Exhibit 1(d)
EMPIRE DISTRICT ELECTRIC COMPANY
PREFERENCE STOCK
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
The Empire District Electric Company
Form of Purchase Agreement
Preference Stock
------------------------
(Date)
The Empire District Electric Company
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We refer to the Preference Stock, no par value, of The Empire District
Electric Company (the "Company"), a Kansas corporation, covered by Registration
Statement No. 333-________, which became effective on _________________ (the
"Registration Statement"). On the basis of the representations, warranties and
agreements contained in this Agreement, but subject to the terms and conditions
herein set forth, the purchaser or purchasers named in Schedule A hereto (the
"Purchasers") agree to purchase, severally, and the Company agrees to sell to
the Purchasers, severally, the respective numbers of shares of the Company's
Preference Stock referred to below (the "Firm Preference Stock") set forth
opposite the name of each Purchaser on Schedule A hereto. The Company also
grants to the Purchasers an option to purchase _______ additional shares of the
Company's Preference Stock (the "Additional Preference Stock") on the terms and
conditions contained in this Agreement for the sole purpose of covering
over-allotments. The Firm Preference Stock and the Additional Preference Stock
are collectively referred to as the "Purchased Preference Stock."
The price at which the Purchased Preference Stock shall be purchased from
the Company by the Purchasers shall be $______ per share. The initial public
offering price shall be $______ per share. The Purchased Preference Stock will
be offered as set forth in the Prospectus Supplement relating to such Purchased
Preference Stock.
The Purchased Preference Stock will have the following terms:
Title: ___________________
Liquidation Amount at Maturity: ___________________
Dividend Rate: ___________________
Dividend Payment Dates: ___________________
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Maturity: ___________________
Redemption Provisions: ___________________
Listing: ___________________
The "Closing Date" (as
defined in Section 2
of the Company's
Standard Purchase
Provisions -- Preference
Stock) shall be: ___________________
The closing of the
purchase and sale of
the Purchased Preference
Stock shall take place at: ___________________
The purchase price for
the Purchased Preference
Stock shall be paid by: ___________________
The funds used to pay
for the Purchased Preference
Stock shall be: ___________________
Other: ___________________
Notice to the Purchasers shall be sent to the addresses set forth in
Schedule A hereto:
If we are acting as Representative(s) for the several Purchasers named in
Schedule A hereto, we represent that we are authorized to act for such several
Purchasers in connection with this financing, and that, if there are more than
one of us, any action under this Agreement taken by any of us will be binding
upon all the Purchasers.
All of the provisions contained in the document entitled "The Empire
District Electric Company, Standard Purchase Provisions--Preference Stock," a
copy of which has been previously furnished to us (the "standard Purchase
Provisions"), are hereby incorporated by reference in their entirety and shall
be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein.
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If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the several Purchasers in
accordance with its terms.
Very truly yours,
[NAME OF PURCHASER]
By:
-----------------------------------
Name:
Title:
Acting on behalf of itself and as
Representative(s) of the several
Purchasers named in
Schedule A hereto.(1)
The foregoing Purchase
Agreement is hereby confirmed
as of the date first above written
THE EMPIRE DISTRICT ELECTRIC COMPANY
By: _______________________________
Name:
Title:
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(1) To be deleted if the Purchase Agreement is not executed by one or more
Purchasers acting as Representative(s) of the Purchasers for purposes of
this Agreement.
SCHEDULE A TO PURCHASE AGREEMENT
Number of Shares of
Address and Firm Preference Stock
Name Telecopier Number to Be Purchased
---- ----------------- ---------------
----------------
Total
================
THE EMPIRE DISTRICT ELECTRIC COMPANY
STANDARD PURCHASE PROVISIONS - PREFERENCE STOCK
From time to time, The Empire District Electric Company, a Kansas
corporation ("Company"), may enter into purchase agreements that provide for the
sale of shares of the Company's preference stock to the purchaser or purchasers
named therein. The standard provisions set forth herein may be incorporated by
reference in any such purchase agreement ("Purchase Agreement"). The Purchase
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as "this Agreement." Unless otherwise defined herein,
terms defined in the Purchase Agreement are used herein as therein defined.
1. Introductory. The Company proposes to issue and sell, from time to time,
preference stock, no par value, registered under the registration statement
referred to in Section 3(a) ("Preference Stock"). The shares of Preference Stock
referred to on Schedule A of the Purchase Agreement are hereinafter referred to
as the "Firm Preference Stock." The Purchase Agreement may provide for an
additional number of shares of Preference Stock (the "Additional Preference
Stock") which the purchasers may purchase on the terms and conditions set forth
in this Agreement for the sole purpose of covering over-allotments. The Firm
Preference Stock and the Additional Preference Stock, if any, are collectively
referred to as the "Purchased Preference Stock." The firm or firms, as the case
may be, which agree to purchase the Purchased Preference Stock are hereinafter
referred to as the "Purchasers" of such Purchased Preference Stock. The terms
"you" and "your" refer to those Purchasers (or the Purchaser) who sign the
Purchase Agreement either on behalf of themselves (or itself) only or on behalf
of the several Purchasers named in Schedule A thereto, as the case may be.
2. Sale and Delivery of Preference Stock. Subject to the terms and
conditions set forth in this Agreement, the Company will deliver the Firm
Preference Stock to you for the account of the Purchasers, at the place set
forth in the Purchase Agreement against payment of the purchase price therefor
by wire transfer or certified or official bank check or checks in immediately
available funds or clearing house funds payable to the order of the Company, all
as set forth in the Purchase Agreement, at the time set forth in the Purchase
Agreement or at such other time not later than seven full business days
thereafter as you and the Company determine, such time being herein referred to
as the "Closing Date." The Company agrees to make available to you for
inspection and packaging at the place set forth in the Purchase Agreement, at
least one full business day prior to the Closing Date, the Firm Preference Stock
so to be delivered in good delivery form and in such denominations and
registered in such names as you shall have requested, all such requests to have
been made in writing at least three full business days prior to the Closing
Date, or if no such request is made, registered in the names of the several
Purchasers as set forth in Schedule A to the Purchase Agreement.
