Exhibit 1(a)
THE EMPIRE DISTRICT ELECTRIC COMPANY
COMMON STOCK
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
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 "Closing Date" (as
defined in Section 2
of the Company's
Standard Purchase
Provisions -- Common
Stock) shall be:
The closing of the
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purchase and sale of
the Purchased Common
Stock shall take place 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: ___________________
Other: ___________________
Notice to the Purchasers shall be sent to the addresses set forth in
Schedule A hereto:
If we are acting as Representative(s) for the several Purchasers named in
Schedule A hereto, we represent that we are authorized to act for such several
Purchasers in connection with this financing, and that, if there are more than
one of us, any action under this Agreement taken by any of us will be binding
upon all the Purchasers.
All of the provisions contained in the document entitled "The Empire
District Electric Company, Standard Purchase Provisions--Common Stock," 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.
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If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the several Purchasers in
accordance with its terms.
Very truly yours,
[NAME OF PURCHASER]
By:
-------------------------------------------
Name:
Title:
Acting on behalf of itself and as
Representative(s) of the several Purchasers named
in Schedule A hereto.(1)
The foregoing Purchase
Agreement is hereby confirmed
as of the date first above written
THE EMPIRE DISTRICT ELECTRIC COMPANY
By: _______________________________
Name:
Title:
----------
1 To be deleted if the Purchase Agreement is not executed by one or more
Purchasers acting as Representative(s) of the Purchasers for purposes of
this Agreement.
SCHEDULE A TO PURCHASE AGREEMENT
Number of Shares of
Address and Firm Common Stock
Name Telecopier Number to Be Purchased
Total ----------
==========
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.
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."
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 the 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
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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.
If the 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 the Additional Closing Date the opinions, certificates and
letters delivered on the Closing Date pursuant to Section 6 hereof.
3. Representations and Warranties of the Company. The Company represents
and warrants to each Purchaser that:
(a) The registration statement referred to in the Purchase Agreement
and relating to the Common Stock including a prospectus and all documents
incorporated by reference therein has been filed on Form S-3 with the
Securities and Exchange Commission ("Commission") and has become effective.
Such registration statement, including the prospectus supplement with
respect to the Purchased Common Stock referred to in Section 2 (the
"Prospectus Supplement") and all prior amendments and supplements thereto
(other than supplements and amendments relating to securities that are not
Purchased Common Stock) and all documents filed as a part thereof or
incorporated therein pursuant to Item 12 of Form S-3 (other than the
Statements of Eligibility and Qualification of trustees filed as a part
thereof (the "Forms T-1")), is hereinafter referred to as the "Registration
Statement" and such prospectus,
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as so amended or supplemented (including all material so incorporated by
reference therein), in the form first filed by the Company pursuant to Rule
424(b) under the Act is hereinafter referred to as the "Prospectus."
(b) The Registration Statement and the Prospectus conform in all
respects to the requirements of the Securities Act of 1933, as amended
("Act"), and the pertinent published rules and regulations ("Rules and
Regulations") of the Commission, and none of such documents includes any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements or
omissions in either of such documents based upon written information
furnished to the Company by any Purchaser specifically for use therein. The
documents incorporated by reference in the Registration Statement or the
Prospectus pursuant to Item 12 of Form S-3 under the Act, at the time they
were filed with the Commission, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the pertinent published rules and regulations
thereunder (the "Exchange Act Rules and Regulations") and any additional
documents deemed to be incorporated by reference in the Prospectus will,
when they are filed with the Commission, comply in all material respects
with the requirements of the Exchange Act and the Exchange Act Rules and
Regulations and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
4. Agreements of the Company. The Company agrees with the several
Purchasers that:
(a) The Company will advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus with respect to any
Purchased 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 signed and will include
all exhibits except those incorporated by reference to previous filings
with the Commission), each related prospectus, the Prospectus, and all
amendments and supplements to such documents (except amendments to exhibits
and supplements relating to securities that is 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 when a prospectus relating to the Purchased Common
Stock is required to be delivered under the Act or the Rules and
Regulations, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which made, not misleading, or
if it is necessary at any time to amend or supplement the Prospectus to
comply with the Act or the Rules and Regulations, the Company will promptly
notify the Purchasers and promptly prepare and file with the Commission an
amendment or supplement to the Registration Statement or any appropriate
filing pursuant to Section 13 or 14 of the Exchange Act which will correct
such
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statement or omission or an amendment which will effect such compliance,
and deliver in connection therewith, such Prospectus or amendments or
supplements to the Purchasers in such quantity as may be necessary to
permit compliance with the requirements of the Act and the Rules and
Regulations, provided that the Company shall be so obligated only so long
as the Company is notified of unsold allotments (failure by the Purchasers
to so notify the Company cancels the Company's obligation under this
Section 4(c)), and provided further that any such Prospectus or amendment
or supplement required later than nine months from the date hereof shall be
furnished at the Purchasers' sole expense.
