Exhibit 1(d)
EMPIRE DISTRICT ELECTRIC COMPANY
PREFERENCE STOCK
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
The Empire District Electric Company
Form of Purchase Agreement
Preference Stock
---------------------
(Date)
The Empire District Electric Company
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We refer to the Preference Stock, no par value, of The Empire District
Electric Company (the "Company"), a Kansas corporation, covered by Registration
Statement No. 333-______, which became effective on _________________ (the
"Registration Statement"). On the basis of the representations, warranties and
agreements contained in this Agreement, but subject to the terms and conditions
herein set forth, the purchaser or purchasers named in Schedule A hereto (the
"Purchasers") agree to purchase, severally, and the Company agrees to sell to
the Purchasers, severally, the respective numbers of shares of the Company's
Preference Stock referred to below (the "Firm Preference Stock") set forth
opposite the name of each Purchaser on Schedule A hereto. The Company also
grants to the Purchasers an option to purchase _______ additional shares of
the Company's Preference Stock (the "Additional Preference Stock") on the terms
and conditions contained in this Agreement for the sole purpose of covering
over-allotments. The Firm Preference Stock and the Additional Preference Stock
are collectively referred to as the "Purchased Preference Stock."
The price at which the Purchased Preference Stock shall be purchased from
the Company by the Purchasers shall be $______ per share. The initial public
offering price shall be $______ per share. The Purchased Preference Stock will
be offered as set forth in the Prospectus Supplement relating to such Purchased
Preference Stock.
The Purchased Preference Stock will have the following terms:
Title: __________________
Liquidation Amount at Maturity: __________________
Dividend Rate: __________________
Dividend Payment Dates: __________________
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Maturity: __________________
Redemption Provisions: __________________
Listing: __________________
The "Closing Date" (as
defined in Section 2
of the Company's
Standard Purchase
Provisions -- Preference
Stock) shall be: __________________
The closing of the
purchase and sale of
the Purchased Preference
Stock shall take place at: __________________
The purchase price for
the Purchased Preference
Stock shall be paid by: __________________
The funds used to pay
for the Purchased Preference
Stock shall be: __________________
Other: __________________
Notice to the Purchasers shall be sent to the addresses set forth in
Schedule A hereto:
If we are acting as Representative(s) for the several Purchasers named in
Schedule A hereto, we represent that we are authorized to act for such several
Purchasers in connection with this financing, and that, if there are more than
one of us, any action under this Agreement taken by any of us will be binding
upon all the Purchasers.
All of the provisions contained in the document entitled "The Empire
District Electric Company, Standard Purchase Provisions--Preference Stock," a
copy of which has been previously furnished to us, are hereby incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein.
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If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the several Purchasers in
accordance with its terms.
Very truly yours,
[NAME OF PURCHASER]
By:
----------------------------------------
Name:
Title:
Acting on behalf of itself and as
Representative(s) of the several Purchasers
named in Schedule A hereto.(1)
The foregoing Purchase
Agreement is hereby confirmed
as of the date first above written
THE EMPIRE DISTRICT ELECTRIC COMPANY
By: _______________________________
Name:
Title:
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1 To be deleted if the Purchase Agreement is not executed by one or more
Purchasers acting as Representative(s) of the Purchasers for purposes of
this Agreement.
SCHEDULE A TO PURCHASE AGREEMENT
Number of Shares of
Address and Firm Preference Stock
Name Telecopier Number to Be Purchased
Total _____________________
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THE EMPIRE DISTRICT ELECTRIC COMPANY
STANDARD PURCHASE PROVISIONS - PREFERENCE STOCK
From time to time, The Empire District Electric Company, a Kansas
corporation ("Company"), may enter into purchase agreements that provide for the
sale of shares of the Company's preference stock to the purchaser or purchasers
named therein. The standard provisions set forth herein may be incorporated by
reference in any such purchase agreement ("Purchase Agreement"). The Purchase
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as "this Agreement." Unless otherwise defined herein,
terms defined in the Purchase Agreement are used herein as therein defined.