The Closing Date and the Additional Closing Date may be the same. If there
is any Additional Preference Stock, the Purchasers shall have the option to
purchase, severally and not jointly, from the Company, ratably in accordance
with the number of shares of Firm Preference Stock to be purchased by each of
them (subject to such adjustment as you shall determine to avoid fractional
shares), all or a portion of the Additional Preference Stock, if any, as may be
necessary to cover over-
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allotments made in connection with the offering of the Firm Preference Stock, at
the same purchase price per share to be paid by the Purchasers to the Company
for the Firm Preference Stock, all subject to the terms and conditions set forth
in this Agreement. This option may be exercised at any time (but not more than
once) on or before the thirtieth day following the date hereof, by your written
notice to the Company. Such notice shall set forth the aggregate number of
shares of Additional Preference Stock as to which the option is being exercised,
and the date and time when the Additional Preference Stock is to be delivered
(such date and time being herein referred to as the "Additional Closing Date");
provided, however, that the Additional Closing Date shall not be earlier than
the Closing Date nor earlier than the third business day after the date on which
the option shall have been exercised nor later than the eighth business day
after the date on which the option shall have been exercised. The number of
shares of Additional Preference Stock to be sold to each Purchaser shall be the
number which bears the same proportion to the aggregate number of shares of
Additional Preference Stock being purchased as the number of shares of Firm
Preference Stock set forth opposite the name of such Purchaser on Schedule A to
the Purchase Agreement bears to the total number of shares of Firm Preference
Stock (subject, in each case, to such adjustment as you may determine to
eliminate fractional shares).
Payment of the purchase price for the Additional Preference Stock, if any,
shall be made on the Additional Closing Date in the same manner and at the same
office as the payment for the Firm Preference Stock. The Company agrees to make
available to you for inspection and packaging at the place set forth in the
Purchase Agreement, at least one full business day prior to the Additional
Closing Date, the Additional Preference Stock so to be delivered in good
delivery form and in such denominations and registered in such names as you
shall have requested, all such requests to have been made in writing at least
three full business days prior to the Additional Closing Date, or if no such
request is made, registered in the names of the several Purchasers as set forth
in Schedule A to the Purchase Agreement.
If the Additional Closing Date occurs after the Closing Date, then the
obligation of the Purchasers to purchase the Additional Preference Stock shall
be conditioned upon receipt of supplemental opinions, certificates and letters
confirming as of the Additional Closing Date the opinions, certificates and
letters delivered on the Closing Date pursuant to Section 6 hereof.
3. Representations and Warranties of the Company. The Company represents
and warrants to each Purchaser that:
(a) The registration statement referred to in the Purchase Agreement
and relating to the Preference Stock, including a prospectus and all
documents incorporated by reference therein, has been filed on Form S-3
with the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, including the prospectus supplement
with respect to the Purchased Preference Stock referred to in Section 2
(the "Prospectus Supplement") and all prior amendments and supplements
thereto (other than supplements and amendments relating to securities that
are not Purchased Preference Stock) and all documents filed as a part
thereof or incorporated therein pursuant to Item 12 of Form S-3 (other than
the Statements of Eligibility and Qualification of trustees filed as a part
thereof (the "Forms T-1")), is hereinafter referred to as the "Registration
Statement" and such
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prospectus, as so amended or supplemented (including all material so
incorporated by reference therein), in the form first filed by the Company
pursuant to Rule 424(b) under the Act is hereinafter referred to as the
"Prospectus."
(b) The Registration Statement and the Prospectus conform in all
respects to the requirements of the Securities Act of 1933, as amended
("Act"), and the pertinent published rules and regulations ("Rules and
Regulations") of the Commission, and none of such documents includes any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements or
omissions in either of such documents based upon written information
furnished to the Company by any Purchaser specifically for use therein. The
documents incorporated by reference in the Registration Statement or the
Prospectus pursuant to Item 12 of Form S-3 under the Act, at the time they
were filed with the Commission, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the pertinent published rules and regulations
thereunder (the "Exchange Act Rules and Regulations") and any additional
documents deemed to be incorporated by reference in the Prospectus will,
when they are filed with the Commission, comply in all material respects
with the requirements of the Exchange Act and the Exchange Act Rules and
Regulations and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
(c) The Company has an authorized capitalization as set forth in the
Prospectus.
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Kansas, with
full corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement and the
Prospectus.
(e) The Company is duly qualified to do business as a foreign
corporation and in good standing in each jurisdiction where the ownership
or leasing of its properties or the conduct of its businesses requires such
qualification, except where the failure to so qualify would not reasonably
be expected to have a material adverse effect on the business, properties,
financial condition or results of operation of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect"). The Company
has no "significant subsidiary," as such term is defined in Rule 405 of the
Rules and Regulations.
(f) The Company (1) is not in violation of its charter or by-laws, (2)
is not in default in any material respect, and no event has occurred which,
with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject
and (3) is not in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its
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property or assets may be subject and has not failed to obtain any material
license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of
its business, except, in the case of clause (2) or (3) above, for any such
default, violation or failure that would not reasonably be expected to
result in a Material Adverse Effect.
