UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934 (Amendment No. 10)
ONEOK, INC.
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(Name of Issuer)
Common Stock, Par Value $0.01 per share
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(Title of Class of Securities)
68267810
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(CUSIP Number)
Larry D. Irick, Esq.
Vice President and Corporate Secretary
Westar Energy, Inc.
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(f/k/a Western Resources, Inc.)
818 South Kansas Avenue
Topeka, Kansas 66612
(785) 575-1625
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
February 5, 2003
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(Date of Event which Requires Filing of this Statement)
If a filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box: / /
Page 1 of 9
SCHEDULE 13D
CUSIP No. 68267810
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION No. OF ABOVE PERSON
WESTAR ENERGY, INC. (f/k/a WESTERN RESOURCES, INC.) 48-0290150
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) / /
(B) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Kansas
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7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
4,714,433
NUMBER OF An additional 21,815,386 shares of
SHARES Common Stock issuable in certain
BENEFICIALLY circumstances in the event of the
OWNED BY conversion (the conditions for
EACH which are not expected to occur
REPORTING within the next 60 days) of
PERSON WITH 21,815,386 shares of Series D
Convertible Preferred Stock.
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,714,433
An additional 21,815,386 shares of
Common Stock issuable in certain
circumstances in the event of the
conversion (the conditions for which
are not expected to occur within the
next 60 days) of 21,815,386 shares
of Series D Convertible Preferred
Stock.
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,714,433
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
Page 2 of 9
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.35%
Up to 27.4% of the Common Stock outstanding in the event of conversion
(the conditions for which are not expected to occur within the next 60
days) of Series D Convertible Preferred Stock.
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14 TYPE OF REPORTING PERSON
CO
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Page 3 of 9
SCHEDULE 13D
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CUSIP No. 68267810
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION No. OF ABOVE PERSON
WESTAR INDUSTRIES, INC. (f/k/a WESTAR CAPITAL, INC.) 48-1092416
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) / /
(B) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
4,714,433
NUMBER OF An additional 21,815,386 shares of
SHARES Common Stock issuable in certain
BENEFICIALLY circumstances in the event of the
OWNED BY conversion (the conditions for
EACH which are not expected to occur
REPORTING within the next 60 days) of
PERSON WITH 21,815,386 shares of Series D
Convertible Preferred Stock.
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,714,433
An additional 21,815,386 shares of
Common Stock issuable in certain
circumstances in the event of the
conversion (the conditions for which
are not expected to occur within the
next 60 days) of 21,815,386 shares
of Series D Convertible Preferred
Stock.
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,714,433
Page 4 of 9
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.35%
Up to 27.4% of the Common Stock outstanding in the event of conversion
(the conditions for which are not expected to occur within the next 60 days) of
Series D Convertible Preferred Stock.
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14 TYPE OF REPORTING PERSON
CO
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Item 1. Security and Issuer.
This statement on Schedule 13D (the "Statement") is filed by Westar Energy,
Inc. (f/k/a Western Resources, Inc.), a Kansas corporation ("Westar Energy"),
and Westar Industries, Inc. (f/k/a Westar Capital, Inc.), a Delaware corporation
and a wholly owned subsidiary of Westar Energy ("Westar Industries" and,
together with Westar Energy, the "Reporting Persons"), and relates to the Common
Stock, par value $0.01 per share (the "Common Stock"), of ONEOK, Inc., an
Oklahoma corporation (the "Issuer") which Common Stock is held by Westar
Industries. This Statement supplements and amends the statement on Schedule 13D
originally filed by the Reporting Persons with the Commission on December 5,
1997, as amended by Amendment No. 1, filed with the Commission on November 29,
1999, Amendment No. 2, filed with the Commission on January 27, 2000, Amendment
No. 3, filed with the Commission on March 8, 2000, Amendment No. 4 filed with
the Commission on April 8, 2002, Amendment No. 5 filed with the Commission on
April 26, 2002, Amendment No. 6 filed with the Commission on May 23, 2002,
Amendment No. 7 filed with the Commission on June 3, 2002, Amendment No. 8 filed
with the Commission on August 29, 2002 and Amendment No. 9 filed with the
Commission on January 10, 2003 (as amended, the "Schedule 13D").
The address of the principal executive offices of the Issuer is: ONEOK,
Inc., 100 West Fifth Street, Tulsa, Oklahoma 74103.
Item 2. Identity and Background
Westar Energy is a Kansas corporation. It is a consumer services company
with interests in monitored services and energy. The principal business address
of Westar Energy is: Westar Energy, Inc. 818 S. Kansas Avenue, Topeka, Kansas
66612.
The name, business address, present principal occupation or employment and
citizenship of each of the executive officers and directors of Westar Energy is
set forth in Exhibit 1.1 and is incorporated by reference herein. During the
last five years, Westar Energy, and to the knowledge of Westar Energy, none of
the persons listed on Exhibit 1.1 hereto, (i) has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which any such person was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
activities subject to, federal or state securities laws or finding any violation
of such law.
Item 4. Purpose of the Transaction.
The last paragraph of Item 4 is deleted and following disclosure is in lieu
thereof:
Page 5 of 9
On February 5, 2003, the Issuer repurchased 9,038,755 shares of its Series
A Convertible Preferred Stock from Westar Industries, a wholly owned subsidiary
of Westar Energy. Westar Industries also exchanged its remaining shares of
Series A Convertible Preferred Stock for 21,815,386 new shares of the Issuer's
Series D Convertible Preferred Stock. Westar Industries continues to hold
4,714,433 shares of the Issuer's common stock. Westar Industries now has a total
ownership interest of 27.4 % in the Issuer.
In addition, the Issuer has agreed to register the Series D Convertible
Preferred and common stock held by Westar Industries for future sale, subject to
the effectiveness of such registration, the expiration of a 180-day lock-up
period and future market conditions.
Item 7. Material to be Filed as Exhibits.
Exhibit 1.1 previously filed is replaced by Exhibit 1.1 as amended below:
EXHIBIT 1.1 Identity of Executive Officers and Directors of Westar
Energy, Inc.
EXHIBIT 11 Certificate of the Designations of $0.925 Series D
Non-Cumulative Convertible Preferred Stock dated
February 3, 2003.
EXHIBIT 12 Stock Purchase Agreement dated as of February 5, 2003.
Page 6 of 9
Signature
After reasonable inquiry and to the best of our knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
Dated: February 6, 2003
WESTAR ENERGY, INC.
By: /s/ James S. Haines, Jr.
--------------------------------------------
Name: James S. Haines, Jr.
Title: President and Chief Executive
Officer
WESTAR INDUSTRIES, INC.
By: /s/ James S. Haines, Jr.
--------------------------------------------
Name: James S. Haines, Jr.
Title: President and Chief Executive
Officer
Page 7 of 9
EXHIBIT 1.1
Identity of Executive Officers and Directors of Westar Energy, Inc.
