EXHIBIT 1
WESTERN RESOURCES, INC.
COMMON STOCK
(PAR VALUE $5.00 PER SHARE)
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
E-2
WESTERN RESOURCES, INC.
STANDARD PURCHASE PROVISIONS
From time to time, Western Resources, Inc., a corporation
organized and existing under the laws of the State of Kansas (the "Company") may
enter into purchase agreements that provide for the sale of designated
securities to the purchaser or purchasers named therein. The standard provisions
set forth herein may be incorporated by reference in any such purchase agreement
(the "Purchase Agreement"). The Purchase Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred to as "this
Agreement." The term "Common Stock" shall mean the Common Stock, par value $5.00
per share, of the Company to be sold by the Company pursuant to the applicable
Purchase Agreement. Unless otherwise defined herein, terms defined in the
Purchase Agreement are used herein as therein defined.
The Company has filed ("filing" as used herein shall be deemed
to include electronic filings pursuant to the XXXXX program), in accordance with
the provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission thereunder (collectively
called the "Act"), with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (including a prospectus),
relating to the Common Stock, which pursuant to Item 12 of Form S-3 incorporates
by reference documents which the Company has filed in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively called the "Exchange Act"). Such
registration statement has been declared effective by the Commission. Promptly
upon the execution of this Agreement, the Company will prepare a prospectus
supplement relating to the Common Stock (the "Prospectus Supplement"). The
Company has furnished to you, for use by the Purchasers (as defined herein) and
dealers if the Common Stock is to be sold to the public, copies of one or more
preliminary prospectuses and the documents so incorporated therein (each
thereof, including the documents so incorporated therein, is herein called the
"Preliminary Prospectus"). The terms Registration Statement and Prospectus shall
have the meanings ascribed to them in the Purchase Agreement.
1. INTRODUCTORY. The Company proposes to issue and sell from
time to time Common Stock registered under the Registration Statement. The
Common Stock referred to in Section A of the Purchase Agreement is hereinafter
referred to as the "Firm Common Stock." The Purchase Agreement may provide for
an additional number of shares of Common Stock (the "Additional Common Stock")
which the purchasers may purchase on the terms and conditions set forth in the
Agreement for the sole purpose of covering over-allotments. The Firm Common
Stock and the Additional Common Stock, if any, are referred to as the "Purchased
Common Stock." The firm or firms, as the case may be, which agree to purchase
any of the Purchased Common Scock are hereinafter referred to as the
"Purchasers" of such Purchased Common Stock. The terms "you" and "your" refer to
those Purchasers who sign the Purchase Agreement either on behalf of themselves
only or on behalf of themselves and as representatives of the several Purchasers
named in Schedule A thereto, as the case may be. Purchased Common Stock to be
purchased by Purchasers is herein referred to as "Purchasers' Common Stock," and
any Purchased Common Stock to be purchased pursuant to Delayed Delivery
Contracts (as defined below) as hereinafter provided is herein referred to as
"Contract Common Stock."
2. DELIVERY AND PAYMENT. The Company will deliver the Firm
Common Stock to you for the accounts of the Purchasers at the place specified in
the Purchase Agreement, against payment of the purchase price by certified or
bank cashier's check in same day or New York Clearing House funds (as agreed to
by the parties and specified in the Purchase Agreement) drawn to the order of
the Company, at the time set forth in this 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." Unless otherwise
provided for in the Purchase Agreement, the Firm Common Stock so to be delivered
will be in definitive fully registered form registered in such authorized
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denominations and in such names as you request in writing not later than 10:00
A.M.,* on the third business day prior to the Closing Date, or, if no such
request is received, in the names of the respective Purchasers in the amounts
agreed to be purchased by them pursuant to this Agreement. For the purpose of
expediting the checking of the Firm Common Stock, the Company agrees to make the
Firm Common Stock available to you (at the place specified in the Purchase
Agreement) in definitive form not later than 10:00 A.M. on the first business
day preceding the Closing Date.**
If there is any Additional Common Stock, the Purchasers shall
also have the option to purchase, severally and not jointly, from the Company,
ratably in accordance with the number of shares of Firm Common 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 Common Stock, if
any, as may be necessary to cover over-allotments made in connection with the
offering of the Firm Common Stock, at the same purchase price per share to be
paid by the Purchasers to the Company for the firm Common 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 Common Stock as to
which the option is being exercised, and the date and time when the Additional
Common 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 Common Stock to be sold to
each Purchaser shall be the number which bears the same proportion to the
aggregate number of shares of Additional Common Stock being purchased as the
number of shares of Firm Common 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 Common Stock (subject, in each case, to such adjustment as you
may determine to eliminate fractional shares).
