As filed with the Securities and Exchange Commission on December 28, 2001
Registration No. 333-65392
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ONEOK, INC.
(Exact Name of Registrant as Specified in Its Charter)
Oklahoma 73-1520922
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
100 West Fifth Street
Tulsa, Oklahoma 74103
(918) 588-7000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Jim Kneale
Senior Vice President, Treasurer and Chief Financial Officer
ONEOK, Inc.
100 West Fifth Street
Tulsa, Oklahoma 74103
(918) 588-7000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
Copies to:
John R. Barker Robert A. Yolles
Gable & Gotwals Jones, Day, Reavis & Pogue
100 West Fifth Street, Suite 1100 77 West Wacker
Tulsa, Oklahoma 74103 Chicago, Illinois 60601
(918) 595-4800 (312) 782-3939
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Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement as
determined by market conditions and other factors.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of Each Class Aggregate Amount of
of Securities to Be Registered Offering Price(1)(2) Registration Fee
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Debt Securities and Common Stock, par value $0.01 per
share (including preferred share purchase rights)... $500,000,000 $125,000(3)
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(1)Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act. In no event will the
aggregate initial offering price of all Debt Securities and Common Stock
issued from time to time pursuant to this Registration Statement exceed
$500,000,000. If any Debt Securities are issued at an original issue
discount, then the offering price will be deemed to be the principal amount
that results in an aggregate initial offering price of up to $500,000,000,
less the dollar amount of any Debt Securities or Common Stock previously
issued hereunder.
(2)Exclusive of accrued interest, if any.
(3)This entire amount has been paid previously.
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Subject to completion, Preliminary Prospectus dated December 28, 2001
ONEOK, Inc.
$500,000,000
Debt Securities
Common Stock
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We may offer from time to time in one or more issuances, (1) one or more
series of unsecured Debt Securities, which may be senior notes or debentures or
other unsecured evidences of indebtedness, or (2) shares of our Common Stock.
The Debt Securities, which may include terms permitting or requiring holders to
convert or exchange their Debt Securities for other Debt Securities or Common
Stock, and the Common Stock are collectively referred to in this prospectus as
the "Securities." The aggregate initial offering price of the Securities that
are offered will not exceed $500,000,000. We will offer the Securities in an
amount and on terms to be determined by market conditions at the time of the
offering.
We will provide you with the specific terms of the particular Securities
being offered in supplements to this prospectus. You should read this
prospectus and each related supplement carefully before you invest. This
prospectus may not be used to sell Securities unless accompanied by a
prospectus supplement.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
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The date of this Prospectus is , 2002.
The information in this prospectus is not completed and may be changed. We may
not consummate the exchange offer until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these notes and is not soliciting an offer to buy these notes in
any state where the offer or sale is not permitted.
TABLE OF CONTENTS
About This Prospectus.............. 2
Where You Can Find More Information 2
Forward-Looking Information........ 3
About ONEOK........................ 4
Use Of Proceeds.................... 4
Ratio Of Earnings To Fixed Charges. 5
Description Of Debt Securities..... 5
Description Of Capital Stock....... 13
Plan Of Distribution............... 25
Legal Matters...................... 26
Experts............................ 26
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that ONEOK ("we" or
"ONEOK") filed with the Securities and Exchange Commission using a "shelf"
registration process. Using this process, we may offer the Securities described
in this prospectus in one or more offerings with a total initial offering price
of up to $500,000,000. This prospectus provides you with a general description
of the Securities we may offer. Each time we offer Securities, we will provide
you a prospectus supplement and any pricing supplement that will contain
information about the specific terms of that particular offering. The
prospectus supplement or pricing supplement may also add, update or change
information contained in this prospectus. To obtain additional information that
may be important to you, you should read the exhibits filed by us with the
registration statement of which this prospectus is a part and our other filings
with the Securities and Exchange Commission. You also should read this
prospectus and any prospectus supplement or pricing supplement together with
the additional information described under the heading "Where You Can Find More
Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You can read and copy
any materials we file with the Securities and Exchange Commission at its Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549 and at its
regional offices located at Seven World Trade Center, New York, New York 10048
and at 500 West Madison Street, Chicago, Illinois 60661. You can obtain
information about the operations of the Securities and Exchange Commission
Public Reference Room by calling the Securities and Exchange Commission at
1-800-SEC-0330. The Securities and Exchange Commission also maintains a Web
site that contains information we file electronically with the Securities and
Exchange Commission, which you can access over the Internet at
http://www.sec.gov. Our Common Stock is listed on the New York Stock Exchange
(NYSE: OKE), and you can obtain information about us at the offices of the New
York Stock Exchange, 20 Broad Street, New York, New York 10005.
This prospectus is part of a registration statement we have filed with the
Securities and Exchange Commission relating to the Securities. As permitted by
Securities and Exchange Commission rules, this prospectus does not contain all
of the information we have included in the registration statement and the
accompanying exhibits we file with the Securities and Exchange Commission. You
may refer to the registration statement and the exhibits for more information
about us and the Securities. The registration statement and the exhibits are
available at the Securities and Exchange Commission's Public Reference Room or
through its Web site.
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The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with it, which means that we can disclose
important information to you by referring you to those documents. The
information we incorporate by reference is an important part of this
prospectus, and later information that we file with the Securities and Exchange
Commission will automatically update and supersede some of this information. We
incorporate by reference the documents listed below, and any future filings we
make with the Securities and Exchange Commission under Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 until we sell all the
Securities. The documents we incorporate by reference are:
. our annual report on Form 10-K for the year ended December 31, 2000;
. our reports on Form 10-Q for the quarterly periods ended March 31, 2001,
June 30, 2001 and September 30, 2001;
. our current reports on Form 8-K dated January 19, 2001, January 29, 2001,
February 22, 2001, May 23, 2001, May 25, 2001, May 30, 2001, June 26,
2001, August 9, 2001 (two separate reports), September 27, 2001 (two
separate reports), November 14, 2001, November 21, 2001, December 3, 2001
(two separate reports) and December 21, 2001;
. the description of our Common Stock contained in our Form 8-A registration
statement filed with the Securities and Exchange Commission on November
21, 1997, including any amendment or report filed for the purpose of
updating that description; and
. the description of our preferred share purchase rights contained in our
Form 8-A registration statement filed with the Securities and Exchange
Commission on November 28, 1997, including any amendment or report filed
for the purpose of updating that description.
You may request a copy of these filings (other than an exhibit to the
filings unless we have specifically incorporated that exhibit by reference into
the filing), at no cost, by writing or telephoning us at the following address:
ONEOK, Inc.
100 West Fifth Street
Tulsa, Oklahoma 74103
Attention: Chief Financial Officer
Telephone: (918) 588-7000
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We may only
use this prospectus to sell Securities if it is accompanied by a prospectus
supplement. We are only offering the Securities in states where the offer is
permitted. You should not assume that the information in this prospectus, the
applicable prospectus supplement or any applicable pricing supplement is
accurate as of any date other than the date on the front of those documents.
FORWARD-LOOKING INFORMATION
Some of the statements contained and incorporated in this prospectus are
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. The forward-looking statements relate to
anticipated financial performance, management's plans and objectives for future
operations, business prospects, outcome of regulatory proceedings, market
conditions and other matters. The Private Securities Litigation Reform Act of
1995 provides a safe harbor for forward-looking statements in various
circumstances. The following discussion is intended to identify important
factors that could cause future outcomes to differ materially from those set
forth in the forward-looking statements.
Forward-looking statements include the items identified in the preceding
paragraph, the information concerning possible or assumed future results of
operations and other statements contained or incorporated in this prospectus
identified by words such as "anticipate," "estimate," "expect," "intend,"
"believe," "projection" or "goal."
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You should not place undue reliance on the forward-looking statements. They
are based on known and unknown risks, uncertainties and other factors that may
cause our actual results, performance or achievements to be materially
different from any future results, performance or achievements expressed or
implied by the forward-looking statements. Those factors may affect our
operations, markets, products, services and prices. In addition to any
assumptions and other factors referred to specifically in connection with the
forward-looking statements, factors that could cause our actual results to
differ materially from those contemplated in any forward-looking statement
include, among others, the following:
. the effects of weather and other natural phenomena on sales and prices;
. increased competition from other energy suppliers as well as alternative
forms of energy;
. the capital intensive nature of our business;
. further deregulation, or "unbundling," of the natural gas business;
. competitive changes in the natural gas gathering, transportation and
storage business resulting from deregulation, or "unbundling," of the
natural gas business;
. the profitability of assets or businesses acquired by us;
. risks of hedging, marketing and trading activities as a result of changes
in energy prices or the financial condition of our trading partners;
. economic climate and growth in the geographic areas in which we do
business;
. the uncertainty of gas and oil reserve estimates;
. the timing and extent of changes in commodity prices for natural gas,
electricity, crude oil and natural gas liquids;
. the effects of changes in governmental policies and regulatory actions,
including income taxes, environmental compliance, authorized rates and
recovery of gas costs;
. the results of litigation relating to our previously proposed acquisition
of Southwest Gas Corporation or to the termination of our merger agreement
with Southwest Gas;
. the results of administrative proceedings and litigation involving the
Oklahoma Corporation Commission and the Kansas Corporation Commission; and
. the other factors listed in the reports we have filed and may file with
the Securities and Exchange Commission, which are incorporated by
reference.
Other factors and assumptions not identified above were also involved in the
making of the forward-looking statements. The failure of those assumptions to
be realized, as well as other factors, may also cause actual results to differ
materially from those projected. We have no obligation and make no undertaking
to update publicly or revise any forward-looking statements.
ABOUT ONEOK
ONEOK and its subsidiaries engage in several aspects of the energy business.
We purchase, gather, process, transport, store and distribute natural gas. We
drill for and produce gas and oil, and extract, sell and market natural gas
liquids. We also engage in the natural gas marketing and trading business and
in the production and marketing of electricity. Our regulated natural gas
utility businesses distribute natural gas to approximately 1.4 million
customers in the states of Oklahoma and Kansas.
USE OF PROCEEDS
Unless we inform you otherwise in the prospectus supplement, we will use the
net proceeds from the sale of the Securities offered by this prospectus for
general corporate purposes. These purposes may include repayment and
refinancing of debt, acquisitions, working capital, capital expenditures and
repurchases and redemptions of securities. Pending any specific application, we
may initially invest funds in short-term marketable securities or apply them to
the reduction of short-term indebtedness.
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RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the periods shown is as
follows:
For the nine For the years ended August 31,
months ended For the year ended For the four months ended ------------------------------
September 30, 2001 December 31, 2000 December 31, 1999 1999 1998 1997 1996
------------------ ------------------ ------------------------- ----- ----- ----- -----
2.38x 2.88x 2.98x 4.06x 5.50x 3.51x 3.28x
We have computed the ratios of earnings to fixed charges by dividing
earnings by fixed charges. For this purpose, "earnings" consists of income
before cumulative effect of a change in accounting principle plus fixed charges
and income taxes, less undistributed income from equity investees. "Fixed
charges" consists of interest charges, the representative interest portion of
operating leases and the amortization of debt discounts and issue costs.