The name, present principal occupation or employment, and the name of any
corporation or other organization in which such employment is conducted, of each
of the directors and executive officers of Westar Energy, Inc. ("Westar Energy")
is set forth below. Each of the directors and officers is a citizen of the
United States. The business address of each director and officer is Western
Energy, Inc., 818 South Kansas Avenue, Topeka, Kansas 66612. Unless otherwise
indicated, each occupation set forth opposite an executive officer's name refers
to employment with Westar Energy.
Name Title Present Principal Occupation
or Employment
Executive Officers
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James S. Haines, Jr. President and Chief Executive same
Officer
Mark A. Ruelle Executive Vice President and Chief same
Financial Officer
William B. Moore Executive Vice President and Chief same
Operating Officer
Richard A. Dixon Senior Vice President same
Douglas R. Sterbenz Senior Vice President same
Directors
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Frank J. Becker Director President of Becker Investments,
Inc. in Lawrence, Kansas.
Gene A. Budig Director Senior Advisor to the Commissioner
of Baseball, American League of
Professional Baseball Clubs in New
York, New York and a professor in
the Woodrow Wilson School of Public
and International Affairs at
Princeton University.
Charles Q. Chandler, IV Director, Chairman of the Board Chairman of the Board, President
and Chief Executive Officer of
INTRUST Bank, N.A. and President of
INTRUST Financial Corporation.
R. A. Edwards III Director President and Chief Executive Officer
and a director of the First National
Bank of Hutchinson, Kansas.
James S. Haines, Jr. Director President and Chief Executive
Officer, Westar Energy, Inc.
Page 8 of 9
Larry D. Irick Director Vice President and Corporate
Secretary of Westar Energy, Inc.
John C. Nettles, Jr. Director Partner in the law firm of
Morrisson & Hecker, L.L.P. in
Overland Park, Kansas.
Page 9 of 9
EXHIBIT 11
CERTIFICATE OF THE DESIGNATIONS, POWERS,
PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, OF $0.925 SERIES D
NON - CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF
ONEOK, INC.
PURSUANT TO SECTION 1032 OF THE
GENERAL CORPORATION ACT OF THE STATE OF OKLAHOMA
ONEOK, INC., an Oklahoma corporation (the "Corporation"), does hereby
certify that the Board of Directors of the Corporation duly adopted the
following resolution, at a meeting duly convened and held on January 9, 2003, in
respect of a series of Preferred Stock, par value $0.01 per share, of the
Corporation, pursuant to authority conferred upon the Board by Article Fourth of
the Certificate of Incorporation of the Corporation and in accordance with
Section 1032 of the General Corporation Act of the State of Oklahoma:
BE IT RESOLVED, that the issuance of a series of Preferred Stock of the
Corporation is hereby authorized, and the designation, amount, powers,
preferences and relative, participating, optional and other special rights and
qualifications, limitations and restrictions thereof, of the shares of such
series of Preferred Stock of the Corporation, are hereby fixed as follows:
1. Designation; Class and Amount; Certain Definitions. The Preferred Stock,
the issuance of which is hereby authorized, shall comprise 21,815,386 shares the
distinctive serial designation of which shall be "$0.925 Series D Non-Cumulative
Convertible Preferred Stock" which is sometimes herein referred to as "Series D
Preferred Stock." The number of shares of Series D Preferred Stock which are
purchased or otherwise acquired by the Corporation or converted into Common
Stock shall be canceled and shall revert to authorized but unissued shares of
Series D Preferred Stock. Certain capitalized terms used herein have the
meanings specified therefor in Section 11 below.
2. Dividends; Priority.
(a) Payments of Dividend; Series D Preferred Stock. Each Holder of shares
of Series D Preferred Stock shall be entitled to receive, when and if declared
by the Board, in respect of each share of Series D Preferred Stock, out of the
funds of the Corporation legally available therefor, for each Dividend Period or
portion thereof, quarterly cash dividends in an amount per share equal to
$0.23125 from and after the date of issuance of the shares of Series D Preferred
Stock (the "Issue Date"), as long as the shares of Series D Preferred Stock
remain
outstanding. No interest, or sum of money in lieu of interest, shall be payable
in respect of any dividend payment or payments on shares of Series D Preferred
Stock, which are not paid.
(b) Payment and Record Dates. Dividends accrued on the Series D Preferred
Stock in respect of each Dividend Period shall be payable, when and if declared
by the Board in arrears concurrently with each date of payment (each such date,
a "Dividend Payment Date") by the Corporation of quarterly cash dividends on the
Common Stock in respect of such Dividend Period; provided, however, that if any
such day is not a Business Day the applicable Dividend Payment Date shall be the
next succeeding day that is a Business Day; and provided, further that if no
quarterly cash dividends are paid on the Common Stock in respect of any such
Dividend Period, the Dividend Payment Date shall mean such date as may be
determined by the Board within three months following the end of such Dividend
Period; provided, however, dividends payable with respect to the Dividend Period
immediately following the Issue Date shall accrue from the Issue Date. Dividends
on the Series D Preferred Stock shall accrue on a daily basis from the
commencement of each Dividend Period. Dividends will cease to accrue in respect
of any shares of Series D Preferred Stock on the Surrender Date in respect of a
conversion pursuant to Section 8(a) or on the Redemption Date in respect of a
redemption. Dividends payable on the Series D Preferred Stock for any Dividend
Period constituting less than a full fiscal quarter shall be computed ratably on
the basis of a 360-day year of twelve (12) 30-day months. Dividends for any
Dividend Period shall not be cumulative to the extent not paid in full on each
Dividend Payment Date. Dividends on the Series D Preferred Stock in respect of
any Dividend Period unpaid as of the Dividend Payment Date for such Dividend
Period shall permanently remain unpaid. The foregoing notwithstanding, dividends
on account of arrears for any past Dividend Periods may be declared and paid at
any time, without reference to any regular Dividend Payment Date. Dividends
shall be payable to the Holders as they appear on the Stock Books not exceeding
forty (40) days preceding the relevant Dividend Payment Date. Dividends shall be
paid in cash, by wire transfer in immediately available funds to the accounts
designated by the respective Holders in written notices given to the Corporation
at least five (5) Business Days prior to the payment date or by such other means
as may be agreed to by the Corporation and the respective Holders, such wire
transfer to be effected for good value on or before the Dividend Payment Date.
(c) Special Dividends; Notice. Notwithstanding anything in this Certificate
of Designations to the contrary, the holders of the Series D Preferred Stock
shall participate in all Special Dividends on a share-for-share basis with the
holders of Common Stock, as if shares of the Series D Preferred Stock were
converted into Common Stock immediately prior to the record date with respect to
each such Special Dividend.
(d) Priority as to Dividends; Restriction on Dividends, Redemption, etc.