Payment of the purchase price for the Additional Common 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 Common 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 Common 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.
The obligation of the Purchasers to purchase the Additional
Common Stock shall be conditioned upon receipt of the certificate pursuant to
Section 4 hereto and such other supplemented opinions, certificates and letters
as you may reasonably request.
If any Purchase Agreement provides for sales of Firm Common
Stock pursuant to delayed delivery contracts, the Company authorizes the
Purchasers to solicit offers to purchase Contract Common Stock pursuant to
delayed delivery contracts substantially in the form of Schedule I attached
hereto (the Delayed Delivery Contracts) with such changes therein as the Company
may approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies, and educational and charitable institutions. On the
Closing Date, the Company will pay you as compensation, for the accounts of the
Purchasers, the compensation set forth in such Purchase Agreement in respect of
the number of
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* Times mentioned herein are New York City Time.
** As used herein, "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
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shares of Contract Common Stock. The Purchasers will not have any responsibility
in respect of the validity or the performance of Delayed Delivery Contracts. If
the Company executes and delivers Delayed Delivery Contracts, the Contract
Common Stock shall be deducted from the Firm Common Stock to be purchased by the
several Purchasers and the aggregate number of shares of Firm Common Stock to be
purchased by each Purchaser shall be reduced pro rata in proportion to the
number of shares of Firm Common Stock set forth opposite each Purchaser's name
in such Purchase Agreement, except to the extent that you determine that such
reduction shall be otherwise allocated and so advise the Company.
3. CERTAIN COVENANTS OF THE COMPANY. The Company agrees:
(a) As soon as possible after the execution and
delivery of this Agreement to file, or mail for filing, the
Prospectus with the Commission pursuant to its Rule 424 under
the Act and, if and when required at any time after such
execution and delivery, to file amendments to the applications
the Company has previously filed with any state regulatory
agencies having jurisdiction to govern the Company's issuance
of its securities setting forth, among other things, the
necessary information with respect to the price and terms of
offering of the Purchased Common Stock;
(b) To file no amendment or supplement to the
Registration Statement or Prospectus subsequent to the
execution of this Agreement to which you object in writing
unless, in the opinion of counsel to the Company, such filing
is required by law;
(c) If the Purchased Common Stock is to be sold to
the public, to furnish such proper information as may be
required and otherwise to cooperate in qualifying the
Purchased Common Stock for sale under the laws of such
jurisdictions as you may designate and in determining their
eligibility for investment under the laws of such
jurisdictions; provided that the Company shall not hereby be
required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(d) If the Purchased Common Stock is to be sold to
the public, to the extent not previously furnished to you, to
furnish to you two signed copies of the Registration
Statement, as initially filed with the Commission, of all
amendments thereto, and of all documents incorporated by
reference therein (including all exhibits filed therewith,
other than exhibits which have previously been furnished to
you and exhibits incorporated by reference in such documents),
and to furnish to you sufficient unsigned copies of the
foregoing (other than exhibits) for distribution of a copy to
you and to each of the other Purchasers (if any);
(e) If the Purchased Common Stock is to be sold to
the public, to deliver to the Purchasers without charge as
soon as practicable after the execution and delivery of this
Agreement and thereafter from time to time to furnish to the
Purchasers, without charge, as many copies of the Prospectus
in final form and any documents incorporated by reference
