The Empire District Electric Company Form of Purchase Agreement Common Stock
Exhibit
1(a)
The
Empire District Electric Company
Form of
Purchase Agreement
Common
Stock
(Date)
The
Empire District Electric Company
000
Xxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxx 00000
Ladies
and Gentlemen:
We refer
to the Common Stock, $1.00 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
Common Stock referred to below (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 Firm Common Stock and the Additional Common
Stock are collectively referred to as the “Purchased Common Stock.”
The price
at which the Purchased Common 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 Common Stock will be
offered as set forth in the Prospectus Supplement relating to such Purchased
Common Stock.
The Sale
of the Purchased Common Stock will take place as follows:
The
“Applicable Time” (as
|
|
defined
in Section 1
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|
of
the Company’s
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|
Standard
Purchase
|
|
Provisions
— Common
|
____
[A.M./P.M.], New York
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Stock)
shall be:
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City
time on ______________
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The
“Closing Date” (as
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|
defined
in Section 2
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|
of
the Company’s
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|
Standard
Purchase
|
|
Provisions
— Common
|
|
Stock)
shall be:
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___________________________ |
The
closing of the
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|
purchase
and sale of
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|
the
Purchased Common
|
|
Stock
shall take place at:
|
___________________________ |
The
Purchased Common Stock
|
|
shall
be made available for
|
|
inspection
and packaging at:
|
___________________________ |
The
purchase price for
|
|
the
Purchased Common
|
|
Stock
shall be paid by:
|
___________________________ |
The
funds used to pay
|
|
for
the Purchased Common
|
|
Stock
shall be:
|
___________________________ |
Listing:
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___________________________ |
Other:
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___________________________ |
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—Common 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,
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[NAME
OF PURCHASER]
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||
By:________________________________
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Name:
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||
Title:
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Acting
on behalf of itself and as Representative(s) of the several Purchasers
named in Schedule A hereto.1
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The
foregoing Purchase
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||
Agreement
is hereby confirmed
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as
of the date first above written
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THE
EMPIRE DISTRICT ELECTRIC COMPANY
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By:
_______________________________
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Name:
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||
Title:
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1To 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.
-3-
SCHEDULE A TO PURCHASE
AGREEMENT
Name
|
Address
and
Telecopier
Number
|
Number
of Shares of
Firm
Common Stock
to Be
Purchased
|
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||
Total
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|
SCHEDULE B TO PURCHASE
AGREEMENT
·
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Part
I
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·
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Part
II
|
-2-
THE
EMPIRE DISTRICT ELECTRIC COMPANY
STANDARD PURCHASE PROVISIONS
— COMMON 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 common 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, common stock, $1.00 par
value, registered under the registration statement referred to in
Section 3(a) (“Common Stock”). Each share of Common Stock will
have associated with it one preference stock purchase right. Each
such right enables the holder to acquire one one-hundredth of a share of the
Company’s Series A Participating Preference Stock under certain
circumstances. The shares of Common Stock referred to on
Schedule A of the Purchase Agreement are 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 this
Agreement for the sole purpose of covering over-allotments. The Firm
Common Stock and the Additional Common Stock, if any, are collectively referred
to as the “Purchased Common Stock.” The firm or firms, as the case
may be, which agree to purchase the Purchased Common Stock are hereinafter
referred to as the “Purchasers” of such Purchased Common 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.
Except
where the context otherwise requires, “Registration Statement,” as used herein,
means the registration statement, as amended at the time of such registration
statement’s effectiveness for purposes of Section 11 of the Securities Act of
1933, as amended (the “Act”), as such section applies to the respective
Purchasers (the “Effective Time”), including (i) all documents filed as a part
thereof or incorporated or deemed to be incorporated by reference therein (other
than the Statements of Eligibility and Qualification of the trustees (the “Forms
T-1”) and (ii) any information contained or incorporated by reference in a
prospectus filed with the Securities and Exchange Commission (the “Commission”)
pursuant to Rule 424(b) under the Act, to the extent such information is deemed,
pursuant to Rule 430A, Rule 430B or Rule 430C under the Act, to be part of the
Registration Statement at the Effective Time.
The
Company has furnished to you, for use by the Purchasers and by dealers in
connection with the offering of the Purchased Common Stock, copies of one or
more preliminary prospectus supplements, and the documents incorporated by
reference therein, relating to the Purchased Common Stock. Except
where the context otherwise requires, “Pre-Pricing Prospectus,” as used herein,
means each such preliminary prospectus supplement, in the form so furnished,
together with any base prospectus (whether or not in preliminary form) included
in the Registration Statement furnished to you by the Company and attached to or
used with such preliminary prospectus supplement. Except where the
context otherwise requires, “Base Prospectus,” as used herein, means any such
base prospectus and any base pro-
spectus
furnished to you by the Company and attached to or used with the Prospectus
Supplement (as defined below).