The Corporation shall not, for so long as the Series D Preferred Stock shall
remain outstanding, directly or indirectly, declare or pay or set apart for
payment any dividends (including cumula-
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tive dividends) or make (or permit any Subsidiary to make) any other
distributions on, or payment on account of the purchase, redemption or other
retirement or acquisition for value of the Common Stock, any other capital stock
of the Corporation ranking equal to or junior to the Series D Preferred Stock as
to dividends or as to distribution of assets upon any liquidation, dissolution
or winding-up of the affairs of the Corporation or any options, warrants or
rights to purchase or acquire Common Stock or any such capital stock or any
securities convertible into or exchangeable for shares of Common Stock or any
such capital stock, except that such payment of dividends and such other
distributions and payments may be made so long as full dividends payable on the
Series D Preferred Stock for the Dividend Period commencing immediately prior to
the date of such dividend, distribution or other payment have been or are
concurrently paid (or a sum sufficient for the payment thereof set apart for
such payment subject to declaration thereof); provided, however, that the
foregoing restrictions shall not apply to: (i) any dividend payable solely in
shares of any stock of the Corporation ranking, as to dividends and as to
distribution of assets upon any liquidation, dissolution or winding-up of the
affairs of the Corporation, junior to the Series D Preferred Stock (or payable
solely in options, warrants or rights to purchase or acquire any such stock) or
(ii) any distribution pursuant to any employee or director incentive or benefit
plan or arrangement (including any employment, severance or consulting
agreement) of the Corporation or any Subsidiary heretofore or hereafter adopted
or (iii) any distribution pursuant to a redemption, at the stated redemption
price, of any rights granted to Holders of Common Stock pursuant to a
stockholder rights plan or (iv) any dividend approved in writing by the holders
of at least 66 2/3 percent of all shares of Series D Preferred Stock then
outstanding. Holders of shares of Series D Preferred Stock shall be entitled to
receive dividends in accordance with the foregoing clause (a) of this Section 2
in preference to and in priority over any dividend upon any securities junior to
the Series D Preferred Stock.
3. Voting Rights. Holders of shares of Series D Preferred Stock, voting
together as a single class with holders of shares of Common Stock (and with
holders of any other class or series of stock which may similarly be entitled to
vote with the holders of Common Stock) shall be entitled at any meeting of
stockholders called for the purpose of voting on (or acting by written consent
without need of any advance notice) (i) any proposed amendment to the
Certificate of Incorporation or By-laws which would reasonably have the effect
of modifying in any way Section 1, Article Twelfth of the Amended Certificate of
Incorporation of the Corporation dated January 15, 1998, electing that Sections
1145 through 1155 of Title 18 of the Oklahoma General Corporation Law (the
"Control Share Acquisition Statute") shall not apply to the Corporation, or
would reasonably cause the Corporation to become subject to (a) the Control
Share Acquisition Statute or (b) any other provisions which are substantially
similar to the Control Share Acquisition Statute, to abstain or vote for or
against such amendment and (ii) any transaction or series of transactions
submitted to a vote of the stockholders of the Corporation which, if
consummated, would constitute a Change in Control, to vote with respect to such
transaction(s). When voting together with the holders of shares of Common Stock
on
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any such transaction(s), each share of Series D Preferred Stock shall carry, as
of the record date applicable to such vote, a number of votes equal to the
number of votes carried in the aggregate by the number of shares of Common Stock
issuable upon conversion of one share of Series D Preferred Stock into Common
Stock in accordance with Section 8 below.
(a) Except as provided by this Section 3 and Sections 4 and 9 below, or as
otherwise may be required by applicable law, the Holders of Series D Preferred
Stock shall not be entitled, by virtue of their being Holders thereof, to vote
in any election of directors to the Board of the Corporation, or with respect to
any other matter submitted to the stockholders of the Corporation. Where a vote
of the Holders, voting as a separate class, may be required by applicable law or
by this Section 3 or Section 4 or 9, each share of Series D Preferred Stock
shall carry one vote.
4. Covenants. So long as any shares of Series D Preferred Stock are
outstanding, the Corporation covenants and agrees with and for the benefit of
the Holders of such shares that without the affirmative vote or consent of
Holders of 66 2/3 percent of all shares of the Series D Preferred Stock then
outstanding, voting as a separate class in person or by proxy or by written
consent delivered to the Secretary of the Corporation, the Corporation shall not
amend, alter or repeal any provision of the Certificate of Incorporation of the
Corporation, this Certificate of Designations, or any amendment or supplement to
any of the foregoing, so as to affect adversely the rights, powers, preferences,
qualifications, limitations or restrictions of any Holder of Series D Preferred
Stock.
5. Optional Redemption. Subject to the rights of Holders of shares of
Series D Preferred Stock set forth in Section 8 hereof, the Corporation may, at
its option, redeem, in the manner provided for in Section 6 hereof, on or after
August 1, 2006, all or a portion of the shares of Series D Preferred Stock at
the Redemption Price per share if the Closing Price of the Common Stock exceeds
$25.00 for 30 consecutive Trading Days prior to the date notice is given by
Corporation pursuant to Section 6 hereof of its intention to redeem all or a
portion of the shares of Series D Preferred Stock pursuant to this Section 5.
The "Redemption Price" shall equal the product of (x) $20.00 and (y) the number
of shares of Common Stock then issuable upon the conversion of one share of
Series D Preferred Stock.
6. Procedure for Redemption. In the event that the Corporation shall redeem
shares of Series D Preferred Stock pursuant to Section 5 hereof, notice of such
redemption (a "Redemption Notice") shall be mailed by first-class mail, postage
prepaid, not less than 30 days nor more than 90 days, except as provided below,
prior to the redemption date (the "Redemption Date") described in such notice,
to the Holders of record of shares to be redeemed at their respective addresses
as they shall appear in the records of the Corporation; provided, however, that
failure to give such notice or any defect therein or the mailing thereof shall
not affect the validity of the proceeding for the redemption of any shares so to
be re-
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deemed except as to the Holder to whom the Corporation has failed to give such
notice or except as to the Holder to whom notice was defective. Each such notice
shall state: (i) the Redemption Date; (ii) the number of shares of Series D
Preferred Stock to be redeemed; (iii) the Redemption Price; (iv) the place or
places where certificate for such shares are to be surrendered for payment of
the redemption price; (v) that dividends on the shares to be redeemed ceased to
accrue as of the date of such notice; and (vi) that the Holder's right to
convert such shares into shares of Common Stock shall terminate on the close of
business on the second Business Day preceding such Redemption Date. In the event
that the Corporation has delivered a Redemption Notice to the Shareholder and
the Shareholder is then precluded under Section 4.2(a), (b) or (c) of the
Registration Rights Agreement from effecting an underwritten offering of Common
Stock or Series D Preferred Stock, then the Redemption Date shall automatically
be extended until the ninety-first (91st) day following the date that the
restrictions set forth in Section 4.2(a), (b) or (c) of the Registration Rights
Agreement have expired.