therein at or after the date thereof (and of the Registration
Statement as amended or supplemented, if the Company shall
have made any amendment or supplement after the effective date
of the Registration Statement) as you or the respective
Purchasers may reasonably request for the purposes
contemplated by the Act;
(f) To advise you promptly (confirming such advice in
writing) of any official request made by the Commission for
amendments to the Registration Statement or Prospectus or for
additional information with respect thereto, or of official
notice of institution of proceedings for, or the entry of, a
stop order suspending the effectiveness of the Registration
Statement and, if such a stop order should be entered by the
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Commission, to make every reasonable effort to obtain the
lifting or removal thereof as soon as possible, or of the
suspension of qualification of the Purchased Common Stock for
offering or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose;
(g) In the event the Purchased Common Stock is to be
sold to the public, to advise the Purchasers of the happening
of any event known to the Company within the time during which
a prospectus relating to the Purchased Common Stock is
required to be delivered under the Act which, in the judgment
of the Company, would require the making of any change in the
Prospectus or any amended or supplemented Prospectus or in the
information incorporated by reference therein so that as
thereafter delivered to purchasers such Prospectus will not
include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, and on request to
prepare and furnish to the Purchasers and to dealers and other
persons designated by you such amendments or supplements
(including appropriate filings under the Exchange Act) to the
Prospectus as may be necessary to reflect any such change,
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 3(g));
(h) As soon as practicable, to make generally
available to its security holders an earnings statement (as
contemplated by Rule 158 under the Act) covering a period of
twelve months after the effective date (as the term "effective
date" is defined in Rule 158) of the Registration Statement;
(i) To pay the reasonable fees and expenses of
counsel for the Purchasers, and to reimburse the Purchasers
for their reasonable out-of-pocket expenses incurred in
contemplation of the performance of this Agreement, in the
event that the Purchasers' Common Stock is not delivered to
and taken up and paid for by the Purchasers hereunder for any
reason whatsoever except the failure or refusal of any
Purchaser to take up and pay for Purchasers' Common Stock for
some reason not permitted by the terms of this Agreement, the
Purchasers agreeing to pay the fees and expenses of counsel
for the Purchasers in any other event;
(j) To pay all expenses, fees and taxes (other than
transfer taxes and fees and disbursements of counsel for the
Purchasers except as set forth under 3(i) above or (iv) below)
in connection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospectus and the
Prospectus, any documents incorporated by reference therein at
or after the date thereof and any amendments or supplements
thereto, and the printing and furnishing of copies of each
thereof to the Purchasers and to dealers, (ii) the issue, sale
and delivery of the Purchased Common Stock, (iii) the printing
and reproduction of this Agreement and the opinions and
letters referred to in Section 4(a) hereof, (iv) the
qualification of the Purchased Common Stock for sale and
determination of their eligibility for investment under state
laws as aforesaid, including the legal fees (not to exceed
$3,000) and all filing fees and disbursements of counsel for
the Purchasers and all other filing fees, and the printing and
furnishing of copies of the "Blue Sky Survey" to the
Purchasers and to dealers and (v) the performance of the
Company's other obligations hereunder; and
(k) To furnish to the Purchasers, at or before the time of
filing with the Commission subsequent to the effective date of the Registration
Statement and prior to
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the termination of the distribution of the Purchased Common
Stock if it is sold to the public, a copy of any document
proposed to be filed pursuant to Section 13(a), 13(d), 14 or
15(d) of the Exchange Act.
