EXHIBIT 1.01
2,000,000 PREFERRED SECURITIES
OG&E FINANCING I
(A DELAWARE TRUST)
___% TRUST ORIGINATED PREFERRED SECURITIES-SM- ("TOPrS-SM-")*
(LIQUIDATION AMOUNT OF $25.00 PER PREFERRED SECURITY)
PURCHASE AGREEMENT
_______________, 1997
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXXX & SONS, INC.
BEAR, XXXXXXX & CO. INC.
XXXX XXXXXX XXXXXXXX INC.
XXXXXX BROTHERS
XXXXXXXXXXX & CO., INC.
As the Representatives of the several Underwriters
c/x Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
OG&E Financing I (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Sections 3801 et seq.),
and Oklahoma Gas and Electric Company, an Oklahoma corporation (the "Company"
and, together with the Trust, the "Offerors"), confirm their agreement (the
"Agreement") with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), X.X. Xxxxxxx & Sons, Inc., Bear, Xxxxxxx & Co.
Inc., Xxxx Xxxxxx Xxxxxxxx Inc., Xxxxxx Brothers and Xxxxxxxxxxx & Co.,
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* (sm) "Trust Originate Preferred Securities" and "TOPrS" are service
marks of Xxxxxxx Xxxxx & Co. Inc.
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Inc., as representatives (in such capacity, collectively, the "Representatives")
of the several Underwriters named in Schedule A hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), with respect to the sale by the
Trust and the purchase by the Underwriters, acting severally and not jointly, of
the respective number of ___% Trust Originated Preferred Securities (liquidation
amount of $25 per preferred security) of the Trust ("Preferred Securities") set
forth in said Schedule A, except as may otherwise be provided in the Pricing
Agreement, as hereinafter defined. The Preferred Securities will be guaranteed
by the Company with respect to distributions and payments upon liquidation,
redemption and otherwise (the "Preferred Securities Guarantee") pursuant to the
Preferred Securities Guarantee Agreement (the "Preferred Securities Guarantee
Agreement"), dated as of _____________, between the Company and Wilmington
Trust Company, as trustee (the "Guarantee Trustee"), and in certain
circumstances described in the Prospectus (as hereinafter defined), the Trust
will distribute Subordinated Debt Securities (as defined herein) to holders of
Preferred Securities. The 2,000,000 Preferred Securities to be purchased by the
Underwriters, together with the related Preferred Securities Guarantee and the
Subordinated Debt Securities are collectively referred to herein as the
"Securities."
Prior to the purchase and public offering of the Preferred Securities by
the several Underwriters, the Offerors and the Representatives, acting on behalf
of the several Underwriters, shall enter into an agreement substantially in the
form of Exhibit A hereto (the "Pricing Agreement"). The Pricing Agreement may
take the form of an exchange of any standard form of written telecommunication
between the Offerors and the Representatives and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the Preferred
Securities will be governed by this Agreement, as supplemented by the Pricing
Agreement. From and after the date of the execution and delivery of the Pricing
Agreement, this Agreement shall be deemed to incorporate the Pricing Agreement.
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a shelf registration statement on Form S-3 (No.
333-__________) covering the registration of securities of the Company and the
Trust, including the Securities, under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus supplement or
prospectus supplements, and the offering thereof from time to time in accordance
with Rule 415 of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and such amendments thereto, if any, as may have
been required to the date hereof, and will file such additional amendments
thereto as may hereafter be required. Promptly after execution and delivery of
this Agreement, the Offerors will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 424(b) ("Rule 424(b)") of the 1933 Act
Regulations or (ii) if the Offerors have elected 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 424(b). The
information included in such Term Sheet that was omitted from such registration
statement at the time it became effective but that is deemed part of such
registration statement at the time it became effective is referred to as "Rule
434 Information." Each prospectus used before such Rule 424(b) prospectus has
been filed and any prospectus that omitted the Rule 434 Information, in each
case 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
Rule 434 Information 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
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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
Securities is herein called the "Prospectus." If Rule 434 is relied on, the
term "Prospectus" shall refer to the preliminary prospectus dated ___________,
1997 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 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
the Pricing Agreement has been executed and delivered and the Declaration (as
defined herein), the Indenture (as defined herein), and the Preferred Securities
Guarantee Agreement have been qualified under the Trust Indenture Act of 1939,
as amended (the "1939 Act"). The entire proceeds from the sale of the Preferred
Securities will be combined with the entire proceeds from the sale by the Trust
to the Company of its common securities (the "Common Securities," and together
with the Preferred Securities, the "Trust Securities"), as guaranteed by the
Company, to the extent set forth in the Prospectus, with respect to
distributions and payments upon liquidation and redemption (the "Common
Securities Guarantee" and together with the Preferred Securities Guarantee, the
"Guarantees") pursuant to the Common Securities Guarantee Agreement (the "Common
Securities Guarantee Agreement" and, together with the Preferred Securities
Guarantee Agreement, the "Guarantee Agreements"), dated as of ___________, 1997,
between the Company and the Guarantee Trustee, as Trustee, and will be used by
the Trust to purchase $51,547,500 of ___% subordinated deferrable interest debt
securities (the "Subordinated Debt Securities") issued by the Company. The
Preferred Securities and the Common Securities will be issued pursuant to the
amended and restated declaration of trust of the Trust, dated as of ___________,
(the "Declaration"), among the Company, as Sponsor, A. M. Xxxxxxxx and
Xxxxx X. Xxxxxxxx (the "Regular Trustees"), Wilmington Trust Company, as
institutional trustee (the "Institutional Trustee"), and Wilmington Trust
Company, as Delaware trustee (the "Delaware Trustee," and, together with the
Institutional Trustee and the Regular Trustees, the "Trustees"), and the holders
from time to time of undivided beneficial interests in the assets of the Trust.
The Subordinated Debt Securities will be issued pursuant to an indenture, dated
as of _________________ (the "Base Indenture"), between the Company and Bank of
Oklahoma, National Association, as trustee (the "Debt Trustee"), as supplemented
by a supplement to the Base Indenture, dated as of ____________________ (the
"Supplemental Indenture," and together with the Base Indenture and any other
amendments or supplements thereto, the "Indenture"), between the Company and
the Debt Trustee.