Except
where the context otherwise requires, “Prospectus Supplement,” as used herein,
means the final prospectus supplement, relating to the Purchased Common Stock,
filed by the Company with the Commission pursuant to Rule 424(b) under the Act
on or before the second business day after the date hereof (or such earlier time
as may be required under the Act), in the form furnished by the Company to you
for use by the Purchasers and by dealers in connection with the offering of the
Purchased Common Stock.
Except
where the context otherwise requires, “Prospectus,” as used herein, means the
Prospectus Supplement together with the Base Prospectus attached to or used with
the Prospectus Supplement.
“Permitted
Free Writing Prospectuses,” as used herein, means the documents listed on [Part
I of] Schedule B to the Purchase Agreement.
“Disclosure
Package,” as used herein, means the Pre-Pricing Prospectus most recently
furnished to the Purchasers prior to the Applicable Time, together with the
Permitted Free Writing Prospectuses [and the information referred to in the next
succeeding sentence, as of the Applicable Time. The Purchasers have
informed the Company that the Purchasers have provided, or will orally provide,
the pricing information set forth in Part II of Schedule B to the Purchase
Agreement to prospective purchasers prior to confirming sales].
“General
Use Disclosure Package,” as used herein, means the Disclosure Package, other
than each “road show” (as defined in Rule 433 under the Act), if any, related to
the offering of the Purchased Common Stock contemplated hereby.
“Applicable
Time,” as used herein, means the time set forth in the Purchase Agreement, which
is the time when sales of the Purchased Common Stock will first be
made.
Any
reference herein to the Registration Statement, any Base Prospectus, any
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and include the
documents, if any, incorporated by reference therein, as of the Effective Time
in the case of the Registration Statement and as of the date thereof in the case
of any other of such documents (the “Incorporated Documents”), including, unless
the context otherwise requires, the documents, if any, filed as exhibits to such
Incorporated Documents. Any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any Base
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to
and include the filing of any document under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), on or after the Effective Time, or the
date of such Base Prospectus, such Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or such Permitted Free Writing Prospectus, as the
case may be.
As used
in this Agreement, “business day” shall mean a day on which the New York Stock
Exchange (the “NYSE”) is open for trading. The terms “herein,”
“hereof,” “hereto,” “hereinafter” and similar terms, as used in this Agreement,
shall in each case refer to this Agreement as a whole and not
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to any
particular section, paragraph, sentence or other subdivision of this
Agreement. The term “or,” as used herein, is not
exclusive.
2. Sale and Delivery of Common
Stock. Subject to the terms and conditions set forth in this
Agreement, the Company will deliver the Firm Common 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.” Except as
otherwise provided in this Agreement, 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
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 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 an Additional Closing Date may be the same. If there
is any Additional Common 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 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 and
from time to time 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 (each such date and time being herein referred to as the “Additional
Closing Date”); provided, however, that an
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 applicable 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 an 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 such 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.
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If an
Additional Closing Date occurs after the Closing Date, then the obligation of
the Purchasers to purchase the Additional Common Stock shall be conditioned upon
receipt of supplemental opinions, certificates and letters confirming as of such
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
as of the date hereof, as of the Applicable Time and as of the Closing Date (in
each case, unless otherwise indicated below with respect to any representation
or warranty) to each Purchaser that:
(a) The
Registration Statement has heretofore become effective under the Act; no stop
order of the Commission preventing or suspending the use of any Base Prospectus,
any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus, or the effectiveness of the Registration
Statement, has been issued, and no proceedings for such purpose or pursuant to
Section 8A of the Act against the Company or related to the offering of the
Purchased Common Stock contemplated hereby have been instituted or, to the
Company’s knowledge, are contemplated by the Commission.