4. CONDITIONS OF PURCHASERS' OBLIGATIONS WITH RESPECT TO THE
FIRM COMMON STOCK AND THE ADDITIONAL COMMON STOCK. The several obligations of
the Purchasers hereunder are subject to the following conditions:
(a) That, on the Closing Date with respect to the
Firm Common Stock, you shall receive the signed opinions of
Xxxx X. Xxxxxxxxx, Esq., Executive Vice President and General
Counsel of the Company; Xxxxxx Xxxxxx & Xxxxxxx, counsel for
the Company; and counsel for the Purchasers, substantially in
the forms heretofore furnished to you, addressed to the
Purchasers (with reproduced or conformed copies thereof for
each of the other Purchasers); and that, if the Firm Common
Stock is to be sold to the public at the time of purchase, you
shall receive the signed letter of Xxxxxx Xxxxxxxx & Co.,
independent public accountants of the Company, substantially
in the forms heretofore furnished to you and in substance
satisfactory to you addressed to the Purchasers (with
reproduced or conformed copies thereof for each of the other
Purchasers);
(b) That all orders, approvals or consents of state
or federal regulatory commissions necessary to permit the
issue, sale and delivery of the Firm Common Stock or the
Additional Common Stock, as the case may be, shall have been
issued; on the Closing Date, such orders shall be in full
force and effect; and prior to the Closing Date or the
Additional Closing Date, as the case may be, no stop order
with respect to the effectiveness of the Registration
Statement shall have been issued under the Act by the
Commission and on the Closing Date no proceedings therefor
shall be pending or threatened;
(c) That, at the time the Registration Statement
became effective, the Registration Statement did not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and that the
Prospectus at its issue date and at the time of purchase shall
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 the light of the
circumstances under which they were made, not misleading,
other than any statement contained in, or any matter omitted
from, the Registration Statement or the Prospectus in reliance
upon, and in conformity with, information furnished in writing
by or on behalf of any Purchaser through you to the Company
expressly for use with reference to such Purchaser in the
Registration Statement or Prospectus;
(d) That, subsequent to the respective dates as of
which information is given in the Registration Statement and
in the Prospectus, at the time the Prospectus is first filed,
or mailed for filing, pursuant to Rule 424 under the Act, and
prior to the Closing Date, in your opinion no material adverse
change in the condition of the Company, financial or
otherwise, shall have taken place (other than as referred to
in or contemplated by the Registration Statement and
Prospectus as of such time) which in the reasonable judgment
of the Purchasers, is sufficiently material and adverse so as
to render it impractical or inadvisable to offer or deliver
the Firm Common Stock on the terms and in the manner
contemplated in the Prospectus;
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(e) That the Company shall have performed all of its
obligations under this Agreement which are to be performed by
the terms hereof at or before the Closing Date or the
Additional Closing Date, as the case may be;
(f) That the Company shall, on the Closing Date,
deliver to you (with reproduced or conformed copies thereof
for each of the other Purchasers) a signed certificate of two
of its executive officers stating that, subsequent to the
respective dates as of which information is given in the
Registration Statement and in the Prospectus, at the time the
Prospectus is first filed, or mailed for filing, pursuant to
Rule 424 under the Act, and prior to the Closing Date, with
respect to the Firm Common Stock, or the Additional Closing
Date, with respect to the Additional Common Stock, no material
adverse change in the condition of the Company, financial or
otherwise, shall have taken place (other than as referred to
in or contemplated by the Registration Statement and
Prospectus as of such time) and also covering the matters set
forth in (c) and (e) of this Section 4;
(g) That the Company shall have accepted Delayed
Delivery Contracts in any case where sales of Contract Common
Stock arranged by the Purchasers have been approved by the
Company.
5. TERMINATION OF AGREEMENT. The obligations of the several
Purchasers hereunder shall be subject to termination in your absolute
discretion, if, at any time prior to the Closing Date, with respect to the Firm
Common Stock, or the Additional Closing Date, with respect to the Additional
Common Stock, trading in securities on the New York Stock Exchange shall have
been suspended (other than a temporary suspension to provide for an orderly
market) or minimum prices shall have been established on the New York Stock
Exchange, or if a banking moratorium shall have been declared either by the
United States or New York State authorities, or if the United States shall have
declared war in accordance with its constitutional processes or there shall have
occurred any outbreak or material escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in your reasonable judgment, to make
it impracticable to market the Purchased Common Stock.
If you elect to terminate this Agreement as provided in this
Section 5, the Company and each other Purchaser shall be notified promptly in
writing or by telephone, confirmed in writing.
If the sale to the Purchasers of the Purchasers' Common Stock,
as herein contemplated, is not carried out by the Purchasers for any reason
permitted hereunder or if such sale is not carried out because the Company shall
be unable to comply with any of the terms thereof, the Company shall not be
under any obligation or liability under this Agreement (except to the extent
provided in Sections 3(i), 3(j), 7(b) and 9 hereof), and the Purchasers shall be
under no obligation or liability to the Company (except to the extent provided
in Sections 8(b) and 9 hereof) or to one another under this Agreement.
