EXHIBIT 1.01
DRAFT OF OCTOBER 4, 2000
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OKLAHOMA GAS AND ELECTRIC COMPANY
(an Oklahoma corporation)
$ Senior Notes, Series due
PURCHASE AGREEMENT
Dated:
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TABLE OF CONTENTS
PAGE
PURCHASE AGREEMENT.............................................................1
SECTION 1. Representations and Warranties...................................2
(a) Representations and Warranties by the Company....................2
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS...............3
(ii) INCORPORATED DOCUMENTS..................................3
(iii) INDEPENDENT ACCOUNTANTS.................................4
(iv) FINANCIAL STATEMENTS....................................4
(v) NO MATERIAL ADVERSE CHANGE..............................4
(vi) GOOD STANDING OF THE COMPANY............................4
(vii) NO SUBSIDIARIES.........................................5
(viii) CAPITALIZATION..........................................5
(ix) AUTHORIZATION OF AGREEMENT..............................5
(x) AUTHORIZATION OF THE INDENTURE..........................5
(xi) AUTHORIZATION OF THE SENIOR NOTES.......................5
(xii) DESCRIPTION OF THE SENIOR NOTES AND THE INDENTURE.......5
(xiii) ABSENCE OF DEFAULTS AND CONFLICTS.......................5
(xiv) ABSENCE OF PROCEEDINGS..................................6
(xv) ACCURACY OF EXHIBITS....................................6
(xvi) REGULATORY APPROVALS; ABSENCE OF FURTHER REQUIREMENTS...6
(xvii) POSSESSION OF LICENSES AND PERMITS......................7
(xviii) TITLE TO PROPERTY.......................................7
(b) Officer's Certificates...........................................7
SECTION 2. Sale and Delivery to Underwriters; Closing.......................7
(a) Senior Notes.....................................................7
(b) Payment..........................................................8
(c) Denominations; Registration......................................8
SECTION 3. Covenants of the Company.........................................8
(a) Compliance with Securities Regulations and Commission Requests...8
(b) Filing of Amendments.............................................9
(c) Delivery of Registration Statements..............................9
(d) Delivery of Prospectuses.........................................9
(e) Continued Compliance with Securities Laws........................9
(f) Rule 158........................................................10
(g) Use of Proceeds.................................................10
(h) Restriction on Sale of Securities...............................10
SECTION 4. Payment of Expenses.............................................10
(a) Expenses........................................................10
(b) Termination of Agreement........................................11
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SECTION 5. Conditions of Underwriters' Obligations.........................11
(a) Effectiveness of Registration Statement; Filing of Prospectus...11
(b) Opinions of Counsel for Company.................................11
(i) OPINION OF OKLAHOMA COUNSEL..............................11
(ii) OPINION OF ARKANSAS COUNSEL..............................13
(iii) OPINION OF ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇.....................14
(c) Opinion of Counsel for Underwriters.............................15
(d) Officers' Certificate...........................................15
(e) Accountants' Comfort Letter.....................................15
(f) Bring-down Comfort Letter.......................................15
(g) Maintenance of Rating...........................................15
(h) Additional Documents............................................16
(i) Termination of Agreement........................................16
SECTION 6. Conditions of Company's Obligations.............................16
SECTION 7. Indemnification.................................................17
(a) Indemnification of Underwriters.................................17
(b) Indemnification of Company, Directors and Officers..............17
(c) Actions against Parties; Notification...........................18
(d) Settlement without Consent if Failure to Reimburse..............18
SECTION 8. Contribution....................................................19
SECTION 9. Representations, Warranties and Agreements to Survive Delivery..20
SECTION 10. Termination of Agreement........................................20
(a) Termination; General............................................20
(b) Liabilities.....................................................21
SECTION 11. Default by One or More of the Underwriters......................21
SECTION 12. Notices.........................................................21
SECTION 13. Parties.........................................................22
SECTION 14. Governing Law and Time..........................................22
SECTION 15. Effect of Headings..............................................22
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TABLE OF CONTENTS
(Continued)
PAGE
SCHEDULES
Schedule A -- List of Underwriters...................................Sch. A-1
Schedule B -- Pricing Information....................................Sch. B-1
Schedule C -- Information Provided by Underwriters...................Sch. C-1
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OKLAHOMA GAS AND ELECTRIC COMPANY
(AN OKLAHOMA CORPORATION)
$
SENIOR NOTES, SERIES DUE
PURCHASE AGREEMENT
,
To:
Ladies and Gentlemen:
Oklahoma Gas and Electric Company, an Oklahoma corporation (the
"Company"), confirms its agreement with (the "Representative"),
and (collectively, with the Representative, the "Underwriters," which
term includes any underwriter substituted as hereinafter provided in Section
11 hereof), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth in Schedule A hereto of $
aggregate principal amount of the Company's Senior Notes, Series due
(the "Senior Notes"). The Senior Notes are to be issued pursuant to the
Indenture dated as of October 1, 1995 between the Company and The Bank of New
York, as successor trustee (the "Trustee"), as heretofore amended and
supplemented and as amended and supplemented by Supplemental Indenture No.