(g) The execution, delivery and performance of this Agreement and the
issuance of the Purchased Preference Stock and consummation of the
transactions contemplated hereby will not conflict with, or result in any
breach of or constitute a default under (nor constitute any event which
with notice, lapse of time, or both would result in any breach of, or
constitute a default under), any provisions of the charter or by-laws of
the Company or under any provision of any license, indenture, mortgage,
deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or instrument to
which the Company is a party or by which it or its respective properties
may be bound or affected, or under any federal, state, local or foreign
law, regulation or rule or any decree, judgment or order applicable to the
Company, except for any such conflict, breach or default which would not
reasonably be expected to result in a Material Adverse Effect.
(h) The Purchased Preference Stock has been duly authorized by the
Company and when issued and delivered by the Company against payment
therefor in accordance with the Agreement will constitute legal, valid and
binding obligations of the Company enforceable in accordance with their
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and general principles of equity.
(i) This Agreement has been duly authorized, executed and delivered by
the Company.
(j) The Purchased Preference Stock conforms in all material respects
to the descriptions thereof contained in the Registration Statement and
Prospectus.
(k) The Company has obtained or made all approvals, authorizations,
consents or orders of or filings with any national, state or local
governmental or regulatory commission, board, body, authority or agency
required in connection with the issuance and sale of the Purchased
Preference Stock or the consummation by the Company of the transactions as
contemplated hereby other than any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the
Purchased Preference Stock is being offered by the Purchasers.
(l) There are no actions, suits, claims, investigations or proceedings
pending or threatened to which the Company or any of its officers is a
party or of which any of its properties is subject, at law, in equity, or
before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency which would
reasonably be expected to result in a Material Adverse Effect or prevent
consummation of the transactions contemplated hereby.
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(m) The audited financial statements included in the Registration
Statement and the Prospectus present fairly in all material respects the
consolidated financial position of the Company as of the dates indicated
and the consolidated results of operations and cash flows of the Company
for the periods specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved, except as otherwise set forth
therein. The interim unaudited financial statements included in the
Registration Statement and the Prospectus present fairly in all material
respects the consolidated financial position of the Company as of the dates
indicated and the consolidated results of operations and cash flows of the
Company for the periods specified subject to year-end adjustments; such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis during the
periods involved, except as otherwise set forth therein.
(n) The accountants who certified the audited financial statements of
the Company and supporting schedules and notes thereto incorporated by
reference in the Prospectus are an independent registered public accounting
firm with respect to the Company within the meaning of the Act and the
applicable rules and regulations thereunder adopted by the Commission and
the Public Company Accounting Oversight Board (the "PCAOB").
(o) The Company is not, and, as of the Closing Date after giving
effect to the application of the net proceeds as described in the
Prospectus, will not be, an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(p) The Company, and its directors and officers in their capacity as
such, have each complied, and currently are in compliance, in all material
respects with the Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations
of the Commission and the New York Stock Exchange issued or adopted in
connection therewith.
(q) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of
its subsidiaries (or, to the actual knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or its subsidiaries in violation
of any applicable law, ordinance, rule, regulation, order, judgment, decree
or permit or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except for
any violation or remedial action which would not reasonably be expected to
have, singularly or in the aggregate with all such violations and remedial
actions, a Material Adverse Effect; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such property
of any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or any of its
subsidiaries or with respect to which the Company or any of its
subsidiaries have actual knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would not
reasonably be expected to have, singularly or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes, dumpings
and releases, a Material Adverse Effect; and
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the terms "hazardous wastes," "toxic wastes," "hazardous substances" and
"medical wastes" shall have the meanings specified in any applicable local,
state, federal and foreign laws or regulations with respect to
environmental protection.
(r) The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act) and (i) such disclosure controls and procedures are designed
to ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company's Chief Executive
Officer and its Chief Financial Officer by others within those entities;
(ii) such disclosure controls and procedures are effective to perform the
functions for which they were established; and (iii) since the date of the
most recent evaluation there have been no changes in the Company's internal
control over financial reporting that have materially affected, or are
reasonably likely to materially affect the Company's internal control over
financial reporting. Based on the most recent evaluation of internal
control over financial reporting, the Company's auditors and the Audit
Committee of the Board of Directors have been advised of: (i) all
significant deficiencies and material weaknesses in the design or operation
of internal control over financial reporting which are reasonably likely to
adversely affect the Company's ability to record, process, summarize, and
report financial information; and (ii) any fraud, whether or not material,
that involves management or other employees who have a significant role in
the Company's internal control over financial reporting.
(s) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, as supplemented or
amended, there has been no material adverse change in the financial
position or results of operations of the Company.
(t) The Company maintains insurance covering its properties,
operations, personnel and businesses as the Company deems adequate; such
insurance insures against such losses and risks to an extent which is
adequate, in the good faith judgment of management, to protect the Company
and its business.
(u) Any statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and the
Company has obtained the written consent to the use of such data from such
sources to the extent required.
4. Agreements of the Company. The Company agrees with the several
Purchasers that:
(a) The Company will advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus with respect to any
Purchased Preference Stock, and will furnish you a copy thereof prior to
the filing thereof with the Commission.
(b) The Company will furnish to you copies of the registration
statement relating to the Preference Stock as originally filed and all
amendments thereto (at least one of which
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will be signed and will include all exhibits except those incorporated by
reference to previous filings with the Commission), each related
prospectus, the Prospectus, and all amendments and supplements to such
documents (except amendments to exhibits and supplements relating to
Preference Stock that is not Purchased Preference Stock), in each case as
soon as available and in such quantities as you reasonably request for the
purposes contemplated by the Act.