6. INCREASE IN PURCHASERS' COMMITMENTS: If any Purchaser shall
default in its obligation to take up and pay for the Firm Common Stock or
Additional Common Stock, as the case may be, to be purchased by it hereunder and
if the number of shares of the Firm Common Stock or Additional Common Stock, as
the case may be, which all Purchasers so defaulting shall have so failed to take
up and pay for does not exceed 10% of the total number of shares of the Firm
Common Stock or Additional Common Stock, as the case may be, the non-defaulting
Purchasers shall take up and pay for (in addition to the number of shares of the
Firm Common Stock or Additional Common Stock, as the case may be, they are
obligated to purchase pursuant to this Agreement) the number of shares of the
Firm Common Stock or Additional Common Stock, as the case may be, agreed to be
purchased by all such defaulting Purchasers, as herein provided. Such Firm
Common Stock or Additional Common Stock, as the case may be, shall be taken up
and paid for by such non-defaulting Purchaser or Purchasers in such
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amount or amounts as you may designate with the consent of each Purchaser so
designated or, in the event no such designation is made, such Firm Common Stock
or Additional Common Stock, as the case may be, shall be taken up and paid for
by all non-defaulting Purchasers pro rata in proportion to the number of shares
of the Firm Common Stock or Additional Common Stock, as the case may be, set
opposite the names of all such non-defaulting Purchasers in Schedule A to the
Purchase Agreement.
Without relieving any defaulting Purchaser of its obligations
hereunder, the Company agrees with the non-defaulting Purchasers that it will
not sell any Firm Common Stock or Additional Common Stock, as the case may be,
hereunder unless all of the Firm Common Stock or Additional Common Stock, as the
case may be, is purchased by the Purchasers (or by substituted Purchasers
selected by you with the approval of the Company or selected by the Company with
your approval).
If a new Purchaser or Purchasers are substituted by the
Purchasers or by the Company for a defaulting Purchaser or Purchasers in
accordance with the foregoing provision, the Company or you will have the right
to postpone the Closing Date for a period of not exceeding five business days in
order that necessary changes in the Registration Statement and Prospectus and
other documents may be effected.
The term Purchaser as used in this Agreement will refer to and
include any purchaser substituted under this Section 6 with like effect as if
such substituted Purchaser had originally been named in Schedule A to the
Purchase Agreement.
7. WARRANTIES AND REPRESENTATIONS OF AND INDEMNITY BY THE
COMPANY. (a)The Company warrants and represents that, when the Registration
Statement became effective, the Registration Statement complied in all material
respects, and, when the Prospectus is first filed, or mailed for filing,
pursuant to Rule 424 under the Act, and at the time of purchase the Prospectus
will comply in all material respects with the provisions of the Act, and that
neither will contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company makes no warranty or
representation with respect to any statement contained in, or any matter omitted
from, the Registration Statement or the Prospectus in reliance upon and in
conformity with information furnished in writing by or on behalf of any
Purchaser through you to the Company expressly for use with reference to the
Purchaser in the Registration Statement or Prospectus. The Company also warrants
and represents that the documents incorporated by reference in the Prospectus
complied at the time they were filed in all material respects with the
requirements of the Exchange Act 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 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 the light of the circumstances under which they
are made, not misleading.
(b) The Company agrees to indemnify and hold harmless each
Purchaser, and any person who controls any Purchaser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
loss, expense, liability or claim which arises out of or is based upon any
alleged untrue statement of a material fact in the Registration Statement, any
prospectus contained in the Registration Statement at the time it became
effective or the Prospectus, or any related preliminary prospectus, or arises
out of or is based upon any alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements made therein
not misleading. The foregoing shall not cover any such loss, expense, liability
or claim, however, which arises out of or is based upon any alleged untrue
statement of a material fact contained in, and in conformity with information
furnished in writing by or on behalf of such Purchaser through you to the
Company expressly for use with reference to the Purchaser in, any such documents
or arises out of or is based upon any alleged omission to state a material fact
in connection with such information required to be stated in any such documents
or necessary to make such information not misleading.