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SECTION1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors represent and warrant to each Underwriter as of the
date hereof and as of the date of the Pricing Agreement (such later date being
hereinafter referred to as the "Representation Date") and as of the Closing Time
(as hereinafter defined) that:
(i) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been initiated or, to the knowledge of the Offerors,
threatened by the Commission.
(ii) The Company and the Trust meet, and at the respective times
of the commencement and consummation of the Offering of the
Securities will meet, the requirements for the 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. At the respective times the Registration Statement, any
Rule 462(b) Registration Statement and any post-effective
amendments thereto (including the filing of the Company's most
recent Annual Report on Form 10-K with the Commission) became
effective and at the Representation Date, the Registration
Statement, any Rule 462 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. At the
date of the Prospectus and at the Closing Time, the Prospectus and
any amendments and supplements thereto did not and will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. If the Offerors elect to rely upon Rule 434 of the
1933 Act Regulations, the Offerors will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply
to (A) statements in or omissions from the Registration Statement
or the Prospectus made in reliance upon and in conformity with
information furnished to the Offerors in writing by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement or the Prospectus, or (B) that part of the
Registration Statement which shall constitute the Statements of
Eligibility and Qualification (Form T-1) under the 1939 Act.
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the 1933
Act Regulations and, if applicable, each preliminary prospectus
and the Prospectus delivered to the Underwriters for use in
connection with the offering of Securities will, at the time of
such delivery, be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(iii) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all
material respects to the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
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Regulations") and any documents so filed and incorporated by
reference subsequent to the date of this Agreement will, when they
are filed with the Commission, conform in all material respects to
the requirements of the 1934 Act and the 1934 Act Regulations and
none of such documents include or will include any untrue
statement of a material fact or omit or will omit to state any
material fact required to be stated therein or necessary to make
the statements therein in the light of the circumstances under
which they were made not misleading.
(iv) Xxxxxx Xxxxxxxx LLP, which audited certain of the financial
statements incorporated by reference in the Registration
Statement, are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(v) The financial statements included or incorporated by
reference in the Prospectus present fairly the financial position,
results of operations and cash flows of the Company and its
consolidated subsidiaries as at the respective dates and for the
respective periods specified and, except as otherwise stated in
the Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied
on a consistent basis during the periods involved and the
supporting schedules included in the Registration Statement
present fairly the information required to be stated therein. The
Company has no material contingent obligation which is not
disclosed in the Prospectus.
(vi) Except as set forth in or expressly contemplated by the
Prospectus, no material transaction has been entered into by the
Company or any of its subsidiaries otherwise than in the ordinary
course of business and no materially adverse change has occurred
in the condition, financial or otherwise, of the Company, or of
the Company and its subsidiaries, taken as a whole, in each case
since the respective dates as of which information is given in the
Prospectus.
(vii) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Oklahoma, is qualified to do business as a foreign corporation and
is in good standing under the laws of the State of Arkansas, and
is not required to qualify to do business as a foreign corporation
in any other jurisdiction, and has the corporate power to own its
properties and carry on its business as now being conducted.
(viii) The Company has no Subsidiaries.
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(ix) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act with the
power and authority to own property and to conduct its business as
described in the Registration Statement and Prospectus and to
enter into and perform its obligations under this Agreement, the
Pricing Agreement, the Preferred Securities, the Common Securities
and the Declaration; the Trust is duly qualified to transact
business as a foreign company and is in good standing in each
jurisdiction in which such qualification is necessary, except
where the failure to so qualify or be in good standing would not
have a material adverse effect on the Trust; the Trust is not a
party to or otherwise bound by any agreement other than those
described in the Prospectus; the Trust is and will, under current
law, be classified for United States federal income tax purposes
as a grantor trust and not as an association taxable as a
corporation; and the Trust is and will be treated as a
consolidated subsidiary of the Company pursuant to generally
accepted accounting principles.
(x) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Registration
Statement and Prospectus, will be validly issued and will
represent undivided beneficial interests in the assets of the
Trust and will conform in all material respects to the description
thereof contained in the Prospectus; the issuance of the Common
Securities is not subject to preemptive or other similar rights;
and at the Closing Time all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equitable right.
(xi) This Agreement and the Pricing Agreement have been duly
authorized, executed and delivered by the Offerors.
(xii) The Declaration has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and
delivered by the Company and the Trustees, and assuming due
authorization, execution and delivery of the Declaration by the
Institutional Trustee and the Delaware Trustee, the Declaration
will, at the Closing Time, be a valid and binding obligation of
the Company and the Regular Trustees in accordance with its terms,
except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) (the "Bankruptcy
Exceptions") and will conform in all material respects to the
description thereof contained in the Prospectus.
(xiii) Each of the Guarantee Agreements has been duly authorized
by the Company and, when validly executed and delivered by the
Company, and, in the case of the Preferred Securities Guarantee
Agreement, assuming due authorization, execution and delivery of
the Preferred Securities Guarantee Agreement by the Guarantee
Trustee, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms except to the extent that enforcement thereof may be limited
by the Bankruptcy Exceptions, and each of the Guarantee Agreements
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will conform in all material respects to the description thereof
contained in the Prospectus.
(xiv) The Preferred Securities have been duly authorized for
issuance and sale to the Underwriters and, when issued and
delivered against payment therefor as provided herein, will be
validly issued and fully paid and non-assessable undivided
beneficial interests in the assets of the Trust and will conform
in all material respects to the description thereof contained in
the Prospectus; the issuance of the Preferred Securities is not
subject to preemptive or other similar rights.
(xv) The Indenture has been duly authorized and qualified under
the 1939 Act and, at the Closing Time, will have been duly
executed and delivered and will constitute a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions; the Indenture
will conform in all material respects to the description thereof
contained in the Prospectus.
(xvi) The Subordinated Debt Securities have been duly authorized
by the Company and, at the Closing Time, will have been duly
executed by the Company and, when authenticated in the manner
provided for in the Indenture and delivered against payment
therefor as described in the Prospectus, will constitute valid and
binding obligations of the Company, enforceable against the
Company in accordance with their terms except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions,
and will be in the form contemplated by, and entitled to the
benefits of, the Indenture and will conform in all material
respects to the description thereof in the Prospectus.