(a) In the event that fewer than all shares of Series D Preferred Stock
represented by a surrendered certificate are to be redeemed hereunder, a new
certificate shall be issued at the Corporation's expense representing the shares
of Series D Preferred Stock not so redeemed.
(b) Effective on the Redemption Date, any shares of Series D Preferred
Stock redeemed shall no longer be deemed outstanding, all rights of the Holders
thereof as preferred stockholders of the Corporation shall cease and thereupon
the certificate(s) theretofore representing shares of Series D Preferred Stock
shall represent only the right to receive the Redemption Price in respect
thereof.
(c) On or prior to the Redemption Date, the Redemption Price with respect
to all the shares of Series D Preferred Stock to be redeemed shall be deposited
with the Corporation's transfer agent.
7. Liquidation Preference. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation, the
Holders of shares of Series D Preferred Stock then outstanding shall be entitled
to be paid out of the assets of the Corporation available for distribution to
its stockholders an amount per share in cash equal to the amount that would be
payable on one share of Common Stock (such amount payable being adjusted
appropriately to reflect any stock split, stock dividend, reverse stock split,
or any transaction with comparable effect upon the Common Stock and assuming
conversion of all shares of Series D Preferred Stock then outstanding into
shares of Common Stock immediately prior to such liquidation, dissolution or
winding-up), plus all dividends then due on the Series D Preferred Stock (the
"Liquidation Preference"). This entitlement of the Holders of shares of Series D
Preferred Stock shall be satisfied before any similar payment shall be made or
any assets distributed to the holders of the Common Stock or any other security
junior in
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rank to the Series D Preferred Stock as to distribution of assets upon such
dissolution, liquidation or winding-up. If the assets of the Corporation are not
sufficient to pay in full the liquidation payments payable to all of the Holders
of the outstanding shares of Series D Preferred Stock, then the Holders of all
such shares shall share ratably in such distribution of assets in accordance
with the respective liquidation preferences to which they are entitled. For the
purposes of this section, neither the voluntary sale, conveyance, exchange or
transfer (for cash, shares of stock, securities or other consideration) of all
or substantially all of the property or assets of the Corporation nor the
consolidation or merger of the Corporation with one or more other corporations
shall be deemed to be a liquidation, dissolution or winding-up, voluntary or
involuntary, unless such voluntary sale, conveyance, exchange or transfer shall
be in connection with a dissolution or winding up of the business of the
Corporation.
8. Conversion.
(a) Conversion Right. The Holder of any share or shares of Series D
Preferred Stock shall have the right, at any time, at such Holder's option, to
convert, without the payment of additional consideration, each share of Series D
Preferred Stock held by that Holder into one fully paid and nonassessable share
of Common Stock (as adjusted pursuant to Section 8(c) hereof); provided,
however, that shares of the Series D Preferred Stock Beneficially Owned by any
member of the Shareholder Group shall not be convertible unless the aggregate of
the regular cash dividends for the fiscal year immediately prior to such
conversion that would have been payable with respect to all the shares of Common
Stock issuable upon the conversion of one share of Series D Preferred Stock is
greater than $0.925 (the "Conversion Threshold"); provided, further, that the
shares of Series D Preferred Stock Beneficially Owned by any member of the
Shareholder Group shall not be convertible if such conversion would have a
material adverse effect on the exemptions from the Public Utility Holding
Company Act of 1935, as amended, of the Corporation or any of its Subsidiaries
or Parent, the Shareholder or any affiliate of the Shareholder. Special or
extraordinary dividends shall not be taken into account in determining whether
the Conversion Threshold has been met. Notwithstanding anything in this Section
8(a) to the contrary, any member of the Shareholder Group may convert shares of
Series D Preferred Stock into shares of Common Stock at any time in connection
with, and immediately prior to, a Transfer pursuant to subsections (a)-(c) and
(e) of Section 4.3 of the Shareholder Agreement.
(b) Conversion Procedures. Any Holder of shares of Series D Preferred Stock
desiring to convert such shares into Common Stock shall surrender the
certificate(s) evidencing such shares of Series D Preferred Stock of the Holder
at the office of the Corporation's transfer agent. Such surrendered
certificate(s), if the Corporation shall so require, shall be duly endorsed to
the Corporation or in blank, or accompanied by proper instruments of transfer to
the Corporation or in blank, and shall be accompanied by written notice to the
Corporation that the Holder elects so to convert such shares of Series D
Preferred Stock, which notice shall
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specify the name or names (with address or addresses) in which the Holder wishes
the certificate(s) evidencing shares of Common Stock to be issued, in exchange
for that certificate or those certificates so surrendered.
(i) The Corporation shall, within five (5) Business Days after such
surrender of certificates evidencing shares of Series D Preferred Stock
accompanied by written notice and in compliance with any other conditions
contained herein, issue and deliver, or cause to be issued and delivered,
to the person(s) for whose account such certificate(s) evidencing shares of
Series D Preferred Stock were so surrendered, or to the nominee(s) of such
Person(s), certificates representing the number of full shares of Common
Stock to which such Person shall be entitled pursuant to the
then-applicable conversion rate. Such conversion shall be deemed to have
been made on the date of such surrender of the certificate(s) evidencing
shares of Series D Preferred Stock to be converted (the "Surrender Date")
and the Person(s) entitled to receive the Common Stock deliverable upon
conversion of such Series D Preferred Stock shall be treated for all
purposes as the record holder(s) of such Common Stock on such date and
thereafter. Conversion of Series D Preferred Stock may otherwise be
achieved in accordance with such procedures as the Corporation and a
majority of the Holders may agree.
(ii) In the event that fewer than all shares of Series D Preferred
Stock represented by a surrendered certificate are to be converted
hereunder, a new certificate shall be issued at the Corporation's expense
representing the shares of Series D Preferred Stock not so converted.
(iii) Effective on the day following the Surrender Date, dividends
shall cease to accrue on any shares of Series D Preferred Stock surrendered
for conversion, such shares of Series D Preferred Stock shall no longer be
deemed outstanding, all rights of the Holders thereof as preferred
stockholders of the Corporation shall cease (other than the right to
receive dividends declared or otherwise payable to Holders of Series D
Preferred Stock on a record date prior to the Surrender Date) and thereupon
the certificate(s) theretofore representing shares of Series D Preferred
Stock shall represent only the right to receive the Common Stock
deliverable upon conversion in respect thereof.
(iv) If any shares of Series D Preferred Stock are surrendered for
conversion subsequent to the record date preceding a Dividend Payment Date
but on or prior to such Dividend Payment Date (except shares called for
redemption on a redemption date between such record date and such Dividend
Payment Date), the Holder of such shares at the close of business on such
record date shall be entitled to receive the dividend payable on such
shares on such Dividend Payment Date notwithstanding the conversion
thereof.