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If any action is brought against a Purchaser or controlling
person in respect of which indemnity may be sought against the Company pursuant
to the foregoing paragraph, such Purchaser shall promptly notify the Company in
writing or by telephone, confirmed in writing, of the institution of such action
and the Company shall assume the defense of such action, including the
employment of counsel and payment of expenses; provided, however, that the
failure so to notify the Company will not relieve it from any liability that it
may have to such Purchaser under this Section 7(b) unless, and only to the
extent that such failure results in the forfeiture of substantive rights or
defenses by the Company. Such Purchaser or controlling person shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Purchaser or such
controlling person unless the employment of such counsel shall have been
authorized in writing by the Company in connection with the defense of such
action or the Company shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Company (in which
case the Company shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which events such fees
and expenses of one counsel for all indemnified parties selected by such
Purchaser shall be borne by the Company. Anything in this paragraph to the
contrary notwithstanding, the Company shall not be liable for any settlement of
any such claim or action effected without its written consent. The Company's
indemnity agreement contained in this Section 7(b) and its warranties and
representations contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of any Purchaser or
controlling person, and shall survive any termination of this Agreement or the
issuance and delivery of the Purchased Common Stock.
The Company agrees promptly to notify the Purchasers of the
commencement of any litigation or proceedings against the Company or any of its
officers, directors or controlling persons in connection with the issue and sale
of the Purchased Common Stock or with the Registration Statement or Prospectus.
8. WARRANTIES AND REPRESENTATIONS OF AND INDEMNITY BY
PURCHASERS. (a) Each Purchaser warrants and represents that the information
furnished in writing by or on behalf of such Purchaser through you to the
Company expressly for use with reference to such Purchaser in the Registration
Statement at the time it became effective or the Prospectus when the Prospectus
is first filed, or mailed for filing, pursuant to Rule 424 under the Act, will
not contain an untrue statement of a material fact and does not omit to state a
material fact in connection with such information required to be stated in the
Registration Statement or the Prospectus or necessary to make such information
not misleading. Each Purchaser, in addition to other information furnished by
such Purchaser or on its behalf through you to the Company in writing expressly
for use with reference to such Purchaser in the Registration Statement and
Prospectus, hereby furnishes to the Company in writing expressly for use with
reference to such Purchaser the statements with respect to the terms of offering
of the Purchased Common Stock by the Purchasers set forth on the cover page of
the Prospectus and under "Underwriting" therein.
(b) Each Purchaser severally agrees to indemnify and hold
harmless the Company, its directors and its officers from and against any loss,
expense, liability or claim which arises out of or is based upon any alleged
untrue statement of a material fact contained in, and in conformity with
information furnished in writing by or on behalf of such Purchaser through you
to the Company expressly for use with reference to such Purchaser in, the
Registration Statement, any prospectus contained in the Registration Statement
at the time it became effective or the Prospectus, or any related preliminary
prospectus, or arises out of or is based upon any alleged omission to state a
material fact in connection with such information required to be stated in such
documents or necessary to make such information not misleading.
If any action is brought against the Company or any such
person in respect of which indemnity may be sought against any Purchaser
pursuant to the foregoing paragraph, the Company or such person shall promptly
notify such Purchaser in writing or by telephone, confirmed in writing, of the
institution of such action and such Purchaser shall assume the defense of such
action, including the employment of counsel and payment of expenses; provided,
however, that the failure so to notify such Purchaser will not relieve it from
any liability that it may have to the Company under this Section 8(b) unless,
and only to the extent that such failure results in the
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forfeiture of substantive rights or defenses by such Purchaser. The Company or
such person shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of the
Company or such person unless the employment of such counsel shall have been
authorized in writing by such Purchaser in connection with the defense of such
action or such Purchaser shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to such Purchaser (in which
case such Purchaser shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses for all indemnified parties of one counsel selected by
the Company shall be borne by such Purchaser. Anything in this paragraph to the
contrary notwithstanding, no Purchaser shall be liable for any settlement of any
such claim or action effected without the written consent of such Purchaser. The
indemnity agreement on the part of each Purchaser contained in this Section 8(b)
shall remain in full force and effect regardless of any investigation made by or
on behalf of the Company or such person, and shall survive any termination of
this Agreement or the issuance and delivery of the Purchased Common Stock. Each
Purchaser agrees promptly to notify the Company of the commencement of any
litigation or proceedings against such Purchaser in connection with the issue
and sale of the Purchased Common Stock or with such Registration Statement or
Prospectus.