1. Introductory. The Company proposes to issue and sell, from time to time,
preference stock, no par value, registered under the registration statement
referred to in Section 3(a) ("Preference Stock"). The shares of Preference Stock
referred to on Schedule A of the Purchase Agreement are hereinafter referred to
as the "Firm Preference Stock." The Purchase Agreement may provide for an
additional number of shares of Preference Stock (the "Additional Preference
Stock") which the purchasers may purchase on the terms and conditions set forth
in this Agreement for the sole purpose of covering over-allotments. The Firm
Preference Stock and the Additional Preference Stock, if any, are collectively
referred to as the "Purchased Preference Stock." The firm or firms, as the case
may be, which agree to purchase the Purchased Preference Stock are hereinafter
referred to as the "Purchasers" of such Purchased Preference Stock. The terms
"you" and "your" refer to those Purchasers (or the Purchaser) who sign the
Purchase Agreement either on behalf of themselves (or itself) only or on behalf
of the several Purchasers named in Schedule A thereto, as the case may be.
2. Sale and Delivery of Preference Stock. Subject to the terms and
conditions set forth in this Agreement, the Company will deliver the Firm
Preference Stock to you for the account of the Purchasers, at the place set
forth in the Purchase Agreement against payment of the purchase price therefor
by wire transfer or certified or official bank check or checks in immediately
available funds or clearing house funds payable to the order of the Company, all
as set forth in the Purchase Agreement, at the time set forth in the Purchase
Agreement or at such other time not later than seven full business days
thereafter as you and the Company determine, such time being herein referred to
as the "Closing Date." The Company agrees to make available to you for
inspection and packaging at the place set forth in the Purchase Agreement, at
least one full business day prior to the Closing Date, the Firm Preference Stock
so to be delivered in good delivery form and in such denominations and
registered in such names as you shall have requested, all such requests to have
been made in writing at least three full business days prior to the Closing
Date, or if no such request is made, registered in the names of the several
Purchasers as set forth in Schedule A to the Purchase Agreement.
The Closing Date and the Additional Closing Date may be the same. If there
is any Additional Preference Stock, the Purchasers shall have the option to
purchase, severally and not jointly, from the Company, ratably in accordance
with the number of shares of Firm Preference Stock to be purchased by each of
them (subject to such adjustment as you shall determine to avoid fractional
shares), all or a portion of the Additional Preference Stock, if any, as may be
necessary to cover over-
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allotments made in connection with the offering of the Firm Preference Stock, at
the same purchase price per share to be paid by the Purchasers to the Company
for the Firm Preference Stock, all subject to the terms and conditions set forth
in this Agreement. This option may be exercised at any time (but not more than
once) on or before the thirtieth day following the date hereof, by your written
notice to the Company. Such notice shall set forth the aggregate number of
shares of Additional Preference Stock as to which the option is being exercised,
and the date and time when the Additional Preference Stock is to be delivered
(such date and time being herein referred to as the "Additional Closing Date");
provided, however, that the Additional Closing Date shall not be earlier than
the Closing Date nor earlier than the third business day after the date on which
the option shall have been exercised nor later than the eighth business day
after the date on which the option shall have been exercised. The number of
shares of Additional Preference Stock to be sold to each Purchaser shall be the
number which bears the same proportion to the aggregate number of shares of
Additional Preference Stock being purchased as the number of shares of Firm
Preference Stock set forth opposite the name of such Purchaser on Schedule A to
the Purchase Agreement bears to the total number of shares of Firm Preference
Stock (subject, in each case, to such adjustment as you may determine to
eliminate fractional shares).
Payment of the purchase price for the Additional Preference Stock, if any,
shall be made on the Additional Closing Date in the same manner and at the same
office as the payment for the Firm Preference Stock. The Company agrees to make
available to you for inspection and packaging at the place set forth in the
Purchase Agreement, at least one full business day prior to the Additional
Closing Date, the Additional Preference Stock so to be delivered in good
delivery form and in such denominations and registered in such names as you
shall have requested, all such requests to have been made in writing at least
three full business days prior to the Additional Closing Date, or if no such
request is made, registered in the names of the several Purchasers as set forth
in Schedule A to the Purchase Agreement.