, dated as of , creating the series in which the Senior Notes are
to be issued. The term "Indenture," as used herein, means such Indenture
dated as of October 1, 1995, as so amended and supplemented, and includes the
Company Order (as defined in the Indenture), if any, establishing the form
and terms of the Senior Notes pursuant to the Indenture.
The Company understands that the Underwriters propose to make a
public offering of the Senior Notes as soon as they deem advisable after this
Agreement has been executed and delivered and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333- )
covering the registration of the Senior Notes under the Securities Act of
1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses. Promptly after execution and delivery
of this Agreement, the Company will either (i) prepare and file a prospectus
in accordance with paragraph (b) of Rule 424 ("Rule 424(b)") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
or (ii) if the Company elects to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted
from such registration statement at the time it became effective is referred
to as the "Offering Terms." Each prospectus used before such registration
statement became effective, and any prospectus that omitted the Offering
Terms, that was used after such effectiveness and prior to the execution and
delivery of this Agreement, is herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto, schedules thereto, if
any, and the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, at the time it became effective and including
the Offering Terms, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Senior Notes is
herein called the "Prospectus." If Rule 434 is relied on, the term
"Prospectus" shall refer to the preliminary prospectus dated
together with the Term Sheet and all references in this Agreement to the date
of the Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement
to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
in the Registration Statement, any preliminary prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as
amended (the "1934 Act") which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each Underwriter as of the date hereof and as of
the Closing Time (as defined in Section 2(b) hereof), and agrees with each
Underwriter, as follows:
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(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time, the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations"), and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment
or supplement was issued and at the Closing Time, included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this
subsection shall not apply to (A) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee,
(B) information contained in the Registration Statement or the
Prospectus relating to The Depository Trust Company and its book-entry
system, or (C) statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
the information furnished to the Company in writing by any Underwriter
through the Representative expressly for use in the Registration
Statement or Prospectus, which information is set forth on Schedule C
hereto.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 of the 1933 Act
Regulations ("Rule 424"), complied when so filed in all material
respects with the 1933 Act Regulations, and each preliminary prospectus
and the Prospectus delivered to the Underwriters for use in connection
with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to
the extent permitted by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated
or deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations or the
1934 Act and the rules and regulations of the Commission thereunder
(the "1934 Act
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Regulations"), as applicable, and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective, at the time the Prospectus was issued and at the
Closing Time, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iii) INDEPENDENT ACCOUNTANTS. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the
accountants who examined the financial statements and supporting
schedules included in the Registration Statement, are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements
included in the Registration Statement and the Prospectus, together
with the related schedules and notes, present fairly the financial
position of the Company at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved, except
as otherwise stated in the notes thereto. The supporting schedules, if
any, included in the Registration Statement present fairly in
accordance with GAAP the information required to be stated therein. The
selected financial information included in the Prospectus presents
fairly the information shown therein and has been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement. The Company has no material contingent
obligation which is not disclosed in the Prospectus.