(xvii) Each of the Regular Trustees of the Trust is an employee of
the Company and has been duly authorized by the Company to execute
and deliver the Declaration.
(xviii) The Company is not in violation of its Certificate of
Incorporation, or in default in the performance or observance of
any material obligation, agreement, covenant or condition
contained in any mortgage or any material contract, indenture,
mortgage, lease, note or other instrument to which it is a party
or by which it may be bound or to which any of its properties or
assets is subject, or materially in violation of any law,
administrative regulation or administrative, arbitration or court
order, except in each case to such extent as may be set forth in
the Prospectus; and the execution and delivery of this Agreement,
the incurrence of the obligations herein set forth and the
consummation of the transactions herein contemplated will not
conflict with or constitute a breach of, or default under, the
Certificate of Incorporation or By-Laws of the Company or any
mortgage, contract, lease, note or other instrument to which the
Company is a party or by which it may be bound, or any law,
regulation, consent decree or administrative, arbitration or court
order.
(xix) The Trust is not in violation of the Declaration or its
certificate of trust filed with the State of Delaware on
January 31, 1997 (the "Certificate of Trust"); none of the
execution, delivery and performance of this Agreement, the Pricing
Agreement, the Declaration, the Preferred Securities, the Common
Securities and the Guarantee Agreements and the consummation of
the transactions contemplated herein and therein and compliance by
the Trust with its obligations hereunder and thereunder did or
will
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result in a breach of any of the terms or provisions of, or
constitute a default under or require the consent of any party
under the Certificate of Trust of the Trust, any contract,
agreement or other instrument to which the Trust is a party or by
which it may be bound, any applicable law, rule or regulation or
any judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction
over the Trust or any of its properties or assets, or did or will
result in the creation or imposition of any lien on the properties
or assets of the Trust.
(xx) The Corporation Commission of the State of Oklahoma (the
"Oklahoma Commission") has duly authorized the issuance and sale
of the Subordinated Debt Securities on terms consistent with this
Agreement. No consent of or approval by any other public board or
body or administrative agency, federal or state, is necessary to
authorize the issuance and sale of the Subordinated Debt
Securities, except that there must be compliance with the
securities laws of the states in which the Subordinated Debt
Securities are to be sold.
(xxi) The Company has good and sufficient title to each of the
principal plants and properties purported to be owned by it,
subject to the lien of the Indenture dated as of February 1,
1945 between the Company and Boatmen's First National Bank of
Oklahoma, as successor, trustee, as said Indenture has been
supplemented and amended from time to time (the "First Mortgage
Indenture"), and to permissible encumbrances as therein defined.
(xxii) There is no pending or threatened suit or proceeding before
any court or governmental agency, authority or body or any
arbitration involving the Company required to be disclosed in the
Prospectus which is not adequately disclosed in the Prospectus and
there are no contracts or documents required to be filed as
exhibits to the Registration Statement under the 1933 Act and the
rules and regulations of the Commission thereunder which have not
been so filed.
(xxiii) Neither the Trust nor the Company is, and following
consummation of the transactions contemplated hereby and the
application of the proceeds therefrom in the manner set forth in
the Prospectus will be, an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended.
(xxiv) The Company has sufficient authority under statutory
provisions or by grant of franchises or permits by municipalities
or counties to conduct its business as presently conducted and as
described in the Registration Statement and Prospectus.
(xxv) Except for changes contemplated by the Prospectus, the
authorized and outstanding capital stock of the Company is as set
forth in the Prospectus.
(b) Any certificate signed by any officer of the Company or a Trustee
of the Trust and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Trust, as the case may be, to each Underwriter as to the matters covered
thereby.
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SECTION2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Underwriter, and each Underwriter, severally and not
jointly, agrees to purchase from the Trust, at the price per security set forth
in the Pricing Agreement, the number of Preferred Securities set forth in
Schedule A hereto opposite the name of such Underwriter, plus any additional
number of Preferred Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the
Securities will be used to purchase the Subordinated Debt Securities of the
Company, the Company hereby agrees to pay to the Representatives, for the
accounts of the several Underwriters, a commission per security set forth in
Schedule B as compensation to the Underwriters for their commitments under this
Agreement.
(c) Delivery of certificates for the Securities shall be made at the
offices of the Underwriters in New York, and payment of the purchase price for
the Securities shall be made at the offices of the Company or at such other
place as shall be agreed upon by the Underwriters and the Offerors, at 10:00
a.m. (New York time) on the third business day after execution of the Pricing
Agreement (or, if pricing of the Securities occurs after 4:30 p.m. Eastern time,
on the fourth full business day thereafter)), or such other time not later than
ten business days after such date as shall be agreed upon by the Underwriters
and the Offerors (such time and date of payment and delivery being herein called
the "Closing Time"). Payment for the Preferred Securities purchased by the
Underwriters shall be made to the Trust by wire transfer of immediately
available funds, payable to the Trust, against delivery to the respective
accounts of the Underwriters of certificates for the Preferred Securities to be
purchased by it. Certificates for the Preferred Securities shall be in such
denominations and registered in such names as the Underwriters may request in
writing at least two full business days before the Closing Time. Xxxxxxx Xxxxx,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Preferred
Securities, if any, 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. At the Closing Time, the Company
will pay, or cause to be paid, the commission payable at such time to the
Underwriters under Section 2(b) hereof by wire transfer of immediately available
funds to a bank account designated by Xxxxxxx Xxxxx. The certificates for the
Preferred Securities will be made available for examination and packaging by the
Underwriters no later than 10:00 a.m. (New York City time) on the last business
day prior to the Closing Time.
SECTION3. COVENANTS OF THE OFFERORS. The Offerors agree with each
Underwriter as follows:
(a) Promptly following the execution of this Agreement, the Offerors
will cause the Prospectus, including as a part thereof a prospectus supplement
relating to the Securities, to be filed with the Commission pursuant to Rule 424
of the 1933 Act Regulations and the Offerors will promptly advise the
Underwriters when such filing has been made. Prior to the filing, the Offerors
will cooperate with the Underwriters in the preparation of such prospectus
supplement to assure that the Underwriters have no reasonable objection to the
form or content thereof when filed or mailed.
