify the
Senior Notes for sale under the laws of such jurisdictions as the Representative
may designate and will maintain such qualifications in effect so long as
required for the distribution of the Senior Notes; provided that the Company
shall not 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.
SECTION 4. PAYMENT OF EXPENSES
(a) EXPENSES. Whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, the Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters, the Indenture,
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Senior Notes, (iii) all costs, taxes
and expenses incident to the preparation, issuance and delivery of the Senior
Notes to the Underwriters, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectus and any amendments or supplements thereto, (vi) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Senior Notes, (vii) any fees
payable in connection with the rating of the Senior Notes and (viii) all costs
and expenses (including reasonable fees and expenses of counsel) incurred in
connection with "blue sky" qualifications.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 10(a)(i)
hereof or in accordance with Section 6 hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof and in certificates
10
of any officer of the Company delivered pursuant to the provisions hereof, to
the performance by the Company of its covenants and other obligations hereunder
and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT; FILING OF PROSPECTUS. The
Registration Statement, including any Rule 462(b) Registration Statement, has
become effective, and at Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Offering Terms shall have been filed
with the Commission in accordance with Rule 424(b) or, if the Company has
elected to rely upon Rule 434, a Term Sheet shall have been filed with the
Commission in accordance with Rule 424(b).
(b) OPINIONS OF COUNSEL FOR COMPANY. At Closing Time, the
Representative shall have received the favorable opinions, dated as of Closing
Time, of Rainey, Ross, Rice & Xxxxx, Oklahoma City, Oklahoma, Xxxxxxxxxx,
Xxxxxxx & Julian, P.A., Little Rock, Arkansas, and Xxxxx Day, Chicago, Illinois,
each counsel for the Company, in form and substance satisfactory to counsel for
the Underwriters, together with signed original or reproduced copies of such
opinions for each of the other Underwriters to the effect set forth below and to
such further effect as counsel to the Underwriters may reasonably request.
(i) OPINION OF OKLAHOMA COUNSEL.
(A) the Company is a legally existing corporation and is in
good standing under the laws of the State of Oklahoma and has corporate
power, right and authority to do business and to own property in the State
of Oklahoma in the manner and as set forth in the Prospectus;
(B) the Indenture has been duly and validly executed and
delivered by the Company, which has full power and authority to enter into
and perform its obligations thereunder; and the Indenture constitutes the
binding and enforceable agreement of the Company in accordance with its
terms, except as enforcement of provisions of the Indenture may be limited
by bankruptcy or other applicable laws affecting the enforcement of
creditors' rights;
(C) the Senior Notes are in the form contemplated by the
Indenture, have been duly and validly authorized by the Company, constitute
valid and binding obligations of the Company and will be entitled to the
benefits of the Indenture;
(D) while, except as otherwise stated in said opinion, such
counsel are not passing upon and do not assume responsibility for and shall
not be deemed to have independently verified the accuracy, completeness or
fairness of the Registration Statement or the Prospectus, nothing has come
to the attention of such counsel that would lead them to believe that the
Registration Statement at the time it became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading
11
or that the Prospectus at the time it was filed pursuant to Rule 424
and/or Rule 434 under the 1933 Act or at the Closing Time contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(E) the execution and delivery of this Agreement have been
duly authorized by the necessary action on the part of the Company and
this Agreement constitutes the valid and binding agreement of the Company
except to the extent that the provisions for indemnities or contribution
may be held to be unenforceable as against public policy;
(F) except in localities where the Company has no franchises,
which are relatively few and not of large population, or where the failure
to have such franchises will not have a material adverse effect on the
business or operations of the Company, the Company has sufficient authority
under statutory provisions or by grant of franchises or permits by
municipalities or counties to conduct its business in Oklahoma as presently
conducted and as described in the Prospectus;
(G) such counsel does not know of any legal or governmental
proceedings required to be described in the Prospectus which are not
described as required, nor of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or to
be filed as exhibits to the Registration Statement which are not described
and filed as required;
(H) the Indenture and the Senior Notes conform in all material
respects to the statements concerning them in the Prospectus;
(I) all statements contained in the Registration Statement and
Prospectus purporting to set forth the advice or the opinion of such
counsel or to be based upon the opinion of such counsel correctly set forth
the opinion of such counsel on such respective matters;
(J) the execution and delivery of this Agreement and the
issuance of the Senior Notes, and compliance with the provisions thereof,
under the circumstances contemplated hereby and thereby, do not and will
not violate the Restated Certificate of Incorporation or By-Laws of the
Company, or in any material respect conflict with or constitute on the part
of the Company a breach of or default under any indenture, lease, mortgage,
deed of trust, note, agreement or other instrument known to such counsel to
which the Company is a party or any law, regulation, consent decree or
administrative, arbitration or court order known to such counsel to which
the Company is subject;
(K) the Oklahoma Commission has duly issued its order
authorizing the issuance by the Company of the Senior Notes on terms
consistent with this Agreement and, to the best of such counsel's
knowledge, such order is still in force and effect; the issuance and sale
of the Senior Notes to the Underwriters is in conformity with the terms of
such order; and no further approval, authorization, consent, certificate or
order of any Oklahoma commission or regulatory authority is necessary with
respect to the due authorization, execution and delivery of this Agreement,
the due execution, delivery or
12
performance of the Indenture by the Company or for the offering, issuance,
sale or delivery of the Senior Notes to the Underwriters as contemplated in
this Agreement; and
(L) to the best of such counsel's knowledge, the Company does
not have any subsidiaries.