(v) NO MATERIAL ADVERSE CHANGE. Since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, results of operations, properties,
business affairs or business prospects of the Company, whether or not
arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the
Company, other than those in the ordinary course of business, which are
material with respect to the Company, and (C) except for regular
quarterly dividends on the Common Stock, par value $2.50 per share, of
the Company in amounts consistent with past practice, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Oklahoma and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
4
property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material
Adverse Effect.
(vii) NO SUBSIDIARIES. The Company has no subsidiaries.
(viii) CAPITALIZATION. The authorized, issued and
outstanding capital stock of the Company is as stated in the
Prospectus.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has been
duly authorized, executed and delivered by the Company.
(x) AUTHORIZATION OF THE INDENTURE. The Indenture has
been duly authorized by the Company and duly qualified under the 1939
Act and, when duly executed and delivered by the Company and the
Trustee, will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xi) AUTHORIZATION OF THE SENIOR NOTES. The Senior Notes
have been duly authorized and, at the Closing Time, will have been duly
executed by the Company and, when authenticated, issued and delivered
in the manner provided for in the Indenture and delivered against
payment of the purchase price therefor as provided in this Agreement,
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
will be in the form contemplated by, and entitled to the benefits
provided by, the Indenture.
(xii) DESCRIPTION OF THE SENIOR NOTES AND THE INDENTURE.
The Senior Notes and the Indenture will conform in all material
respects to the respective statements relating thereto contained in the
Prospectus and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(xiii) ABSENCE OF DEFAULTS AND CONFLICTS. The Company is
not in violation of its Restated Certificate of Incorporation or
By-Laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which it is a party or by
which it may be bound, or to which any of its property or assets is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution,
5
delivery and performance of this Agreement, the Indenture and the
Senior Notes, and the consummation of the transactions contemplated
herein and in the Registration Statement (including the issuance and
sale of the Senior Notes and the use of the proceeds from the sale
of the Senior Notes as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Company with its obligations
hereunder and under the Indenture and the Senior Notes have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to, the Agreements and Instruments
(except for such conflicts, breaches, defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect),
nor will such action result in any violation of the provisions of
the Restated Certificate of Incorporation or By-Laws of the Company
or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or
any of its assets, properties or operations. As used herein, a
"Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company, other than such events or conditions
that are contemplated by the terms of this Agreement and the
Indenture.
(xiv) ABSENCE OF PROCEEDINGS. Other than as disclosed in
the Registration Statement, there is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Company, threatened, against or affecting the Company, which is
required to be disclosed in the Registration Statement or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect its
properties or assets or the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder. The aggregate of all pending legal or
governmental proceedings to which the Company is a party or of which
any of its property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xv) ACCURACY OF EXHIBITS. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xvi) REGULATORY APPROVALS; ABSENCE OF FURTHER
REQUIREMENTS. The Corporation Commission of the State of Oklahoma (the
"Oklahoma Commission") has, to the extent necessary, duly authorized
the issuance and sale of the Senior Notes on terms consistent with this
Agreement. No filing with, or authorization, approval, consent,
6
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection
with the offering, issuance or sale of the Senior Notes hereunder or
the consummation of the transactions contemplated by this Agreement and
the Registration Statement or for the due execution, delivery or
performance of the Indenture by the Company, except such as have been
already obtained, including from the Oklahoma Commission.
(xvii) POSSESSION OF LICENSES AND PERMITS. The Company
possesses such permits, licenses, approvals, consents and other
authorizations issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct in all
material respects the business now operated by it and as described in
the Registration Statement and Prospectus (collectively, "Governmental
Licenses"); the Company is in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to
comply would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are in full force and effect,
except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and the Company has not
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xviii) TITLE TO PROPERTY. The Company has good and
sufficient title to all real property, principal plants and all other
property owned by it and which is material to the Company's operations,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (a) are described in the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company; and all of the leases and subleases material to the
business of the Company, and under which the Company holds properties
described in the Prospectus, are in full force and effect, and the
Company does not have notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of the Company under any
of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company to the continued possession of the leased or
subleased premises under any such lease or sublease.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company and delivered to any Underwriter or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(a) SENIOR NOTES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to
7
purchase from the Company, at the price set forth in Schedule B, the
principal amount of Senior Notes set forth in Schedule A opposite the name of
such Underwriter, plus any additional principal amount of Senior Notes which
such Underwriter may become obligated to purchase pursuant to the provisions
of Section 11 hereof.