If the Additional Closing Date occurs after the Closing Date, then the
obligation of the Purchasers to purchase the Additional Preference Stock shall
be conditioned upon receipt of supplemental opinions, certificates and letters
confirming as of the Additional Closing Date the opinions, certificates and
letters delivered on the Closing Date pursuant to Section 6 hereof.
3. Representations and Warranties of the Company. The Company represents
and warrants to each Purchaser that:
(a) The registration statement referred to in the Purchase Agreement
and relating to the Preference Stock, including a prospectus and all
documents incorporated by reference therein, has been filed on Form S-3
with the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, including the prospectus supplement
with respect to the Purchased Preference Stock referred to in Section 2
(the "Prospectus Supplement") and all prior amendments and supplements
thereto (other than supplements and amendments relating to securities that
are not Purchased Preference Stock) and all documents filed as a part
thereof or incorporated therein pursuant to Item 12 of Form S-3 (other than
the Statements of Eligibility and Qualification of trustees filed as a part
thereof (the "Forms T-1")), is hereinafter referred to as the "Registration
Statement" and such
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prospectus, as so amended or supplemented (including all material so
incorporated by reference therein), in the form first filed by the Company
pursuant to Rule 424(b) under the Act is hereinafter referred to as the
"Prospectus."
(b) The Registration Statement and the Prospectus conform in all
respects to the requirements of the Securities Act of 1933, as amended
("Act"), and the pertinent published rules and regulations ("Rules and
Regulations") of the Commission, and none of such documents includes any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements or
omissions in either of such documents based upon written information
furnished to the Company by any Purchaser specifically for use therein. The
documents incorporated by reference in the Registration Statement or the
Prospectus pursuant to Item 12 of Form S-3 under the Act, at the time they
were filed with the Commission, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the pertinent published rules and regulations
thereunder (the "Exchange Act Rules and Regulations") and any additional
documents deemed to be incorporated by reference in the Prospectus will,
when they are filed with the Commission, comply in all material respects
with the requirements of the Exchange Act and the Exchange Act Rules and
Regulations and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
4. Agreements of the Company. The Company agrees with the several
Purchasers that:
(a) The Company will advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus with respect to any
Purchased Preference Stock, and will furnish you a copy thereof prior to
the filing thereof with the Commission.
(b) The Company will furnish to you copies of the registration
statement relating to the Preference Stock as originally filed and all
amendments thereto (at least one of which will be signed and will include
all exhibits except those incorporated by reference to previous filings
with the Commission), each related prospectus, the Prospectus, and all
amendments and supplements to such documents (except amendments to exhibits
and supplements relating to Preference Stock that is not Purchased
Preference Stock), in each case as soon as available and in such quantities
as you reasonably request for the purposes contemplated by the Act.
(c) If at any time when a prospectus relating to the Purchased
Preference Stock is required to be delivered under the Act or the Rules and
Regulations, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which made, not misleading, or
if it is necessary at any time to amend or supplement the Prospectus to
comply with the Act or the Rules and
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Regulations, the Company will promptly notify the Purchasers and promptly
prepare and file with the Commission an amendment or supplement to the
Registration Statement or any appropriate filing pursuant to Section 13 or
14 of the Exchange Act which will correct such statement or omission or an
amendment which will effect such compliance, and deliver in connection
therewith, such Prospectus or amendments or supplements to the Purchasers
in such quantity as may be necessary to permit compliance with the
requirements of the Act and the Rules and Regulations, provided that the
Company shall be so obligated only so long as the Company is notified of
unsold allotments (failure by the Purchasers to so notify the Company
cancels the Company's obligation under this Section 4(c)), and provided
further that any such Prospectus or amendment or supplement required later
than nine months from the date hereof shall be furnished at the Purchasers'
sole expense.