(ii) OPINION OF ARKANSAS COUNSEL.
(A) the Company is duly qualified as a foreign corporation and
is in good standing under the laws of the State of Arkansas and has
corporate power, right and authority to do business and to own property in
the State of Arkansas in the manner and as set forth in the Prospectus;
(B) except in localities where the Company has no franchises,
which are relatively few and not of large population, or where the failure
to have such franchises will not have a material adverse effect on the
business or operations of the Company, the Company has sufficient authority
under statutory provisions or by grant of franchises or permits by
municipalities or counties to conduct its business in Arkansas as presently
conducted and as described in the Prospectus;
(C) No approval, authorization, consent, certificate or order
of the Arkansas Public Service Commission or any other governmental or
regulatory authority is necessary with respect to the due authorization,
execution and delivery of this Agreement, the due execution, delivery or
performance of the Indenture by the Company or for the offering, issuance,
sale and delivery of the Senior Notes by the Company as contemplated in
this Agreement; and
(D) such counsel is not handling any litigation relating to the
Company except as set forth in a schedule attached to such opinion.
(iii) OPINION OF XXXXX DAY.
(A) such opinion shall cover the matters set forth in
subdivisions (D), (G), (H), (J) and (L) of paragraph (b)(i) of this Section
5;
(B) the Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the 1933 Act, the
Prospectus has been filed pursuant to Rule 424(b) and/or Rule 434 of the
1933 Act Regulations, and, to the best knowledge of said counsel, no
proceedings for a stop order in respect thereof are pending or threatened
under Section 8(d) or 8(e) of the 1933 Act;
(C) the Registration Statement, including any Rule 462(b)
Registration Statement, the Offering Terms and the Prospectus (except as to
the financial statements and financial or statistical data contained
therein, with respect to which said counsel need express no opinion) comply
as to form, in all material respects, with the requirements of the 1933
Act, the 1934 Act and the 1939 Act and the rules and regulations of the
Commission under such Acts; and the documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus
(except as to
13
the financial statements and financial or statistical data contained
therein, with respect to which said counsel need express no opinion) as of
their respective dates of filing with the Commission complied as to form in
all material respects with the 1934 Act and the 1934 Act Regulations;
(D) the Indenture has been qualified under the 1939 Act as and
to the extent required by the provisions of the 1939 Act; and
(E) all approvals, authorizations, consents, certificates or
orders of any state or federal commission or regulatory authority that are
necessary with respect to the issuance and sale of the Senior Notes by the
Company as contemplated in this Agreement have been obtained.