(c) If at any time when a prospectus relating to the Purchased
Preference Stock is required to be delivered under the Act or the Rules and
Regulations, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which made, not misleading, or
if it is necessary at any time to amend or supplement the Prospectus to
comply with the Act or the Rules and Regulations, the Company will promptly
notify the Purchasers and promptly prepare and file with the Commission an
amendment or supplement to the Registration Statement or any appropriate
filing pursuant to Section 13 or 14 of the Exchange Act which will correct
such statement or omission or an amendment which will effect such
compliance, and deliver in connection therewith, such Prospectus or
amendments or supplements to the Purchasers in such quantity as may be
necessary to permit compliance with the requirements of the Act and the
Rules and Regulations, provided that the Company shall be so obligated only
so long as the Company is notified of unsold allotments (failure by the
Purchasers to so notify the Company cancels the Company's obligation under
this Section 4(c)), and provided further that any such Prospectus or
amendment or supplement required later than nine months from the date
hereof shall be furnished at the Purchasers' sole expense.
(d) The Company will cooperate with the Purchasers in taking such
action as may be necessary to qualify the Purchased Preference Stock for
offering and sale under the securities laws of any state or jurisdiction of
the United States as the Purchasers may reasonably request and will use its
best efforts to continue such qualification in effect so long as required
for the distribution of the Purchased Preference Stock; provided, however,
that the Company shall not be required to qualify as a foreign corporation,
or to file a general consent to service of process, in any such state or
jurisdiction or to comply with any other requirement deemed by the Company
to be unduly burdensome.
(e) The Company will make generally available to its security holders
as soon as practicable an earning statement (as contemplated by Rule 158
under the Act) covering a period of twelve months after the effective date
of the Registration Statement.
(f) For a period of one year, the Company will furnish to you copies
of any report or definitive proxy statement which the Company shall file
with the Commission under the Exchange Act, and copies of all reports and
communications which shall be sent to stockholders generally, at or about
the time such reports and other information are first furnished to
stockholders generally. For purposes of this clause (f), any information
filed by the Company on the Commission's XXXXX system will be deemed
furnished to you in satisfaction of this clause (f).
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(g) The Company will apply the net proceeds from the offering of the
Purchased Preference Stock as set forth under the caption "Use of Proceeds"
in the Prospectus Supplement.
(h) If a public offering of the Purchased Preference Stock is to be
made, the Company will not offer or sell any of its other Preference Stock
(other than pursuant to any employee benefit or other plan in effect on the
date of this Agreement) prior to 120 days after the Closing Date without
the consent of the Purchasers.
(i) The Company will advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of the Prospectus, of the suspension
of the qualification of the Purchased Preference Stock for offering or sale
in any jurisdiction or of the initiation or threatening of any proceeding
for any such purpose; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of the Prospectus or
suspending any such qualification, promptly to use its reasonable best
efforts to obtain the prompt withdrawal of such order.
5. Expenses. The Company and the Purchasers agree as follows:
(a) The Company, whether or not the transactions contemplated
hereunder are consummated, will (except as provided in Section 4(c) hereof)
pay all costs and expenses incident to the performance of its obligations
hereunder, including without limitation, all costs and expenses in
connection with: (i) the preparation and filing of the Registration
Statement and Prospectus and any supplements or amendments thereto; (ii)
the preparation, issuance and delivery to the Purchasers of the Purchased
Preference Stock (other than transfer taxes); (iii) the listing of the
Purchased Preference Stock on the New York Stock Exchange; (iv) the
reproduction or printing and mailing in reasonable quantities of the
Registration Statement and amendments thereto, each preliminary prospectus,
the Prospectus and any amendments or supplements thereto, this Agreement,
any Blue Sky memoranda delivered to the Purchasers; (v) reasonable filing
fees and expenses (including legal fees and disbursements, not in excess of
$5,000) incurred in connection with the qualification of the Purchased
Preference Stock under the Blue Sky or securities laws of the various
states, and the preparation of Blue Sky memoranda for the offering; (vi)
the fees and expenses of the transfer agent and registrar for the Purchased
Preference Stock; (vii) the fees and expenses of the accountants and the
counsel for the Company; and (viii) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
(b) The Purchasers will pay (i) the fees and disbursements of their
respective counsel, except as set forth in Section 5(a) and in Section
9(c), and (ii) their own out-of-pocket expenditures.