(d) The Company will cooperate with the Purchasers in taking such
action as may be necessary to qualify the Purchased Preference Stock for
offering and sale under the securities laws of any state or jurisdiction of
the United States as the Purchasers may reasonably request and will use its
best efforts to continue such qualification in effect so long as required
for the distribution of the Purchased Preference Stock; provided, however,
that the Company shall not be required to qualify as a foreign corporation,
or to file a general consent to service of process, in any such state or
jurisdiction or to comply with any other requirement deemed by the Company
to be unduly burdensome.
(e) The Company will make generally available to its security holders
as soon as practicable an earning statement (as contemplated by Rule 158
under the Act) covering a period of twelve months after the effective date
of the Registration Statement.
(f) For a period of one year, the Company will furnish to you copies
of any report or definitive proxy statement which the Company shall file
with the Commission under the Exchange Act, and copies of all reports and
communications which shall be sent to stockholders generally, at or about
the time such reports and other information are first furnished to
stockholders generally.
(g) The Company will apply the net proceeds from the offering of the
Purchased Preference Stock as set forth under the caption "Use of Proceeds"
in the Prospectus Supplement.
(h) If a public offering of the Purchased Preference Stock is to be
made, the Company will not offer or sell any of its other Preference Stock
(other than pursuant to any employee benefit or other plan in effect on the
date of this Agreement) prior to 120 days after the Closing Date without
the consent of the Purchasers.
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
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costs and expenses in connection with (i) the preparation and filing of the
Registration Statement and Prospectus and any supplements or amendments
thereto; (ii) the preparation, issuance and delivery to the Purchasers of
the Purchased Preference Stock (other than transfer taxes); (iii) the
listing of the Purchased Preference Stock on the New York Stock Exchange;
(iv) the reproduction or printing and mailing in reasonable quantities of
the Registration Statement and amendments thereto, each preliminary
prospectus, the Prospectus and any amendments or supplements thereto, this
Agreement, any Blue Sky memoranda delivered to the Purchasers; (v)
reasonable filing fees and expenses (including legal fees and
disbursements, not in excess of $5,000) incurred in connection with the
qualification of the Purchased Preference Stock under the Blue Sky or
securities laws of the various states, and the preparation of Blue Sky
memoranda for the offering; (vi) the fees and expenses of the transfer
agent and registrar for the Purchased Preference Stock; (vii) the fees and
expenses of the accountants and the counsel for the Company; and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section.
(b) The Purchasers will pay (i) the fees and disbursements of their
respective counsel, except as set forth in Section 5(a) above, and (ii)
their own out-of-pocket expenditures.
6. Conditions of the Purchasers' Obligations with Respect to Firm
Preference Stock. The obligations of the Purchasers to purchase and pay for the
Firm Preference Stock shall be subject in their discretion to the accuracy of
and compliance in all material respects with the 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 Purchased Preference Stock has been duly authorized,
and, when issued and delivered to and paid for by the Purchasers
pursuant to this Agreement, will be fully paid and non-assessable; and
the Purchased Preference Stock conforms as to legal matters in all
material respects to the descriptions thereof contained in or
incorporated by reference into the Prospectus;
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(iii) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Preference Stock have been obtained; any conditions
in such approvals required to be satisfied prior to the issuance of
the Purchased Preference Stock have been duly satisfied; such
approvals are in full force and effect; and no further approval,
authorization, consent or other order of any public board or body in
the State of Kansas is legally required for the issuance, sale and
delivery of the Purchased Preference Stock or the execution, delivery
and performance by the Company of this Agreement (it being understood
that such counsel need express no opinion as to any approvals which
may be required under the securities acts or Blue Sky laws of said
state); 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
Preference Stock nor the execution, delivery and performance by the
Company of this Agreement will conflict with, violate or result in the
breach of any Missouri law or administrative regulation or any court
decree known to such counsel applicable to the Company (it being
understood that such counsel need express no opinion as to matters
subject to the jurisdiction of the Public Service Commission of the
State of Missouri, the Corporation Commission of Oklahoma, the State
Corporation Commission of the State of Kansas or the Arkansas Public
Service Commission or as to the securities or Blue Sky 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,
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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 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 Preference Stock or the execution , delivery and
performance by the Company of this Agreement (it being understood that such
counsel need express no opinion as to any approvals which may be required