(c) The conversion rate shall be adjusted from time to time as follows:
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(i) In case the Corporation shall, at any time or from time to time
while any of the shares of Series D Preferred Stock are outstanding, (A)
pay a dividend in shares of its Common Stock, (B) subdivide its outstanding
shares of Common Stock into a larger number of shares, or (C) combine its
outstanding shares of Common Stock into a smaller number of shares, the
conversion rate in effect immediately prior to such action shall be
adjusted so that the Holder of any shares of Series D Preferred Stock
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock which such Holder would have owned or have
been entitled to receive immediately following such action had such shares
of Series D Preferred Stock been converted immediately prior thereto. An
adjustment made pursuant to this Section 8(c)(i) shall become effective
retroactively to immediately after the opening of business on the Business
Day following the record date in the case of a dividend and shall become
effective immediately after the opening of business on the Business Day
following the effective date in the case of a subdivision or combination.
If, as a result of an adjustment made pursuant to this Section 8(c)(i), the
Holder of any shares of Series D Preferred Stock thereafter surrendered for
conversion shall become entitled to receive shares of two or more classes
of capital stock of the Corporation, the Board of Directors (whose
determination shall be conclusive) shall determine the allocation of the
adjusted conversion rate between or among shares of such classes of capital
stock.
(ii) In case the Corporation shall, at any time or from time to time
while any of the shares of Series D Preferred Stock are outstanding, issue
rights or warrants to all holders of shares of its Common Stock entitling
them to subscribe for or purchase shares of Common Stock (or securities
convertible into or exchangeable for Common Stock) at a price per share
less than the current Market Price per share of Common Stock, at such
record date, the conversion rate shall be adjusted so that it shall equal
the rate determined by multiplying the conversion rate in effect
immediately prior to the date of issuance of such rights or warrants by a
fraction, the numerator of which shall be the number of shares of Common
Stock outstanding on the date of issuance of such rights or warrants plus
the number of additional shares of Common Stock offered for subscription or
purchase, and the denominator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or warrants
plus the number of shares which the aggregate offering price of the total
number of shares so offered would purchase at such current market price.
For the purposes of this Section 8(c)(ii), the issuance of rights or
warrants to subscribe for or purchase securities convertible into Common
Stock shall be deemed to be the issuance of rights or warrants to purchase
the shares of Common Stock into which such securities are convertible at an
aggregate offering price equal to the aggregate offering price of such
securities plus the minimum aggregate amount (if any) payable upon
conversion of such securities into shares of Common Stock; provided,
however, that if all of the shares of Common Stock subject to such rights
or warrants have not been issued when such
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rights or warrants expire, then the conversion rate shall promptly be
readjusted to the conversion rate which would then be in effect had the
adjustment upon the issuance of such rights or warrants been made on the
basis of the actual number of shares of Common Stock issued upon the
exercise of such rights or warrants. The foregoing provision shall not
apply to issuances of rights pursuant to a stockholder rights plan provided
that such rights are issued together with the Common Stock upon conversion
of the Series D Preferred Stock. An adjustment made pursuant to this
Section 8(c)(ii) shall become effective retroactively immediately after the
record date for the determination of stockholders entitled to receive such
rights or warrants.
(iii) In case the Corporation shall, at any time or from time to time
while any of the shares of Series D Preferred Stock are outstanding,
distribute to all holders of shares of its Common Stock evidences of its
indebtedness or securities or assets (excluding cash dividends payable out
of consolidated earnings or retained earnings or dividends payable in
shares of Common Stock) or rights or warrants to subscribe for securities
of the Corporation or any of its subsidiaries (excluding those referred to
in Section 8(c)(ii)), then in each such case the conversion rate shall be
adjusted so that it shall equal the rate determined by multiplying the
conversion rate in effect immediately prior to the date of such
distribution by a fraction, the numerator of which shall be the current
Market Price per share of the Common Stock on the record date referred to
below, and the denominator of which shall be such current market price per
share of the Common Stock less the then fair market value of the portion of
the assets or evidences of indebtedness or securities or assets so
distributed or of such subscription rights or warrants applicable to one
share of Common Stock. Such adjustment shall become effective retroactively
immediately after the record date for the determination of stockholders
entitled to receive such distribution.
(iv) The Corporation shall be entitled at its option to make such
additional adjustments in the conversion rate, in addition to those
required by subsections 8(c)(i), 8(c)(ii) and 8(c)(iii), as shall be
necessary in order that any dividend or distribution in shares of stock,
subdivision or combination of shares of Common Stock, issuance of rights or
warrants, evidences of indebtedness or assets (other than cash dividends
payable out of consolidated earnings or retained earnings) referred to
above, shall not be taxable to the Holders of shares of Series D Preferred
Stock.
(v) In any case in which this Section 8(c) shall require that an
adjustment be made retroactively immediately following a record date, the
Corporation may elect to defer (but only for five (5) Business Days
following the filing of the statement referred to in Section 8(c)(vii))
issuing to the holder of any shares of this Series converted after such
record date (A) the shares of Common Stock and other capital stock of the
Corporation issuable upon such conversion over and above (B) the shares of
Common Stock
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and other capital stock of the Corporation issuable upon such conversion on
the basis of the conversion rate prior to adjustment.
(vi) Notwithstanding any other provisions of this Section 8(c), the
Corporation shall not be required to make any adjustment of the conversion
rate (A) in respect of any Special Dividend in which the holders of Series
D Preferred Stock participate as provided in Section 2(c) or (B) unless
such adjustment would require an increase or decrease of at least 1% in
such rate (any lesser adjustment shall be carried forward and shall be made
at the time of and together with the next subsequent adjustment which,
together with any adjustment or adjustments so carried forward, shall
amount to an increase or decrease of at least 1% in such rate).
(vii) Whenever an adjustment in the conversion rate is required, the
Corporation shall forthwith place on file with its Transfer Agent a
statement signed by its Chief Executive Officer, Chief Financial Officer or
a Vice President and by its Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer, stating the adjusted conversion rate determined as
provided herein. Such statements shall set forth in reasonable detail such
facts as shall be necessary to show the reason and the manner of computing
such adjustment. Promptly after the adjustment of the conversion rate, the
Corporation shall mail a notice thereof to each holder of shares of Series
D Preferred Stock.
(d) Reservation of Shares; etc. The Corporation shall at all times reserve
and keep available, free from preemptive rights, out of its authorized and
unissued stock, such number of shares of its Common Stock as shall from time to
time be sufficient to effect the conversion of all shares of the Series D
Preferred Stock from time to time outstanding, solely for the purpose of
effecting such conversion. The Corporation shall, from time to time, in
accordance with the laws of the State of Oklahoma, increase the authorized
number of shares of Common Stock if at any time the number of shares of
authorized and unissued Common Stock shall not be sufficient to permit the
conversion of all the then-outstanding shares of Series D Preferred Stock.