(b) PAYMENT. Payment of the purchase price, and delivery of
certificates, for the Senior Notes shall be made at the offices of ▇▇▇▇▇▇▇,
Carton & ▇▇▇▇▇▇▇, Chicago, Illinois, or at such other place as shall be
agreed upon by the Representative and the Company, at 9:00 A.M. (Chicago
time) on the third business day after the date hereof (unless postponed in
accordance with the provisions of Section 11), or such other time not later
than ten business days after such date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery
being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to the Representative for the respective accounts of the Underwriters of
certificates for the Senior Notes to be purchased by them. It is understood
that each Underwriter has authorized the Representative, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for,
the Senior Notes which it has agreed to purchase. The Representative,
individually and not as representative of the Underwriters, may (but shall
not be obligated to) make payment of the purchase price for the Senior Notes
to be purchased by any Underwriter whose funds have not been received by the
Closing Time, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(c) DENOMINATIONS; REGISTRATION. One certificate for the Senior
Notes shall be in the amount of $ and registered in the name of Cede &
Co., as nominee of The Depository Trust Company. The Company will make the
Senior Notes, which may be in temporary form, available for examination and
packaging by the Underwriters in New York, New York not later than 10:00 A.M.
(New York time) on the business day prior to the Closing Time.
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants with each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 424 or Rule 434, as applicable, and will notify the Underwriters
immediately, and confirm the notice in writing, (i) of the effectiveness of
any post-effective amendment to the Registration Statement, or of the filing
of any supplement to the Prospectus or any amended Prospectus, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (iv) of
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus, or of the suspension of the qualification
of the Senior Notes for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes. The
8
Company will promptly effect the filings necessary pursuant to Rule 424(b)
and will take such steps as it deems necessary to ascertain promptly whether
the form of prospectus transmitted for filing under Rule 424(b) was received
for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Underwriters
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representative with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which the Representative or counsel for the
Underwriters reasonably objects.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished
or will deliver to the Representative and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, in such number as the Representative reasonably
requests, and will also deliver to the Representative, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies
of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will
comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to
permit the completion of the distribution of the Senior Notes as contemplated
in this Agreement and in the Prospectus. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Senior Notes, any event occurs or condition exists as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company,
to amend the Registration Statement or amend or supplement
9
the Prospectus in order that the Prospectus will not include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it is necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters such number of
copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) RULE 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(g) USE OF PROCEEDS. The Company will use the net proceeds received
by it from the sale of the Senior Notes in the manner specified in the
Prospectus under "Use of Proceeds."
(h) RESTRICTION ON SALE OF SECURITIES. During the period beginning
on the date of this Agreement and continuing until the Closing Time, which
period shall in no event exceed 15 business days, the Company will not,
without the prior written consent of the Representative, in its sole
discretion, directly or indirectly, issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise transfer or dispose of, any
debt securities of the Company which mature more than one year after the
Closing Time and which are substantially similar to the Senior Notes.
SECTION 4. PAYMENT OF EXPENSES
(a) EXPENSES. Whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, the Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as originally filed
and of each amendment thereto, (ii) the preparation, printing and delivery to
the Underwriters of this Agreement, any Agreement among Underwriters, the
Indenture, and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Senior Notes, (iii) all
costs, taxes and expenses incident to the preparation, issuance and delivery
of the Senior Notes to the Underwriters, (iv) the fees and disbursements of
the Company's counsel, accountants and other advisors, (v) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheets and of the Prospectus and any amendments or supplements thereto,
(vi) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Senior Notes and (vii) any fees payable in connection with the rating of
the Senior Notes.
10
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5, Section 6 or
Section 10(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.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS
The obligations of the several Underwriters hereunder are subject to
the accuracy of the representations and warranties of the Company contained
in Section 1 hereof and in certificates of any officer of the Company
delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder and to the following
further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT; FILING OF PROSPECTUS.