Such opinion may be subject to the reservation that, in giving such
opinion, said counsel has relied on the opinion of Oklahoma counsel as to
all matters of Oklahoma law and on the opinion of Arkansas counsel as to
all matters of Arkansas law (including without limiting the foregoing all
opinions as to the validity and sufficiency of franchises and permits, and
the validity and sufficiency of the order described in subdivision (K) of
subsection (b)(i) of this Section 5 and the lack of necessity of the order
described in subdivision (C) of subsection (b)(ii) of this Section 5),
provided that such opinion shall state that said counsel believes that the
Underwriters and they are justified in relying on the opinions of Oklahoma
counsel and of Arkansas counsel.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxxx and Xxxxxx, counsel for the Underwriters, together with signed
original or reproduced copies of such letter for each of the other Underwriters
with respect to such matters related to the issuance and sale of the Senior
Notes as the Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of Illinois and the federal law of the United States, upon the
opinions of Oklahoma counsel, Arkansas counsel or other counsel satisfactory to
the Underwriters.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, results of operations, properties, business
affairs or business prospects of the Company, whether or not arising in the
ordinary course of business, and the Underwriters shall have received a
certificate of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in this Agreement are true and correct with the
same force and effect as though expressly made at and as of Closing Time, (iii)
the Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to Closing Time, and (iv) no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or, to
their knowledge, are contemplated by the Commission.
14
(e) ACCOUNTANTS' COMFORT LETTER. At the time of the execution of this
Agreement, the Representative shall have received from Ernst & Young LLP a
letter, dated such date, in form and substance satisfactory to the Underwriters,
together with signed original or reproduced copies of such letter for each of
the other Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the Representative
shall have received from Ernst & Young LLP a letter, dated as of Closing Time,
together with signed original or reproduced copies of such letter for each of
the other Underwriters, to the effect that Ernst & Young LLP reaffirms the
statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
(g) MAINTENANCE OF RATING. At Closing Time, the Senior Notes shall be
rated at least by Xxxxx'x Investors Service, Inc. and by Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. Since the date
of this Agreement, there shall not have occurred a downgrading in the rating
assigned to any of the Company's securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall
have publicly announced that it has under surveillance or review its rating of
the Senior Notes or any of the Company's other securities.
(h) ADDITIONAL DOCUMENTS. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Senior Notes as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Senior Notes as herein contemplated
shall be satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
(i) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company at any
time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 7, 8 and 9 shall survive any such termination and remain
in full force and effect.
In giving the opinions contemplated by paragraphs (b) and (c) of this
Section 5, counsel may rely upon certificates of state officials as to the
Company's good standing and upon certificates of officers of the Company as to
matters of fact relevant to such opinions. In giving such opinions, counsel may
assume (i) that the Senior Notes have been executed on behalf of the Company by
the manual or facsimile signatures of the President or a Vice President and the
Secretary or an Assistant Secretary of the Company and have been manually
authenticated by an authorized official of the Trustee, (ii) that the signatures
on all documents examined by them
15
are genuine, and (iii) that the written information supplied by the Underwriters
expressly for use in the Registration Statement or the Prospectus is adequate.
SECTION 6. CONDITIONS OF COMPANY'S OBLIGATIONS
The obligation of the Company to deliver the Senior Notes upon payment
therefor shall be subject to the following conditions:
At the Closing Time, (a) the order of the Oklahoma Commission referred to
in subparagraph (a)(xvi) of Section 1 hereof shall be in full force and effect
substantially in the form in which originally entered and (b) no stop order
suspending the effectiveness of the Registration Statement shall be in effect
and no proceedings for that purpose shall then be pending before, or threatened
by, the Commission.
In case any of the conditions specified above in this Section 6 shall not
have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Underwriters. Any such
termination shall be without liability of any party to any other party except to
the extent provided in Section 4 hereof and except that Sections 1, 7, 8 and 9
shall survive any such termination and remain in full force and effect.
SECTION 7. INDEMNIFICATION
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Offering Terms, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
7(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
16
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with the written information furnished to the Company by
any Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto), including the Offering Terms, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), which information is set forth on Schedule C hereto. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Underwriter or to any controlling person of that
Underwriter.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Offering Terms,
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with the written information
furnished to the Company by such Underwriter through the Representative
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), which information is set forth on Schedule C hereto. The foregoing
indemnity is in addition to any liability which any Underwriter may otherwise
have to the Company or any such director, officer or controlling person.