(d) The Company will cooperate with the Purchasers in taking such
action as may be necessary to qualify the Purchased 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.
(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 not offer or sell any of its other common stock (other
than pursuant to the Company's dividend reinvestment and stock purchase
plan or any employee benefit or other plan in effect on the date of this
Agreement) prior to 120 days after the Closing Date without the consent of
the Purchasers.
5. Expenses. The Company and the Purchasers agree as follows:
(a) The Company, whether or not the transactions contemplated
hereunder are consummated, will (except as provided in Section 4(c) hereof)
pay all costs and expenses incident to the performance of its obligations
hereunder, including without limitation, all costs and expenses in
connection with (i) the preparation and filing of the Registration
Statement and Prospectus and any supplements or amendments thereto; (ii)
the preparation, issuance and delivery to the Purchasers of the Purchased
Common Stock (other than transfer taxes); (iii) the
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listing of the Purchased Common Stock on the New York Stock Exchange; (iv);
the reproduction or printing and mailing in reasonable quantities of the
Registration Statement and amendments thereto, each preliminary prospectus,
the Prospectus and any amendments or supplements thereto, this Agreement,
any Blue Sky memoranda delivered to the Purchasers; (v) reasonable filing
fees and expenses (including legal fees and disbursements, not in excess of
$5,000) incurred in connection with the qualification of the Purchased
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 and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
(b) The Purchasers will pay (i) the fees and disbursements of their
respective counsel, except as set forth in Section 5(a) above 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 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, Xxxxxxxx, Xxxxxxxx & Xxxxxxxx, Kansas counsel for the
Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Kansas, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) The 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 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 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
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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);
and
(iv) 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., counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Kansas, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in the States of Arkansas, Missouri and
Oklahoma, which are the only jurisdictions (other than Kansas) in
which it owns or leases substantial properties or in which the conduct
of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises
which are necessary to authorize it to carry on the utility businesses
in which it is engaged as described in the Prospectus;
(iii) Neither the issuance, sale and delivery of the Purchased
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 law of any
jurisdiction), conflict with or result in a breach of any of the
terms, conditions or provisions of the Restated Articles of
Incorporation, as amended, or By-Laws, as amended, of the Company or
of any agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or constitute a
default thereunder, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company;
(iv) Relying as to materiality to a large extent upon the
statements and opinions of representatives of the Company, such
counsel have no reason to believe that either the Registration
Statement or the Prospectus, or any amendment or supplement thereto,
as of their respective effective or issue dates, contained any untrue
statement of material fact or omitted to state any material fact
necessary to make the statements
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therein not misleading; the descriptions in the Registration Statement
and Prospectus of contracts and other documents are accurate and
fairly present the information therein shown; and such counsel do not
know of any legal or governmental proceedings required to be described
in the Prospectus by Item 103 of Regulation S-K under the Act which
are not described as so required, nor of any contracts or documents of
a character required to be described in the Registration Statement or
Prospectus pursuant to Item 11 of Form S-3 or to be filed as exhibits
to the Registration Statement pursuant to Item 601 of Regulation S-K
which are not described and filed as so required; it being understood
that such counsel need express no opinion as to the financial
statements or other financial or statistical information contained in
the Registration Statement or the Prospectus; and
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
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, Xxxxxxxx, Xxxxxxxx & Xxxxxxxx referred to in
paragraph (b) above and, as to all matters covered thereby, upon the
opinion of Xxxxxx, Xxxxxxxxxx & England, Professional Corporation, referred
to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date,
of Brydon, Xxxxxxxxxx & England, Professional Corporation, special
regulatory counsel for the Company, to the effect that no approval ,
authorization, consent or other order of any public board or body in
the State of Arkansas, Missouri or Oklahoma is legally required for
issuance, sale and delivery of the Purchased 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 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);