The Registration Statement, including any Rule 462(b) Registration Statement,
has become effective, and at Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission,
and any request on the part of the Commission for additional information
shall have been complied with to the reasonable satisfaction of counsel to
the Underwriters. A prospectus containing the Offering Terms shall have been
filed with the Commission in accordance with Rule 424(b) or, if the Company
has elected to rely upon Rule 434, a Term Sheet shall have been filed with
the Commission in accordance with Rule 424(b).
(b) OPINIONS OF COUNSEL FOR COMPANY. At Closing Time, the
Representative shall have received the favorable opinions, dated as of
Closing Time, of ▇▇▇▇▇▇, ▇▇▇▇, Rice & ▇▇▇▇▇, Oklahoma City, Oklahoma,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., Little Rock, Arkansas, and ▇▇▇▇▇▇▇,
Carton & ▇▇▇▇▇▇▇, Chicago, Illinois, each counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, together with
signed original or reproduced copies of such opinions for each of the other
Underwriters to the effect set forth below and to such further effect as
counsel to the Underwriters may reasonably request.
(i) OPINION OF OKLAHOMA COUNSEL.
(A) the Company is a legally existing corporation and
is in good standing under the laws of the State of Oklahoma
and has corporate power, right and authority to do business
and to own property in the State of Oklahoma in the manner and
as set forth in the Prospectus;
(B) the Indenture has been duly and validly executed
and delivered by the Company, which has full power and
authority to enter into and perform its obligations
thereunder; and the Indenture constitutes the binding and
enforceable agreement of the Company in accordance with its
terms, except as enforcement of provisions of the Indenture
may be limited by bankruptcy or other applicable laws
affecting the enforcement of creditors' rights;
11
(C) the Senior Notes are in the form contemplated by
the Indenture, have been duly and validly authorized by the
Company, constitute valid and binding obligations of the
Company and will be entitled to the benefits of the Indenture;
(D) while, except as otherwise stated in said
opinion, such counsel are not passing upon and do not assume
responsibility for and shall not be deemed to have
independently verified the accuracy, completeness or fairness
of the Registration Statement or the Prospectus, nothing has
come to the attention of such counsel that would lead them to
believe that the Registration Statement at the time it became
effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus at the time it was filed pursuant to Rule
424 and/or Rule 434 under the 1933 Act or at the Closing Time
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(E) the execution and delivery of this Agreement have
been duly authorized by the necessary action on the part of
the Company and this Agreement constitutes the valid and
binding agreement of the Company except to the extent that the
provisions for indemnities or contribution may be held to be
unenforceable as against public policy;
(F) except in localities where the Company has no
franchises, which are relatively few and not of large
population, or where the failure to have such franchises will
not have a material adverse effect on the business or
operations of the Company, the Company has sufficient
authority under statutory provisions or by grant of franchises
or permits by municipalities or counties to conduct its
business in Oklahoma as presently conducted and as described
in the Prospectus;
(G) such counsel does not know of any legal or
governmental proceedings required to be described in the
Prospectus which are not described as required, nor of any
contracts or documents of a character required to be described
in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required;
(H) the Indenture and the Senior Notes conform in all
material respects to the statements concerning them in the
Prospectus;
(I) all statements contained in the Registration
Statement and Prospectus purporting to set forth the advice or
the opinion of such counsel or to be based upon the opinion of
such counsel correctly set forth the opinion of such counsel
on such respective matters;
12
(J) the execution and delivery of this Agreement and
the issuance of the Senior Notes, and compliance with the
provisions thereof, under the circumstances contemplated
hereby and thereby, do not and will not violate the Restated
Certificate of Incorporation or By-Laws of the Company, or in
any material respect conflict with or constitute on the part
of the Company a breach of or default under any indenture,
lease, mortgage, deed of trust, note, agreement or other
instrument known to such counsel to which the Company is a
party or any law, regulation, consent decree or
administrative, arbitration or court order known to such
counsel to which the Company is subject;
(K) the Oklahoma Commission has duly issued its order
authorizing the issuance by the Company of the Senior Notes on
terms consistent with this Agreement and, to the best of such
counsel's knowledge, such order is still in force and effect;
the issuance and sale of the Senior Notes to the Underwriters
is in conformity with the terms of such order; and no further
approval, authorization, consent, certificate or order of any
Oklahoma commission or regulatory authority is necessary with
respect to the due authorization, execution and delivery of
this Agreement, the due execution, delivery or performance of
the Indenture by the Company or for the offering, issuance,
sale or delivery of the Senior Notes to the Underwriters as
contemplated in this Agreement; and
(L) to the best of such counsel's knowledge, the
Company does not have any subsidiaries.