(b) The
Registration Statement complied at the Effective Time, complies as of the date
hereof and, as amended or supplemented, at the Closing Date and each Additional
Closing Date will comply, in all material respects, with the requirements of the
Act; the conditions to the use of Form S-3 in connection with the offering and
sale of the Purchased Common Stock as contemplated hereby have been satisfied;
as of the eligibility determination date applicable to the Registration
Statement (and any amendment thereof) and the offering contemplated hereby, the
Company is not an “ineligible issuer” (as defined in Rule 405 of the rules and
regulations under the Act (the “Rules and Regulations”)) at any such date; the
Registration Statement did not, as of the Effective Time, 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; each
Pre-Pricing Prospectus complied, at the time it was filed with the Commission,
and complies as of the date hereof, in all material respects with the
requirements of the Act; and, at the time such Pre-Pricing Prospectus was filed
with the Commission, as of the Applicable Time, at the Closing Date and at each
Additional Closing Date, such Pre-Pricing Prospectus, as then amended or
supplemented through the Applicable Time, together with the Permitted Free
Writing Prospectuses, if any (considered both with and without any “road show”),
did not or 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; each Base
Prospectus, as of its date and the date it was filed with the Commission,
complied, in all material respects, with the requirements of the Act, and did
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; each of the Prospectus
Supplement and the Prospectus, as of the date that it is filed with the
Commission, the date of the Prospectus Supplement, the Closing Date and each
Additional Closing Date complied, or will comply, in all material respects, with
the requirements of the Act (including, without limitation, Section 10(a) of the
Act) and did not and 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;
provided, however, that the
Company makes no representation or warranty in this Section 3(b) with respect to
(i) any statement contained in the Registration Statement, any Pre-Pricing
Prospectus, the Prospectus, any Prospec-
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tus
Supplement or any Permitted Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing by or on behalf of a Purchaser
to the Company expressly for use in the Registration Statement, such Pre-Pricing
Prospectus, the Prospectus, any Prospectus Supplement or such Permitted Free
Writing Prospectus and (ii) that part of the Registration Statement that
constitutes the Forms T-1; each Incorporated Document, at the time such document
was filed with the Commission or at the time such document became effective, as
applicable, complied in all material respects, with the requirements of the
Exchange Act and did 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.
(c) The
General Use Disclosure Package, at the Applicable Time, did not contain any
untrue statement of material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) The
Company has an authorized capitalization as set forth in the Registration
Statement, the General Use Disclosure Package and the Prospectus. All
of the issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued, and are fully paid and
non-assessable.
(e) The
shares of Purchased Common Stock to be issued and sold by the Company to the
Purchasers hereunder have been duly and validly authorized and, when issued and
delivered against payment therefor in accordance with this Agreement, will be
duly and validly issued, fully paid and non-assessable; and each such share
carries with it one preference stock purchase right, the terms of which are set
forth in the Rights Agreement dated as of April 27, 2000 between the Company and
Xxxxx Fargo Bank, N.A. (as successor to Mellon Investor Services L.L.C.), as
rights agent thereunder; and the Purchased Common Stock will conform to the
description thereof contained in the Registration Statement, the Disclosure
Package and the Prospectus.
(f) 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, the Disclosure Package and the
Prospectus.
(g) The
Empire District Gas Company (“Empire Gas”) 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,
the General Use Disclosure Package and the Prospectus. Other than
Empire Gas, the Company has no “significant subsidiary,” as such term is defined
in Rule 405 of the Rules and Regulations.
(h) 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”).
-5-
(i) Empire
Gas is duly qualified to do business as a foreign corporation and is 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.
(j) Each of
the Company and Empire Gas (1) is not in violation of its charter or by-laws,
(2) is not in default in any 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
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 respect of
any law, ordinance, governmental rule, regulation or court decree to which it or
its 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.
(k) The
execution, delivery and performance of this Agreement and the issuance of the
Purchased Common 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), (1) any provisions of the
charter or by-laws of the Company or Empire Gas or (2) 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 or Empire Gas is a party or by which it or its
respective properties may be bound or affected, or (3) under any federal, state,
local or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or Empire Gas, except, in the case of clause (2)
above, for any such conflict, breach or default which would not reasonably be
expected to result in a Material Adverse Effect.
(l) This
Agreement has been duly authorized, executed and delivered by the
Company.
(m) The
Purchased Common Stock conforms in all material respects to the descriptions
thereof contained in the Registration Statement, the Disclosure Package and the
Prospectus.
(n) 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 Common 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 Common Stock is being offered by the
Purchasers.
(o) There are
no actions, suits, claims, investigations or proceedings pending or threatened
to which the Company or Empire Gas or any of their officers is a party or of
which any of their 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 rea-
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sonably
be expected to result in a Material Adverse Effect or prevent consummation of
the transactions contemplated hereby.
(p) The
audited financial statements incorporated by reference in the Registration
Statement, the Disclosure Package 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 incorporated by
reference in the Registration Statement, the Disclosure Package 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.] All disclosures contained in the Registration Statement,
the Disclosure Package or the Prospectus regarding “non-GAAP financial measures”
(as such term is defined by the Rules and Regulations) comply with Regulation G
of the Exchange Act and Item 10 of Regulation S-K under the Act, to the extent
applicable.
(q) The
accountants who certified the audited financial statements of the Company and
supporting schedules and notes thereto incorporated by reference in the
Registration Statement, the Disclosure Package and 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”).
(r) 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.