(b) The Offerors will comply with the requirements of Rule 430A of the
1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and as
applicable, and will notify the Underwriters immediately, and confirm the notice
in writing, (i) of the effectiveness of any post-
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effective amendment to the Registration Statement or the filing of any
supplement or amendment to the Prospectus, (ii) 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, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose and (v) of the issuance by any state securities
commission or other regulatory authority of any order suspending the
qualification or the exemption from qualification of the Securities under state
securities or Blue Sky laws or the initiation or threatening of any proceeding
for such purpose. The Offerors 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.
(c) The Company will give the Underwriters notice of its intention to
file or prepare any amendment to the Registration Statement (including any
post-effective amendment and any filing under Rule 462(b) of the 1933 Act
Regulations), 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 Underwriters with copies of any such Rule 462(b)
Registration Statement, Term Sheet, amendment, supplement or revision a
reasonable amount of time prior to such proposed filing or use, as the case may
be; and will not file any such Rule 462(b) Registration Statement, Term Sheet,
amendment, supplement or revision to which the Underwriters or counsel for the
Underwriters shall object.
(d) The Company will deliver to Xxxxxxx Xxxxx 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 and will also deliver to Xxxxxxx Xxxxx,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. If applicable, 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.
(e) The Company will deliver to each Underwriter, without charge, as
many copies of each preliminary prospectus as such Underwriter may reasonably
request, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each Underwriter,
without charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. If applicable, 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.
(f) The Offerors 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 Securities as contemplated in this
Agreement and in the Registration Statement and the Prospectus. If at any time
when the Prospectus is required by the 1933 Act or the 1934 Act to be delivered
in connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Offerors, to amend the Registration Statement in
order that the Registration Statement 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 or
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to 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 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
Offerors 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 Offerors will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(g) The Offerors will use their best efforts, in cooperation with
the Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic
or foreign) as Xxxxxxx Xxxxx may designate; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified, to execute or file any general
consent to service of process under laws of any jurisdiction or subject
itself to taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject. In each jurisdiction in which the Securities
have been so qualified, the Company will file such statements and reports as
may be required by the laws of such jurisdiction to continue such
qualification in effect for so long as may be required in connection with
distribution of the Securities.
(h) The Company will, on behalf of the Trust, make generally available
to the Trust's securityholders as soon as practicable, but not later than 45
days (or 90 days, in the case of a period that is also the Company's fiscal
year) after the close of the period covered thereby, a consolidated earnings
statement of the Company (in form complying with the provisions of Rule 158 of
the 1933 Act Regulations) covering a twelve-month period beginning not later
than the first day of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration Statement.
(i) The Trust will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus under "Use of
Proceeds."
(j) If the Offerors elect to rely upon Rule 462(b), the Offerors shall
both file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the
1933 Act Regulations by the earlier of (i) 10:00 p.m. Eastern time on the date
of the Pricing Agreement and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
(k) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Offerors will use their best efforts to effect the listing of
the Preferred Securities (including the Preferred Securities Guarantee with
respect thereto) on the New York Stock Exchange and to cause the Securities to
be registered under the 1934 Act. If the Preferred Securities are exchanged for
Subordinated Debt Securities, the Company will use its best efforts to effect
the listing of the Subordinated Debt Securities on the exchange on which the
Preferred Securities were then listed and to cause the Subordinated Debt
Securities to be registered under the 1934 Act.
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(m) Until _______, ____, neither the Trust nor the Company will,
without the prior written consent of the Underwriters, (i) directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, or enter into any agreement to sell, any Preferred Securities, any
security convertible into or exchangeable or exercisable for Preferred
Securities, or any equity securities substantially similar to the Preferred
Securities or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities in cash or otherwise (except the
Subordinated Debt Securities and the Preferred Securities issued pursuant to
this Agreement).
(n) During a period of three years from the Closing Time, the Company
will make generally available to the Underwriters copies of all reports and
other communications (financial or other) mailed to stockholders, and to deliver
to the Underwriters promptly after they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed;
and shall furnish such additional information concerning the business and
financial condition of the Company as the Underwriters may from time to time
reasonably request (such financial statements to be on a consolidated basis to
the extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission).
SECTION4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement and the
Pricing Agreement, including, without limitation, expenses related to the
following, if incurred: (i) the preparation, delivery, printing and filing of
the Registration Statement and Prospectus as originally filed (including
financial statements and exhibits) and of each amendment thereto, (ii) the
printing and delivery to the Underwriters of this Agreement, the Pricing
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale and delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Preferred Securities, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors or agents (including the transfer agents
and registrars) as well as fees and disbursements of the Trustees and any
Depository, and their respective counsel, (v) the qualification of the
Securities under state securities laws in accordance with the provisions of
Section 3(g), including filing fees and the fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Survey and any Legal Investment Survey, (vi) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of each preliminary
prospectus, any Term Sheet and of the Prospectus and any amendments or
supplements thereto as required by Section 3(e), (vii) the printing and delivery
to the Underwriters of copies of any Blue Sky Survey and any Legal Investment
Survey, (viii) any fees payable in connection with the rating of the Preferred
Securities by nationally recognized statistical rating organizations; (ix) the
filing fees incident to, and the fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Preferred Securities; (x) any fees payable to the Commission; and (xi) the fees
and expenses incurred in connection with the listing of the Preferred Securities
and, if applicable, the Subordinated Debt Securities on the New York Stock
Exchange.
If this Agreement is terminated by the Representatives in accordance with
the provisions of Section 5 or 9(a)(i) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
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SECTION5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase and pay for the Preferred Securities pursuant
to this Agreement are subject to the accuracy of the representations and
warranties of the Offerors herein contained or in certificates of any officer
of the Company or the Trustees of the Trust delivered pursuant to the
provisions hereof, to the performance by the Offerors of their obligations
hereunder, and to the following further conditions:
(a) The Registration Statement, including any Rule 462(b) Registration
Statement, shall have become effective under the 1933 Act no later than 5:30
p.m., New York City time, on the date hereof, and on the date hereof and at the
Closing Time, no stop order suspending the effectiveness of the Registration
Statement or any part hereof 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 satisfaction of counsel to the Underwriters. A prospectus
containing information relating to the description of the Securities, the
specific method of distribution and similar matters shall have been filed with
the Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) At the Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxxx,
Xxxx, Rice & Xxxxx, counsel of the Company, in form and substance satisfactory
to counsel for the Underwriters, to the effect that:
(i) The Company is a legally existing corporation under the
laws of the State of Oklahoma and has corporate power, right,
and authority to do business and to own property in the states
of Oklahoma and Arkansas in the manner and as set forth in the
Prospectus.