6. Conditions of the Purchasers' Obligations with Respect to Firm
Preference Stock. The obligations of the Purchasers to purchase and pay for the
Firm Preference Stock shall be subject in their discretion to the accuracy of
and compliance in all material respects with the
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representations and the warranties of the Company herein contained as of the
date hereof and the Closing Date, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Act or proceedings therefor
initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of
Xxxxxxxx & Xxxx, Kansas counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Kansas, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) The Purchased Preference Stock has been duly authorized,
and, when issued and delivered to and paid for by the Purchasers
pursuant to this Agreement, will be fully paid and non-assessable; and
the Purchased Preference Stock conforms as to legal matters in all
material respects to the descriptions thereof contained in or
incorporated by reference into the Prospectus;
(iii) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Preference Stock have been obtained; any conditions
in such approvals required to be satisfied prior to the issuance of
the Purchased Preference Stock have been duly satisfied; such
approvals are in full force and effect; and no further approval,
authorization, consent or other order of any public board or body in
the State of Kansas is legally required for the issuance, sale and
delivery of the Purchased Preference Stock or the execution, delivery
and performance by the Company of this Agreement (it being understood
that such counsel need express no opinion as to any approvals which
may be required under the securities acts or Blue Sky laws of said
state);
(iv) Neither the issuance, sale and delivery of the Purchased
Preference Stock nor the execution, delivery and performance by the
Company of this Agreement will conflict with, violate or result in a
breach of any Kansas law or administrative regulation, or any court
decree known to such counsel, applicable to the Company (it being
understood that such counsel need express no opinion as to any
approvals which may be required under the securities acts or Blue Sky
laws of said state); and
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
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(c) You shall have received an opinion, dated the Closing Date, of
Xxxxxxx, Xxxxx & Xxxxx, P.C., Missouri counsel for the Company, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Kansas, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in the States of Arkansas, Missouri and
Oklahoma, which are the only jurisdictions (other than Kansas) in
which it owns or leases substantial properties or in which the conduct
of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises
which are necessary to authorize it to carry on the utility businesses
in which it is engaged as described in the Prospectus;
(iii) Neither the issuance, sale and delivery of the Purchased
Preference Stock nor the execution, delivery and performance by the
Company of this Agreement will conflict with, violate or result in the
breach of any Missouri law or administrative regulation or any court
decree known to such counsel applicable to the Company (it being
understood that such counsel need express no opinion as to matters
subject to the jurisdiction of the Public Service Commission of the
State of Missouri, the Corporation Commission of Oklahoma, the State
Corporation Commission of the State of Kansas or the Arkansas Public
Service Commission or as to the securities or Blue Sky laws of any
jurisdiction), conflict with or result in a breach of any of the
terms, conditions or provisions of the Restated Articles of
Incorporation, as amended, or By-Laws, as amended, of the Company or
of any agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or constitute a
default thereunder, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company;
(iv) Relying as to materiality to a large extent upon the
statements and opinions of representatives of the Company, such
counsel have no reason to believe that either the Registration
Statement or the Prospectus, or any amendment or supplement thereto,
as of their respective effective or issue dates and, with respect to
the Prospectus, also as of the Closing Date, contained any untrue
statement of material fact or omitted to state any material fact
necessary to make the statements therein not misleading; the
descriptions in the Registration Statement and Prospectus of contracts
and other documents are accurate and fairly present the information
therein shown; and such counsel do not know of any legal or
governmental proceedings required to be described in the Prospectus by
Item 103 of Regulation S-K under the Act which are not described as so
required, nor of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus pursuant to
Item 11 of Form S-3 or to be filed as exhibits to the
-11-
Registration Statement pursuant to Item 601 of Regulation S-K which
are not described and filed as so required; it being understood that
such counsel need express no opinion as to the financial statements or
other financial or statistical information contained in the
Registration Statement or the Prospectus;
(v) This Agreement has been duly authorized, executed and
delivered by the Company; and
(vi) Other than disclosed or contemplated by the Registration
Statement and the Prospectus, there are no actions, suits, claims,
investigations or proceedings pending or threatened to which the
Company or any of its officers is a party or of which any of its
properties is subject, at law or in equity, or before or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which would reasonably be
expected to result in a Material Adverse Effect or prevent
consummation of the transactions contemplated hereby.
In rendering such opinion, Xxxxxxx, Xxxxx & Xxxxx, P.C. may rely, as to the
incorporation of the Company and all matters governed by Kansas law, upon
the opinion of Xxxxxxxx & Xxxx referred to in paragraph (b) above and, as
to all matters covered thereby, upon the opinion of Xxxxxx, Xxxxxxxxxx &
England, Professional Corporation, referred to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of
Brydon, Xxxxxxxxxx & England, Professional Corporation, special regulatory
counsel for the Company, to the effect that no approval, authorization,
consent or other order of any public board or body in the State of
Arkansas, Missouri or Oklahoma is legally required for issuance, sale and
delivery of the Purchased Preference Stock or the execution , delivery and
performance by the Company of this Agreement (it being understood that such
counsel need express no opinion as to any approvals which may be required
under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of
Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Company, to the effect that:
(i) The Purchased Preference Stock has been duly authorized and,
when issued and delivered to and paid for by the Purchasers pursuant
to this Agreement, will be fully paid and non-assessable and conform
as to legal matters in all material respects to the description
thereof contained in or incorporated by reference into the Prospectus;
(ii) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Preference Stock have been obtained, and such counsel
knows of no approval of any other governmental regulatory body which
is legally required in connection therewith
-12-
(other than any approvals required under the securities acts or Blue
Sky laws of any jurisdiction);
(iii) The Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel (after
inquiry), no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the
Act, and the Registration Statement and the Prospectus, and each
amendment or supplement thereto (except, in each case, as to the
financial statements or other financial or statistical information
included therein and the Forms T-1, as to which such counsel need not
express an opinion), as of their respective effective or issue dates,
appeared to comply as to form in all material respects with the
requirements of Form S-3, and the applicable Rules and Regulations;
and
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
In rendering such opinion Xxxxxx Xxxxxx & Xxxxxxx LLP may rely, as to the
incorporation of the Company and as to all other matters governed by the
laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered
by their respective opinions, upon the opinions of Xxxxxxxx & Xxxx,
Xxxxxxx, Xxxxx & Xxxxx, P.C. and Xxxxxx, Xxxxxxxxxx & England, Professional
Corporation referred to above.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the independent
accountants of the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus, and any
subsequent amendments or supplements thereto, and related matters were
discussed and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained or incorporated by reference in the Registration
Statement and Prospectus, or any subsequent amendments or supplements
thereto, on the basis of the foregoing (relying as to materiality to a
large extent upon the opinions of officers, counsel and other
representatives of the Company), no facts have come to the attention of
such counsel which lead such counsel to believe that the Registration
Statement, and any subsequent amendments thereto, at the time they became
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and no facts have come to the
attention of such counsel which lead such counsel to believe that the
Prospectus, and any subsequent amendment or supplement thereto, as of its
date and as of the Closing Date, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need make no comment with respect to the
financial statements and other financial and statistical information
included in or incorporated by reference the Registration Statement or
Prospectus or any such amendments or supplements or the Forms T-1).