(s) 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 NYSE issued or adopted in connection therewith.
(t) 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
-7-
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 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.
(u) (A) The
Company has devised and established and maintains the following, among other,
internal controls (without duplication):
(1) a system
of “internal accounting controls” as contemplated in Section 13(b)(2)(B) of the
Exchange Act;
(2) “disclosure
controls and procedures” as such term is defined in Rule 13a-15(e) under the
Exchange Act; and
(3) “internal
control over financial reporting” (as such term is defined in Rule 13a-15(f)
under the Exchange Act) (the internal controls referred to in clauses (1) and
(2) above and this clause (3) being hereinafter called, collectively, the
“Internal Controls”).
(B) The
Internal Controls are evaluated by the Company’s senior management periodically
as appropriate and, in any event, as required by law.
(C) The
Internal Controls are, individually and in the aggregate, effective in all
material respects to perform the functions for which they were
established.
(D) Based
on the most recent evaluations of the Company’s internal control over financial
reporting, (1) there are no material weaknesses in the design or operation
of the Company’s internal control over financial reporting, whether considered
individually or collectively, and (2) all significant deficiencies, if any, in
the design or operation of the Company’s internal control over financial
reporting have been identified and reported to the Company’s independent
auditors and the audit committee of the Company’s board of
directors.
(v) Subsequent
to the respective dates as of which information is given in the General Use
Disclosure Package and the Prospectus, there has been no material adverse
change, or any development that is reasonably likely to result in a material
adverse change, in the business, properties, financial condition or results of
operations of the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business (any such change or development, a
“Material Adverse Change”).
(w) All
material tax returns required to be filed by the Company have been filed in all
jurisdictions where such returns are required to be filed, except where valid
extensions have been obtained; and all taxes, including withholding, value added
and franchise taxes, penalties and interest, assessments, fees and other charges
that are due and payable have been paid (or, with re-
-8-
spect to
those based on good faith estimates, have been paid to the extent of such
estimates), other than those being contested in good faith and for which
reserves have been provided in accordance with generally accepted accounting
principles or those currently payable without penalty or interest and except
where the failure to make such required filings or payments could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. To the knowledge of the Company, there are no
material proposed additional tax assessments against the Company or its assets
or property.
(x) 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.
(y) Any
statistical and market-related data included in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, 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.
(z) Neither
the Company nor any of its subsidiaries nor, to the Company’s knowledge after
due inquiry, any employee or agent of the Company or its subsidiaries has made
any payment of funds of the Company or its subsidiaries or received or retained
any funds in violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the
Registration Statement, the General Use Disclosure Package or the
Prospectus.
(aa) Neither
the Company nor any of its directors, officers, affiliates or controlling
persons has taken, directly or indirectly, any action designed, or which has
constituted or might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Purchased Common
Stock other than actions taken pursuant to Section 4(h) of this
Agreement.
(bb) All
contracts or documents that are required to be described in the Registration
Statement, any Pre-Pricing Prospectus or the Prospectus or to be filed as
exhibits to the Registration Statement have been so described and filed as
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, any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus with respect to any Purchased Common 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
Common Stock as originally filed and all amendments thereto (at least one of
which will be
-9-
signed
and will include all exhibits except those incorporated by reference to previous
filings with the Commission), each related Pre-Pricing Prospectus, Permitted
Free Writing Prospectus, Prospectus, and all amendments and supplements to such
documents (except amendments to exhibits and supplements relating to securities
that are not Purchased Common 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 prior to the filing of the Prospectus, with respect to each Pre-Pricing
Prospectus or, thereafter, with respect to the Prospectus, when a prospectus
relating to the Purchased Common Stock is required to be conveyed under the Act
or the Rules and Regulations, any event occurs as a result of which such
Pre-Pricing Prospectus or the Prospectus, as applicable, 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 such Pre-Pricing Prospectus or the Prospectus, as
applicable, 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 convey in connection therewith, such Pre-Pricing Prospectus or
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
Pre-Pricing Prospectus or 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 Common 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 Common 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).
-10-
(g) The
Company will apply the net proceeds from the offering of the Purchased Common
Stock as set forth under the caption “Use of proceeds” in the Prospectus
Supplement.