(ii) The authorized capital stock of the Company is as set forth
in the Prospectus and all of the issued shares of capital stock of
the Company have been duly authorized and validly issued and are
fully paid and non-assessable.
(iii) The Trust is not required to be qualified and in good
standing as a foreign company in Oklahoma or Arkansas, except to
the extent that the failure to so qualify or be in good standing
would not have a material adverse effect on the Trust; and the
Trust is not a party to or otherwise bound by any agreement other
than those described in the Prospectus.
(iv) The Declaration has been duly authorized, executed and
delivered by the Company and the Regular Trustees and is a valid
and binding obligation of the Company, enforceable against the
Company and each of the Regular Trustees in accordance with its
terms, except as enforcement thereof may be limited by the
Bankruptcy Exceptions.
(v) The Oklahoma Corporation Commission has issued its order
approving the issuance of the Subordinated Debt Securities and
Guarantees and no further approval of, authorization, consent,
certificate or order of any Oklahoma commission or regulatory
-13-
body, is required in connection with the issuance and sale such of
securities to you as provided in the Agreement, except as may be
required by state securities laws.
(vi) All of the issued and outstanding Common Securities of the
Trust are directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equitable right.
(vii) This Agreement and the Pricing Agreement have been duly
authorized, executed and delivered by each of the Trust and the
Company.
(viii) Each of the Guarantee Agreements has been
duly authorized, executed and delivered by the Company; the
Preferred Securities Guarantee Agreement, assuming it is
duly authorized, executed and delivered by the Guarantee
Trustee, constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance
with their terms, except to the extent that enforcement
thereof may be limited by Bankruptcy Exceptions.
(ix) The Indenture has been duly executed and delivered by the
Company and, assuming due authorization, execution, and delivery
thereof by the Debt Trustee, is a valid and binding obligation of
the Company, enforceable against the Company in accordance with
its terms, except to the extent that enforcement thereof may be
limited by the Bankruptcy Exceptions.
(x) The Subordinated Debt Securities are in the form
contemplated by the Indenture, have been duly authorized, executed
and delivered by the Company and, when authenticated by the Debt
Trustee in the manner provided for in the Indenture and delivered
against payment 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 to the extent that enforcement thereof may be limited by
the Bankruptcy Exceptions.
(xi) The execution, delivery and performance of this Agreement,
the Pricing Agreement, the Declaration, the Preferred Securities,
the Common Securities, the Indenture, the Subordinated Debt
Securities and the Guarantee Agreements and the consummation
of the transactions contemplated herein and therein,
and the compliance by each of the Offerors with their respective
obligations hereunder and thereunder do not and will not conflict
with, result in a breach of, or constitute a default under or
require the consent of any party under the Certificate of Trust of
the Trust or the Articles of Incorporation or by-laws of the
Company, or any contract, indenture, mortgage, agreement, note,
lease or other instrument known to such counsel to which the Trust
or the Company is a party or by which any of them may be bound,
or, to the best of such counsel's knowledge, any applicable law,
rule or regulation, or any judgment, order or decree of any
government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Trust, the Company or any of
its subsidiaries or any of their respective properties or assets
or did or will result in the
-14-
creation or imposition of any lien on the properties or assets of
the Trust, the Company or any of its subsidiaries.
(xii) 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.
(xiii) The Company has good and valid title to all material real
and fixed property purported to be owned by it subject only to:
(a) taxes and assessments not yet delinquent; (b) the lien of the
First Mortgage Indenture; (c) as to part of the Company's
property, certain easements, conditions, restrictions, leases, and
similar encumbrances which do not affect the Company's use of such
property in the usual course of its business, certain minor
defects in titles which are not material, defects in titles to
certain properties which are not essential to the Company's
business; (d) mechanics' lien claims being contested or not of
record or for the satisfaction or discharge of which adequate
provision has been made by the Company pursuant to the Indenture
and (e) except no opinion is expressed as to titles to
rights-of-way or easements for transmission or distribution line.
(xiv) except in localities where the Company has no franchises,
which are relatively few and not of large population, and 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;
(xv) 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;
Moreover, such counsel shall confirm that nothing has come to their attention
that would lead them to believe that the Registration Statement at the time it
became effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus as of the date of the
Agreement 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 light of the circumstances under which they were made,
not misleading.
The foregoing opinions may be limited to the laws of Delaware, Oklahoma
and the federal law of the United States. In giving such opinion, such counsel
may rely, as to matters of Delaware Law, upon the opinion of Xxxxxxxx, Xxxxxx &
Finger, special Delaware counsel to the Offerors, in which case the opinion
shall state that such counsel believes that you and such counsel are entitled to
so rely.
(2) The favorable opinion of Xxxxxxx, Carton & Xxxxxxx, counsel to the
Company, in form and substance satisfactory to counsel for the Underwriters,
covering the matters set forth in subdivisions (i), (ii), (iv), (vi), (vii),
(viii), (ix), (x), (xi) and (xii) and to the effect that:
-15-
(i) The Registration Statement has become effective under the
1933 Act. The prospectus supplement has been filed pursuant to
Rule 424(b) under the 1933 Act, and no proceedings for a stop
order have been instituted or are pending or to the knowledge of
such counsel threatened under Section 8(d) of the 1933 Act.
(ii) At the time the Registration Statement became effective,
the Registration Statement (other than the financial statements
and supporting schedules included or incorporated by reference
therein, as to which no opinion is being expressed) complied as to
form in all material respects with the requirements of the 1933
Act, the 1933 Act Regulations, the 1939 Act and the 1939 Act
Regulations; each of the Declaration, the Indenture and the
Preferred Securities Guarantee has been duly qualified under the
1939 Act; and the Declaration, the Indenture, the Preferred
Securities Guarantee Agreement and the Statements of Eligibility
on Forms T-1 with respect to each of the Institutional Trustee,
the Debt Trustee, and the Guarantee Trustee filed with the
Commission as part of the Registration Statement complied as to
form in all material respects with the requirements of the 1939
Act and the 1939 Act Regulations.