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(f) You shall have received an opinion, dated the Closing Date, of
Xxxxxxxx Xxxxxx LLP, counsel for the Purchasers, to the effect that:
(i) The Purchased Preference Stock has been duly authorized and,
when issued and delivered to and paid for by the Purchasers pursuant
to this Agreement, will be fully paid and non-assessable and conform
as to legal matters in all material respects to the descriptions
thereof contained in or incorporated by reference into the Prospectus;
(ii) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Preference Stock have been obtained, and such counsel
knows of no approval of any other governmental regulatory body which
is legally required in connection therewith (other than any approvals
required under the securities acts or Blue Sky laws of any
jurisdiction);
(iii) The Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel (after
inquiry), no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the
Act, and the Registration Statement and the Prospectus, and each
amendment or supplement thereto (except, in each case, as to the
financial statements or other financial or statistical information
included or incorporated by reference therein or the Forms T-1, as to
which such counsel need not express an opinion), as of their
respective effective or issue dates, appeared to comply as to form in
all material respects with the requirements of Form S-3, and the
applicable Rules and Regulations; and
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
In rendering such opinion Xxxxxxxx Xxxxxx LLP may rely, as to the
incorporation of the Company and as to all other matters governed by the
laws of the States of Kansas, Arkansas and Oklahoma, and covered by their
respective opinions, upon the opinions of Xxxxxxxx & Xxxx, Xxxxxx,
Xxxxxxxxxx & England, Professional Corporation; and Xxxxxxx, Xxxxx & Xxxxx,
P.C., referred to above. Xxxxxxxx Xxxxxx LLP need not express any opinion
with respect to the matters set forth in paragraphs (i), (ii) and (iii) of
the opinion of Xxxxxxx, Xxxxx & Xxxxx, P.C. referred to above.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the independent
accountants of the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus, and any
subsequent amendments or supplements thereto, and related matters were
discussed and reviewed. Such counsel shall also state that, on the basis of
such participation (relying as to materiality to a large
-14-
extent upon the opinions of officers, counsel and other representatives of
the Company), but without independently verifying, passing upon or assuming
any responsibility for the accuracy, completeness or fairness of the
statements contained or incorporated by reference in the Registration
Statement and Prospectus, or any subsequent amendments or supplements
thereto, no facts have come to the attention of such counsel which lead
such counsel to believe that the Registration Statement, and any subsequent
amendments thereto at the time they became effective, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and no facts have come to the attention of such counsel which
lead such counsel to believe that the Prospectus, and any subsequent
amendment or supplement thereto, as of its date and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need make no
comment with respect to the financial statements and other financial and
statistical information included or incorporated by reference in the
Registration Statement or Prospectus or any such amendments or supplements
or the Forms T-1).
(g) You shall have received a letter or letters from the Company's
independent registered public accounting firm, dated the date of this
Agreement and the Closing Date and addressed to you, confirming that they
are an independent registered public accounting firm with respect to the
Company within the meaning of the Act and the applicable rules and
regulations thereunder adopted by the Commission and the PCAOB, and stating
in effect that:
(i) In their opinion, the consolidated financial statements and
schedule of the Company examined by them which are included in the
Company's most recent Annual Report on Form 10-K, which is
incorporated by reference in the Prospectus (the "Form 10-K") comply
as to form in all material respects with the accounting requirements
of the Act and the Rules and Regulations and the Exchange Act and the
Exchange Act Rules and Regulations;
(ii) On the basis of procedures specified in such letter(s) (but
not an audit in accordance with the standards of the PCAOB),
consisting of reading the minutes of meetings of the stockholders and
the Board of Directors of the Company since the end of the year
covered by the Form 10-K as set forth in the minute books through a
specified date not more than five days prior to the Closing Date,
performing the procedures specified by the PCAOB for a review of
interim financial information as described in SAS 100 "Interim
Financial Information," on the unaudited condensed interim financial
statements of the Company incorporated by reference in the Prospectus
and reading the latest available unaudited interim financial data of
the Company for the period from the latest balance sheet date
incorporated into the Registration Statement to the date of the latest
available interim financial data, and making inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters, nothing has come to their attention that has
caused them to believe that: (1) any material modifications should be
made to any unaudited financial statements incorporated by reference
in the Prospectus for them to be in
-15-
conformity with generally accepted accounting principles; (2) any
unaudited financial statements incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
accounting requirements of the Act and the Rules and Regulations and
the Exchange Act and the Exchange Act Rules and Regulations; (3) the
latest available financial statements, not incorporated by reference
in the Prospectus, have not been prepared on a basis substantially
consistent with that of the audited financial statements incorporated
in the Prospectus; (4) for the period from the closing date of the
latest income statement incorporated by reference in the Prospectus to
the closing date of the latest available income statement read by them
there were any decreases, as compared with the corresponding period of
the previous year, in operating revenues, operating income or net
income; or (5) at a specified date not more than five business days
prior to the date hereof (in the case of the letter delivered on the
date hereof) and at a specified date not more than three business days
prior to the Closing Date (in the case of the letter delivered on the
Closing Date), there was any change in the capital stock or increase
in total debt (including current maturities) of the Company or, at
such date, there was any decrease in net assets of the Company as
compared with amounts shown in the latest balance sheet incorporated
by reference in the Prospectus, except in all cases for changes or
decreases which the Prospectus discloses have occurred or may occur,
or which are described in such letter; and
(iii) Certain specified procedures have been applied to certain
financial information (to the extent such information was obtained
from the general accounting records of the Company) set forth or
incorporated by reference in the Prospectus and that such procedures
have not revealed any disagreement between the financial information
so set forth or incorporated and the underlying general accounting
records of the Company, except as described in such letter.