(ii) OPINION OF ARKANSAS COUNSEL.
(A) the Company is duly qualified as a foreign
corporation and is in good standing under the laws of the
State of Arkansas and has corporate power, right and authority
to do business and to own property in the State of Arkansas in
the manner and as set forth in the Prospectus;
(B) except in localities where the Company has no
franchises, which are relatively few and not of large
population, or where the failure to have such franchises will
not have a material adverse effect on the business or
operations of the Company, the Company has sufficient
authority under statutory provisions or by grant of franchises
or permits by municipalities or counties to conduct its
business in Arkansas as presently conducted and as described
in the Prospectus;
(C) No approval, authorization, consent, certificate
or order of the Arkansas Public Service Commission or any
other governmental or regulatory authority is necessary with
respect to the due authorization, execution and delivery of
this Agreement, the due execution, delivery or performance of
the Indenture by the Company or for the offering, issuance,
sale and delivery of the Senior Notes by the Company to the
Trustee as contemplated in this Agreement; and
13
(D) such counsel is not handling any litigation
relating to the Company except as set forth in a schedule
attached to such opinion.
(iii) OPINION OF ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇.
(A) such opinion shall cover the matters set forth in
subdivisions (A), (B), (C), (D), (E), (G), (H), (J) and (L) of
paragraph (b)(i) of this Section 5;
(B) the Registration Statement, including any Rule
462(b) Registration Statement, has become effective under the
1933 Act, the Prospectus has been filed pursuant to Rule
424(b) and/or Rule 434 of the 1933 Act Regulations, and, to
the best knowledge of said counsel, no proceedings for a stop
order in respect thereof are pending or threatened under
Section 8(d) or 8(e) of the 1933 Act;
(C) the Registration Statement, including any Rule
462(b) Registration Statement, the Offering Terms and the
Prospectus (except as to the financial statements and
financial or statistical data contained therein, with respect
to which said counsel need express no opinion) comply as to
form, in all material respects, with the requirements of the
1933 Act, the 1934 Act and the 1939 Act and the rules and
regulations of the Commission under such Acts; and the
documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus
(except as to the financial statements and financial or
statistical data contained therein, with respect to which said
counsel need express no opinion) as of their respective dates
of filing with the Commission complied as to form in all
material respects with the 1934 Act and the 1934 Act
Regulations;
(D) the Indenture has been qualified under the 1939
Act as and to the extent required by the provisions of the
1939 Act; and
(E) all approvals, authorizations, consents,
certificates or orders of any state or federal commission or
regulatory authority that are necessary with respect to the
issuance and sale of the Senior Notes by the Company as
contemplated in this Agreement have been obtained.
Such opinion may be subject to the reservation that,
in giving such opinion, said counsel has relied on the opinion
of Oklahoma counsel as to all matters of Oklahoma law and on
the opinion of Arkansas counsel as to all matters of Arkansas
law (including without limiting the foregoing all opinions as
to the validity and sufficiency of franchises and permits, and
the validity and sufficiency of the order described in
subdivision (K) of subsection (b)(i) of this Section 5 and the
lack of necessity of the order described in subdivision (C) of
subsection (b)(ii) of this Section 5), provided that such
opinion shall state that said counsel believes that the
Underwriters and they are justified in relying on the opinions
of Oklahoma counsel and of Arkansas counsel.
14
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, Chicago, Illinois, counsel for the
Underwriters, together with signed original or reproduced copies of such
letter for each of the other Underwriters with respect to such matters
related to the issuance and sale of the Senior Notes as the Underwriters may
reasonably require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of
Illinois and the federal law of the United States, upon the opinions of
Oklahoma counsel, Arkansas counsel or other counsel satisfactory to the
Underwriters.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, results of operations,
properties, business affairs or business prospects of the Company, whether or
not arising in the ordinary course of business, and the Underwriters shall
have received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties in this
Agreement are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or, to their
knowledge, are contemplated by the Commission.