DESCRIPTION OF DEBT SECURITIES
The following description states the general terms and provisions of our
unsecured Debt Securities. In this prospectus, "Debt Securities" means the
debentures, notes, bonds and other evidences of indebtedness that we will issue
under an Indenture that we entered into with SunTrust Bank, as trustee, on
December 28, 2001. Each prospectus supplement that we provide when we offer
Debt Securities will describe the specific terms of the Debt Securities offered
through that prospectus supplement and any general terms outlined in this
section that will not apply to those Debt Securities.
We have summarized the material terms and provisions of the Indenture in
this section. The summary is not complete. We have filed the form of the
Indenture as an exhibit to the registration statement of which this prospectus
forms a part. You should read the form of Indenture for additional information
before you buy any Debt Securities. The Indenture is qualified under the Trust
Indenture Act of 1939. You should refer to the Trust Indenture Act of 1939 for
provisions that apply to the Debt Securities. This summary also is subject to
and qualified by reference to the description of the particular terms of the
Debt Securities described in the applicable prospectus supplement or
supplements and pricing supplement or supplements. Capitalized terms used but
not defined in this summary have the meanings specified in the Indenture.
The Debt Securities will be our unsecured obligations and will rank equally
with any of our other senior, unsecured debt. Debt Securities issued under the
Indenture will be issued as part of a series that has been established pursuant
to a supplemental indenture or other corporate action designating the specific
terms of the series of Debt Securities. A prospectus supplement will describe
these terms and will include, among other things, the following:
. the title of the Debt Securities of the particular series;
. the total principal amount of those Debt Securities and the percentage of
their principal amount at which we will issue those Debt Securities;
. the date or dates on which the principal of those Debt Securities will be
payable;
. the interest rate, the method for determining the interest rate (if the
interest rate is variable), the date from which interest will accrue,
interest payment dates and record dates for interest payments;
. the place or places where payments on those Debt Securities will be made,
where holders may surrender their Debt Securities for transfer or exchange
and where to serve notices or demands;
. any provisions for optional redemption or early repayment;
. any provisions that would obligate us to redeem, purchase or repay those
Debt Securities;
. any provisions for conversion or exchange of the Debt Securities;
. whether payments on the Debt Securities of the particular series will be
payable by reference to any index, formula or other method;
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. any deletions from, changes of or additions to the events of default or
covenants described in this prospectus;
. the portion of the principal amount of those Debt Securities that will be
payable if the maturity is accelerated, if other than the entire principal
amount;
. any additional means of defeasance of all or any portion of those Debt
Securities, any additional conditions or limitations to defeasance of
those Debt Securities or any changes to those conditions or limitations;
. any provisions granting special rights to holders of the Debt Securities
of the particular series upon the occurrence of events identified in the
prospectus supplement;
. if other than the trustee, the designation of any paying agent or security
registrar for those Debt Securities; and the designation of any transfer
or other agents or depositories for those Debt Securities;
. whether we will issue the Debt Securities of the particular series in
individual certificates to each holder or in the form of temporary or
permanent global securities that a depository will hold on behalf of
holders;
. the denominations in which we will issue the Debt Securities of the
particular series or in which they may be owned, if other than $1,000 or
any integral multiple of $1,000;
. whether and in what circumstances any additional amounts may be payable on
those Debt Securities to foreign holders; and
. any other terms or conditions that are consistent with the Indenture.
We may sell the Debt Securities at a discount (which may be substantial)
below their stated principal amount. These discounted Debt Securities may bear
no interest or interest at a rate that at the time of issuance is below market
rates. We will describe in the prospectus supplement any material United States
federal income tax consequences and other special considerations.
Restrictive Covenants
We have agreed to two principal restrictions on our activities for the
benefit of holders of the Debt Securities. The restrictive covenants summarized
below will apply to a series of Debt Securities (unless waived or amended) as
long as any of those Debt Securities are outstanding, unless the prospectus
supplement for the series states otherwise. We have used in this summary
description capitalized terms that we have defined below under "--Glossary." In
this description of the covenants only, all references to "us" or "we" mean
ONEOK and our principal subsidiaries, unless the context clearly indicates
otherwise. Our principal subsidiaries are those that own or lease a Principal
Property.
Other than the restrictions on Liens and Sale/Leaseback transactions
described below, the Indenture and the Debt Securities do not contain any
covenants or other provisions designed to protect holders of any Debt
Securities in the event we participate in a highly leveraged transaction. The
Indenture and the Debt Securities also do not contain provisions that give
holders of the Debt Securities the right to require us to repurchase their
securities in the event of change-in-control, recapitalization or similar
restructuring or otherwise or upon a decline in our credit rating.
For these purposes, "debt" includes all notes, bonds, debentures or similar
evidences of obligations for borrowed money.
Limitation on Liens
We have agreed that we will issue, assume or guarantee debt for borrowed
money secured by any Lien upon a Principal Property or shares of stock or debt
of any principal subsidiary only if we secure the Debt Securities equally and
ratably with or prior to the debt secured by that Lien. If we secure the Debt
Securities in this manner,
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we have the option to secure any of our other debt or obligations equally and
ratably with or prior to the debt secured by the Lien and, accordingly, equally
and ratably with the Debt Securities. This covenant has exceptions that permit:
. Liens that exist on the date we first issue a series of Debt Securities
under the Indenture;
. Liens on any Principal Property or shares of stock or debt of any entity
that constitutes a principal subsidiary existing at the time we merge or
consolidate with that entity or acquire its property or at the time the
entity becomes a principal subsidiary;
. Liens on any Principal Property existing at the time we acquire that
Principal Property so long as the Lien does not extend to any of our other
Principal Property;
. Liens on any Principal Property, and any Lien on the shares of stock of
any principal subsidiary formed for the purpose of acquiring that
Principal Property, either:
. securing all or part of the cost of acquiring, constructing,
improving, developing or expanding the Principal Property that was
incurred before, at or within 12 months after the latest of the
acquisition or completion of the assets or their commencing commercial
operation; or
. securing debt to finance the purchase price of the Principal Property
or the cost of constructing, improving, developing or expanding the
assets that was incurred before, at or within 12 months after the
latest of the acquisition or completion of the assets or their
commencing commercial operation;
. Liens on any Principal Property or shares of stock or debt of any
principal subsidiary to secure debt owed to us;
. Liens securing industrial development, pollution control or other revenue
bonds of a government entity;
. Liens arising in connection with a project financed with, and securing,
Non-Recourse Indebtedness;
. statutory or other Liens arising in the ordinary course of business and
relating to amounts that are not delinquent or remain payable without
penalty or that we are contesting in good faith;
. Liens (other than Liens imposed by the Employee Retirement Income Security
Act of 1974) on our property incurred or required in connection with
workmen's compensation, unemployment insurance and other social security
legislation;
. Liens securing taxes that remain payable without penalty or that we are
contesting in good faith if we believe we have adequate reserves for the
taxes in question;
. rights that any governmental entity may have to purchase or order the sale
of any of our property upon payment of reasonable compensation;
. rights that any governmental entity may have to terminate any of our
franchises, licenses or other rights or to regulate our property and
business;
. Liens that we do not assume or on which we do not customarily pay interest
and that exist on real estate or other rights we acquire for sub-station,
measuring station, regulating station, gas purification station,
compressor station, transmission line, distribution line or right-of-way
purposes;
. easements or reservations in our property for roads, pipelines, gas
transmission and distribution lines, electric light and power transmission
and distribution lines, water mains and other similar purposes and zoning
ordinances, regulations and restrictions that do not impair the use of the
property in the operation of our business; and
. any extensions, renewals, substitutions or replacements of the
above-described Liens or any debt secured by these Liens if both:
. the amount of debt secured by the new Lien and not otherwise permitted
does not exceed the principal amount of debt so secured at the time of
the renewal or refunding; and
. the new Lien is limited to the property (plus any improvements)
secured by the original Lien.
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In addition, without securing the Debt Securities as described above, we may
issue, assume or guarantee debt that the Lien covenant would otherwise restrict
in a total principal amount that, when added to all of our other outstanding
debt that the Lien covenant would otherwise restrict and the total amount of
Attributable Debt outstanding for Sale/Leaseback Transactions, does not exceed
a "basket" equal to 15% of Consolidated Net Tangible Assets. When calculating
this total principal amount, we exclude from the calculation Attributable Debt
from Sale/Leaseback Transactions in connection with which we have purchased
property or retired debt as described below under "--Limitation on
Sale/Leaseback Transactions."
Limitation on Sale/Leaseback Transactions
We have agreed that we will enter into a Sale/Leaseback Transaction only if
at least one of the following applies:
. we could incur debt secured by a Lien on the Principal Property that is
the subject of that Sale/Leaseback Transaction;
. the Attributable Debt subject to that Sale/Leaseback Transaction would be
in an amount permitted under the "basket" described above under
"--Limitation on Liens";
. the proceeds of that Sale/Leaseback Transaction are used for our business
and operations; or
. within the period ending 12 months after the closing of the Sale/Leaseback
Transaction, we apply the net proceeds of the Sale/Leaseback Transaction
to the voluntary retirement of any Debt Securities issued under the
Indenture or Funded Indebtedness (other than Funded Indebtedness that we
hold or that is subordinate in right of payment to any Debt Securities
issued under the Indenture).
Glossary
"Attributable Debt" means, as to any particular lease under which any Person
is at the time liable, at any date as of which the amount thereof is to be
determined, the total net amount of rent required to be paid by that Person
under the lease during the remaining term thereof (excluding amounts required
to be paid on account of maintenance and repairs, services, insurance, taxes,
assessments, water rates and similar charges and contingent rents), discounted
from the respective due dates thereof at the weighted average of the rates of
interest (or yield to maturity, in the case of Debt Securities originally sold
at a discount) borne by the Debt Securities then outstanding under the
Indenture, compounded annually.
"Consolidated Net Tangible Assets" means (1) the total amount of assets
(less applicable reserves and other properly deductible items) that under
generally accepted accounting principles, or GAAP, would be included on a
consolidated balance sheet of ours and our subsidiaries after deducting
therefrom (A) all current liabilities, provided, however, that there will not
be deducted billings recorded as revenues deferred pending the outcome of rate
proceedings (less applicable income taxes thereon), if and to the extent the
obligation to refund the same has not been finally determined, (B) appropriate
allowance for minority interests in common stocks of subsidiaries and (C) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, which in each case under GAAP would be
included on the consolidated balance sheet, less (2) the amount which would be
so included on the consolidated balance sheet for investments (less applicable
reserves) made in subsidiaries.