(h) If a
public offering of the Purchased Common Stock is to be made, the Company will
(1) for a period of [ ] days from the date of the Prospectus
(the “Lock-Up
Period”), not, directly or indirectly (a) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which is designed
to, or could reasonably be expected to, result in the disposition by any person
at any time in the future of), or file with the Commission a registration
statement under the Act relating to, any shares of Common Stock or securities
convertible into or exchangeable for Common Stock (other than the Purchased
Common Stock and shares issued pursuant to employee benefit plans, dividend
reinvestment plans, employee stock purchase plans, stock option plans or other
employee or director compensation plans existing on the date hereof or pursuant
to currently outstanding options, warrants or rights disclosed as outstanding in
the Registration Statement or Prospectus), or sell or grant options, rights or
warrants with respect to any shares of Common Stock or securities convertible
into or exchangeable for Common Stock (other than the grant of options in the
ordinary course of business consistent with the Company’s past practices
pursuant to option plans existing on the date hereof), (b) enter into any swap
or other derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (a) or (b) above is to
be settled by delivery of Common Stock or other securities, in cash or
otherwise, or (c) publicly announce an intention to effect any transaction
specified in clause (a) or (b) above, in each case without the prior written
consent of [ ] on behalf of
the Purchasers, provided however, that the filing of
registration statements on Form S-8 and amendments thereto in connection with
the Company's employee benefit plans in existence on the date of this Agreement
shall not be considered a disposition under clause (a) above; and (2) cause each
of the executive officers and directors of the Company listed on Schedule I
hereto to furnish to the Purchasers, prior to the Closing Date, a letter or
letters, substantially in the form of Exhibit A hereto; provided further, however, that if (a)
during the period that begins on the date that is fifteen (15) calendar days
plus three (3) business days before the last day of the Lock-Up Period and ends
on the last day of the Lock-Up Period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (b) prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed by this Section
4(h) shall continue to apply until the expiration of the date that is fifteen
(15) calendar days plus three (3) business days after the date on which the
issuance of the earnings release or the material news or material event occurs,
unless [ ] waives, in
writing, such extension.
(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 any Base Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus,
or the effectiveness of the Registration Statement, of the suspension of the
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; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Base Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free
Writing Prospectus, or the effectiveness of the Registration Statement, or
suspend-
-11-
ing any
such qualification, promptly to use its reasonable best efforts to obtain the
prompt withdrawal of such order.
(j) The
Company represents that it has not made, and agrees that, unless it obtains the
prior written consent of
[ ] on behalf of the
Purchasers, it will not make, any offer relating to the Purchased Common Stock
that would constitute an “issuer free writing prospectus” (as defined in Rule
433 of the Act) or that would otherwise constitute a “free writing prospectus”
(as defined in Rule 405 of the Act) required to be filed by the Company with the
Commission or retained by the Company under Rule 433 of the Act; provided that the
prior written consent of
[ ] on behalf of the
Purchasers shall be deemed to have been given in respect of the Permitted Free
Writing Prospectuses. The Company agrees that (i) it has treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as an
issuer free writing prospectus, and (ii) has complied and will comply, as the
case may be, with the requirements of Rules 164 and 433 of the Act applicable to
any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
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 each Pre-Pricing
Prospectus, Prospectus Supplement, Prospectus and Permitted Free Writing
Prospectus, and any supplements or amendments thereto; (ii) the
preparation, issuance and delivery to the Purchasers of the Purchased Common
Stock (other than transfer taxes); (iii) the listing of the Purchased
Common Stock on the NYSE; (iv) the reproduction or printing and mailing in
reasonable quantities of the Registration Statement and amendments thereto, each
Pre-Pricing Prospectus, the Prospectus, each Permitted Free Writing Prospectus,
if any, and any amendments or supplements thereto, this Agreement and 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 Common 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 Common Stock; (vii) the fees
and expenses of the accountants and the counsel for the Company; (viii) the
costs and expenses of the Company relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the
Purchased Common Stock to prospective investors and the Purchasers’ sales
forces, including, without limitation, travel, lodging and other expenses
incurred by the officers of the Company; and (ix) 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(b) and
(ii) their own out-of-pocket expenditures.
6. Conditions of the
Purchasers’ Obligations with Respect to Firm Common Stock. The
obligations of the Purchasers to purchase and pay for the Firm Common Stock
shall be subject in
-12-
their
discretion to the accuracy of and compliance in all material respects with the
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, LLP,
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 Registration Statement, the General Use Disclosure Package and
the Prospectus;
(ii) The
outstanding shares of the Company’s common stock have been duly authorized and
issued and are fully paid and non-assessable; the Purchased Common 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
each such share carries with it one preference stock purchase right, the terms
of which are set forth in the Rights Agreement dated as of April 27, 2000
between the Company and Xxxxx Fargo Bank, N.A. (as successor to Mellon Investor
Services LLC), as rights agent thereunder; the Purchased Common Stock conforms
as to legal matters in all material respects to the descriptions thereof
contained in or incorporated by reference into the General Use Disclosure
Package and the Prospectus; and the Company has an authorized capitalization as
set forth in the General Use Disclosure Package and 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 Common Stock have
been obtained; any conditions in such approvals required to be satisfied prior
to the issuance of the Purchased Common 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 Common
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 Common 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
-13-
(v) This
Agreement has been duly authorized, executed and delivered by the
Company.