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 7(a) above,
counsel to the indemnified parties shall be selected by the Representative, and,
in the case of parties indemnified pursuant to Section 7(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action; PROVIDED,
HOWEVER, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior
17
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 7 or Section 8 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability (including any obligation to pay any
amounts in settlements) arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 8. CONTRIBUTION
If the indemnification provided for in Section 7 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Senior Notes pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Senior
Notes pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Senior Notes
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet, bear to the aggregate initial public
offering price of the Senior Notes as set forth on such cover or corresponding
location, as the case may be.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact
18
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Senior Notes underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are several in
proportion to the principal amount of Senior Notes set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company or any of its subsidiaries
submitted pursuant hereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Senior Notes to the Underwriters.
SECTION 10. TERMINATION OF AGREEMENT
(a) TERMINATION; GENERAL. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any loss
sustained by the Company by strike, fire, flood, accident or
19
other calamity of such character as to interfere materially with the conduct of
the business and operations of the Company regardless of whether or not such
loss shall have been insured, or any material adverse change in the condition,
financial or otherwise, or in the earnings, results of operations, properties,
business affairs or business prospects of the Company, whether or not arising in
the ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representative, impracticable to
market the Senior Notes or to enforce contracts for the sale of the Senior
Notes, or (iii) if trading in any securities of the Company has been suspended
or materially limited by the Commission or the
New York Stock Exchange, or if
trading generally on the American Stock Exchange or the
New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by either federal,
New York or Oklahoma authorities or a material
disruption in securities settlement or clearance services in the United States.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 7, 8 and 9 shall survive such termination and remain in full force and
effect.
SECTION 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
If one or more of the Underwriters fails at Closing Time to purchase the
Senior Notes which it or they are obligated to purchase under this Agreement
(the "Defaulted Senior Notes"), the remaining Underwriter or Underwriters will
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriter or underwriters, to
purchase all, but not less than all, of the Defaulted Senior Notes in such
amounts as may be agreed upon and upon the terms herein set forth; if, however,
the remaining Underwriter or Underwriters do not complete such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Senior Notes does not exceed 10% of the
aggregate principal amount of the Senior Notes to be purchased hereunder, each
of the non-defaulting Underwriters will be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Senior Notes exceeds 10% of the
aggregate principal amount of the Senior Notes to be purchased hereunder, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter.
20
No action taken pursuant to this Section will relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the remaining Underwriter or Underwriters or the Company
will have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 11.
SECTION 12. NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to ;
each with a copy to Xxxxxxx and Xxxxxx, 000 X. Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxxxx X. Xxxx. Notices to the Company shall be directed to
it at Oklahoma Gas and Electric Company, 000 Xxxxx Xxxxxx, X. X. Xxx 000,
Xxxxxxxx Xxxx, Xxxxxxxx, Attention: President, with a copy to Xxxxx Day, 00 Xxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esq.
SECTION 13. PARTIES
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF
NEW YORK. Except as otherwise set forth herein, specified
times of day refer to
New York City time.
SECTION 15. EFFECT OF HEADINGS
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
[This space intentionally left blank]
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
OKLAHOMA GAS AND ELECTRIC COMPANY
By:
----------------------------------------
Title:
-------------------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
[NAMES OF UNDERWRITERS]
BY: [NAME OF REPRESENTATIVE]
By:
----------------------------------------
Title:
-------------------------------------
SCHEDULE A
Principal
Name of Underwriter Amount of
Senior Notes
-------------------------------------------------- ----------------------
................................................... $
...................................................
...................................................
----------------------
Total ............................................ $
----------------------
Sch. A-1
SCHEDULE B
OKLAHOMA GAS AND ELECTRIC COMPANY
$ SENIOR NOTES, SERIES DUE
1. The initial public offering price of the Senior Notes is % of the
principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Senior
Notes is % of the principal amount thereof.
3. The interest rate on the Senior Notes is % per annum.
4. [The Senior Notes may not be redeemed prior to maturity] [The
Company, at its option, may redeem on any date all or, from time to time, any
part of the Senior Notes at a redemption price equal to the greater of (i) 100%
of the principal amount of such Senior Notes and (ii) the sum of the present
values of the remaining scheduled payments of principal and interest thereon
from and after the date of redemption discounted to the redemption date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate (as defined in the Indenture) plus _____ basis points, plus
in each case accrued and unpaid interest thereon to the date of redemption, as
more fully described in the Prospectus.]
Sch. B-1
SCHEDULE C
The information set forth below constitutes the only information furnished
to the Company by any Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or preliminary prospectus or the Prospectus
(or any amendment or supplement thereto):
Sch. C-1