"Funded Indebtedness" as applied to any Person, means all debt of that
Person maturing after, or renewable or extendible at that Person's option
beyond, 12 months from the date of determination.
"Lien" means any lien, mortgage, pledge, encumbrance, charge or security
interest securing debt; provided, however, that the following types of
transactions will not be considered for purposes of this definition to result
in a Lien: (1) any acquisition by us of any property or assets subject to any
reservation or exception under the terms of which any vendor, lessor or
assignor creates, reserves or excepts or has created, reserved or excepted an
interest in oil, gas or any other mineral in place or the proceeds thereof, (2)
any conveyance or assignment whereby we
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convey or assign to any Person or Persons an interest in oil, gas or any other
mineral in place or the proceeds thereof, (3) any Lien upon any property or
assets either owned or leased by us or in which we own an interest that secures
for the benefit of the Person or Persons paying the expenses of developing or
conducting operations for the recovery, storage, transportation or sale of the
mineral resources of the property or assets (or property or assets with which
it is unitized) the payment to that Person or Persons of our proportionate part
of the development or operating expenses or (4) any hedging arrangements
entered into in the ordinary course of business, including any obligation to
deliver any mineral, commodity or asset in connection with the arrangement.
"Non-Recourse Indebtedness" means, at any time, debt incurred after the date
of the Indenture by us in connection with the acquisition of property or assets
by us or the financing of the construction of or improvements on property,
whenever acquired, provided that, under the terms of that debt and pursuant to
applicable law, the recourse at that time and thereafter of the lenders with
respect to the debt is limited to the property or assets so acquired, or the
construction or improvements, including debt as to which a performance or
completion guarantee or similar undertaking was initially applicable to the
debt or the related property or assets if the guarantee or similar undertaking
has been satisfied and is no longer in effect.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Principal Property" means any property located in the United States, except
any property that in the opinion of our board of directors is not of material
importance to the total business conducted by us and our consolidated
subsidiaries.
"Sale/Leaseback Transaction" means any arrangement with any Person pursuant
to which we lease any Principal Property that has been or is to be sold or
transferred by us to that Person, other than (1) a lease for a term, including
renewals at the option of the lessee, of not more than three years or
classified as an operating lease under GAAP, (2) leases between us and one of
our principal subsidiaries or between principal subsidiaries, (3) leases of a
Principal Property executed by the time of, or within 12 months after the
latest of, the acquisition, the completion of construction or improvement, or
the commencement of commercial operation, of the Principal Property and (4) the
ground lease for ONEOK Plaza, 100 West Fifth Street, Tulsa, Oklahoma 74103.
Consolidation, Merger and Sale of Assets
The Indenture generally permits a consolidation or merger between us and
another entity. It also permits the sale by us of all or substantially all of
our assets. We have agreed, however, that we will consolidate with or merge
into any entity or transfer or dispose of all or substantially all of our
assets to any entity only if:
. immediately after giving effect to the transaction, no default or event of
default under the Indenture would have occurred and be continuing or would
result from the transaction;
. we are the continuing corporation or, if we are not the continuing
corporation, the resulting entity is organized and existing under the laws
of any United States jurisdiction and assumes the due and punctual
payments on the Debt Securities and the performance of our covenants and
obligations under the Indenture and those Debt Securities; and
. we provide the trustee with a certificate and a legal opinion, each
stating that the Indenture permits the transaction.
If we engage in any of these transactions that result in any Principal
Property or shares of stock or debt of any principal subsidiary becoming
subject to any Lien and unless we are otherwise able to create that Lien, the
Indenture provides that the Debt Securities (so long as those Debt Securities
are entitled to the protection of the "Limitation on Liens" covenant) will be
secured to at least the same extent as the debt that would become secured by
the Lien as a result of the transaction.
9
Events of Default
Unless we inform you otherwise in the prospectus supplement, the following
are events of default for a series of Debt Securities:
. our failure to pay interest on that series of Debt Securities for 30 days
after it becomes due and payable;
. our failure to pay principal of or any premium on that series of Debt
Securities when due;
. our failure to comply with any of our covenants or agreements for that
series of Debt Securities or in the Indenture (other than an agreement or
covenant that we have included in the Indenture solely for the benefit of
less than all series of Debt Securities) for 60 days after the trustee or
the holders of at least 25% in principal amount of all outstanding Debt
Securities affected by that failure provide written notice to us;
. the default under any agreement under which we or any subsidiary that owns
or leases Principal Property have at the time outstanding debt in excess
of $15,000,000 and, if that debt has not already matured, it has been
accelerated and the acceleration is not rescinded within 30 days after we
receive notice from the trustee or the holders of at least 25% in
principal amount of all outstanding Debt Securities of a series so long
as, prior to the entry of judgment in favor of the trustee for payment of
the Debt Securities of that series, we do not cure the default, or the
default under the agreement has not been waived;
. various events involving our bankruptcy, insolvency or reorganization; or
. any other event of default provided for that series of Debt Securities.
A default under one series of Debt Securities will not necessarily be a
default under another series. The trustee may withhold notice to the holders of
a series of Debt Securities of any default or event of default (except in any
payment on that series of Debt Securities) if the trustee considers it in the
interest of the holders of that series of Debt Securities to do so.
If an event of default for any series of Debt Securities occurs and is
continuing, the trustee or the holders of at least 25% in principal amount of
the outstanding Debt Securities of the series affected by the default (or, in
some cases, 25% in principal amount of all Debt Securities affected, voting as
one class) may require us to pay on an accelerated basis the principal of and
all accrued and unpaid interest on those Debt Securities. The holders of a
majority in principal amount of the outstanding Debt Securities of the series
affected by the default (or of all Debt Securities affected, voting as one
class) may in some cases rescind this accelerated payment requirement.
If an event of default occurs and is continuing, the trustee must use the
degree of care and skill of a prudent man in the conduct of his own affairs.
The trustee will become obligated to exercise any of its powers under the
Indenture at the request of any of the holders of any Debt Securities only
after those holders have offered the trustee indemnity reasonably satisfactory
to it.
The holders of a majority in principal amount of Debt Securities of any
series have the right to waive past defaults under the Indenture that relate to
that series except for a default in the payment on the Debt Securities or a
provision that can only, under the Indenture, be modified or amended if all
holders that are affected consent.
In most cases, holders of a majority in principal amount of the outstanding
Debt Securities of a series (or of all Debt Securities affected, voting as one
class) may direct the time, method and place of:
. conducting any proceeding for any remedy available to the trustee; and
. exercising any trust or power conferred on the trustee.
The Indenture requires us to file each year with the trustee a written
statement as to our compliance with the covenants contained in the Indenture.
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Modification and Waiver
We may amend or supplement the Indenture if the holders of a majority in
principal amount of the outstanding Debt Securities of all series that the
amendment or supplement affects (acting as one class) consent to it. Without
the consent of the holder of each Debt Security affected, however, no
modification may:
. reduce the principal of the Debt Security or change its stated maturity;
. reduce the rate of or change the time for payment of interest on the Debt
Security;
. reduce any premium payable on the redemption of the Debt Security or
change the time at which the Debt Security may or must be redeemed;
. change any obligation to pay additional amounts on the Debt Security;
. impair the holder's right to institute suit for the enforcement of any
payment on the Debt Security;
. impair the holder's right to convert or exchange any Debt Security;
. reduce the percentage of principal amount of Debt Securities whose holders
must consent to an amendment to or supplement of the Indenture;
. reduce the percentage of principal amount of Debt Securities necessary to
waive compliance with some of the provisions of the Indenture; or
. modify provisions relating to amendment or waiver, except to increase
percentages or to provide that other provisions of the Indenture cannot be
amended or waived without the consent of each holder affected.
We may amend or supplement the Indenture or waive any provision of it
without the consent of any holders of Debt Securities in various circumstances,
including:
. to provide for the assumption of our obligations under the Indenture and
the Debt Securities by a successor;
. to add covenants that would benefit the holders of any Debt Securities or
to surrender any of our rights or powers;
. to provide for the issuance of additional securities, including Debt
Securities of a particular series, under the Indenture;
. to add events of default;
. to provide any security for or guarantees of any series of Debt Securities;
. to provide for the form or terms of any series of Debt Securities;
. to appoint a successor trustee or to provide for the administration of the
trusts under the Indenture by more than one trustee;
. to cure any ambiguity, omission, defect or inconsistency that does not
adversely affect the interests of the holders of outstanding Debt
Securities of any series;
. to make any change to the extent necessary to permit or facilitate
defeasance or discharge of any series of Debt Securities that does not
adversely affect the interests of the holders of outstanding Debt
Securities of any series; or
. to make any change that does not affect the rights of any holder.
The holders of a majority in principal amount of the outstanding Debt
Securities may waive our obligations to comply with various covenants,
including those relating to:
. our obligation to secure the Debt Securities in the event of mergers,
consolidations and sales of assets;
. corporate existence; and
. the restrictions on Liens and Sale/Leaseback Transactions.
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Defeasance
When we use the term defeasance, we mean discharge from some or all of our
obligations under the Indenture. If we deposit with the trustee funds or
government securities the maturing principal and interest of which is
sufficient to make payments on the Debt Securities of a series on the dates
those payments are due and payable, then, at our option, either of the
following will occur:
. "legal defeasance," which means that we will be discharged from our
obligations with respect to the Debt Securities of that series; or
. "covenant defeasance," which means that we will no longer have any
obligation to comply with the restrictive covenants under the Indenture
and any other restrictive covenants that apply to that series of the Debt
Securities, and the related events of default will no longer apply to us.
If we defease a series of Debt Securities, the holders of the Debt
Securities of the series affected will not be entitled to the benefits of the
Indenture, except for our obligations to pay additional amounts, if any, to
provide temporary Debt Securities, to register the transfer or exchange of Debt
Securities, to replace stolen, lost or mutilated Debt Securities or to maintain
paying agencies and hold moneys for payment in trust. In the case of covenant
defeasance, our obligation to pay principal, premium and interest on the Debt
Securities will also survive.
Unless we inform you otherwise in the prospectus supplement, we will be
required to deliver to the trustee an opinion of counsel that the deposit and
related defeasance would not cause the holders of the Debt Securities to
recognize income, gain or loss for federal income tax purposes. If we elect
legal defeasance, that opinion of counsel must be based upon a ruling from the
Internal Revenue Service or a change in law to that effect.
Governing Law
New York law governs the Indenture and the Debt Securities.
Trustee
The Indenture contains limitations on the right of the trustee, if it
becomes one of our creditors, to obtain payment of claims or to realize on
property received for those claims, as security or otherwise. The trustee is
permitted to engage in other transactions with us. If, however, it acquires any
conflicting interest, it must eliminate that conflict or resign.
Form, Exchange, Registration and Transfer
We will issue the Debt Securities in registered form, without interest
coupons. We will not charge a service charge for any registration of transfer
or exchange of the Debt Securities. We may, however, require the payment of any
tax or other governmental charge payable for that registration.