under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of
Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Company, to the effect that:
(i) The Purchased Preference Stock has been duly authorized and,
when issued and delivered to and paid for by the Purchasers pursuant
to this Agreement, will be fully paid and non-assessable and conform
as to legal matters in all material
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respects to the description thereof contained in or incorporated by
reference into the Prospectus;
(ii) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Preference Stock have been obtained, and such counsel
knows of no approval of any other governmental regulatory body which
is legally required in connection therewith (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 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
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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 Preference Stock has been duly authorized and,
when issued and delivered to and paid for by the Purchasers pursuant
to this Agreement, will be fully paid and non-assessable and conform
as to legal matters in all material respects to the descriptions
thereof contained in or incorporated by reference into the Prospectus;
(ii) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Preference Stock have been obtained, and such counsel
knows of no approval of any other governmental regulatory body which
is legally required in connection therewith (other than any approvals
required under the securities acts or Blue Sky laws of any
jurisdiction);
(iii) The Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, 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
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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 untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (it being understood that such
counsel need make no comment with respect to the financial statements and
other financial and statistical information included or incorporated by
reference in the Registration Statement or Prospectus or any such
amendments or supplements or the Forms T-1).
(g) You shall have received a letter or letters from the Company's
independent 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
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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
(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
Preference Stock on the terms and in the manner contemplated in the
Prospectus.
(j) If a public offering of the Purchased Preference Stock is to be
made, subsequent to the date of this Agreement and prior to the Closing
Date, no rating of any of the
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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.
(m) If the Purchased Preference Stock is to be listed on the New York
Stock Exchange, Inc. ("NYSE"), the NYSE shall have approved for listing
upon official notice of issuance, the Purchased Preference Stock.
7. Indemnification.
(a) The Company will indemnify and hold harmless each Purchaser 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
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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.
In addition to any other information the Purchasers may furnish, the
Purchasers hereby furnish to the Company specifically for use in the Prospectus
the information with respect to the offering of the Purchased Preference Stock
and the Purchasers set forth on the cover page of the Prospectus Supplement and
under "Underwriting" or similar caption therein.(2)
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 7. In case any action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel selected by the indemnifying party and
acceptable to the indemnified party (the indemnified party shall not
unreasonably reject such counsel), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the employment of counsel by
such indemnified party has been authorized by the indemnifying party, (ii) the
indemnified party shall have reasonably concluded that there may be a conflict
of interest between the indemnifying party and the indemnified party in the
conduct of the defense of such action (in which case the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in fact have
employed counsel to assume the defense of such action, in each of which cases
the fees and expenses of one counsel representing all indemnified parties shall
be at the expense of the indemnifying party. An indemnifying party shall not be
liable for any settlement of any action or claim effected without its consent.
----------
2 Specific language to be identified.
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8. Contribution. If recovery is not available under the foregoing
indemnification provisions of Section 7 of this Agreement, for any reason other
than as specified therein, the parties entitled to indemnification by the terms
thereof shall be entitled to contribution to liabilities and expenses, except to
the extent that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each party
from the offering of the Purchased Preference Stock (taking into account the
portion of the proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Company and the Purchasers agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Purchasers were treated as one entity for such
purpose). No Purchaser or any person controlling such Purchaser shall be
obligated to make contribution hereunder which in the aggregate exceeds the
total public offering price of the Purchased Preference Stock purchased by such
Purchaser, less the aggregate amount of any damages which such Purchaser and its
controlling persons have otherwise been required to pay in respect of the same
claim or any substantially similar claim.