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(iii) The Registration Statement has become effective under
the Act, and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act, and the Registration Statement and the Prospectus, and each
amendment or supplement thereto (except, in each case, as to the
financial statements or other financial or statistical
information included therein and the Forms T-1, as to which such
counsel need not express an opinion), as of their respective
effective or issue dates, appeared to comply as to form in all
material respects with the requirements of Form S-3, and the
applicable Rules and Regulations; and
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
In rendering such opinion Xxxxxx Xxxxxx & Xxxxxxx LLP may rely, as to the
incorporation of the Company and as to all other matters governed by the
laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered
by their respective opinions, upon the opinions of Xxxxxxxx, Xxxx,
Xxxxxxxx, Xxxxxxxx & Xxxxxxxx; Xxxxxxx, Xxxxx & Xxxxx, P.C.; and Xxxxxx,
Xxxxxxxxxx & England, Professional Corporation, referred to above.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company, counsel for
the Company, representatives of the independent accountants of the Company and
representatives of the Purchasers at which the contents of the Registration
Statement and Prospectus, and any subsequent amendments or supplements thereto,
and related matters were discussed and, although such counsel is not passing
upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained or incorporated by reference in the
Registration Statement and Prospectus, or any subsequent amendments or
supplements thereto, on the basis of the foregoing (relying as to materiality to
a large extent upon the opinions of officers, counsel and other representatives
of the Company), no facts have come to the attention of such counsel which would
lead such counsel to believe that either the Registration Statement or the
Prospectus, and any subsequent amendments or supplements thereto, as of their
respective effective or issue dates, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (it being understood that such
counsel need make no comment with respect to the financial statements and other
financial and statistical information included in or incorporated by reference
the Registration Statement or Prospectus or any such amendments or supplements
or the Forms T-1).
(f) You shall have received an opinion, dated the Closing Date, of
Xxxxxxxx Xxxxxx LLP, counsel for the Purchasers, to the effect that:
(i) The Purchased 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 re-
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spects to the descriptions thereof contained in or incorporated by
reference into the Prospectus;
(ii) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased 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, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement
and the Prospectus, and each amendment or supplement thereto (except,
in each case, as to the financial statements or other financial or
statistical information included or incorporated by reference therein
or the Forms T-1, as to which such counsel need not express an
opinion), as of their respective effective or issue dates, appeared to
comply as to form in all material respects with the requirements of
Form S-3, and the applicable Rules and Regulations; and
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
In rendering such opinion Xxxxxxxx Xxxxxx LLP may rely, as to the
incorporation of the Company and as to all other matters governed by
the laws of the States of Kansas, Arkansas and Oklahoma, and covered
by their respective opinions, upon the opinions of Xxxxxxxx, Xxxx,
Xxxxxxxx, Xxxxxxxx & Xxxxxxxx; Xxxxxx, Xxxxxxxxxx & England,
Professional Corporation; and Xxxxxxx, Xxxxx & Xxxxx, P.C., referred
to above. Xxxxxxxx Xxxxxx LLP need not express any opinion with
respect to the matters set forth in paragraphs (i), (ii) and (iii) of
the opinion of Xxxxxxx, Xxxxx & Xxxxx, P.C. referred to above.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, counsel for the Company, representatives of the
independent accountants of the Company and representatives of the
Purchasers at which the contents of the Registration Statement and
Prospectus, and any subsequent amendments or supplements thereto, and
related matters were discussed and reviewed. Such counsel shall also
state that, on the basis of such participation (relying as to
materiality to a large extent upon the opinions of officers, counsel
and other representatives of the Company), but without independently
verifying, passing upon or assuming any responsibility for the
accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement and
Prospectus, or any subsequent amendments or supplements thereto, no
facts have come to the attention of such counsel which would lead such
counsel to believe that either the Registration Statement or the
Prospectus, and any subsequent amendments or supplements thereto, as
of their respective effective or issue dates, contained an un-
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true statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (it being understood that such counsel need make no
comment with respect to the financial statements and other financial
and statistical information included or incorporated by reference in
the Registration Statement or Prospectus or any such amendments or
supplements or the Forms T-1).