9. CONTRIBUTION. If the indemnification provided for in
Sections 7(b) or 8(b) above is unavailable in respect of any losses, expenses,
liabilities or claims referred to therein, then 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
Common 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 and such controlling persons 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 and such controlling persons were treated as
one entity for such purpose). The contribution agreement contained in this
Section 9 shall remain in full force and effect regardless of any investigation
made by or on behalf of any Purchaser or the Company or any of its officers or
directors or any controlling person and shall survive any termination of this
Agreement or the issuance and delivery of the Purchased Common Stock.
10. NOTICES. All statements, requests, notices and agreements
shall be in writing or by telegram and, if to the Purchasers, shall be
sufficient in all respects if delivered or sent by registered mail to the
address furnished in writing for the purpose of such statements, requests,
notices and agreements hereunder, and, if to the Company shall be sufficient in
all respects if delivered or sent by registered mail to the Company at 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxx 00000, Attention: Xxxxxx X. Kitchen, Executive
Vice President and Chief Financial Officer.
11. CONSTRUCTION. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this agreement.
12. PARTIES IN INTEREST. The Agreement herein set forth has
been and is made solely for the benefit of the Purchasers and the Company, and
the controlling persons, directors and officers referred to in Sections 7, 8 and
9 hereof, and their respective successors, assigns, executors and
administrators, and no other person shall acquire or have any right under or by
virtue of this Agreement. 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 Common Stock from a Purchaser or any
subsequent holder thereof or any purchaser of any Contract
9
Common Stock 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 Common Stock from any
Purchaser or any subsequent holder thereof or any purchaser, as such purchaser,
of any Contract Common Stock or any subsequent holder thereof.
10
Schedule I
DELAYED DELIVERY CONTRACT
Dated: , 199
Western Resources, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000
Attention: Chief Financial Officer
Dear Sirs:
The undersigned hereby agrees to purchase from Western
Resources, Inc. (the "Company"), and the Company agrees to sell to the
undersigned,
___________________ Shares
of the Company's Common Stock, par value $5.00 per share (the Common Stock)
offered by the Company's Prospectus dated , 199 and a Prospectus
Supplement dated , 199 , receipt of copies of which is hereby
acknowledged, at a purchase price of per share on the further terms and
conditions set forth in this contract.
The undersigned agrees to purchase such Common Stock in the
share amounts and on the delivery dates (the Delivery Dates) set forth below:
Delivery
Date Shares
-------- ------
---------------- ---------------
---------------- ---------------
---------------- ---------------
Payment for the Common Stock which the undersigned has agreed
to purchase on each Delivery Date shall be made to the Company or its order by
certified or bank cashier's check in same day or New York Clearing House funds
(as agreed to by the Company and the undersigned) at the (or at such other place
as the undersigned and the Company shall agree) at 11:00 A.M., New York City
Time, on such Delivery Date upon issuance and delivery to the undersigned of the
Common Stock to be purchased by the undersigned on such Delivery Date in such
authorized denominations and, unless otherwise provided herein, registered in
such names as the undersigned may designate by written or telegraphic
communications addressed to the Company not less than five full business days
prior to such Delivery Date.
I-1
The obligation of the Company to sell and deliver, and of the
undersigned to take delivery of and make payment for, Common Stock on each
Delivery Date shall be subject to the conditions that (1) the purchase of Common
Stock to be made by the undersigned shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which the undersigned is
subject, (2) the sale of the Common Stock by the Company pursuant to this
contract shall not at the time of delivery be prohibited under the laws of any
jurisdiction to which the Company is subject and (3) the Company shall have
sold, and delivery shall have taken place, to the Purchasers such shares of the
Common Stock as are to be sold and delivered to them. In the event that the
Common Stock is not sold to the undersigned because one of the foregoing
conditions is not met, the Company shall not be liable to the undersigned for
damages arising out of the transactions covered by this contract.
Promptly after completion of the sale and delivery to the
Purchasers, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by copies of the opinions of
counsel for the Company delivered to the Purchasers.