Holders may exchange Debt Securities of any series for other Debt Securities
of the same series, the same total principal amount and the same terms but in
different authorized denominations in accordance with the Indenture. Holders
may present Debt Securities for registration of transfer at the office of the
security registrar or any transfer agent we designate. The security registrar
or transfer agent will effect the transfer or exchange when it is satisfied
with the documents of title and identity of the person making the request.
We have appointed the trustee as security registrar for the Debt Securities.
If a prospectus supplement refers to any transfer agents initially designated
by us, we may at any time rescind that designation or approve a change in the
location through which any transfer agent acts. We are required to maintain an
office or agency for transfers and exchanges in each place of payment. We may
at any time designate additional transfer agents for any series of Debt
Securities.
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In the case of any redemption, neither the security registrar nor the
transfer agent will be required to register the transfer or exchange of any
Debt Security either:
. during a period beginning 15 business days prior to the mailing of the
relevant notice of redemption and ending on the close of business on the
day of mailing of that notice; or
. if we have called the Debt Security for redemption in whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
Payment and Paying Agents
Unless we inform you otherwise in a prospectus supplement, payments on the
Debt Securities will be made in U.S. dollars at the office of the trustee. At
our option, however, we may make payments by check mailed to the holder's
registered address or, for global Debt Securities, by wire transfer. Unless we
inform you otherwise in a prospectus supplement, we will make interest payments
to the person in whose name the Debt Security is registered at the close of
business on the record date for the interest payment.
Unless we inform you otherwise in a prospectus supplement, we will designate
the trustee as our paying agent for payments on Debt Securities issued under
the Indenture. We may at any time designate additional paying agents or rescind
the designation of any paying agent or approve a change in the office through
which any paying agent acts.
Subject to the requirements of any applicable abandoned property laws, the
trustee and paying agent will pay to us upon written request any money they are
holding for payments on the Debt Securities that remain unclaimed for two years
after the date upon which that payment has become due. After payment to us,
holders entitled to the money must look to us for payment. In that case, all
liability of the trustee or paying agent with respect to that money will cease.
Book-Entry Debt Securities
We may issue the Debt Securities of a series in the form of one or more
global Debt Securities that would be deposited with a depositary or its nominee
identified in the prospectus supplement. We may issue global Debt Securities in
either temporary or permanent form. We will describe in the prospectus
supplement the terms of any depositary arrangement and the rights and
limitations of owners of beneficial interests in any global Debt Security.
DESCRIPTION OF CAPITAL STOCK
General
We are authorized to issue a total of 400,000,000 shares of all classes of
stock. Of those authorized shares, 300,000,000 are shares of Common Stock, par
value $0.01 per share, 59,798,307 shares of which were outstanding as of
December 10, 2001, and 100,000,000 are shares of Preferred Stock, par value
$0.01 per share. Of the Preferred Stock, there are 20,000,000 shares designated
as Series A Convertible Preferred Stock, of which 19,946,448 shares were
outstanding as of December 10, 2001, 30,000,000 shares designated as Series B
Convertible Preferred Stock, none of which were outstanding, and 1,000,000
shares designated as Series C Preferred Stock, none of which were outstanding.
The additional shares of our authorized stock available for issuance might
be issued at times and under circumstances so as to have a dilutive effect on
earnings per share and on the equity ownership of the holders of our Common
Stock. The ability of our board of directors to issue additional shares of
stock could enhance the board's ability to negotiate on behalf of the
shareholders in a takeover situation but could also be used by the board to
make a change-in-control more difficult, thereby denying shareholders the
potential to sell their shares at a premium and entrenching current management.
The following description is a summary of the material
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provisions of our capital stock. You should refer to our certificate of
incorporation and by-laws for additional information.
Common Stock
On May 17, 2001, our shareholders approved a two-for-one stock split of our
Common Stock to be effected by the issuance of one additional share of Common
Stock for each outstanding share to holders of record on May 23, 2001, with
distribution of the split shares on June 11, 2001. As of June 11, 2001, there
were approximately 14,473 holders of record. The issued and outstanding shares
of Common Stock are validly issued, fully paid and non-assessable. Subject to
any preferential rights of any prior ranking class or series of capital stock,
including the Preferred Stock, holders of shares of Common Stock are entitled
to receive dividends on that stock, payable either in cash, property or shares
out of assets legally available for distribution when, as and if authorized and
declared by our board of directors and to share ratably in our assets legally
available for distribution to our shareholders in the event of liquidation,
dissolution or winding-up. Subject to various exceptions, we will not be able
to pay any dividend or make any distribution of assets on shares of our Common
Stock until we pay dividends on any shares of Preferred Stock then outstanding
with dividend or distribution rights senior to our Common Stock. Dividends on
our Series A Convertible Preferred Stock and Series B Convertible Preferred
Stock are not cumulative.
Holders of our Common Stock are entitled to one vote per share on all
matters voted on by our shareholders, including the election of directors. Our
certificate of incorporation does not provide for cumulative voting for the
election of directors, which means that holders of more than one-half of the
outstanding shares of our voting securities will be able to elect all of the
directors then standing for election and holders of the remaining shares will
not be able to elect any director.
Our board of directors may make rules and regulations concerning the
transfer of shares of our Common Stock from time to time, in accordance with
our by-laws.
Holders of our Common Stock will have no conversion, sinking fund or
redemption rights.
Some provisions of the Oklahoma General Corporation Act, our certificate of
incorporation and our by-laws may discriminate against holders of a substantial
amount of the shares of our Common Stock. Similarly, some provisions of our
certificate of incorporation and our by-laws may have the effect of delaying,
deferring or preventing a change-in-control with respect to an extraordinary
corporate transaction, such as a merger, reorganization, tender offer, sale or
transfer of substantially all of our assets.
Shareholder Rights Agreement
Under Oklahoma law, every corporation may create and issue rights entitling
the holders of those rights to purchase from the corporation shares of its
capital stock of any class or classes, subject to any provisions in its
certificate of incorporation. The price and terms of the shares must be stated
in the certificate of incorporation or in a resolution adopted by the board of
directors for the creation or issuance of those rights.
In 1997, we entered into a Shareholder Rights Agreement. As with most
shareholder rights agreements, the terms of our Shareholder Rights Agreement
are complex and not easily summarized, particularly as they relate to the
acquisition of our Common Stock and to exercisability. This summary, which
summarizes the material provisions of the Shareholder Rights Agreement, may not
contain all of the information that is important to you. Accordingly, you
should carefully read our Shareholder Rights Agreement, which has been filed as
an exhibit to the registration statement of which this prospectus forms a part.
Our Shareholder Rights Agreement provides that each share of our Common
Stock outstanding as of November 26, 1997 and issued between that date and a
date determined pursuant to the Shareholder Rights Agreement, will have one
right to purchase one one-hundredth of a share of Preferred Stock, designated as
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Series C Preferred Stock, attached to it, at a purchase price of $40 per one
one-hundredth of a share of Preferred Stock, subject to adjustment, as
described below.
Initially, the rights under our Shareholder Rights Agreement are attached to
outstanding certificates representing our Common Stock and no separate
certificates representing the rights will be distributed. The rights will
separate from our Common Stock and be represented by separate certificates on
the earlier of the first date someone acquires beneficial ownership (as defined
in the Shareholder Rights Agreement) of 15% or more of our outstanding Common
Stock, subject to various exceptions, or approximately 10 days after someone
commences or indicates an intent to commence a tender offer or exchange offer
for 15% of our Common Stock. The person or group that acquires or indicates an
intent to acquire stock as described in the immediately preceding sentence is
referred to as an acquiring person.
Our Shareholder Rights Agreement specifically excludes as an acquiring
person, among others,
. any member of the shareholder group (which consists of Western Resources,
Inc., any Western Resources affiliate and any person with whom Western
Resources or any of its affiliates is part of a partnership, limited
partnership, syndicate or other group of persons acquiring, holding,
voting or disposing of any voting securities which would be required under
Section 13(d) of the Securities Exchange Act of 1934 to file a statement
on Schedule 13D with the Securities and Exchange Commission) but only to
the extent of shares of our Common Stock held or acquired by the
shareholder group member in accordance with the Shareholder Agreement with
Western Resources and provided that this exemption permanently expires
when the ownership percentage of Western Resources and its affiliates
first falls below 10%, which ownership percentage is determined by
calculating the voting power represented by all of our securities
beneficially owned by Western Resources and its affiliates after giving
effect to the conversion of all convertible securities into shares of our
Common Stock or other voting securities; and
. any transferee who acquires beneficial ownership of shares of our Common
Stock from the shareholder group pursuant to provisions of the Shareholder
Agreement with Western Resources or who acquires beneficial ownership of
less than 5% of our Common Stock in a public offering pursuant to the
Shareholder Agreement, but only to the extent of shares of our Common
Stock acquired in accordance with the terms of the Shareholder Agreement.
The transferee will be considered an acquiring person upon the concurrent
or subsequent acquisition by that transferee, or its affiliates or
associates, of any additional shares of our Common Stock if, after giving
effect to the acquisition, and taking into account all shares beneficially
owned by the transferee including the shares acquired from the shareholder
group, the transferee would be considered an acquiring person but for this
summarized provision.
All shares of our Common Stock issued prior to the date the rights separate
from the Common Stock will be issued with the rights attached. The rights are
not exercisable until the date the rights separate from the Common Stock. The
rights will expire on November 26, 2007, unless we redeem or exchange them at
an earlier time or upon the consummation of specified transactions.
If a person or group becomes an acquiring person, then each right not owned
by that acquiring person or its affiliates, associates or transferees, will
entitle its holder to purchase, within specified time periods and at the
right's then current purchase price, shares of our Common Stock (or, in limited
circumstances, one one-hundredths of a share of Preferred Stock) as equals the
result obtained by:
. multiplying the then current purchase price by the then number of one
one-hundredths of a share of our preferred stock for which a right was
exercisable immediately prior to the first occurrence of a person or group
becoming an acquiring person; and
. dividing that product by 50% of the then current per share market price of
our Common Stock on the date of the first occurrence.
If, after a person or group becomes an acquiring person, and:
. we are involved in a merger or consolidation with an interested
shareholder or with any other person in a case where all holders of our
Common Stock are not treated alike; or
15
. we sell or transfer more than 50% of our assets or earning power to an
interested stockholder or other person or, to any other person in a case
where all holders of our Common Stock are not treated alike,
each right will entitle the holder to purchase, at the right's then current
purchase price, shares of Common Stock of the acquiring company as equal the
result obtained by:
. multiplying the then current purchase price by the number of one
one-hundredths of a share of our Preferred Stock for which a right is then
exercisable; and
. dividing the product by 50% of the then current per share market price of
the Common Stock of the acquiring company.