(i) If any shares of Common Stock required to be reserved hereunder
for purposes of conversion require registration with or approval of any
governmental authority under any Federal or state law before such shares
may be issued upon conversion, the Corporation shall, in good faith and as
expeditiously as possible, cause such shares to be duly registered or
approved as the case may be. If the Common Stock is listed on the New York
Stock Exchange or any other national or foreign securities exchange, the
Corporation shall, if permitted by the rules of such exchange, list and
keep listed on such exchange, upon official notice of issuance, all shares
of Common Stock issuable upon conversion of Series D Preferred Stock.
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(ii) The Corporation will pay any and all taxes that may be payable in
respect of the issuance or delivery of shares of Common Stock upon
conversion of shares of Series D Preferred Stock pursuant hereto. The
Corporation shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of
shares of Common Stock in a name other than that in which the shares of
Series D Preferred Stock so converted were registered and no such issuance
or delivery shall be made unless and until the person requesting such
issuance has paid to the Corporation the amount of any such tax or has
established to the satisfaction of the Corporation that such tax has been
paid.
(e) Reclassifications, Consolidations, Mergers or Sales of Assets. In case
of (i) any reclassification or change of outstanding shares of Common Stock
(other than a change in par value or from par value to no par value or from no
par value to par value, or as a result of a subdivision or combination), (ii)
any consolidation or merger of the Corporation with one or more other
corporations (other than a consolidation or merger in which the Corporation is
the continuing corporation and which does not result in any reclassification or
change of outstanding shares of Common Stock issuable upon conversion of Series
D Preferred Stock), (iii) any sale or conveyance to another corporation or other
entity of all or substantially all of the property of the Corporation, or (iv)
any other transaction which would constitute a Change in Control of the
Corporation, then the Corporation, or such successor corporation or other
entity, as the case may be, shall make appropriate provision so that the holder
of each share of Series D Preferred Stock then outstanding shall have the right
to convert such share into the kind and amount of shares of stock or other
securities and property receivable upon such consolidation, merger, sale,
reclassification, change or conveyance by a holder of the number of shares of
Common Stock into which such shares of Series D Preferred Stock might have been
converted immediately prior to such consolidation, merger, sale,
reclassification, change or conveyance, subject to adjustment which shall be as
nearly equivalent as may be practicable to the adjustments provided for in
Section 8(c). The provisions of this paragraph shall apply similarly to
successive consolidations, mergers, sales or conveyances.
9. Priority. The Series D Preferred Stock shall be senior in rank, both as
to dividends and as to distribution of assets upon any liquidation, dissolution
or winding-up of the affairs of the Corporation, to the Common Stock, or any
class of equity securities of the Corporation which by its terms are junior to
the Series D Preferred Stock, and shall not be junior in rank with respect to
any class or series of Preferred Stock that may be issued by the Corporation,
unless the Holders of 66 2/3 percent of the outstanding shares of the Series D
Preferred Stock shall consent to the creation, reclassification or authorization
of any class or series of the Corporation's capital stock ranking prior to the
Series D Preferred Stock as to dividends or as to distributions of assets upon
liquidation, dissolution or winding-up of the Corporation, whether voluntary or
involuntary, or any security convertible into shares of such class or series.
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10. Notices. The Corporation shall provide notice to each Holder of any
action taken or proposed to be taken or any determination made by the
Corporation and/or the Shareholder under the terms of this Certificate of
Designations. Notice of any such action or determination by the Corporation
and/or the Shareholder and all other notices and other communications provided
for in this Certificate of Designations shall be delivered by facsimile and by
reputable overnight courier,
(a) if to the Corporation, to:
ONEOK, Inc.
100 West Fifth Street
Tulsa, Oklahoma 74103
Facsimile: (918) 588-7971
Attn: Chief Executive Officer
with a copy to:
ONEOK, Inc.
100 West Fifth Street
Tulsa, Oklahoma 74103
Facsimile: (918) 588-7971
Attn: General Counsel
or such other address as the Corporation shall have furnished to the Holders in
writing,
(b) if to a Holder and/or the Shareholder, to the address and facsimile
number of such Holder listed on the Stock Books of the Corporation.
11. Definitions. Certain capitalized terms are used herein as defined
below:
"Affiliate" shall mean, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries controls or is
controlled by or is under common control with such Person. For the purposes of
this definition, "control," when used with respect to any particular Person,
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Beneficial Owner" (and, with correlative meanings, "Beneficially Own" and
"Beneficial Ownership") of any interest means a Person who, together with his,
her or its Affiliates, is or may be deemed a beneficial owner of such interest
for purposes of Rule 13d-3 or 13d-5 under the Securities Exchange Act of 1934,
as amended, or who, together with his, her,
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or its Affiliates, has the right to become such a beneficial owner of such
interest (whether such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or understanding, or
upon the exercise, conversion or exchange of any warrant, right or other
instrument, or otherwise.
"Board" shall mean the Board of Directors of the Corporation in office at
the applicable time, as elected in accordance with the By-Laws of the
Corporation and with the Shareholder Agreement.
"Business Day" means any day other than a Saturday, a Sunday, a day on
which the New York Stock Exchange is closed or a day on which state or federally
chartered banking institutions in New York, New York are not required to be
open.
"By-Laws" shall mean the By-Laws of the Corporation, as they may be amended
from time to time.
"Certificate of Designations" means this Certificate of Designations,
Powers, Preferences and Relative, Participating, Optional or other Rights, and
the Qualifications, Limitations or Restrictions Thereof, creating the Series D
Preferred Stock.
"Certificate of Incorporation" shall mean the Certificate of Incorporation
of the Corporation, as it may be amended from time to time.
"Change in Control" shall mean the occurrence of any one of the following
events:
(1) any Person (other than the Shareholder and/or its Affiliates) becoming
the Beneficial Owner, directly or indirectly, 35% or more of the
Securities entitled to vote generally in the election of directors,
pursuant to the consummation of a merger, consolidation, sale of all
or substantially all of the Corporation's assets, share exchange or
similar form of corporate transaction involving the Corporation or any
of its subsidiaries that requires the approval of the Corporation's
shareholders, whether for such transaction or the issuance of
securities in such transaction; provided, however, that the event
described in this paragraph (1) shall not be deemed to be a Change in
Control if it occurs as the result of any of the following
acquisitions: (A) by any employee benefit plan sponsored or maintained
by the Corporation or any Affiliate, or (B) by any underwriter
temporarily holding Securities pursuant to an offering of such
Securities;
(2) the consummation of a merger, consolidation, sale of all or
substantially all of the Corporation's assets, share exchange or
similar form of corporate transaction involving the Corporation or any
of its subsidiaries that requires the ap-
-13-
proval of the Corporation's shareholders, whether for such transaction
or the issuance of securities in such transaction, unless immediately
following such transaction more than 50 percent of the total voting
power of (x) the corporation resulting from such transaction, or (y)
if applicable, the ultimate parent corporation that directly or
indirectly has Beneficial Ownership of 100 percent of the securities
eligible to elect directors of such resulting corporation, is
represented by Securities entitled to vote generally in the election
of directors that were outstanding immediately prior to such
transaction (or, if applicable, shares into which such Securities were
converted pursuant to such transaction), and such voting power among
the holders of such Securities that were outstanding immediately prior
to such transaction is in substantially the same proportion as the
voting power of such Securities among the holders thereof immediately
prior to such transaction; or
(3) the consummation of a plan of complete liquidation or dissolution of
the Corporation.