(e) ACCOUNTANTS' COMFORT LETTER. At the time of the execution of
this Agreement, the Representative shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP a letter, dated such date, in form and substance satisfactory to the
Underwriters, together with signed original or reproduced copies of such
letter for each of the other Underwriters, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the Representative
shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of Closing
Time, together with signed original or reproduced copies of such letter for
each of the other Underwriters, to the effect that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
reaffirms the statements made in the letter furnished pursuant to subsection
(f) of this Section, except that the specified date referred to shall be a
date not more than three business days prior to Closing Time.
(g) MAINTENANCE OF RATING. At Closing Time, the Senior Notes shall
be rated at least by ▇▇▇▇▇'▇ Investors Service, Inc. and by Standard & Poor's
Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. Since the
date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to any of the Company's securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission
15
for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization
shall have publicly announced that it has under surveillance or review its
rating of the Senior Notes or any of the Company's other securities.
(h) ADDITIONAL DOCUMENTS. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Senior Notes as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment
of any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Senior Notes as
herein contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
(i) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Underwriters by notice to the Company
at any time at or prior to Closing Time, and such termination shall be
without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 7, 8 and 9 shall survive any such
termination and remain in full force and effect.
In giving the opinions contemplated by paragraphs (b) and (c) of
this Section 5, counsel may rely upon certificates of state officials as to
the Company's good standing and upon certificates of officers of the Company
as to matters of fact relevant to such opinions. In giving such opinions,
counsel may assume (i) that the Senior Notes have been executed on behalf of
the Company by the manual or facsimile signatures of the President or a Vice
President and the Secretary or an Assistant Secretary of the Company and have
been manually authenticated by an authorized official of the Trustee, (ii)
that the signatures on all documents examined by them are genuine, and (iii)
that the written information supplied by the Underwriters expressly for use
in the Registration Statement or the Prospectus is adequate.
SECTION 6. CONDITIONS OF COMPANY'S OBLIGATIONS
The obligation of the Company to deliver the Senior Notes upon
payment therefor shall be subject to the following conditions:
At the Closing Time, (a) the order of the Oklahoma Commission
referred to in subparagraph (a)(xvi) of Section 1 hereof shall be in full
force and effect substantially in the form in which originally entered and
(b) no stop order suspending the effectiveness of the Registration Statement
shall be in effect and no proceedings for that purpose shall then be pending
before, or threatened by, the Commission.
In case any of the conditions specified above in this Section 6
shall not have been fulfilled, this Agreement may be terminated by the
Company by delivering written notice of termination to the Underwriters. Any
such termination shall be without liability of any party to any other party
except to the extent provided in Section 4 hereof.
16
SECTION 7. INDEMNIFICATION
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Offering Terms, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 7(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with the written information furnished to the
Company by any Underwriter through the Representative expressly for use in
the Registration Statement (or any amendment thereto), including the Offering
Terms, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), which information is set forth on Schedule C hereto. The
foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any controlling person of
that Underwriter.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, its directors, each of its
17
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Offering
Terms, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with the written
information furnished to the Company by such Underwriter through the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), which information is set forth on Schedule
C hereto. The foregoing indemnity is in addition to any liability which any
Underwriter may otherwise have to the Company or any such director, officer
or controlling person.
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 7(a) above, counsel to the indemnified parties shall be selected by
the Representative, and, in the case of parties indemnified pursuant to
Section 7(b) above, counsel to the indemnified parties shall be selected by
the Company. An indemnifying party may participate at its own expense in the
defense of any such action; PROVIDED, HOWEVER, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 7 or Section 8 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability (including
any obligation to pay any amounts in settlements) arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by
such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such
18
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
SECTION 8. CONTRIBUTION
If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred
to therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and
the Underwriters on the other hand from the offering of the Senior Notes
pursuant to this Agreement or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and
the Underwriters on the other hand in connection with the offering of the
Senior Notes pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Senior Notes pursuant to this Agreement (before deducting expenses) received
by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet, bear to
the aggregate initial public offering price of the Senior Notes as set forth
on such cover or corresponding location, as the case may be.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 8
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
19
Notwithstanding the provisions of this Section 8, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Senior Notes underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of any
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 8
are several in proportion to the principal amount of Senior Notes set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Senior Notes to the Underwriters.