9. Termination.
(a) This Agreement may be terminated at any time prior to the Closing Date
or, with respect to the Additional Preference Stock, the Additional Closing
Date, by the Purchasers by written notice to the Company, if in the reasonable
judgment of the Purchasers it is impracticable to offer for sale or to enforce
contracts made by the Purchasers for the resale of the Firm Preference Stock or
the Additional Preference Stock, as the case may be, by reason of (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 Preference Stock or the Additional
Preference Stock, if any, by the Purchasers is not consummated because of any
refusal, inability or failure on the part of the Company to comply with any of
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform all the obligations under this
Agreement, the Company shall not be liable to the Purchasers for damages arising
out of the transactions covered by this Agreement, but the Company and the
Purchasers shall remain liable to the extent provided in Sections 5(a), 7(a) and
8 hereof.
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10. Survival of Indemnities, Representations and Warranties. The respective
indemnities and agreements for contribution of the Company and the Purchasers
and the respective representations and warranties of the Company and the
Purchasers set forth in this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or the
Purchasers or any of their respective officers, directors, partners or any
controlling person, and will survive delivery of and payment for the Purchased
Preference Stock or termination of this Agreement.
11. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Firm Preference Stock or Additional Preference Stock, as
the case may be, hereunder and the aggregate number of shares of Firm Preference
Stock or Additional Preference Stock, as the case may be, which such defaulting
Purchaser or Purchasers agreed but failed to purchase is equal to or less than
10% of the total number of shares of Firm Preference Stock or Additional
Preference Stock, as the case may be, you may make arrangements satisfactory to
the Company for the purchase of such Firm Preference Stock or Additional
Preference Stock, as the case may be, by other persons, including any of the
Purchasers, but if no such arrangements are made by the Closing Date or the
Additional Closing Date, as the case may be, the non-defaulting Purchasers shall
be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Firm Preference Stock or Additional Preference Stock, as the
case may be, which such defaulting Purchasers agreed but failed to purchase. If
any Purchaser or Purchasers so default and the aggregate amount of Firm
Preference Stock or Additional Preference Stock, as the case may be, with
respect to which such default or defaults occur is more than the above
percentage and arrangements satisfactory to you and the Company for the purchase
of such Firm Preference Stock or Additional Preference Stock, as the case may
be, by other persons are not made within thirty-six hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Purchaser or the Company, except as provided in Section 10 and
except that any default by a Purchaser with respect to the purchase of
Additional Preference Stock shall not affect the obligations of the Purchasers
to purchase the Firm Preference Stock. In the event that any Purchaser or
Purchasers default in their obligation to purchase Firm Preference Stock or
Additional Preference Stock, as the case may be, hereunder, the Company may, by
prompt written notice to the non-defaulting Purchasers, postpone the Closing
Date and the Additional Closing Date, as the case may be, for a period of not
more than seven full business days in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents, and the Company will promptly file any amendments to the
Registration Statement or supplements to the Prospectus which may thereby be
made necessary. As used in this Agreement, the term "Purchaser" includes any
person substituted for a Purchaser under this Section. Nothing herein will
relieve a defaulting Purchaser from liability for its default.
12. Parties in Interest. This Agreement shall inure to the benefit of the
Company, the Purchasers, the officers, directors and partners of such parties,
each controlling person referred to in Section 7 hereof, and their respective
successors. Nothing in this Agreement is intended or shall be construed to give
to any other person, firm or corporation (including, without limitation, any
purchaser of the Purchased Preference Stock from a Purchaser or any subsequent
holder thereof) any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained.
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The term "successor" as used in this Agreement shall not include any
purchaser, as such purchaser, of any Purchased Preference Stock from any
Purchaser or any subsequent holder thereof.
This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof, and supersedes any agreement previously
entered into.
13. Notices. All communications, terminations and notices hereunder shall
be in writing and, if sent to any Purchaser, shall be mailed, delivered or
telecopied and confirmed to it by letter to the address set forth for such
Purchaser in Schedule A to the Purchase Agreement (or such other place as the
Purchaser may specify in writing); if sent to the Company shall be mailed,
delivered or telecopied and confirmed to the Company at 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxx 00000 (Attn: Vice President - Finance), telecopier: (417)
625-5153 (or such other place as the Company may specify in writing).
14. Counterparts. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