"Closing Price" for each Trading Day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system of the New York Stock
Exchange or, if the Common Stock is no longer listed or admitted to trading on
the New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to the principal national securities
exchange on which the Common Stock is then listed or admitted to trading or if
the Common Stock is no longer listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported by
the National Association of Securities Dealers, Inc. Automated Quotations System
or such other system then in use, or, if on any such date the Common Stock is
not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in such
security selected by a majority of the Board or, if on any such date no market
maker is making a market in such security, the fair value as determined in good
faith by a majority of the Board based upon the opinion of an independent
investment banking firm of recognized standing.
"Common Stock" means the Common Stock of ONEOK, Inc.
"Control Share Acquisition Statute" has the meaning specified in Section
3(a) above.
"Corporation" has the meaning specified in the preamble.
"Dividend Payment Date" has the meaning specified in Section 2(b) above.
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"Dividend Period" means the applicable period from (and including) the
Issue Date to the end of the first fiscal quarter after the Issue Date, and each
fiscal quarter thereafter.
"Holder" means a holder of record of a share or shares of Series D
Preferred Stock.
"Issue Date" has the meaning specified in Section 2(a) above.
"Liquidation Preference" has the meaning specified in Section 7 above.
The "Market Price" for the Common Stock shall mean the average of the
Closing Prices for such Common Stock for the twenty (20) Trading Days
immediately prior to the date on which the Market Price is being determined;
provided, however, that in the event that the current per share market price of
the Common Stock is determined during a period following the announcement by the
Corporation of (a) a dividend or distribution on the Common Stock payable in
shares of Common Stock or securities convertible into Common Stock or (b) any
subdivision, combination or reclassification of the Common Stock and prior to
the expiration of 20 Trading Days after the ex-dividend date for such dividend
or distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the current per share market
price shall be appropriately adjusted to take into account ex-dividend trading
or the effects of such subdivision, combination or reclassification.
"Parent" means Westar Energy, Inc., a Kansas corporation.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization, government or any agency or political
subdivision thereof, or any other entity.
"Redemption Date" has the meaning specified in Section 6.
"Redemption Price" has the meaning specified in Section 5.
"Securities" shall mean any securities of the Corporation.
"Series D Preferred Stock" has the meaning specified in Section 1 above.
"Shareholder" means Westar Industries, Inc., a Delaware corporation.
"Shareholder Agreement" means the Shareholder Agreement, dated as of
January , 2003 among ONEOK, Parent and the Shareholder.
"Shareholder Group" shall mean Parent, the Shareholder, any Affiliate of
the Shareholder and any Person with whom any Shareholder or any Affiliate of any
Shareholder is part of a 13D Group.
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"Special Dividend" means a dividend declared or paid on the Common Stock in
respect of a recapitalization, spin-off, reorganization or other extraordinary
transaction of the Corporation.
"Stock Books" means the stock transfer books of the Corporation relating to
its Common Stock and Preferred Stock.
"Subsidiary" shall mean, with respect to any corporation (the "ultimate
parent") any other corporation, association, or other business entity of which
more than 50% of the shares of the voting stock are owned or controlled,
directly or indirectly, by the ultimate parent or one or more Subsidiaries of
the ultimate parent, or by the ultimate parent and one or more of its
Subsidiaries.
"Surrender Date" has the meaning specified in Section 8(b)(ii) above.
"Trading Day" shall mean a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading is open for
the transaction of business.
"Transfer" shall mean any sale, transfer, pledge, encumbrance or other
disposition to any Person.
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IN WITNESS WHEREOF, ONEOK, INC. has caused this Certificate of Designations
to be made under the seal of the Corporation and signed and attested by the
undersigned officers of the Corporation this 3rd day of February, 2003.
ONEOK, INC.
By: /s/ David L. Kyle
-----------------------------------
Name: David L. Kyle
Title: Chairman, President and
Chief Executive Officer
(Corporate Seal)
Attest:
By: /s/ Eric Grimshaw
-----------------------------------------------
Name: Eric Grimshaw
Title: Vice President and Corporate Secretary
-17-
EXHIBIT 12
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made as of February 5,
2003, by and among ONEOK, INC., an Oklahoma corporation (the "Company"), WESTAR
ENERGY, INC., a Kansas corporation ("Parent") and WESTAR INDUSTRIES, INC., a
Delaware corporation and a wholly-owned direct subsidiary of Parent (the
"Shareholder").
W I T N E S S E T H:
WHEREAS, the Company, Parent and Shareholder previously entered into that
certain Transaction Agreement dated as of January 9, 2003 (the "Transaction
Agreement"), pursuant to which the Company recently conducted a public offering
(the "Offering") of shares of its common stock, $0.01 per share (the "Common
Stock") and certain other securities;
WHEREAS, pursuant to the Transaction Agreement, the Company agreed to use a
portion of the proceeds of the Offering to repurchase from the Shareholder a
portion of the Series A Preferred Stock, par value $0.01 per share, of the
Company (the "Series A Preferred Stock");
WHEREAS, the Offering was more successful, and generated a greater amount
of proceeds, than was originally contemplated by the parties, and the parties
desire for the Company to use a portion of such additional proceeds to
repurchase additional shares of the Series A Preferred Stock from the
Shareholder;
WHEREAS, the Kansas Corporation Commission ("KCC") has previously ordered
the Parent and the Shareholder to sell some of their non-utility assets in an
effort to reduce the debt of the Parent and the Shareholder;
WHEREAS, the repurchase of additional shares of Series A Preferred Stock by
the Company will assist the Parent and the Shareholder in complying with the
KCC's orders and allow Parent and Shareholder to repay indebtedness as ordered
by the KCC; and
WHEREAS, the parties intend to accomplish such additional repurchase on
substantially the same terms and conditions as those described in the
Transaction Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
THE ADDITIONAL REPURCHASE
The Company hereby repurchases (the "Additional Repurchase") from the
Shareholder, and the Shareholder hereby sells to the Company, 3,012,919 shares
of the Company's Series A Preferred Stock (the "Additional Repurchase Shares")
for an aggregate purchase price of $50,000,000 (the "Purchase Price"), all on
the same economic terms and conditions as provided in the Transaction Agreement
and as specified in the Closing Statement agreed to by the parties and delivered
concurrently herewith. The Shareholder hereby acknowledges receipt by wire
transfer of cash in the amount of the Purchase Price, and the Company hereby
acknowledges receipt from the Shareholder of a certificate representing the
Additional Repurchase Shares accompanied by duly executed stock powers assigning
the Additional Repurchase Shares in blank.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Company. The Company
represents and warrants to the Shareholder as of the date hereof as follows:
(a) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Oklahoma and
has all necessary corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by the Company
and all necessary and appropriate action has been taken by the Company to
execute and deliver this Agreement and to perform its obligations
hereunder.