We may, at our option, at any time after any person becomes an acquiring
person, exchange all or part of the then outstanding and exercisable rights for
our Common Stock (or shares of our other equity securities, including one
one-hundredths of a share of Preferred Stock, with equivalent rights and
privileges as our Common Stock) at an exchange ratio of one share of our Common
Stock per right, subject to adjustment, until the time that any person,
together with its affiliates and associates, has become the beneficial owner of
50% or more of our outstanding Common Stock.
Our board of directors may, at its option, redeem all of the outstanding
rights under our Shareholder Rights Agreement prior to the earlier of (1) the
time that an acquiring person obtains 15% or more of our outstanding stock or
(2) the final expiration date of the rights. The redemption price under our
Shareholder Rights Agreement is $0.005 per right, subject to adjustment. The
right to exercise the rights will terminate upon the action of our board
ordering the redemption of the rights and the only right of the holders of the
rights will be to receive the redemption price.
Holders of rights will have no rights as our stockholders, including the
right to vote or receive dividends, simply by virtue of holding the rights.
Our Shareholder Rights Agreement contains rights that have anti-takeover
effects. The rights may cause substantial dilution to a person or group that
attempts to acquire us without conditioning the offer on a substantial number
of rights being acquired. Accordingly, the existence of the rights may deter
acquirors from making takeover proposals or tender offers. However, the rights
are not intended to prevent a takeover, but rather are designed to enhance the
ability of our board to negotiate with an acquiror on behalf of all the
shareholders. In addition, the rights should not interfere with a proxy contest.
Preferred Stock
Our board of directors is authorized to issue shares of Preferred Stock, in
one or more series or classes, and to fix for each series or class the
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications, or terms or redemption, as are
permitted by Oklahoma law and are as stated in the resolution or resolutions
adopted by the board providing for the issuance of shares of that series or
class.
One series of Preferred Stock, designated Series A Convertible Preferred
Stock, is outstanding. In addition, our board has authorized a series
designated as Series B Preferred Stock, and a series designated as Series C
Preferred Stock which relates to our Shareholder Rights Agreement. The
following is a description of those series.
Convertible Preferred Stock
Designation and Amount. There are 20,000,000 shares of Series A Convertible
Preferred Stock and 30,000,000 shares of Series B Convertible Preferred Stock
authorized. All outstanding shares of Series A Convertible Preferred Stock are
currently held by Western Resources and its affiliates. There are no currently
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outstanding shares of Series B Convertible Preferred Stock. The previously
outstanding shares of Series B Convertible Preferred Stock were owned by
Western Resources and its affiliates. We reacquired those shares in accordance
with the Shareholder Agreement with Western Resources described below. Shares
of Series B Convertible Preferred Stock could be issued in the future to
Western Resources or its affiliates as provided in the Shareholder Agreement.
Dividends on Series A Convertible Preferred Stock are not cumulative and
dividends on Series B Convertible Preferred Stock, if issued, would not be
cumulative.
Rank. With respect to dividend rights and distribution of assets upon
liquidation, dissolution or winding up of affairs, the Convertible Preferred
Stock ranks senior to shares of our Common Stock, or any class of our equity
securities that by its terms is junior to the Convertible Preferred Stock, and
will not rank junior with respect to any class or series of Preferred Stock
that we may issue, unless the holders of 66 2/3% of the outstanding shares of
the Convertible Preferred Stock consent to the creation of the class or any
security convertible into shares of that class or series. We have agreed not to
create, authorize or reclassify any authorized stock into any class of capital
stock ranking prior to the Convertible Preferred Stock.
Dividends. We will pay or declare preferential cash dividends quarterly on
each share of Convertible Preferred Stock but those dividends are not
cumulative to the extent they are not paid on any dividend payment date. If we
do not pay dividends on the Convertible Preferred Stock on the dividend payment
date for any dividend period, dividends will not be subsequently paid for that
dividend period.
The dividend amount on each share of Series A Convertible Preferred Stock,
with respect to each dividend declared on our Common Stock, will be equal to 3
times the dividend amount declared on each share of our Common Stock for that
dividend period, as adjusted appropriately to reflect any stock split, stock
dividend, reverse stock split, reclassification or any transaction with
comparable effect upon our Common Stock. Subsequent to November 26, 2002, the
dividend amount on each share of Series A Convertible Preferred Stock will be
equal to 2.5 times the dividend amount declared on each share of our Common
Stock for that dividend period, as so adjusted. In no event, however, will the
aggregate annual dividend amount payable per share of Series A Convertible
Preferred Stock be less than $1.80 per share.
The dividend amount on each share of Series B Convertible Preferred Stock
will be equal to 2.5 times the dividend amount declared on each share of our
Common Stock for each dividend period, as adjusted appropriately to reflect any
stock split, stock dividend, reverse stock split, reclassification or any
transaction with comparable effect upon our Common Stock. In no event, however,
will the aggregate annual dividend amount declared on each share of Series B
Convertible Preferred Stock prior to November 26, 2002, be less than $1.50 per
share and in no event will the aggregate annual dividend amount declared on
each share of Series B Convertible Preferred Stock following November 26, 2002,
be less than $1.80 per share.
Liquidation Preference. The liquidation preference per share of Convertible
Preferred Stock will be equal to that payable per share of our Common Stock, as
adjusted appropriately to reflect any stock split or similar events, assuming
the conversion of all outstanding shares of Convertible Preferred Stock
immediately prior to the event triggering the liquidation preference, plus any
dividends then due with respect to the Convertible Preferred Stock.
Neither our merger or consolidation into or with one or more other
corporations, nor the voluntary sale, conveyance, exchange or transfer of all
or substantially all of our property or assets will be deemed to be a
liquidation, dissolution or winding up, voluntary or involuntary, for the
purposes of triggering a liquidation preference, unless that voluntary sale,
conveyance, exchange or transfer is in connection with a dissolution or winding
up of our business.
Redemption. We have no right to redeem any shares of Convertible Preferred
Stock.
Conversion Rights. After the occurrence of a regulatory change (which means
that either the Public Utility Holding Company Act of 1935 has been repealed,
modified, amended or otherwise changed, or Western
17
Resources has received or is entitled to an exemption under that act or has
registered under that act so that Western Resources may fully and legally
exercise its rights under the Shareholder Agreement described below), holders
of shares of Convertible Preferred Stock will have the right, at their option,
to convert each share into two fully paid and nonassessable shares of our
Common Stock, as adjusted appropriately to reflect any stock split, stock
dividend, reverse stock split, reclassification or any transaction with
comparable effect upon our Common Stock. Conversion will, however, be automatic
and mandatory upon the transfer of the beneficial ownership of any share of
Convertible Preferred Stock to any person other than Western Resources or its
affiliates. Mandatory conversion will be at the same rate of exchange as that
applicable to an optional conversion.
We have agreed that we will have at all times reserved and kept available,
out of our authorized and unissued stock, shares of our Common Stock in an
amount sufficient for the conversion of all shares of Convertible Preferred
Stock then outstanding.
Anti-dilution Provisions. The number of shares of our Common Stock into
which each share of Convertible Preferred Stock is convertible, the dividend
amount payable on each share of Convertible Preferred Stock, and the
liquidation preference attached to each share of Convertible Preferred Stock
will be subject to adjustments for stock splits, stock dividends, reverse stock
splits or any transaction with comparable effect upon our Common Stock.
Voting Rights. Holders of shares of Convertible Preferred Stock will be
entitled to vote together with holders of shares of our Common Stock, as a
single class, with respect to:
. any proposed amendment to our certificate of incorporation or by-laws that
would reasonably have the effect of modifying in any way the amendment by
which we opted out of Sections 1145 through 1155 of Title 18 of the
Oklahoma Statutes, which relates to control share acquisitions, or would
reasonably cause us to become subject to:
. the control share acquisition statute; or
. any other provisions that are substantially similar to the control
share acquisition statute;
. any proposal relating to the amendment by which we opted out of Sections
1145 through 1155 of Title 18 of the Oklahoma Statutes; and
. any transaction or series of transactions that, if consummated, would
constitute a change-in-control.
With respect to those matters, each share of Convertible Preferred Stock
will carry a number of votes equal to the number of votes carried by the number
of shares of our Common Stock issuable upon conversion of one share of
Convertible Preferred Stock.
Holders of Convertible Preferred Stock will not be entitled to vote in any
election of directors to our board or on any matter submitted to our
shareholders other than the foregoing and other than as required by law.
Potential Anti-Takeover Effects of the Convertible Preferred Stock. The
issuance of our Common Stock into which the Convertible Preferred Stock is
convertible or exchangeable, together with the provisions of the Shareholder
Agreement that we entered into with Western Resources that are described below,
may have anti-takeover implications. The combined effect of these issuances and
the Shareholder Agreement may be to discourage or render more difficult a
merger, tender offer or proxy contest involving us, or to deter a third party
from seeking to acquire control of us.
Series C Preferred Stock
In connection with our Shareholder Rights Agreement, our board of directors
established a series of preferred stock, designated as Series C Preferred
Stock. Holders of the Series C Preferred Stock are entitled to receive, in
preference to the holders of our Common Stock, quarterly dividends payable in
cash on the last day
18
of each fiscal quarter in each year, or those other dates as our board of
directors deems appropriate, in an amount per share equal to the greater of $1
or subject to adjustment, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind) of
all non-cash dividends, other than a dividend payable in our Common Stock,
payable on our Common Stock. The Series C Preferred Stock dividends are
cumulative but do not bear interest. Shares of Series C Preferred Stock are not
redeemable. Subject to adjustment, each share of Series C Preferred Stock
entitles the holder thereof to 100 votes on all matters submitted to a vote of
our shareholders and during a certain dividend default period, holders of the
Series C Preferred Stock have other special voting rights. If we liquidate,
dissolve or wind up our affairs, holders of Series C Preferred Stock are
entitled to priority over the holders of shares of our Common Stock or other
junior ranking stock.
For each share of our Common Stock the holder has the right to purchase one
one-hundredth of a share of Series C Preferred Stock upon the happening of
change-in-control and similar transactions as described in the Shareholder
Rights Agreement.
Preemptive Rights
No holder of any shares of any class of our stock has any preemptive or
preferential right to acquire or subscribe for any unissued shares of any class
of stock or any unauthorized securities, convertible into or carrying any
right, option or warrant to subscribe for or acquire shares of any class of
stock. Under the Shareholder Agreement, however, the shareholder group has
top-up rights to acquire additional shares of our stock in limited
circumstances described below.
Shareholder Agreement
We are party to a Shareholder Agreement with Western Resources. The
following description is a summary of the material provisions of our
Shareholder Agreement. You should refer to the Shareholder Agreement, a copy of
which is filed as an exhibit to the registration statement of which this
prospectus is a part, for additional information.