(g) You shall have received a letter or letters from the Company's
independent accountant(s), dated the Closing Date and addressed to you,
confirming that they are independent public accountants within the meaning
of the Act and the Rules and Regulations, and stating in effect that:
(i) In their opinion, the financial statements and schedule
examined by them which are included in the Company's most recent
Annual Report on Form 10-K, which is incorporated by reference in the
Prospectus (the "Form 10-K") comply as to form in all material
respects with the accounting requirements of the Act and the Rules and
Regulations and the Exchange Act and the Exchange Act Rules and
Regulations;
(ii) On the basis of procedures specified in such letter (but not
an examination in accordance with generally accepted auditing
standards), including reading the minutes of meetings of the
stockholders and the Board of Directors of the Company since the end
of the year covered by the Form 10-K as set forth in the minute books
through a specified date not more than five days prior to the Closing
Date, reading the unaudited interim financial statements of the
Company incorporated by reference in the Prospectus and the latest
available unaudited interim financial statements of the Company, and
making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters, nothing has come
to their attention that has caused them to believe that (1) any
unaudited financial statements incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
accounting requirements of the Act and the Rules and Regulations and
the Exchange Act and the Exchange Act Rules and Regulations; (2) the
latest available financial statements, not incorporated by reference
in the Prospectus, have not been prepared on a basis substantially
consistent with that of the audited financial statements incorporated
in the Prospectus; (3) for the period from the closing date of the
latest income statement incorporated by reference in the Prospectus to
the closing date of the latest available income statement read by them
there were any decreases, as compared with the corresponding period of
the previous year, in operating revenues, operating income or net
income or in the ratio of earnings to fixed charges; or (4) at a
specified date not more than five business days prior to the Closing
Date, there was any change in the capital stock or long-term debt of
the Company or, at such date, there was any decrease in net assets of
the Company as compared with amounts shown in the latest balance sheet
incorporated by reference in the Prospectus, except in all cases for
changes or decreases which the Prospectus discloses have occurred or
may occur, or which are described in such letter; and
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(iii) Certain specified procedures have been applied to certain
financial or other statistical information (to the extent such
information was obtained from the general accounting records of the
Company) set forth or incorporated by reference in the Prospectus and
that such procedures have not revealed any disagreement between the
financial and statistical information so set forth or incorporated and
the underlying general accounting records of the Company, except as
described in such letter.
(h) On the Closing Date there shall have been furnished to you a
certificate, dated the Closing Date, from the Company, signed on behalf of
the Company by the President, or the Vice President-Finance, stating in
effect that to the best knowledge of the officer signing such certificate
and except as may be reflected in or contemplated by the Registration
Statement or stated in such certificate (i) the representations and
warranties of the Company contained in Section 3 of this Agreement are
correct and the Company has complied with all the agreements and satisfied
all the conditions to be performed or satisfied on its part at or prior to
the Closing Date; (ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending, or, to the knowledge of the signer
thereof, are contemplated under the Act; and (iii) subsequent to the
respective dates as of which information is given in the Registration
Statement and Prospectus, as supplemented or amended, there has been no
material adverse change in the financial position or results of operations
of the Company.