(iii) Each of the documents incorporated by reference in the
Registration Statement or the Prospectus at the time they were
filed or last amended (other than the financial statements and the
notes thereto, the financial schedules, and any other financial or
statistical data included or incorporated by reference therein, as
to which such counsel need express no belief) complied as to form
in all material respects with the requirements of the 1934 Act,
and the 1934 Act Regulations, as applicable; and such counsel has
no reason to believe that any of such documents, when such
documents became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the 1933 Act, 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, and in the case of other documents which were filed
under the 1934 Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein not misleading.
(iv) The Company and the Trust meet the registrant requirements
for use of Form S3 under the 1933 Act Regulations.
(v) The Common Securities, the Preferred Securities, the
Subordinated Debt Securities, each of the Guarantees, the
Declaration, the Indenture and each of the Guarantee Agreements
conform in all material respects to the descriptions thereof
contained in the Prospectus.
(vi) Neither the Trust nor the Company is, and following
consummation of the transactions contemplated hereby and
the application of the proceeds therefrom in the manner
set forth in the Prospectus will be, an "investment company" or
under the "control" of an "investment company" as such terms are
defined.
-16-
Moreover, such counsel shall confirm that nothing has come to their attention
that would lead them to believe that the Registration Statement at the time it
became effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus as of the date of the
Agreement 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 light of the circumstances under which they were made,
not misleading.
The foregoing opinion may be limited to the laws of Illinois and the
federal law of the United States. In giving such opinion, such counsel may
rely, as to matters of Delaware Law, upon the opinion of Xxxxxxxx, Xxxxxx &
Finger, special Delaware counsel to the Offerors, and, as to Oklahoma law, upon
the opinion of Xxxxxx, Xxxx, Xxxx & Xxxxx, in which case the opinion shall state
that such counsel believes that you and such counsel are entitled to so rely.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxxx,
Xxxxxx & Finger, special counsel to the Offerors, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act, and has
the business trust power and authority to conduct its business as
described in the Registration Statement and the Prospectus.
(ii) Assuming that the Declaration has been duly authorized,
executed and delivered by the Company and the Trustees, the
Declaration constitutes a valid and binding obligation of the
Trustees and the Company and is enforceable against the Trustees
and the Company in accordance with its terms, except that to the
extent enforceability thereof may be limited by the Bankruptcy
Exceptions.
(iii) Under the Delaware Act and the Declaration, the Trust has
the power and authority to (i) execute and deliver, and to perform
its obligations under, this Agreement and the Pricing Agreement
and (ii) issue, and perform its obligations under, the Trust
Securities.
(iv) The execution and delivery by the Trust of this Agreement
and the Pricing Agreement, and the performance by the Trust of its
obligations hereunder and under the Pricing Agreement, have been
duly authorized by all necessary action on the part of the Trust.
(v) The Preferred Securities have been duly authorized by the
Declaration and, when executed by the Trust and the Institutional
Trustee in accordance with the Declaration and delivered against
payment therefor in accordance with the terms of this Agreement,
will be validly issued and, subject to the qualifications
hereinafter expressed in this paragraph (v), fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust; the holders of the Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware; said counsel may note that the
holders of the Preferred Securities may be obligated to make
payments as set forth in the Declaration.
-17-
(vi) The Common Securities have been duly authorized by the
Declaration and, when issued, executed and authenticated in
accordance with the terms of the Declaration, and delivered and
paid for as set forth in the Registration Statement, will be
validly issued, undivided beneficial interests in the assets of
the Trust.
(vii) Under the Delaware Act and the Declaration, the issuance of
the Trust Securities is not subject to preemptive or other similar
rights.
(viii) The issuance and sale by the Trust of the Preferred
Securities and Common Securities, the execution, delivery and
performance by the Trust of this Agreement and the Pricing
Agreement, the consummation of the transactions contemplated
herein, and compliance by the Trust with its obligations hereunder
will not violate any of the provisions of the Certificate of Trust
or Declaration or any applicable Delaware law or administrative
regulation.
(ix) None of the execution and delivery by the Trust of, or the
performance by the Trust of its obligations under, this Agreement,
the issuance and sale of the Preferred Securities by the Trust in
accordance with the terms of this Agreement and the Pricing
Agreement, the execution, delivery and performance by the Trust of
this Agreement and the Pricing Agreement and the consummation of
the other transactions contemplated thereby, will contravene any
provisions of applicable Delaware law or administrative
regulations or the Certificate of Trust or the Declaration.
(4) The favorable opinion, dated as of the Closing Time, of Xxxxxxxx,
Xxxxxx & Finger, counsel to Wilmington Trust Company, as Institutional Trustee
under the Declaration, and Guarantee Trustee under the Preferred Securities
Guarantee Agreement, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) Wilmington Trust Company is a Delaware banking corporation
with trust powers, duly organized, validly existing and in good
standing under the laws of the State of Delaware with all
necessary power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of the Declaration
and the Preferred Securities Guarantee Agreement.
(ii) The execution, delivery and performance by the
Institutional Trustee of the Declaration and the execution,
delivery and performance by the Guarantee Trustee of the Preferred
Securities Guarantee Agreement have been duly authorized by all
necessary corporation action on the part of the Institutional
Trustee and the Guarantee Trustee, respectively. The Declaration
and the Preferred Securities Guarantee Agreement have been duly
executed and delivered by the Institutional Trustee and the
Guarantee Trustee, respectively.
(iii) The execution, delivery and performance of the Declaration
and the Preferred Securities Guarantee Agreement by the
Institutional Trustee and the Guarantee Trustee, respectively, do
not conflict with or constitute a breach of the Articles of
Organization or Bylaws of the Institutional Trustee and the
Guarantee Trustee, respectively.
(iv) No consent, approval or authorization of, or registration
with or notice to, any Delaware or federal banking authority is
required for the execution, delivery or
-18-
performance by the Institutional Trustee and the Guarantee Trustee
of the Declaration and the Preferred Securities Guarantee
Agreement.