Standstill
The Shareholder Agreement provides, among other things, that Western
Resources and its affiliates are prohibited from taking various actions,
including, without limitation:
. prior to the occurrence of a regulatory change, the acquisition of our
voting securities that would cause the shareholder group to have
securities representing more than 9.9% of our total outstanding voting
power;
. at any time, the acquisition of securities that would cause the
shareholder group's total ownership percentage (including shares of Common
Stock issuable upon conversion of shares of Convertible Preferred Stock or
other securities) to exceed the maximum ownership percentage, which is a
total ownership percentage of 45%, less the voting power represented by
all voting securities transferred by the shareholder group during the term
of the Shareholder Agreement represented by any shares of Convertible
Preferred Stock converted into shares of our Common Stock
contemporaneously with the transfer pursuant to the Shareholder Agreement;
. the deposit of our equity securities in a voting trust or subjecting of
those equity securities to any similar arrangement or proxy with respect
to the voting of those equity securities;
. the commencement of a merger, acquisition or other business combination
transaction relating to us; and
. engagement in any other action, either alone or in concert with others, to
seek to control or influence our management, board of directors or
policies.
19
Top-Up Rights
In the event that the shareholder group's ownership percentage (including
shares of Common Stock issuable upon conversion of shares of Convertible
Preferred Stock or other securities) falls below the maximum ownership
percentage, Western Resources has rights to acquire additional equity
securities to restore the maximum ownership percentage of the shareholder group
to the maximum ownership percentage. Western Resources may exercise those
rights:
. by purchasing our Common Stock in the open market or otherwise (and, to
the extent those purchases would cause the shareholder group's voting
ownership percentage to exceed 9.9% prior to a regulatory change,
exchanging each of those shares for one half of a share of Series B
Convertible Preferred Stock issued by us, subject to adjustment to reflect
any stock split, combination or similar transaction);
. in some events where the reduction in the shareholder group's total
ownership percentage (including shares of Common Stock issuable upon
conversion of shares of Convertible Preferred Stock or other securities)
is caused by a dilutive issuance of our securities, by requiring us to
issue to Western Resources at the issue price per share of the dilutive
issuance, prior to a regulatory change, additional shares of our Common
Stock and, to the extent that issuance would cause the shareholder group's
voting ownership percentage to exceed 9.9%, Series B Convertible Preferred
Stock sufficient to restore the shareholder group's total ownership
percentage (including shares of Common Stock issuable upon conversion of
shares of Convertible Preferred Stock or other securities) to the maximum
ownership percentage; or
. in the case of a dilutive issuance that is the result of an acquisition or
other business combination transaction, by merger or otherwise, by
requiring us to issue to Western Resources shares of our Common Stock
sufficient to restore the shareholder group's total ownership percentage
to the maximum ownership percentage minus 10%.
Restrictions on Transfer
During the term of the Shareholder Agreement, the shareholder group is
prohibited, without the prior written consent of a majority of our independent
directors, from transferring any of our equity securities except:
. transfers of equity securities representing voting power of less than 5%
provided that the transferee does not have a voting ownership percentage
of 5% or more immediately prior to the transfer;
. in a bona fide underwritten public offering pursuant to the Registration
Rights Agreement that we entered into with Western Resources;
. pursuant to a pro rata distribution to Western Resources' shareholders; and
. pursuant to a procedure that permits Western Resources to transfer equity
securities representing 5% or more of our voting power, provided that we
have been given notice thereof, and have failed, within a specified period
of time, to purchase from Western Resources the equity securities proposed
to be sold at a cash purchase price per share equal to 98.5% of the then
current market price for our Common Stock.
In addition, in the case of a bona fide third party tender offer for
securities, Western Resources may tender into that offer a proportionate amount
of its equity securities.
Voting
During the term of the Shareholder Agreement, Western Resources has agreed
to vote, and to cause each of its affiliates to vote, all voting securities
that it owns as follows:
. with respect to the election of directors, Western Resources will vote its
voting securities in favor of the election of all candidates for director
nominated by our board of directors;
20
. with respect to any proposal initiated by any of our shareholders relating
to the redemption of the rights issued pursuant to the Shareholder Rights
Agreement or any modification of the Shareholder Rights Agreement (other
than nonbinding precatory resolutions), Western Resources will, and will
cause each member of the shareholder group to, vote all voting securities
beneficially owned by Western Resources or any member of the shareholder
group in accordance with the recommendation of our board;
. with respect to transactions constituting a change-in-control or with
respect to any proposal relating to the opt-out amendment, Western
Resources may vote any or all of the voting securities and Convertible
Preferred Stock (which, as described above, has the right in such
circumstances to vote together with our Common Stock on a two votes per
share basis, as adjusted to reflect our recent stock split and subject to
adjustment to reflect any further stock split or similar events) held by
the shareholder group in its sole discretion;
. with respect to any proposed amendment to our certificate of incorporation
or by-laws that would reasonably have the effect of modifying in any way
the opt-out amendment or would reasonably cause us to become subject to
the control share acquisition statute or any other provisions that are
substantially similar to the control share acquisition statute, Western
Resources or any member of the shareholder group has the right to abstain
or vote against such amendment; and
. with respect to all other matters,
. prior to the occurrence of a regulatory change, Western Resources may
vote any voting securities held by the shareholder group in Western
Resources' sole discretion; and
. after the occurrence of a regulatory change, Western Resources may
vote in its sole discretion up to 9.9% of our outstanding voting power
and Western Resources must vote any other voting securities owned by
it in the same proportion as all voting securities voted on the other
matter are voted by our other shareholders.
Board Representation
Prior to a regulatory change, Western Resources is entitled to designate two
members of our Board of Directors. After a regulatory change, subject to
transition provisions, Western Resources is entitled to designate up to
one-third of our Board of Directors.
Term; Buy/Sell Option
The Shareholder Agreement terminates if, among other things:
. our quarterly dividend on our Common Stock falls below $0.15 per share (as
adjusted to reflect any stock split or similar events) in any five
quarters or we fail to pay the stated quarterly dividend on any series of
Convertible Preferred Stock in any five quarters;
. the shareholder group's total ownership percentage falls below 9.9% at any
time; or
. the shareholder group's total ownership percentage falls below 30% at any
time after November 26, 2012, which is the 15th anniversary of the signing
of the Shareholder Agreement.
In addition, on the 15th and each subsequent anniversary of the signing of
the Shareholder Agreement, each of Western Resources and us, on behalf of our
shareholders, has the right to buy from or sell to the other, by purchase, sale
or credible tender offer, as appropriate, all outstanding shares of our capital
stock beneficially owned by the selling party (which, in our case, means our
shareholders other than Western Resources and the shareholder group). In
addition, if at any time after the occurrence of a regulatory change, we
believe in good faith that Western Resources' regulatory status as modified by
that regulatory change would place an unreasonable restriction on the
implementation of strategic business plans, we may immediately initiate our
buy/sell rights.
21
Registration Rights Agreement
In 1997, we entered into a Registration Rights Agreement that enables
Western Resources to require that we register its shares of our Common Stock,
including shares of our Common Stock obtained upon conversion of its shares of
Convertible Preferred Stock, under the Securities Act of 1933. Under the
Registration Rights Agreement, Western Resources is entitled, subject to the
conditions set forth therein, to:
. demand registration rights, whereby Western Resources can require us to
file a registration statement under the Securities Act of 1933 registering
its shares of our Common Stock; and
. piggy-back registration rights, whereby Western Resources can require that
we include any or all of its shares of our Common Stock in a registration
statement that we have proposed to file under the Securities Act of 1933.
Oklahoma Law
Oklahoma Takeover Statute
We are subject to Section 1090.3 of the Oklahoma General Corporation Act. In
general, Section 1090.3 prevents an "interested shareholder" from engaging in a
"business combination" with an Oklahoma corporation for three years following
the date that person became an interested shareholder, unless:
. prior to the date that person became an interested shareholder, our board
of directors approved the transaction in which the interested shareholder
became an interested shareholder or approved the business combination;
. upon consummation of the transaction that resulted in the interested
shareholder's becoming an interested shareholder, the interested
shareholder owns at least 85% of our voting stock outstanding at the time
the transaction commenced, excluding stock held by directors who are also
officers of the corporation and stock held by certain employee stock
plans; or
. on or subsequent to the date of the transaction in which that person
became an interested shareholder, the business combination is approved by
the board of directors of the corporation and authorized at a meeting of
shareholders by the affirmative vote of the holders of two-thirds of the
outstanding voting stock of the corporation not owned by the interested
shareholder.
Section 1090.3 defines a "business combination" to include:
. any merger or consolidation involving the corporation and an interested
shareholder;
. any sale, transfer, pledge or other disposition involving an interested
shareholder of 10% or more of the assets of the corporation;
. subject to limited exceptions, any transaction that results in the
issuance or transfer by the corporation of any stock of the corporation to
an interested shareholder;
. any transaction involving the corporation that has the effect of
increasing the proportionate share of the stock of any class or series of
the corporation beneficially owned by the interested shareholder; or
. the receipt by an interested shareholder of any loans, guarantees, pledges
or other financial benefits provided by or through the corporation.
For purposes of Section 1090.3, the term "corporation" also includes our
majority-owned subsidiaries. In addition, Section 1090.3, defines an
"interested shareholder" as an entity or person beneficially owning 15% or more
of our outstanding voting stock and any entity or person affiliated with or
controlling or controlled by that entity or person.
Oklahoma Control Share Act
Our certificate of incorporation provides that we are not subject to the
Oklahoma Control Share Act. With exceptions, this act prevents holders of more
than 20% of the voting power of the stock of an Oklahoma
22
corporation from voting their shares. If we were to become subject to the
Oklahoma Control Share Act in the future, this provision may delay the time it
takes anyone to gain control of us.
Certificate of Incorporation and By-laws
Exculpation
Our certificate of incorporation provides that our directors and officers
will not be personally liable for monetary damages for any action taken, or any
failure to take any action, unless:
. the director or officer has breached his or her duty of loyalty to the
corporation or its shareholders;
. the breach or failure to perform constitutes an act or omission not in
good faith or which involves intentional misconduct or a knowing violation
of law;
. the director served at the time of payment of an unlawful dividend or an
unlawful stock purchase or redemption, unless the director was absent at
the time the action was taken; or
. the director or officer derived an improper personal benefit from the
transaction.
Indemnification
We will generally indemnify any person who was, is, or is threatened to be
made, a party to a proceeding by reason of the fact that he or she:
. is or was our director, officer, employee or agent; or
. while our director, officer, employee or agent is or was serving at our
request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
Any indemnification of our directors, officers or others pursuant to the
foregoing provisions for liabilities arising under the Securities Act of 1933
are, in the opinion of the Securities and Exchange Commission, against public
policy as expressed in the Securities Act of 1933 and are unenforceable.
Shareholder Action; Special Meeting of Shareholders
Our certificate of incorporation eliminates the ability of our shareholders
to act by written consent. Our by-laws provide that special meetings of our
shareholders may be called only by a majority of the members of our board of
directors.