SECTION 10. TERMINATION OF AGREEMENT
(a) TERMINATION; GENERAL. The Underwriter may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
loss sustained by the Company by strike, fire, flood, accident or other
calamity of such character as to interfere materially with the conduct of the
business and operations of the Company regardless of whether or not such loss
shall have been insured, or any material adverse change in the condition,
financial or otherwise, or in the earnings, results of operations,
properties, business affairs or business prospects of the Company, whether or
not arising in the ordinary course of business, or (ii) if there has occurred
any material adverse change in the financial markets in the United States,
any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Underwriters,
impracticable to market the Senior Notes or to enforce contracts for the sale
of the Senior Notes, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission or the New York Stock
20
Exchange, or if trading generally on the American Stock Exchange or the New
York Stock Exchange or in the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or
by such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either federal, New York or Oklahoma
authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 7, 8 and 9 shall survive such termination and remain in full
force and effect.
SECTION 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
If one or more of the Underwriters fails at Closing Time to purchase
the Senior Notes which it or they are obligated to purchase under this
Agreement (the "Defaulted Senior Notes"), the remaining Underwriter or
Underwriters will have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriter or underwriters, to purchase all, but not less than all, of the
Defaulted Senior Notes in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the remaining Underwriter or
Underwriters do not complete such arrangements within such 24-hour period,
then:
(a if the number of Defaulted Senior Notes does not exceed
10% of the aggregate principal amount of the Senior Notes to be
purchased hereunder, each of the non-defaulting Underwriters will be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b if the number of Defaulted Senior Notes exceeds 10% of the
aggregate principal amount of the Senior Notes to be purchased
hereunder, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section will relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the remaining Underwriter or
Underwriters or the Company will have the right to postpone Closing Time for
a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 11.
SECTION 12. NOTICES
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All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall
be directed to
; each with a copy to ▇▇▇▇▇, Day, ▇▇▇▇▇▇
& ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq. Notices to the Company shall be directed to it at Oklahoma Gas
and Electric Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇. ▇. Box 321, Oklahoma City,
Oklahoma, Attention: President, with a copy to ▇▇▇▇▇▇▇, Carton & ▇▇▇▇▇▇▇,
Quaker Tower, Suite 3100, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. .
SECTION 13. PARTIES
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 7 and 8 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Senior Notes from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. GOVERNING LAW AND TIME
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF OKLAHOMA. Except as otherwise set forth herein,
specified times of day refer to New York City time.
SECTION 15. EFFECT OF HEADINGS
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
OKLAHOMA GAS AND ELECTRIC COMPANY
By:
------------------------------------
Title:
---------------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
BY:
By:
-----------------------------------
Title:
--------------------------------
SCHEDULE A
Principal
Amount of
Name of Underwriter Senior Notes
-------------------------------------------------------------------------- ----------------
.......................................................................... $
..........................................................................
..........................................................................
----------------
Total..................................................................... $
----------------
Sch. A-1
SCHEDULE B
OKLAHOMA GAS AND ELECTRIC COMPANY
$ Senior Notes, Series due
1. The initial public offering price of the Senior Notes is % of
the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Senior
Notes is % of the principal amount thereof.
3. The interest rate on the Senior Notes is % per annum.
4. [The Company, at its option, may redeem on any date all or, from
time to time, any part of the Senior Notes at a redemption price equal to the
greater of (i) 100% of the principal amount of such Senior Notes and (ii) the
sum of the present values of the remaining scheduled payments of principal and
interest thereon from and after the date of redemption discounted to the
redemption date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined in the Indenture), plus
in each case accrued and unpaid interest thereon to the date of redemption.]
Sch. B-1
SCHEDULE C
The information set forth below constitutes the only information
furnished to the Company by any Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or preliminary prospectus
or the Prospectus (or any amendment or supplement thereto):
Sch. C-1