(5) The opinion of Xxxxxxx, Xxxxxx & Xxxxxxx, special tax counsel to
the Offerors, generally to the effect that the discussion set forth in the
Prospectus under the heading "United States Federal Income Taxation" is a fair
and accurate summary of the matters addressed therein, based upon current law
and the assumptions stated or referred to therein. Such opinion may be
conditioned on, among other things, the initial and continuing accuracy of the
facts, financial and other information, covenants and representations set forth
in certificates of officers of the Company and the Trust and other documents
deemed necessary for such opinion.
(6) The favorable opinion, dated as of the Closing Time, of Xxxxx,
Day, Xxxxxx & Xxxxx, counsel for the Underwriters, in form and substance
satisfactory to the Underwriters with respect to the incorporation and legal
existence of the Company, the Preferred Securities, the Indenture, the Preferred
Securities Guarantee Agreement, this Agreement, the Pricing Agreement, the
Registration Statement, the Prospectus and other related matters as the
Representatives may require. In giving its opinion, Xxxxx, Xxx, Xxxxxx & Xxxxx
may rely as to certain matters of Oklahoma law and Delaware law upon the
opinions of Xxxxxx, Xxxx, Xxxx & Xxxxx, and Xxxxxxxx, Xxxxxx & Finger, special
Delaware counsel for the Offerors, which shall be delivered in accordance with
Section 5(b)(1) and 5(b)(3) hereto.
(c) Between the date of this Agreement and prior to the Closing Time,
no material adverse change shall have occurred in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Trust or the Company considered as one enterprise, whether or not in the
ordinary course of business.
(d) At the Closing Time, the Representatives shall have received a
certificate of the President or a Vice-President of the Company and of the
Chief Financial Officer or Chief Accounting Officer of the Company and a
certificate of a Regular Trustee of the Trust, and dated as of Closing Time,
to the effect that (i) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Trust or the Company, whether or not in the
ordinary course of business, (ii) the representations and warranties in
Section 1 hereof are true and correct as though expressly made at and as of
the Closing Time, (iii) the Trust and the Company have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the 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 initiated or threatened by the
Commission.
(e) The Representatives shall have received letters from the Company's
independent public accountants (dated the date of this Agreement and Closing
Time, respectively, and in form and substance satisfactory to the
Representatives) advising that (i) they are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations; (ii) in their opinion,
the financial statements and supplemental schedules incorporated by reference in
the Registration Statement and covered by their opinion filed with the
Commission under Section 13 of the 1934 Act comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act and the
1934 Act Regulations; (iii) they have performed limited procedures, not
constituting an audit, including a reading of the latest available interim
financial statements of the Company, a reading of the minutes of meetings of the
Board of Directors, committees thereof, and the shareholders, of the Company
since the date of the most recent audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of the
Company responsible for financial accounting matters and such other inquiries
and procedures as
-19-
may be specified in such letter, and on the basis of such limited review and
procedures nothing came to their attention that caused them to believe that:
(a) any material modifications should be made to any unaudited financial
statements included or incorporated by reference in the Registration Statement
or Prospectus for them to be in conformity with generally accepted accounting
principles or any unaudited financial statements included or incorporated by
reference in the Registration Statement or Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the Act
and the 1934 Act Regulations applicable to Form 10-Q; (b) with respect to the
period subsequent to the date of the most recent financial statements included
or incorporated by reference in the Prospectus, there were any changes, at a
specified date not more than five business days prior to the date of the letter,
in the capital stock of the Company, increases in long-term debt or decreases in
stockholders' equity or net current assets of the Company as compared with the
amounts shown on the most recent balance sheet included or incorporated in the
Prospectus, or for the period from the date of the most recent financial
statements included or incorporated by reference in the Prospectus to such
specified date there were any decreases, as compared with the corresponding
period in the preceding year, in operating revenues, operating income, net
income, or earnings per share of Common Stock of the Company, except in all
instances for changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by the
Representatives; and (iv) they have carried out specified procedures performed
for the purpose of comparing certain specified financial information and
percentages (which is limited to financial information derived from general
accounting records of the Company) included or incorporated by reference in the
Registration Statement and Prospectus with indicated amounts in the financial
statements or accounting records of the Company and (excluding any questions of
legal interpretation) have found such information and percentages to be in
agreement with the relevant accounting and financial information of the Company
referred to in such letter in the description of the procedures performed by
them.
(f) At the 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 Securities as herein
contemplated and related proceedings, 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 Securities as herein contemplated
shall be satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
(g) At the Closing Time, the Preferred Securities shall be rated in
one of the four highest rating categories for long term debt ("Investment
Grade") by any nationally recognized statistical rating agency, and the Trust
shall have delivered to the Representatives a letter, dated the Closing Time,
from such nationally recognized statistical rating agency, or other evidence
satisfactory to the Representatives, confirming that the Preferred Securities
have Investment Grade ratings; and there shall not have occurred any decrease in
the ratings of any securities of the Company or of the Preferred Securities by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the 1933 Act Regulations) and such organization
shall not have publicly announced that it has under surveillance or review its
rating of any of the securities of the Company or of the Preferred Securities.
(h) At the Closing Time, the Preferred Securities shall have been
approved for listing on the New York Stock Exchange upon notice of issuance.
(i) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
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If any condition specified in this Section 5 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, 6, 7 and 8
shall survive and remain in full force and effect.
SECTION6. INDEMNIFICATION.
(a) The Offerors agree to jointly and severally 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, 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 Rule 430A Information and the Rule 434 Information
deemed to be a part thereof, if applicable, 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 included 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 6(d) below) any such
settlement is effected with the written consent of the Offerors;
and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that the foregoing 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 written information furnished to the
Offerors by any Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
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(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, the Trust and each of its Trustees 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 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 Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Offerors by such Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) 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 6(a) above, counsel to the indemnified parties shall be
selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 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 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) 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 6(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.
SECTION7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or
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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 Offerors on the one
hand, and the Underwriters, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, 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 Offerors on the one hand, and 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 Offerors on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Securities (before deducting expenses) received by the Offerors 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 such
Securities as set forth on such cover.
The relative fault of the Offerors, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Offerors or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution 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. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 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 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the 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.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, 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 and each Trustee of
the Trust who signed the Registration Statement, and each person, if any, who
controls the Company and the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934
-23-
Act shall have the same rights to contribution as the Offerors. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number or aggregate principal amount, as the
case may be, of Preferred Securities set forth opposite their respective names
in Schedule A to this Agreement, and not joint.