(h) On the Closing Date there shall have been furnished to you a
certificate, dated the Closing Date, from the Company, signed on behalf of
the Company by the President, or the Vice President -- Finance, stating in
effect that to the best knowledge of the officer signing such certificate
and except as may be reflected in or contemplated by the Registration
Statement or stated in such certificate (i) the representations and
warranties of the Company contained in Section 3 of this Agreement are
correct and the Company has complied with all the agreements and satisfied
all the conditions to be performed or satisfied on its part at or prior to
the Closing Date; (ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending, or, to the knowledge of the signer
thereof, are contemplated under the Act; and (iii) subsequent to the
respective dates as of which information is given in the Registration
Statement and Prospectus, as supplemented or amended, there has been no
material adverse change in the financial position or results of operations
of the Company.
(i) Subsequent to the execution and delivery of this Agreement, (i)
the Company shall not have sustained any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
-16-
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus and (ii) there shall not have been any
change in the capital stock or long-term debt of the Company or any
material change, or any development involving a prospective material
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Prospectus, the effect
of which, in any such case described in clause (i) or (ii), is, in the
judgment of the Purchasers, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Purchased Preference Stock on the terms and in the manner
contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange (the "NYSE") or trading in any
securities of the Company on the NYSE shall have been suspended (other than
in the case of marketwide temporary halts or curbs) or the settlement of
such trading generally shall have been materially disrupted or minimum
prices shall have been established on the NYSE by the Commission, by the
NYSE or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by Federal
or state authorities or a material disruption in securities clearance or
settlement systems, (iii) the United States shall have become engaged in
major hostilities, there shall have been a substantial escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions, including without limitation
as a result of terrorist activities after the date hereof (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Purchasers,
impracticable or inadvisable to proceed with the public offering or the
delivery of the Purchasers' Preference Stock, on the terms and in the
manner contemplated in the Prospectus.
(k) If a public offering of the Purchasers' Preference Stock is to be
made, subsequent to the date of this Agreement and prior to the Closing
Date, no rating of any of the Company's debt securities by any nationally
recognized rating agency shall have been lowered by such agency and,
subsequent to the date of this Agreement (except as set forth in the
Prospectus), there shall have been no public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
further downgrading, of such rating).
(l) If a public offering of the Purchased Preference Stock is to be
made, subsequent to the date of this Agreement and prior to the Closing
Date, no rating of any of the Company's debt securities by any nationally
recognized rating agency shall have been lowered by such agency.
(m) The representations and warranties of the Company herein shall be
true and correct as of the Closing Date and all agreements herein contained
to be performed on the part of the Company at or prior to the Closing Date
shall have been so performed.
-17-
(n) You shall have been furnished such additional certificates and
other evidence as you or your counsel may reasonably request showing
fulfillment of the conditions contained in this Section 6 and existence of
the facts to which the representations and warranties contained in Section
3 hereof relate.
(o) If the Purchased Preference Stock is to be listed on the New York
Stock Exchange, Inc. ("NYSE"), the NYSE shall have approved for listing
upon official notice of issuance, the Purchased Preference Stock.
7. Indemnification.
(a) The Company will indemnify and hold harmless each Purchaser, its
directors and officers and each person, if any, who controls any Purchaser
within the meaning of the Act against the losses, claims, damages or
liabilities, joint or several, to which such Purchaser or such controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and will reimburse such Purchaser, its directors and officers and
each such controlling person for any legal or other expenses reasonably incurred
by such Purchaser, its directors and officers or such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any of such documents in reliance upon
and in conformity with written information furnished to the Company by any
Purchaser specifically for use therein. The indemnification obligation contained
in this Section 7 will be in addition to any liability which the Company may
otherwise have.
(b) Each Purchaser, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors, each of its officers who has signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer or controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or action in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but 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 such Purchaser specifically for use therein, and will reimburse
any legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action. The indemnification
obligation
-18-
contained in this Section 7 will be in addition to any liability which the
Purchasers may otherwise have.
In addition to any other information the Purchasers may furnish, the
Purchasers hereby furnish to the Company specifically for use in the Prospectus
the information with respect to the offering of the Purchased Preference Stock
and the Purchasers set forth on the cover page of the Prospectus Supplement and
under "Underwriting" or similar caption therein.(2)
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 7. In case any action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel selected by the indemnifying party and
acceptable to the indemnified party (the indemnified party shall not
unreasonably reject such counsel), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the employment of counsel by
such indemnified party has been authorized by the indemnifying party, (ii) the
indemnified party shall have reasonably concluded that there may be a conflict
of interest between the indemnifying party and the indemnified party in the
conduct of the defense of such action (in which case the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in fact have
employed counsel to assume the defense of such action, in each of which cases
the fees and expenses of one counsel representing all indemnified parties shall
be at the expense of the indemnifying party. An indemnifying party shall not be
liable for any settlement of any action or claim effected without its consent.
No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any action or claim
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any
----------
(2) Specific language to be identified.
-19-
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment in accordance with the other provisions of this Section
7.
8. Contribution. If recovery is not available under the foregoing
indemnification provisions of Section 7 of this Agreement, for any reason other
than as specified therein, the parties entitled to indemnification by the terms
thereof shall be entitled to contribution to liabilities and expenses, except to
the extent that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each party
from the offering of the Purchased Preference Stock (taking into account the
portion of the proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Company and the Purchasers agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Purchasers were treated as one entity for such
purpose). No Purchaser or any person controlling such Purchaser shall be
obligated to make contribution hereunder which in the aggregate exceeds the
total public offering price of the Purchased Preference Stock purchased by such
Purchaser, less the aggregate amount of any damages which such Purchaser and its
controlling persons have otherwise been required to pay in respect of the same
claim or any substantially similar claim.