(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 Registration Statement, the General Use Disclosure Package and
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 Registration Statement, the General Use Disclosure Package and
the Prospectus;
(iii) Neither
the issuance, sale and delivery of the Purchased Common 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) Such
counsel has no reason to believe that either (a) the Registration
Statement, as of the Effective Time, or the Prospectus, as of its issue date and
also as of the Closing Date, or (b) the General Use Disclosure Package, as of
the Applicable Time, contained any untrue statement of material fact or omitted
to state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; the descriptions
in the Registration Statement, the General Use Disclosure Package and the
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 under the Act or to be filed as exhibits to
-14-
the
Registration Statement pursuant to Item 601 of Regulation S-K under
the Act 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 information contained in the General Use Disclosure Package 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 General Use Disclosure Package 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, LLP, referred to in
paragraph (b) above and, as to all matters covered thereby, upon the
opinion of Brydon, 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 the issuance, sale and delivery of the Purchased Common 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 Common 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
General Use Disclosure Package and 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 Common 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
-15-
purpose
have been instituted or are pending or contemplated under the Act, and the
Registration Statement, General Use Disclosure Package and the Prospectus, and
each amendment or supplement thereto (except, in each case, as to the financial
statements or other financial information included therein or omitted therefrom
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, LLP; Xxxxxxx,
Xxxxx & Xxxxx, P.C.; and Brydon, Xxxxxxxxxx & England, Professional
Corporation, referred to above.
In
addition, such counsel shall state that: “We have participated in
conferences with officers and other representatives of the Company,
representatives of the independent registered public accounting firm for the
Company, representatives of counsel for the Purchasers and representatives of
the Purchasers at which the contents of the Registration Statement, the
Prospectus and the General Use Disclosure Package and related matters were
discussed. Although we have made certain inquiries and investigations
in connection with the preparation of the Registration Statement, the Prospectus
and the General Use Disclosure Package, the limitations inherent in the role of
outside counsel are such that we cannot and do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in such
documents. Subject to the foregoing, we advise you that no facts have
come to our attention that lead us to believe that (i) the Registration
Statement, at the Effective Time, 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, (ii) the Prospectus, as
of its date or as of the date hereof, contained or contains an untrue statement
of a material fact or omitted or omits 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 or (iii) the General Use Disclosure
Package, taken together, as of the Applicable Time, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that we express no
comment with respect to the financial statements or other financial data that is
included in or omitted from the Registration Statement, the Prospectus or the
General Use Disclosure Package or the Forms T-1).”
(f) You shall
have received an opinion, dated the Closing Date, of Xxxxx & XxXxxxx LLP,
counsel for the Purchasers, with respect to such matters as the Purchasers may
reasonably request and in form and substance satisfactory to the
Purchasers.
(g) You shall
have received from PricewaterhouseCoopers LLP letters dated, respectively, the
date of this Agreement, the Closing Date and, if applicable, each Additional
Closing Date, and addressed to the Purchasers in form and substance reasonably
acceptable to
[ ].
-16-
(h) On the
Closing Date, subsequent to the respective dates as of which information is
given in the General Use Disclosure Package and the Prospectus, there shall have
been no Material Adverse Change and 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 General Use Disclosure
Package and the Prospectus, there has been no Material Adverse
Change.
(i) 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.
(j) 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.
(k) The NYSE
shall have approved for listing upon official notice of issuance, the Purchased
Common Stock.
(l) You shall
have received an agreement substantially in the form of Exhibit A attached
hereto signed by each of the directors and executive officers of the Company
identified on Schedule I.