SECTION8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers of
the Company 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 and payment for the Preferred Securities to the
Underwriters.
SECTION9. TERMINATION OF AGREEMENT.
(a) The Representatives 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 material adverse
change in the condition, financial or otherwise, or in the earnings, 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 Representatives, impracticable
to market the Preferred Securities or to enforce contracts for the sale of
the Preferred Securities, 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,
Delaware, Oklahoma or New York authorities.
(b) If this Agreement and the Pricing Agreement are terminated
pursuant to this Section 9, such termination shall be without liability of any
party to any other party except as provided in Section 4, and provided, further,
that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at the Closing Time, as the case may be, to
purchase the Securities which it or they are obligated to purchase under this
Agreement and the Pricing Agreement (the "Defaulted Securities"), then Xxxxxxx
Xxxxx shall have the right, within 24 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 Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, Xxxxxxx
Xxxxx shall not have completed such arrangements within such 24-hour period,
then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the total number or aggregate
principal amount, as the case may be, of Preferred Securities, the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the
-24-
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 or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the total number or aggregate
principal amount, as the case may be, of Preferred Securities to be purchased
on such date pursuant to this Agreement, this Agreement shall terminate
without liability on the part of the Company or, any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall 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 Xxxxxxx Xxxxx or the Company shall 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 the Prospectus or
in any other documents or arrangements.
SECTION 11. 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 Xxxxxxx Xxxxx at Xxxxxxx Xxxxx World
Headquarters, World Financial Center, North Tower, New York, New York 10281,
Attention: ___________, Managing Director, with a copy to Xxxxx, Day, Xxxxxx and
Xxxxx, 00 X. Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxxx X.
Xxxxxx, Esq.; notices to the Company shall be directed to it at Oklahoma Gas and
Electric Company, 000 Xxxxx Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, Attention:
President.
SECTION 12. PARTIES. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Offerors and the
Underwriters and their respective successors. Nothing expressed or mentioned in
this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Offerors and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and thereto and their respective successors and
legal representatives, 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 Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE PRICING
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF OKLAHOMA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID
STATE. SPECIFIED TIMES OF DAY REFER TO TIME UNLESS OTHERWISE INDICATED.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
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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, shall become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
OKLAHOMA GAS AND ELECTRIC COMPANY
By:
-------------------------------------
Name: A. M. Xxxxxxxx
Title: Vice President and Chief Financial
Officer
OG&E FINANCING I
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Regular Trustee
By:
-------------------------------------
Name: A. M. Xxxxxxxx
Title: Regular Trustee
CONFIRMED AND ACCEPTED
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX &
XXXXX INCORPORATED
X.X. XXXXXXX & SONS, INC.
BEAR, XXXXXXX & CO. INC.
XXXX XXXXXX XXXXXXXX INC.
XXXXXX BROTHERS
XXXXXXXXXXX & CO., INC.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX &
XXXXX INCORPORATED
By:
-----------------------------------
Authorized Signatory:
For themselves and as the Representatives of the
several Underwriters named in Schedule A hereto.
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SCHEDULE A
Name of Underwriter Number of Shares
------------------- ----------------
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
X.X. Xxxxxxx & Sons, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxx Xxxxxx Xxxxxxxx Inc.
Xxxxxx Brothers
Xxxxxxxxxxx & Co., Inc.
Total 2,000,000
---------
---------
EXHIBIT A
2,000,000 Preferred Securities
OG&E FINANCING I
(a Delaware business trust)
_______% Trust Originated Preferred Securities-SM- ("TOPrS-SM-") *
(Liquidation Amount of $25 Per Security)
PRICING AGREEMENT
XXXXXXX XXXXX & CO.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx
& Xxxxx Incorporated as
Representative of the several
Underwriters named in the within-
mentioned Purchase Agreement
Xxxxxxx Xxxxx World Headquarters
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
Reference is made to the Purchase Agreement, dated January __, 1997
(the "Purchase Agreement"), relating to the purchase by the several
Underwriters named in Schedule A thereto, for whom Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxxx & Sons,
Inc., Bear, Xxxxxxx & Co. Inc., Xxxx Xxxxxx Xxxxxxxx Inc., Xxxxxx Brothers
and Xxxxxxxxxxx & Co., Inc. are acting as representatives (the
"Representatives"), of the above ___% Trust Originated Preferred Securities
(the "Preferred Securities"), of OG&E Financing I, a Delaware business trust
(the "Trust").
Pursuant to Section 2 of the Purchase Agreement, the Trust and Oklahoma
Gas and Electric Company (the "Company"), an Oklahoma corporation, agree with
each Underwriter as follows:
1. The initial public offering price per security for the Preferred
Securities, determined as provided in said Section 2, shall be $25.00.
2. The purchase price per security for the Preferred Securities to be
paid by the several Underwriters shall be $25.00, being an amount equal to the
initial public offering price set forth above.
3. The compensation per Preferred Security to be paid by the Company
to the several Underwriters in respect of their commitments hereunder shall be
$.____; provided, however, that the compensation per Preferred Security for
Sales of 10,000 or more Preferred Securities to a single purchaser shall be
$.__.
-----------------------------
* (sm) "Trust Originate Preferred Securities" and "TOPrS" are service
marks of Xxxxxxx Xxxxx & Co. Inc.
EXHIBIT A
If the foregoing agreement is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Trust and the Company in accordance
with its terms.
Very truly yours,
OKLAHOMA GAS AND ELECTRIC COMPANY
By:
-------------------------------------
Name: A. M. Xxxxxxxx
Title: Vice President and Chief Financial
Officer
OG&E FINANCING I
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Regular Trustee
By:
-------------------------------------
Name: A. M. Xxxxxxxx
Title: Regular Trustee
CONFIRMED AND ACCEPTED
as of the date first above written:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx &
Xxxxx Incorporated
X.X. Xxxxxxx & Sons, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxx Xxxxxx Xxxxxxxx Inc.
Xxxxxx Brothers
Xxxxxxxxxxx & Co., Inc.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX &
XXXXX INCORPORATED
By:
-----------------------------------
Authorized Signatory:
For themselves and as the Representatives of the several Underwriters named in
the Purchase Agreement.