Failure to take delivery of and make payment for the Common
Stock by any purchaser under any other Delayed Delivery Contract shall not
relieve the undersigned of its obligations under this contract.
The undersigned represents and warrants that (a) as of the
date of this contract, the undersigned is not prohibited under the laws of the
jurisdictions to which the undersigned is subject from purchasing the Common
Stock hereby agreed to be purchased and (b) the undersigned does not contemplate
selling the Common Stock which it has agreed to purchase hereunder prior to the
Delivery Date therefore.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other. This contract
shall be governed by and construed in accordance with the laws of the State of
New York. This contract may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
It is understood that the acceptance of any Delayed Delivery
Contract is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If the contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned when such counterpart is so signed.
Yours very truly,
-----------------------------------
By
--------------------------------
--------------------------------
--------------------------------
Address
Accepted, as of the date first above written.
I-2
WESTERN RESOURCES, INC.
By_________________________________
Title______________________________
I-3
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed are as follows:
(Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
WESTERN RESOURCES, INC.
PURCHASE AGREEMENT
COMMON STOCK
(par value $5.00 per share)
----------------
(Date)
Western Resources, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000
Dear Sirs:
Referring to the Common Stock, par value $5.00 per share, of
Western Resources, Inc. (the "Company") ("Common Stock") covered by registration
statement on Form S-3 (No. 33-____), such registration statement including (i)
the prospectus included therein, dated ________________________, as supplemented
by a prospectus supplement dated ____________ in the form filed under Rule
424(b) and any additional prospectus supplements relating to the Common Stock
filed under Rule 424 (such prospectus as so supplemented, including each
document incorporated by reference therein is hereinafter called the
"Prospectus") and (ii) all documents filed as part thereof or incorporated by
reference therein, is hereinafter called 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 number of shares of the Company's Common Stock (the "Firm Common
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 Common Stock (the "Additional Common Stock") on the
terms and conditions contained in this Agreement for the sole purpose of
covering over-allotments.]*
The price at which the Firm Common Stock and the Additional
Common Stock, if any,) shall be purchased from the Company by the Purchasers
shall be $___ per share. The initial public offering price shall be $___ per
share. The Firm Common Stock [(and the Additional Common Stock, if any)] will be
offered by the Purchaser as set forth in the Prospectus relating to such
Purchased Common Stock.
Payment for the
Firm Common Stock
[(and Additional
Common Stock, if
any,)]* shall be made
in the following funds: _______________________
--------
* Delete bracketed language regarding Additional Common Stock throughout
if over-allotment option is not granted by the Company.
-2-
The Closing Date
shall be: _______________________
The place to which the
Firm Common Stock [(and
Additional Common Stock,
if any,)]* may be checked
and packaged shall be: _______________________
The place(s) at which the
Firm Common Stock [(and
Additional Common Stock,
if any,)]* shall be
delivered and sold shall be: _______________________
Delayed Delivery
Contracts: [authorized] [not authorized]
[Delivery Date _______________________
Minimum number of
shares of Purchased
Common Stock to be
sold pursuant to any
Delayed Delivery
Contract: _______________________
Maximum number of
shares of Purchased
Common Stock to be
sold pursuant to all
Delayed Delivery
Contracts: _______________________
Compensation to
Purchasers: _______________________]*
Notices to the Purchasers shall be sent to the following
address(es) or telecopier number(s):
--------
* Delete bracketed information if delayed delivery contracts are not authorized.
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 the transactions contemplated
in this Agreement, 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
"Western Resources, Inc., Common Stock (par value $5.00 per share), Standard
Purchase Provisions," a copy of which has been previously furnished to us, 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.
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,
[Firm Name]
By _________________________
Title: _____________________
[Firm Name]
By _________________________
Title: _____________________
Acting on behalf of and as
Representative(s) of the
several Purchasers named
in Schedule A hereto.*
The foregoing Purchase Agreement is hereby confirmed as of the date first above
written.
WESTERN RESOURCES, INC.
By ___________________________
Title _________________________
--------
* 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
Number of
Name [Firm]* Shares
---- --------------
--------
* Delete bracketed language if over-allotment option is not granted by
the Company.