(c) This Agreement has been duly executed and delivered by the Company
and assuming due authorization and valid execution and delivery by Parent
and the Shareholder, this Agreement is a valid and binding obligation of
the Company, enforceable in accordance with its terms.
(d) Other than any consents that have already been obtained, no
consent, waiver, approval, authorization, exemption, registration, license
or declaration is required to be made or obtained by the Company in
connection with the (i) execution,
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delivery or performance of this Agreement or (ii) the consummation of any
of the transactions contemplated by this Agreement.
(e) The execution and delivery by the Company of this Agreement and
the performance of its obligations hereunder does not and will not (i)
conflict with, or result in the breach of any provision of the constitutive
documents of the Company; (ii) result in any violation, breach, conflict,
default or event of default (or an event which with notice, lapse of time,
or both, would constitute a default or event of default), or give rise to
any right of acceleration or termination or any additional payment
obligation, under the terms of any material contract, agreement or permit
to which the Company is a party or by which the Company's assets or
operations are bound or affected; or (iii) violate, in any material
respect, any federal, state, local or foreign law, statute, ordinance,
rule, regulation, judgment, injunction, order or decree ("Law") applicable
to the Company.
Section 2.2. Representations and Warranties of the Parent and the
Shareholder. Each of Parent and the Shareholder represents and warrants to the
Company as of the date hereof as follows:
(a) Each of Parent and the Shareholder has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its
state of incorporation and has all necessary corporate power and authority
to enter into this Agreement and to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by each of
Parent and the Shareholder and all necessary and appropriate action has
been taken by each of Parent and the Shareholder to execute and deliver
this Agreement and to perform its obligations hereunder.
(c) This Agreement has been duly executed and delivered by each of
Parent and the Shareholder and assuming due authorization and valid
execution and delivery by the Company, this Agreement is a valid and
binding obligation of each of Parent and the Shareholder, enforceable in
accordance with its terms.
(d) Other than any consents that have already been obtained, no
consent, waiver, approval, authorization, exception, registration, license
or declaration, including any additional consents or approvals of the KCC,
is required to be made or obtained by either Parent or the Shareholder in
connection with (i) the execution, delivery or performance of this
Agreement or (ii) the consummation of any of the transactions contemplated
by this Agreement.
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(e) The execution and delivery by Parent and the Shareholder of this
Agreement and the performance of its obligations hereunder does not and
will not (i) conflict with, or result in the breach of any provision of the
constitutive documents of either Parent or the Shareholder; (ii) result in
any violation, breach, conflict, default or event of default (or an event
which with notice, lapse of time, or both, would constitute a default or
event of default), or give rise to any right of acceleration or termination
or any additional payment obligation, under the terms of any material
contract, agreement or permit to which either Parent or the Shareholder is
a party or by which either Parent or the Shareholder's assets or operations
are bound or affected; (iii) violate, in any material respect, any Law
applicable to either Parent or the Shareholder; or (iv) violate any order
of the KCC.
(f) Upon consummation of the Additional Repurchase, the Company will
have valid and marketable title to the Additional Repurchase Shares, free
and clear of all title defects, security interests, liens or encumbrances
of any nature whatsoever.
ARTICLE III
MISCELLANEOUS
Section 3.1. Successors and Assigns. This Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the Company, on the
one hand, and by Parent and the Shareholder, on the other hand, and their
respective successors and permitted assigns, and no such term or provision is
for the benefit of, or intended to create any obligations to, any other Person.
Section 3.2. Notices. Except as otherwise provided in this Agreement, all
notices, requests, claims, demands, waivers and other communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
by hand, when delivered personally or by courier, three days after being
deposited in the mail (registered or certified mail, postage prepaid, return
receipt requested), or when received by facsimile transmission if promptly
confirmed by one of the foregoing means, as follows:
If to the Company:
ONEOK, Inc.
100 W. Fifth Street
Tulsa, Oklahoma
Attention: Chief Executive Officer
Fax: (918) 588-7961
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with a copy to:
ONEOK, Inc.
100 W. Fifth Street
Tulsa, Oklahoma
Attention: General Counsel
Fax: (918) 588-7971
If to Parent:
Westar Energy, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Attention: President
Fax: (785) 575-8061
with a copy to:
Westar Energy, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Attention: Corporate Secretary
Fax: (785) 575-1936
If to the Shareholder:
Westar Industries, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Attention: President
Fax: (785) 575-8061
with a copy to:
Westar Industries, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Attention: Corporate Secretary
Fax: (785) 575-1936
or to such other address or facsimile number as either party may, from time to
time, designate in a written notice given in a like manner.
-5-
Section 3.3. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF OKLAHOMA WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 3.4. Headings. The descriptive headings of the several sections in
this Agreement are for convenience only and do not constitute a part of this
Agreement and shall not be deemed to limit or affect in any way the meaning or
interpretation of this Agreement.
Section 3.5. Integration. This Agreement and the other writings referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter. There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings with respect to its
subject matter other than those expressly set forth or referred to herein.
Section 3.6. Severability. If any term or provision of this Agreement or
any application thereof shall be declared or held invalid, illegal or
unenforceable, in whole or in part, whether generally or in any particular
jurisdiction, such provision shall be deemed amended to the extent, but only to
the extent, necessary to cure such invalidity, illegality or unenforceability,
and the validity, legality and enforceability of the remaining provisions, both
generally and in every other jurisdiction, shall not in any way be affected or
impaired thereby.
Section 3.7. Consent to Jurisdiction. In connection with any suit, claim,
action or proceeding arising out of this Agreement, Parent, the Shareholder and
the Company each hereby consent to the in personam jurisdiction of the United
States federal courts and state courts located in Tulsa, Oklahoma; the
Shareholder and the Company each agree that service in the manner set forth in
Section 3.2 hereof shall be valid and sufficient for all purposes; and the
Shareholder and the Company each agree to, and irrevocably waive any objection
based on forum non conveniens or venue, appear in any United States federal
court state court located in Tulsa, Oklahoma.
Section 3.8. Counterparts. This Agreement may be executed by the parties
hereto in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company, Parent and the Shareholder have caused
this Agreement to be duly executed by their respective authorized officers as of
the date set forth at the head of this Agreement.
ONEOK, INC.
By: /s/ David L. Kyle
------------------------------------------
Name: David L. Kyle
Title: Chairman, Chief Executive Officer
and President
WESTAR ENERGY, INC.
By: /s/ James S. Haines, Jr.
------------------------------------------
Name: James S. Haines, Jr.
Title: Chief Executive Officer and
President
WESTAR INDUSTRIES, INC.
By: /s/ James S. Haines, Jr.
------------------------------------------
Name: James S. Haines, Jr.
Title: Chief Executive Officer and
President
-7-