9. Termination.
(a) This Agreement may be terminated at any time prior to the Closing Date
or, with respect to the Additional Preference Stock, the Additional Closing
Date, by the Purchasers by written notice to the Company, if in the reasonable
judgment of the Purchasers it is impracticable to offer for sale or to enforce
contracts made by the Purchasers for the resale of the Firm Preference Stock or
the Additional Preference Stock, as the case may be, by reason of any of the
events described in Section 6(i) or 6(j).
(b) If this Agreement shall be terminated pursuant to Section 6 or 11 or
this Section 9, or if the purchase of the Firm Preference Stock or the
Additional Preference Stock, if any, by the Purchasers is not consummated
because of any refusal, inability or failure on the part of the Company to
comply with any of the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform all the
obligations under this Agreement, the Company shall not be liable to the
Purchasers for damages arising out of the transactions covered by this
Agreement, but the Company and the Purchasers shall remain liable to the extent
provided in Sections 5(a), 7(a) and 8 hereof.
(c) If the Company shall fail to deliver the Purchasers' Preference Stock
to the Purchasers by reason of any failure, refusal or inability on the part of
the Company to perform any agreement on its part to be performed, or the
Purchasers terminate this Agreement because any other condition of the
Purchasers' obligations hereunder required to be fulfilled
-20-
by the Company (except for Section 6(j)) is not fulfilled, the Company will
reimburse the Purchasers for all reasonable out-of-pocket expenses (including
reasonable fees and disbursements of counsel) incurred by the Purchasers in
connection with this Agreement and the proposed purchase of the Purchasers'
Preference Stock, and upon demand the Company shall pay the full amount thereof
to the Purchasers. If this Agreement is terminated pursuant to Section 11 by
reason of the default of one or more Purchasers, the Company shall not be
obligated to reimburse any defaulting Purchaser on account of those expenses.
10. Survival of Indemnities, Representations and Warranties. The respective
indemnities and agreements for contribution of the Company and the Purchasers
and the respective representations and warranties of the Company and the
Purchasers set forth in this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or the
Purchasers or any of their respective officers, directors, partners or any
controlling person, and will survive delivery of and payment for the Purchased
Preference Stock or termination of this Agreement.
11. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Firm Preference Stock or Additional Preference Stock, as
the case may be, hereunder and the aggregate number of shares of Firm Preference
Stock or Additional Preference Stock, as the case may be, which such defaulting
Purchaser or Purchasers agreed but failed to purchase is equal to or less than
10% of the total number of shares of Firm Preference Stock or Additional
Preference Stock, as the case may be, you may make arrangements satisfactory to
the Company for the purchase of such Firm Preference Stock or Additional
Preference Stock, as the case may be, by other persons, including any of the
Purchasers, but if no such arrangements are made by the Closing Date or the
Additional Closing Date, as the case may be, the non-defaulting Purchasers shall
be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Firm Preference Stock or Additional Preference Stock, as the
case may be, which such defaulting Purchasers agreed but failed to purchase. If
any Purchaser or Purchasers so default and the aggregate amount of Firm
Preference Stock or Additional Preference Stock, as the case may be, with
respect to which such default or defaults occur is more than the above
percentage and arrangements satisfactory to you and the Company for the purchase
of such Firm Preference Stock or Additional Preference Stock, as the case may
be, by other persons are not made within thirty-six hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Purchaser or the Company, except as provided in Section 10 and
except that any default by a Purchaser with respect to the purchase of
Additional Preference Stock shall not affect the obligations of the Purchasers
to purchase the Firm Preference Stock. In the event that any Purchaser or
Purchasers default in their obligation to purchase Firm Preference Stock or
Additional Preference Stock, as the case may be, hereunder, the Company may, by
prompt written notice to the non-defaulting Purchasers, postpone the Closing
Date and the Additional Closing Date, as the case may be, for a period of not
more than seven full business days in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents, and the Company will promptly file any amendments to the
Registration Statement or supplements to the Prospectus which may thereby be
made necessary. As used in this Agreement, the term "Purchaser" includes any
person
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substituted for a Purchaser under this Section. Nothing herein will relieve a
defaulting Purchaser from liability for its default.
12. Parties in Interest. This Agreement shall inure to the benefit of the
Company, the Purchasers, the officers, directors and partners of such parties,
each controlling person referred to in Section 7 hereof, and their respective
successors. Nothing in this Agreement is intended or shall be construed to give
to any other person, firm or corporation (including, without limitation, any
purchaser of the Purchased Preference Stock from a Purchaser or any subsequent
holder thereof) any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained.
The term "successor" as used in this Agreement shall not include any
purchaser, as such purchaser, of any Purchased Preference Stock from any
Purchaser or any subsequent holder thereof.
This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof, and supersedes any agreement previously
entered into.
13. Notices. All communications, terminations and notices hereunder shall
be in writing and, if sent to any Purchaser, shall be mailed, delivered or
telecopied and confirmed to it by letter to the address set forth for such
Purchaser in Schedule A to the Purchase Agreement (or such other place as the
Purchaser may specify in writing); if sent to the Company shall be mailed,
delivered or telecopied and confirmed to the Company at 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxx 00000 (Attn: Vice President - Finance), telecopier: (417)
625-5153 (or such other place as the Company may specify in writing).
14. Counterparts. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