Advance Notice Requirements for Shareholder Proposals
At any meeting of our shareholders, the only business that shall be brought
before the meeting is that which is brought:
. pursuant to our notice of meeting;
. by or at the discretion of our board of directors; or
. by any of our shareholders of record at the time the notice is given, who
shall be entitled to vote at the meeting and who complies with the notice
procedures set forth herein.
For business to be properly brought before a meeting by a shareholder
pursuant to the immediately preceding clause, the shareholder must have given
timely notice in writing to our secretary. To be timely as to an annual meeting
of shareholders, a shareholder's notice must be received at our principal
executive offices not less than 120 calendar days before the date our proxy
statement is released to shareholders in connection with the previous year's
annual meeting; provided however, that if the date of the meeting is changed by
more than 30 days from the date of the previous year's meeting, notice must be
received no later than the close of business on the 10th day following the
earlier of the day on which notice of the date of the meeting was mailed to
23
shareholders or public disclosure of that date was made. To be timely as to a
special meeting of shareholders, a shareholder notice must be received not
later than the call of the meeting as provided in our by-laws. The shareholder
notice shall set forth as to each matter the shareholder proposes to bring
before the meeting:
. a brief description of and the reasons for proposing the matter at the
meeting;
. the name and address, as they appear on our books, and the name and
address of the beneficial owner, if any, on whose behalf the proposal is
made;
. the class and number of shares that are owned beneficially and of record
by the shareholder of record and by the beneficial owner, if any, on whose
behalf the proposal is made; and
. any material interest of the shareholder of record and the beneficial
owner, if any, on whose behalf the proposal is made, in the proposal.
These provisions may impede shareholders' ability to bring matters before an
annual meeting of shareholders.
Higher Vote for Some Business Combinations and Other Actions
Subject to various exceptions, including acquiring 85% of the outstanding
shares less shares owned by related persons in a single transaction, a business
combination (including, but not limited to, a merger or consolidation, the
sale, lease, exchange, transfer or other distribution of our assets in excess
of $5,000,000, various issuances and reclassifications of securities and the
adoption of a plan or proposal for liquidation or dissolution) with or upon a
proposal by a related person, who is a person that is the direct or indirect
beneficial owner of more than 10% of the outstanding voting shares of our stock
(subject to various exceptions), and any affiliates of that person, shall
require, in addition to any approvals required by law, the approval of the
business combination by either:
. a majority vote of all of the independent directors; or
. the holders of at least 66 2/3% of the outstanding shares otherwise
entitled to vote as a single class with the Common Stock to approve the
business combination, excluding any shares owned by the related person.
In addition, our certificate of incorporation provides that our by-laws may
only be adopted, amended or repealed by a majority of the board of directors or
by 80% of our shareholders, voting as a class. Our certificate of incorporation
also requires the affirmative vote of 80% of our shareholders to amend, repeal
or adopt provisions in our certificate of incorporation relating to, among
other things,
. the number of directors and the manner of electing those directors,
including the election of directors to newly created directorships;
. provisions relating to changes in the by-laws;
. a director's personal liability to us or our shareholders;
. shareholder ratification of various contracts, transactions and acts; and
. voting requirements for approval of business combinations.
Transactions with Interested Parties
Our certificate of incorporation provides that, in the absence of fraud, no
contract or other transaction will be affected or invalidated by the fact that
any of our directors are in any way interested in or connected with any other
party to the contract or transaction or are themselves parties to the contract
or transaction, provided that the interest is fully disclosed or otherwise
known to our board of directors at the meeting of the board at which the
contract or transaction is authorized or confirmed, and provided further that a
quorum of disinterested directors is
24
present at the meeting of our board of directors authorizing or confirming the
contract or transaction and the contract or transaction is approved by a
majority of the quorum, and no interested director votes on the contract or
transaction. Any contract, transaction or act entered into or taken by us or
our board or any committee thereof that is ratified by a majority of a quorum
of the shareholders having voting power at any annual meeting, or any special
meeting called for that purpose, will be valid and binding as though ratified
by all of our shareholders. Any director may vote upon any contract or other
transaction between us and any subsidiary corporation without regard to the
fact that he is also a director of that subsidiary corporation. No contract or
agreement between us and any other corporation or party that owns a majority of
our capital stock or any subsidiary of that other corporation shall be made or
entered into without the affirmative vote of a majority of the whole board of
directors at a regular meeting of the board.
Transfer Agent and Registrar
The current transfer agent and registrar for our Common Stock is EquiServe
Trust Company, N.A., in Jersey City, New Jersey. ONEOK intends to change the
transfer agent and registar for the Common Stock to UMB Bank, N.A., Kansas
City, Missouri, which change is currently estimated to be effective as of the
end of January 2002.
PLAN OF DISTRIBUTION
We may sell the Securities offered under this prospectus through
underwriters, agents or dealers or directly to purchasers.
Underwriters
The applicable prospectus supplement will identify any agents or
underwriters and describe their compensation, including underwriting discount.
The prospectus supplement will also describe other terms of the offering,
including any discounts or concessions allowed or reallowed or paid to dealers
and any securities exchanges on which the offered Securities may be listed.
The distribution of Securities under this prospectus may occur from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
those prevailing market prices or at negotiated prices.
Agents and Direct Sales
If the applicable prospectus supplement indicates, we will authorize dealers
or our agents to solicit offers by various institutions to purchase offered
Securities from us pursuant to contracts that provide for payment and delivery
on a future date. We must approve all institutions, but they may include, among
others:
. commercial and savings banks;
. insurance companies;
. pension funds;
. investment companies; and
. educational and charitable institutions.
The institutional purchaser's obligations under a contract will be subject
only to the condition that the purchase of the offered Securities at the time
of delivery is allowed by any laws that govern the purchaser. The dealers and
our agents will not be responsible for the validity or performance of the
contracts.
General Information
Underwriters, dealers and agents participating in a sale of Securities may
be deemed to be underwriters as defined in the Securities Act of 1933, and any
discounts and commissions received by them and any profit realized by them on
resale of the Securities may be deemed to be underwriting discounts and
commissions
25
under the Securities Act of 1933. We may have agreements with the agents,
underwriters and dealers to indemnify them against various civil liabilities,
including liabilities under the Securities Act of 1933, or to contribute to
payments that the agents, underwriters or dealers may be required to make as a
result of those civil liabilities.
Unless we indicate differently in a prospectus supplement, we will not list
the Securities on any securities exchange. If we sell a security offered under
this prospectus to an underwriter for public offering and sale, the underwriter
may make a market for that security but is not obligated to do so. Therefore,
we cannot give any assurances to you concerning the liquidity of any security
offered under this prospectus.
Agents and underwriters and their affiliates may be customers of, engage in
transactions with, or perform services for us or our subsidiary companies in
the ordinary course of business.
LEGAL MATTERS
The validity of the Securities will be passed upon for ONEOK by Gable &
Gotwals, Tulsa, Oklahoma. Any underwriters or agents will be advised about
other issues relating to any offering by Jones, Day, Reavis & Pogue, Chicago,
Illinois or other underwriters' counsel. Jones, Day, Reavis & Pogue will rely
on Gable & Gotwals as to matters of Oklahoma law. Jones, Day, Reavis & Pogue
from time to time acts as counsel to ONEOK.
EXPERTS
The consolidated financial statements of ONEOK and its subsidiaries as of
December 31, 2000, December 31, 1999 and August 31, 1999, and for the year
ended December 31, 2000, the years ended August 31, 1999 and 1998 and the four
months ended December 31, 1999 have been incorporated by reference herein in
reliance upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing. The report of KPMG LLP covering the
December 31, 2000 consolidated financial statements refers to a change in
accounting for energy trading contracts in 2000.
26
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting
discounts and commissions. All of the amounts shown are estimated, except the
Securities and Exchange Commission registration fee.
Securities and Exchange Commission registration fee $125,000
Legal fees and expenses............................ 40,000
Printing and engraving............................. 50,000
Fees of accountants................................ 60,000
Fees of trustee.................................... 7,000
Rating agencies fees............................... 286,000
Blue sky fees and expenses......................... 2,000
Miscellaneous...................................... 10,000
--------
$580,000
========
Item 15. Indemnification of Directors and Officers.
ONEOK, Inc. (the "Company"), as an Oklahoma corporation, is empowered by
section 1031 of the Oklahoma General Corporation Act, subject to the procedures
and limitations stated therein, to indemnify any person against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with any threatened,
pending or completed action, suit or proceeding in which such person is made or
threatened to be made a party by reason of his being or having been a director,
officer, employee or agent of the Company. The statute provides that
indemnification pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any bylaw, agreement,
vote of shareholders, or disinterested directors, or otherwise. Article VIII of
the by-laws of the Company provides that directors and officers of the Company
shall be indemnified by the Company to the fullest extent permitted by Oklahoma
law as now or hereafter enforced, including the advance of related expenses. In
addition, indemnification agreements, the form of which has been previously
approved by the shareholders of the Company, have been entered into between the
Company and each of its directors and executive officers.
The certificate of incorporation of the Company provides that a director of
the corporation shall not be personally liable to the corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director,
except for liability for (i) any breach of the director's duty of loyalty to
the corporation or its shareholders, (ii) acts or omissions not in good faith
or which would involve intentional misconduct or a knowing violation of law,
(iii) payment of unlawful dividends or unlawful stock purchases or redemptions
or (iv) any transaction from which the director derived an improper personal
benefit.
Pursuant to Article VIII of the by-laws of the Company, upon authorization
and determination (i) by the board of directors by a majority of a quorum
consisting of directors who were not parties to the action, suit, or proceeding
involved; (ii) if such a quorum is not obtainable, or even if obtainable and a
quorum of disinterested directors so directs, by independent counsel in a
written opinion; or (iii) by the shareholders, the Company is obligated to
indemnify any person who incurs liability by reason of the fact that he is or
was a director, officer, employee or agent of the Company, or is or was serving
at its request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or as a
member of any committee or similar body, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and with respect to any criminal action or proceeding, had no
reasonable cause to
II-1
believe his conduct was unlawful. However, in an action by or in the right of
the Company, no indemnification will be made if such person shall be adjudged
to be liable to the Company, unless such indemnification is allowed by a court
of competent jurisdiction.
The indemnification agreements referred to above provide that the Company is
obligated to indemnify the specified director or executive officer to the
fullest extent permitted by law. The agreements provide that, upon request by a
director or executive officer, the Company is obligated to advance expenses for
defense of a claim made against the director or executive officer. The
obligation of the Company to indemnify the director or executive officer is
subject to applicable law and the determination by a "reviewing party" selected
by the board of directors that the director or executive officer is entitled to
indemnification. In addition, the agreements obligate the Company to indemnify
the specified executive officer or director to the extent of the Company's
recoveries under insurance policies regardless of whether the director or
executive officer is ultimately determined to be entitled to indemnification.