(i) Trading in securities on the New York Stock Exchange shall not
have been suspended nor shall minimum prices have been established on such
Exchange; a banking moratorium shall not have been declared by New York or
Missouri or United States authorities; and there shall not have been an
outbreak of major hostilities between the United States and any foreign
power, or any other new insurrection or armed conflict involving the United
States which, in your reasonable judgment, makes it impracticable to
proceed with the public offering or the delivery of the Purchased Common
Stock on the terms and in the manner contemplated in the Prospectus.
(j) If a public offering of the Purchased Common Stock is to be made,
subsequent to the date of this Agreement and prior to the Closing Date, no
rating of any of the Company's debt securities by any nationally recognized
rating agency shall have been lowered by such agency.
(k) The representations and warranties of the Company herein shall be
true and correct in all material respects 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.
(l) 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.
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(m) The New York Stock Exchange, Inc. shall have approved for listing
upon official notice of issuance, the Purchased Common Stock.
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 against the losses, claims, damages or liabilities, joint or several,
to which such Purchaser or such controlling person may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto or any related preliminary prospectus, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and will reimburse such Purchaser 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 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 will indemnify and hold harmless the Company, each
of its directors, each of its officers who has signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of the Act, against any losses, claims, damages or liabilities to
which the Company or any such director, officer or controlling person may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or action in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus or any
amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Purchaser
specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer
or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action. The indemnification
obligation contained in this Section 7 will be in addition to any liability
which the Purchasers may otherwise have.
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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 on the cover page of the Prospectus Supplement and
under "Underwriting" or similar caption therein.(2)
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 7. In case any action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel selected by the indemnifying party and acceptable to the
indemnified party (the indemnified party shall not unreasonably reject such
counsel), and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section 7 for
any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the employment of
counsel by such indemnified party has been authorized by the indemnifying
party, (ii) the indemnified party shall have reasonably concluded that
there may be a conflict of interest between the indemnifying party and the
indemnified party in the conduct of the defense of such action (in which
case the indemnifying party shall not have the right to direct the defense
of such action on behalf of the indemnified party) or (iii) the
indemnifying party shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of one
counsel representing all indemnified parties shall be at the expense of the
indemnifying party. An indemnifying party shall not be liable for any
settlement of any action or claim effected without its consent.
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
----------
2 Specific language to be identified.
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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 prior to the Closing
Date or, with respect to the Additional Common Stock, the Additional
Closing Date, by the Purchasers by written notice to the Company, if in the
reasonable judgment of the Purchasers it is impracticable to offer for sale
or to enforce contracts made by the Purchasers for the resale of the Firm
Common Stock or the Additional Common Stock, as the case may be, by reason
of (i) the Company sustaining a loss, whether or not insured, by reason of
fire, flood, accident or other calamity, which, in the reasonable opinion
of the Purchasers, substantially affects the value of the properties of the
Company or which materially interferes with the operation of the properties
of the Company or which materially interferes with the operation of the
business of the Company, (ii) trading in securities on the New York Stock
Exchange having been suspended or limited or minimum prices having been
established on such Exchange, (iii) a banking moratorium having been
declared by the United States, or by New York or Missouri state
authorities, or (iv) an outbreak 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.
(b) If this Agreement shall be terminated pursuant to Section 6, 11 or
this Section 9, or if the purchase of the Firm Common Stock or the
Additional Common Stock, if any, by the Purchasers is not consummated
because of any refusal, inability or failure on the part of the Company to
comply with any of the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform all
the obligations under this Agreement, the Company shall not be liable to
the Purchasers for damages arising out of the transactions covered by this
Agreement, but the Company and the Purchasers shall remain liable to the
extent provided in Sections 5(a), 7 and 8 hereof.
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
-15-
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 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 the Additional Closing Dated, 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 (Attn: Vice President - Finance) telecopier: (417)
625-5153 (or such other place as the Company may specify in writing).
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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.