7. Indemnification.
(a) The
Company will indemnify and hold harmless each Purchaser and each person, if any,
who controls any Purchaser within the meaning of the Act, each of the
Purchasers’ directors and officers, and the successors and assigns of all of the
foregoing persons, against the losses, claims, damages or liabilities, joint or
several, to which such Purchaser or such controlling person may become subject,
under the Act, the Exchange Act, common law 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, any Pre-Pricing
Prospectus, any issuer free writing prospectus (as defined in Rule 433 under the
Act), the Prospectus, or any amendment or supplement to any thereof, 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, and each such
controlling person for any legal or other expenses reasonably incurred by such
Purchaser 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
-17-
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, any Pre-Pricing Prospectus, any Permitted Free
Writing Prospectus, the Prospectus or any amendment or supplement to any
thereof, 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 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 Common Stock and the Purchasers set forth in
[ ]
on the cover page of the Prospectus Supplement and in
[ ] under
the heading “Underwriting”.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
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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 and does not include an
admission of fault, culpability or a failure to act, by or on behalf of such
indemnified party, 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
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 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 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 Common 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 on or prior to the Closing Date or, with
respect to the Additional Common Stock, any Additional Closing Date, by the
Purchasers by written notice to the Company, if (i) a Material Adverse Change
has occurred since the respective dates as of which information is given in the
General Use Disclosure Package and the Prospectus, (ii) trading in securities on
the NYSE has been suspended or limited or minimum prices having been established
on such Exchange or a material disruption has occurred in commercial banking,
securities settlement or clearance services, (iii) a suspension or material
limitation in trading in the Company’s securities on the NYSE has
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been
imposed, (iv) a banking moratorium having been declared by the United States, or
by New York or Missouri state authorities, (v) (A) an outbreak or substantial
escalation of major hostilities between the United States and any foreign power,
or any other new insurrection or armed conflict involving the United States
having occurred, or (B) any material adverse change in financial, political or
economic conditions in the United States or elsewhere, if the effect of any such
event specified in subclause (A) or (B) above in this clause (v) in the
Purchasers’ judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Purchased Common Stock on the terms and
in the manner contemplated in the Registration Statement, the General Use
Disclosure Package and the Prospectus, or (vi) since the time of execution of
this Agreement, there shall have occurred any downgrading, or any notice or
announcement shall have been given or made of (A) any intended or potential
downgrading or (B) any watch, review or possible change that does not indicate
an affirmation or improvement in the rating accorded any securities of or
guaranteed by the Company by any “nationally recognized statistical rating
organization,” as that term is defined in Rule 436(g)(2) under the
Act.
(b) If the
sale to the Purchasers of the Purchased Common Stock, as contemplated by this
Agreement, is not carried out by the Purchasers for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 5(a), 7 and 8 hereof), and the Purchasers shall be
under no obligation or liability to the Company under this Agreement (except to
the extent provided in Sections 7 and 8, and the last sentence of Section
11 hereof) or to one another hereunder.
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 Common Stock or
termination of this Agreement.
11. Default of
Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Firm Common Stock or Additional Common Stock, as the
case may be, hereunder and the aggregate number of shares of Firm Common Stock
or Additional Common 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 Common Stock or Additional Common Stock, as the
case may be, you may make arrangements satisfactory to the Company for the
purchase of such Firm Common Stock or Additional Common 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
Common Stock or Additional Common 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 Common Stock or
Additional Common 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 Common Stock
or Additional Common 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 9 and except that any default by a Purchaser with
respect to the purchase of Additional Common Stock shall not affect the
obligation of the Purchasers to purchase the Firm Common
-20-
Stock. In
the event that any Purchaser or Purchasers default in their obligation to
purchase Firm Common Stock or Additional Common Stock, as the case may be,
hereunder, the Company may, by prompt written notice to the non-defaulting
Purchasers, postpone the Closing Date and an 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 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 Common 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 Common 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,
telecopier no. (000) 000-0000 (Attn: Vice President - Finance) (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.
16. Jurisdiction; Waiver of Jury
Trial. Except as set forth below, no claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in anyway relating to
this Agreement (“Claim”) may be commenced, prosecuted or continued in any court
other than the courts of the State of New York located in the City and County of
New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such
matters, and the Company consents to the jurisdiction of such courts and
personal service with respect thereto. The Company hereby consents to
personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party
against any Purchaser or any indemnified party. Each Purchaser and
the Company (on its behalf and, to the extent permitted by applicable law, on
behalf of its stockholders and affiliates) each waive all right to trial by jury
in any action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any
-21-
way
arising out of or relating to this Agreement. The Company agrees that
a final judgment in any such action, proceeding or counterclaim brought in any
such court shall be conclusive and binding upon the Company and may be enforced
in any other courts to the jurisdiction of which the Company is or may be
subject, by suit upon such judgment.
17. No Advisory or Fiduciary
Relationship. The Company acknowledges and agrees that (a) the
purchase and sale of the Purchased Common Stock pursuant to this Agreement,
including the determination of the public offering price of the Purchased Common
Stock and any related discounts and commissions, is an arm’s-length commercial
transaction between the Company, on the one hand, and the several Purchasers, on
the other hand, (b) in connection with the offering contemplated hereby and the
process leading to such transaction each Purchaser is and has been acting solely
as a principal and is not the agent or fiduciary of the Company, or its
stockholders, creditors, employees or any other party, (c) no Purchaser has
assumed or will assume an advisory or fiduciary responsibility in favor of the
Company with respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether such Purchaser has advised or is currently
advising the Company on other matters) and no Purchaser has any obligation to
the Company with respect to the offering contemplated hereby except the
obligations expressly set forth in this Agreement, (d) the Purchasers and their
respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company, and (e) the Purchasers
have not provided any legal, accounting, regulatory or tax advice with respect
to the offering contemplated hereby and the Company has consulted its own legal,
accounting, regulatory and tax advisors to the extent it deemed
appropriate.