The agreements also provide for partial indemnification if a portion of a claim
for indemnification is not allowed by the reviewing party appointed by the
board of directors.
Under an insurance policy obtained by the Company, coverage of Company
officers and directors against liability for neglect, errors, omissions or
breaches of duty in their capacities as such is provided for both the Company,
to the extent that it is obligated to indemnify such officers and directors,
and the officers and directors themselves. Additional coverage is provided to
the Company for claims arising from any such conduct in connection with any
purchase or sale of, or any offer to purchase or sell, securities issued by the
Company. Such coverage is provided in the amount of $200,000,000, with a
retained limit by the Company of $250,000. The insurance company is obligated
to pay any covered loss in excess of the $250,000 retained limit and covered
defense costs from the first dollar, up to the policy limit of $200,000,000.
Among the policy exclusions are those which exclude coverage for accounting for
profits made within the meaning of Section 16(b) of the Securities Exchange Act
of 1934, claims based upon or attributable to directors and officers gaining
any personal profit or advantage to which such individuals are not legally
entitled, and for any claims brought about or attributable to the dishonesty of
an officer or director.
It is recognized that the above-summarized provisions of the Company's
by-laws, the indemnification agreements and the applicable provisions of the
Oklahoma General Corporation Act may be sufficiently broad to indemnify
officers, directors and controlling persons of the Company against liabilities
arising under such act.
The Company and Western Resources, Inc. ("WRI") have entered into a
Registration Rights Agreement that provides for indemnification of the
Company's directors, officers, employees and controlling persons, if any, in
any offering or sale of shares of common stock, obtainable upon conversion of
the Series A Convertible Preferred Stock or Series B Convertible Preferred
Stock, against any claims (including amounts paid in settlement), or actions or
proceedings in respect thereof, arising out of or based upon an untrue
statement or alleged untrue statement of a material fact contained in such
registration statement or prospectus contained therein, or any document
incorporated by reference therein, or arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated or
necessary to make the statements therein not misleading, in each case only to
the extent that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by WRI or an agent or underwriter thereof
expressly for use therein.
II-2
Item 16. Exhibits.
Exhibit
Number Description
------- -----------
1.1* Form of Underwriting Agreement relating to Debt Securities.
1.2* Form of Underwriting Agreement relating to Common Stock.
4.1+ Indenture between the Company and SunTrust Bank, as Trustee (the "Trustee").
4.2+ Form of Debt Security (included in Exhibit 4.1).
4.3 Certificate of Incorporation of the Company, filed May 16, 1997 (incorporated by reference to Exhibit
3.1 to the Company's Registration Statement on Form S-4, as amended (Commission File No. 333-
27467)).
4.4 Certificate of Merger of the Company, filed November 26, 1997 (incorporated by reference to Exhibit
(1)(b) to the Company's Quarterly Report on Form 10-Q for the quarter ended May 31, 1998).
4.5 Amended Certificate of Incorporation of the Company, filed January 16, 1998 (incorporated by
reference to Exhibit (1)(b) to the Company's Quarterly Report on Form 10-Q for the quarter ended
May 31, 1998).
4.6** Amendment to Certificate of Incorporation of the Company, filed May 23, 2001.
4.7 By-laws of the Company, as amended (incorporated by reference to Exhibit (3)(d) to the Company's
Annual Report on Form 10-K for the year ended August 31, 1999).
4.8 Certificate of Designation for Convertible Preferred Stock of the Company filed November 26, 1997
(incorporated by reference from Exhibit 3.3 to the Company's Registration Statement on Form S-4, as
amended (Commission File No. 333-27467)).
4.9 Certificate of Designation for Series C Participating Preferred Stock of the Company, filed November
26, 1998 (incorporated by reference to Exhibit 1 to the Company's Registration Statement on Form
8-A filed with the Commission on November 26, 1997).
4.10 Form of Common Stock Certificate (incorporated by reference to Exhibit 1 to the Company's
Registration Statement on Form 8-A filed with the Commission on November 21, 1997).
4.11 Rights Agreement, dated November 26, 1997, between the Company and Liberty Bank and Trust
Company of Oklahoma City, N.A., as Rights Agent (incorporated by reference to Exhibit 2.3 to the
Company's Registration Statement on Form S-4, as amended (Commission File No. 333-27467)).
4.12 Shareholder Agreement, dated November 26, 1997, between Western Resources, Inc. and the
Company (incorporated by reference to Exhibit 2.2 to the Company's Registration Statement on Form
S-4, as amended (Commission File No. 333-27467)).
4.13 Form of Registration Rights Agreement, dated November 26, 1997, between Western Resources, Inc.
and the Company (incorporated by reference to Exhibit 3.4 to the Company's Registration Statement
on Form S-4, as amended (Commission File No. 333-27467)).
5.1+ Opinion of Gable & Gotwals regarding the validity of the Securities.
12.1 Computation of Ratio of Earnings to Fixed Charges (incorporated by reference to Exhibit (12)(a) to the
Company's report on Form 10-Q for the quarterly period ended September 30, 2001, to Exhibits
(12)(a) and (12)(a.1) to the Company's Annual Report on Form 10-K for the year ended December 31,
2000, and to Exhibit (12)(a) to the Company's Annual Report on Form 10-K for the year ended August
31, 1999).
II-3
Exhibit
Number Description
------- -----------
23.1+ Consent of KPMG LLP.
23.2+ Consent of Gable & Gotwals.
24.1** Powers of Attorney.
25.1+ Statement of Eligibility of the Trustee under the Trust Indenture Act of 1939 on Form T-1 relating to
the Indenture.
--------
* To be filed by amendment or as an exhibit to a current report on Form 8-K.
+ Filed herewith.
** Previously filed.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a) (1) (i) and (a) (1) (ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed to be
the initial bona fide offering thereof.
II-4
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424 (b) (1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of
this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Tulsa, State of Oklahoma, on the 28th day of
December, 2001.
ONEOK, INC.
/S/ JIM KNEALE
By: _________________________________
Jim Kneale
Senior Vice President, Treasurer
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities indicated and on the 28th day of December, 2001.
Signature Title
--------- -----
* Chairman of the Board, President, Chief Executive
------------------- Officer and Director (Principal Executive
David L. Kyle Officer)
------------------- Director
Edwyna G. Anderson
* Director
-------------------
William M. Bell
* Director
-------------------
Douglas R. Cummings
* Director
-------------------
William L. Ford
* Director
-------------------
John B. Dicus
* Director
---------------
Douglas T. Lake
* Director
---------------
Bert H. Mackie
Senior Vice President, Treasurer and Chief
* Financial Officer (Principal Financial Officer)
---------------
Jim Kneale
II-6
Signature Title
--------- -----
* Director
-----------------
Douglas A. Newson
* Director
-----------------
Gary D. Parker
----------------- Director
J. D. Scott
* Vice President, Controller and Chief Accounting
----------------- Officer (Principal Accounting Officer)
Beverly Monnet
--------
* Signed by the undersigned, Jim Kneale, pursuant to a power of attorney filed
as an exhibit to this Registration Statement, on the 28th day of December,
2001.
By: /S/ JIM KNEALE
-------------------------
Jim Kneale, Attorney-in-fact
II-7
EXHIBIT INDEX
Exhibit Description
Number -----------
1.1* Form of Underwriting Agreement relating to Debt Securities.
1.2* Form of Underwriting Agreement relating to Common Stock.
4.1+ Indenture between the Company and SunTrust Bank, as Trustee (the "Trustee").
4.2+ Form of Debt Security (included in Exhibit 4.1).
4.3 Certificate of Incorporation of the Company, filed May 16, 1997 (incorporated by reference to Exhibit
3.1 to the Company's Registration Statement on Form S-4, as amended (Commission File
No. 333-27467)).
4.4 Certificate of Merger of the Company, filed November 26, 1997 (incorporated by reference to Exhibit
(1)(b) to the Company's Quarterly Report on Form 10-Q for the quarter ended May 31, 1998).
4.5 Amended Certificate of Incorporation of the Company, filed January 16, 1998 (incorporated by
reference to Exhibit (1)(b) to the Company's Quarterly Report on Form 10-Q for the quarter ended
May 31, 1998).
4.6** Amendment to Certificate of Incorporation of the Company, filed May 23, 2001.
4.7 By-laws of the Company, as amended (incorporated by reference to Exhibit (3)(d) to the Company's
Annual Report on Form 10-K for the year ended August 31, 1999).
4.8 Certificate of Designation for Convertible Preferred Stock of the Company filed November 26, 1997
(incorporated by reference from Exhibit 3.3 to the Company's Registration Statement on Form S-4, as
amended (Commission File No. 333-27467)).
4.9 Certificate of Designation for Series C Participating Preferred Stock of the Company, filed
November 26, 1998 (incorporated by reference to Exhibit 1 to the Company's Registration Statement
on Form 8-A filed with the Commission on November 26, 1997).
4.10 Form of Common Stock Certificate (incorporated by reference to Exhibit 1 to the Company's
Registration Statement on Form 8-A filed with the Commission on November 21, 1997).
4.11 Rights Agreement, dated November 26, 1997, between the Company and Liberty Bank and Trust
Company of Oklahoma City, N.A., as Rights Agent (incorporated by reference to Exhibit 2.3 to the
Company's Registration Statement on Form S-4, as amended (Commission File No. 333-27467)).
4.12 Shareholder Agreement, dated November 26, 1997, between Western Resources, Inc. and the
Company (incorporated by reference to Exhibit 2.2 to the Company's Registration Statement on
Form S-4, as amended (Commission File No. 333-27467)).
4.13 Form of Registration Rights Agreement, dated November 26, 1997, between Western Resources, Inc.
and the Company (incorporated by reference to Exhibit 3.4 to the Company's Registration Statement
on Form S-4, as amended (Commission File No. 333-27467)).
5.1+ Opinion of Gable & Gotwals regarding the validity of the Securities.
12.1 Computation of Ratio of Earnings to Fixed Charges (incorporated by reference to Exhibit (12)(a) to
the Company's report on Form 10-Q for the quarterly period ended September 30, 2001, to Exhibits
(12)(a) and (12)(a.1) to the Company's Annual Report on Form 10-K for the year ended December
31, 2000, and to Exhibit (12)(a) to the Company's Annual Report on Form 10-K for the year ended
August 31, 1999).
23.1+ Consent of KPMG LLP.
23.2+ Consent of Gable & Gotwals (included in Exhibit 5.1).
Exhibit
Number Description
------- -----------
24.1** Powers of Attorney.
25.1+ Statement of Eligibility of the Trustee under the Trust Indenture Act of 1939 on Form T-1 relating to
the Indenture.
--------
* To be filed by amendment or as an exhibit to a current report on Form 8-K.
+ Filed herewith.
** Previously filed.