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EXHIBIT
A
FORM OF
LOCK-UP LETTER AGREEMENT
[ ]
[Address]
Dear
Sirs:
The
undersigned understands that you and certain other firms propose to enter into a
Purchase Agreement (the “Purchase Agreement”) providing for the purchase by you
(the “Underwriters”) of shares (the “Shares”) of Common Stock, par value $1.00
per share (the “Common Stock”), of The Empire District Electric Company, a
Kansas corporation (the “Company”), and that the Underwriters propose to reoffer
the Shares to the public (the “Offering”) under a “shelf” Registration Statement
on Form S-3 (Registration No. 333-
[ ]) filed with the
Securities and Exchange Commission.
In
consideration of the execution of the Purchase Agreement by the Underwriters,
and for other good and valuable consideration, the undersigned hereby
irrevocably agrees that, without the prior written consent of
[ ], on behalf of the
Underwriters, the undersigned will not, directly or indirectly, (1) offer for
sale, sell, pledge, or otherwise dispose of (or enter into any transaction or
device that is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any shares of Common Stock
(including, without limitation, shares of Common Stock that may be deemed to be
beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and shares of Common Stock
that may be issued upon exercise of any option or warrant) or securities
convertible into or exchangeable for Common Stock owned by the undersigned on
the date of execution of this Lock-Up Letter Agreement or on the date of the
completion of the Offering, (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of such shares of Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or other securities, in cash or otherwise, or (3) publicly announce an intention to effect any
transaction specified in clause (1) or (2) above, for a period of
[ ] days after the date of the final Prospectus relating to the
Offering (the “Lock-Up Period”); provided, however, that, notwithstanding the
foregoing, the following shall be permitted: (a) the exercise of options disclosed as outstanding in the Registration Statement
and the Prospectus, (b) the sale of shares to the Company solely for the
purpose of paying taxes imposed on the undersigned in connection with the
exercise of options or the receipt of stock compensation or other stock awards
from the Company, (c) bona fide gifts, provided
the recipient thereof agrees in writing with the Underwriters to be bound by the
terms of this Lock-Up Letter Agreement, and (d)
dispositions to any trust for the direct or indirect benefit of the undersigned
and/or the immediate family of the undersigned, provided that such
trust agrees in writing with the Underwriters to be
bound by the terms of this Lock-Up Letter Agreement; provided, however,
that if (a) during the period that begins on the date that is fifteen (15)
calendar days plus three (3) business days before the last day of the Lock-Up
Period and ends on the last day of the Lock-Up Period, the Company issues an
earnings release or material news or a material event relating to the Company
occurs; or (b) prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the sixteen (16) day
period beginning on the last day
-23-
of the
Lock-Up Period, then the restrictions imposed by this paragraph shall continue
to apply until the expiration of the date that is fifteen (15) calendar days
plus three (3) business days after the date on which the issuance of the
earnings release or the material news or material event occurs, unless
[ ] waives, in writing,
such extension. In addition, the
undersigned agrees that, without the prior written consent of
[ ], it will not, for a period of [ ] days after the date of the final Prospectus relating to
the Offering, make any demand for or exercise any right with
respect to, the registration of any Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock, except pursuant to the
Underwriting Agreement.
It is
understood that, if the Company notifies you in writing that it does not intend
to proceed with the Offering or if the Purchase Agreement (other than the
provisions thereof which survive termination) shall terminate or be terminated
prior to payment for and delivery of the Shares, I will be released from my
obligations under this Lock-Up Letter Agreement.
The
undersigned understands that the Company and the Underwriters will proceed with
the Offering in reliance on this Lock-Up Letter Agreement.
Whether
or not the Offering actually occurs depends on a number of factors, including
market conditions. Any Offering will only be made pursuant to a
Purchase Agreement, the terms of which are subject to negotiation between the
Company and the Underwriters.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Lock-Up Letter Agreement and that, upon
request, the undersigned will execute any additional documents legally required
in connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
The undersigned hereby confirms that the undersigned has
not, directly or indirectly, taken, and hereby covenants that the undersigned
will not, directly or indirectly, take, any action designed, or which
has constituted or will constitute or might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of shares of
Common Stock.
Very
truly yours,
|
By:__________________________________________
Name:
Title:
|
Dated:
-24-
SCHEDULE
I